I’ll Huff and I’ll Puff — But then You’ll Blow My Case Away: Dealing with Dismissed and Bad-Faith Defendants Under California’s Anti-SLAPP Statute

89 Pages Posted: 24 Sep 2014

See all articles by Jeremiah A. Ho

Jeremiah A. Ho

University of Massachusetts School of Law

Date Written: March 1, 2009

Abstract

Although the original enactment of California’s anti-SLAPP law was commendable, the law itself (section 425.16 of the California Civil Code) has its share of flaws. One particular wrinkle that the California appellate courts still have not ironed out in interpreting section 425.16 involves the situation where the filer of a SLAPP suit voluntarily dismisses his SLAPP suit against the victim. Because the goal of California’s anti-SLAPP statute is to deter the “chilling” effect of SLAPP suits upon the public’s ability to “petition for the redress of grievances” — which includes the cost put forth to defend such suits — the inquiry is whether the plaintiff-SLAPPer’s voluntary dismissal of his or her SLAPP suit is vindication enough to prompt a court to award the defendant-SLAPPee statutory attorney’s fees. If so, then the next question is what possible mechanisms would allow for this determination?

Another wrinkle arises when defendants file frivolous anti-SLAPP motions in California. When this occurs, these frivolous motions have been found to be wolves in sheep’s clothing: the defendants have abused the statute to cover what turns out to be an illegitimate use of the political process. In this scenario, the interference with constitutional petitioning rights is not direct, but indirect through the abuse of that particular First Amendment right. Currently, the standards for detecting such undesirable SLAPP defendants lack consistency and leave much room for reform.

In examining these two issues, this Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen. After introducing and evaluating the methods that courts have used to address these flaws, this Article will then uncover the complexities in the forest of SLAPP litigation in California, where legitimate petitioning rights can often be sabotaged by both sides of the bar, and offer normative solutions to help shore up the gaps for effective SLAPP suit reform.

Keywords: California SLAPP, Section 425.16, motion to strike, voluntary dismissal, bad faith defendants

Suggested Citation

Ho, Jeremiah A., I’ll Huff and I’ll Puff — But then You’ll Blow My Case Away: Dealing with Dismissed and Bad-Faith Defendants Under California’s Anti-SLAPP Statute (March 1, 2009). Whittier Law Review, Vol. 30, 2009. Available at SSRN: https://ssrn.com/abstract=2499861

Jeremiah A. Ho (Contact Author)

University of Massachusetts School of Law ( email )

333 Faunce Corner Road
N Dartmouth, MA 02747
United States
508-985-1156 (Phone)

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