What is an Anti-SLAPP Motion ?
SLAPP stands for: "strategic lawsuit against public participation".
California Code of Civil Procedure Section 425.16, subdivision (b)(1), provides:
"A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
In ruling on an anti-SLAPP motion, the trial court engages in a twostep analysis.
First, the defendant must show the activity underlying the cause of action is constitutionally protected. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
If so, then the plaintiff must show a likelihood of prevailing on the cause of action. (Ibid.)
In meeting that burden, "the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' " (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
"Only a cause of action that satisfies both prongs of the anti SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal merit is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
On appeal, we examine both questions de novo, "conducting an independent review of the entire record. " (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212, see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.)
The Following cases considered the applicability of the SLAPP statute when the underlying activity or action was "illegal as a mater of law."
In Flately v. Mauro (2006) 39 Cal.4th 299, the defendant's acts that formed the basis for the plaintiff's lawsuit constituted criminal extortion as a matter of law and thus were not protected by the SLAPP statute. (Flately, supra, 39 Cal.4th at p. 330.)
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 considered the applicability of the SLAPP statute to "SLAPPbacks" (i.e., a malicious prosecution/abuse of process action that arises out of a prior action that was itself dismissed pursuant to an anti-SLAPP motion). ( 425.18, subd. (b)(1).) A SLAPPback lawsuit is not subject to an anti-SLAPP motion if the underlying lawsuit was "illegal as a matter of law." ( 425.18, subd. (b)(1).)
In Soukup, the court concluded there had been no showing the lawsuit underlying her SLAPPback action was "illegal as a matter of law" because the plaintiff could not demonstrate with particularity any statute the defendants had violated by filing the underlying action-a generalized claim the defendants' conduct was illegal would not suffice. (Soukup, supra, 39 Cal.4th at p. 287.)