[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is firstname.lastname@example.org, and his phone number is 323-452-9909.]
A Prevailing Defendant is Entitled to Attorneys’ Fees
California’s anti-SLAPP statute, Code of Civil Procedure § 425.16, allows for a defendant to file a special motion to strike against a claim in a lawsuit “arising from any act of that person in furtherance of the person's right of petition or free speech…in connection with a public issue…unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Anti-SLAPP motions are most common in defamation lawsuits. An anti-SLAPP motion may be brought by a defendant to a complaint or a cross-defendant to a cross-complaint. However, this article will assume that the party bringing the anti-SLAPP motion is a defendant sued for defamation in the original complaint. (For those curious, “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” Cute.)
If a plaintiff’s anti-SLAPP motion is successful, the defendant must pay the prevailing plaintiff’s attorneys’ fees incurred both in litigating the anti-SLAPP motion and in requesting the fee award itself (so-called “fees on fees”). If the court grants a plaintiff’s request to take discovery related to the anti-SLAPP motion, the award of attorneys’ fees should include the fees incurred in connection with that discovery. Jackson v. Yarbray, 179 Cal.App.4th 75, 92-93 (2009). However, the defeated plaintiff is not required to pay the defendant’s attorneys’ fees incurred on tasks unrelated to the anti-SLAPP motion, such as responding to the complaint, preparing a summary judgment motion, or attacking service of process. 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., 6 Cal.App.5th 426, 433 (2016).
A plaintiff who defeats an anti-SLAPP motion may only receive compensation for its own attorneys’ fees and costs If the court finds that the anti-SLAPP motion was “frivolous” or was “solely intended to cause unnecessary delay.” Cal.C.Civ.P. 425.16(c)(1). This is a difficult standard to show. Plaintiffs rarely are awarded attorneys’ fees.
The Mechanics of an anti-SLAPP Motion
In state court in California, a party may file an anti-SLAPP motion within 60 days of being served with the complaint or cross-complaint.
Upon the filing of an anti-SLAPP motion, discovery is stayed (stopped). However, the court has discretion to grant a plaintiff’s request to conduct limited discovery related to the anti-SLAPP motion. An example of when discovery is likely to be allowed is in cases related to a matter of public concern where the plaintiff must show that the defendant acted with negligence or actual malice. See Christian Research Institute v. Alnor, 148 Cal.App.4th 71, 93 (2007).
A court hearing an anti-SLAPP motion conducts a two-part test. Under the first prong, the defendant must show that the plaintiff’s claim or claims arise from the defendant’s exercise of the rights of free speech or petition. Usually whether the claims arise from protected activity is based off the allegations in the complaint themselves. However, the defendant may file evidence with the court that provides additional context in certain scenarios. Note that the defendant need not show either that the plaintiff intended to impede the defendant’s exercise of legally protected activity or that the defendant’s rights were indeed impeded. Equilon Enterprises, LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 58-59 (2002).
If the defendant shows that the plaintiff’s claims arise from the defendant’s exercise of the rights of free speech or petition, the plaintiff then has the burden to establish a “probability” of prevailing on the merits. This means that there is enough evidence for a reasonable jury to rule in favor of the plaintiff. The question is whether a reasonable jury could rule in favor of the plaintiff, not whether a reasonable jury probably would rule in favor of the plaintiff. Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, 291 (2006). The plaintiff must provide actual evidence, usually through declarations that the statements are false.
A question that may arise in determining whether the plaintiff has a “probability’ of prevailing on the merits is whether the statements being sued over contain actual assertions of fact. Mere opinions cannot be legally defamatory. However, an opinion that contains an implied false assertion of fact might be legally defamatory. Ringler Associates Inc. v. Maryland Cas. Co., 80 Cal.App.4th 1165, 1181 (2000).
Additionally, if the speech regards a matter of public concern, the plaintiff will have to make a showing that a jury could reasonably find that the defendant acted negligently or with a reckless disregard for the truth. A showing of negligence is required if the plaintiff is a private figure, and reckless disregard for the truth is required if the plaintiff is a public figure. See Annette F. v. Sharon S., 119 Cal.App.4th 1146 (2004) (granting an anti-SLAPP motion where the plaintiff could not show a probability of prevailing on the question of whether the defendant had “actual malice” when making the statements).
Furthermore, some statements might receive complete protection (absolute privilege) or qualified protection from defamation lawsuits under California statutory law. Such statements may include those made during legal proceedings (absolutely privileged) or made in response to a request for information (qualifiedly privilege).
If a defendant loses the anti-SLAPP motion, the defendant is entitled to immediate appeal. The case is stayed (paused) in the trial court pending this immediate appeal. This appeal, known as an interlocutory appeal, will likely take approximately one year to be decided. This gives the defendant great power to cause delay.
[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is email@example.com and his phone number is 323-452-9909. This page is for educational purposes only. No legal advice or assistance are given.]