June 2, 2020
Appellate Case No. B300449
In this unpublished opinion, the Court of Appeal decided that an anti-SLAPP motion was untimely even though it was filed within the sixty (60) day statutory time period following the filing and service of the targeted Second Amended Complaint.
The Court of Appeal so reasoned in part based on C.C.P. § 425.16(f), which requires anti-SLAPP motions to be filed within sixty (60) days of the targeted pleading or later, subject to the trial court’s discretion. As noted above, the anti-SLAPP motion was filed within this statutory sixty-day period.
The Taylor Court reasoned that the motion was untimely based on the California Supreme Court’s ruling in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645. In Newport Harbor, the California Supreme Court interpreted C.C.P. § 425.16(f) to “permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court’s discretion to permit a late motion)” (emphasis added). Id. In other words, if the original complaint contains similar factual allegations to those at issue in the anti-SLAPP motion targeting the amended complaint such that it could have been brought earlier, the court will consider the sixty-day deadline to run from the filing of the earlier complaint. Put yet another way, the plaintiff can argue that the defendant should have SLAPPed the original complaint and waived its statutory right to do so.
The brief take-away from this opinion is that if you are a defendant unsure about whether to file an anti-SLAPP motion, do it. Otherwise, you risk denial of your motion as being untimely.
Case Facts
The plaintiff is a former employee of defendant Cal State University, Long Beach. Taylor at *3. Non-party Jaime Williams was a former employee of an auxiliary organization of the school. Id. In 2018, Williams shot and killed two persons and injured a third person in Compton shortly after visiting the school campus. Id. The school investigated the incident, ostensibly discovered that plaintiff was a personal associate of Williams (he apparently was “stalking” the plaintiff), placed plaintiff on administrative leave, and then terminated her employment. Id.
Procedural Posture
The Taylor Court reviewed both the FAC and SAC allegations, ignoring the original Complaint (which presumably had no allegations that could be SLAPPed).
In her FAC, the plaintiff brought two causes of action that she titled “employment discrimination” and “invasion of privacy.” Taylor at *4. The plaintiff alleged in her FAC that she was wrongfully terminated and that her former employer invaded her privacy by “publicly disclos[ing] the private information [from a private employment investigation into plaintiff’s job performance] to persons having no need for such information or legitimate interest in knowing it.” Id. The Taylor plaintiff did not specify how the information was publicly disclosed, nor did she allege by whom or to whom it was disclosed, nor did she allege what was disclosed. Id. The plaintiff did specify the date on which this disclosure occurred, however – “on or about October 1, 2018.” Id.
After the trial court sustained defendant’s demurrer to plaintiff’s FAC, the plaintiff filed her SAC, adding more details to her previous allegations. She retitled her claims as being for race and sex based discrimination, as well as for “false light.” Taylor at *5. She specified that the public disclosure of information occurred, placing her in a false light, when defendant’s spokesperson and president spoke to the press on or around October 8, 2018, about plaintiff and her relationship to Williams. Id. She further alleged that these press comments “gave the impression” that plaintiff was fired because of her personal relationship with the murdering criminal Williams. Id.
The defendant filed its anti-SLAPP motion targeting this SAC, within 31 days of its filing. The plaintiff argued that it should be denied under the Newport Harbor rule, and the trial court agreed. It is unclear from the opinion whether defendant argued that the trial court should have exercised its discretion to rule on the merits of its motion, even if it was arguably untimely, but there are allusions to this within the appellate court’s opinion.
Taylor Court’s Analysis
The Taylor Court reviewed the Newport Harbor interpretation of C.C.P. § 425.16(f), compared the FAC allegations to the SAC allegations, and concluded that there was enough in the FAC for defendant to have filed the anti-SLAPP motion targeting the FAC. Taylor at *9 [“…defendant could have brought an anti-SLAPP motion targeting the second cause of action (invasion of privacy) in the FAC”].
Per Taylor, “while these allegations are minimal at best, they were sufficient to put defendant on notice that its exercise of free speech on a public issue was being litigated…. At that time, the parties could have debated what evidence plaintiff had that her public information had been wrongfully disclosed to the public.” Taylor at *10.
The Taylor Court rejected defendant’s argument that the false light count was substantively different than the invasion of privacy count, holding that false light claims are a “species of invasion of privacy.” Taylor at *10 (citing De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 865).
The Taylor Court also rejected defendant’s point that it had no idea what precise speech plaintiff was targeting prior to the SAC filing and therefore could not file an anti-SLAPP motion. Per the Taylor Court, “the identification of the speech at issue and whether it was wrongfully made to a public forum, such as a newspaper, were issues for the second prong of the anti-SLAPP analysis.” Taylor at *11.
The Taylor Court’s stated logic here runs counter to applicable caselaw. A court analyzing an anti-SLAPP motion must determine what actions are being targeted by a complaint on the first prong of the SLAPP analysis, not the second prong and the “burden” is on the “moving defendant” to do so, not the opposing plaintiff:
“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them…. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached” (emphasis added). Baral v. Schnitt(2016) 1 Cal.5th 376, 396.
“[T]he question is what is pled – not what is proven.” Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.
“It would be inappropriate for us to insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified, even if the parties suggest on appeal how plaintiffs might have intended to frame those claims or attempt to identify the specific conduct or assertions of statements alleged to be false on which plaintiffs intended to base such claims for relief. It is not our role to engage in what would amount to a redrafting of the first amended complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether that pleading that we have essentially drafted could survive an anti-SLAPP motion directed at it” (emphasis added). Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 621 [internal citations omitted].
“‘[D]efendants failed to make an initial prima facie showing on the first prong of the anti-SLAPP statute; in other words, defendants did not meet their burden to show that the allegedly defamatory statements were based on an act in furtherance of defendants’ rights of petition or free speech. Indeed, it is difficult, if not impossible, to see how defendants could have met this burden with plaintiff’s failure to specifically plead the allegedly defamatory statements…. [S]ection 425.16 has no mechanism for simply skipping over the first prong—defendants’ burden to show the statements were protected, and go directly to the second prong—plaintiff’s burden to show a probability of prevailing’” (emphasis added). Cent. Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 218 (quoting Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th611, 627-628).
This stated logic also does not make much sense from a practical standpoint. If a defendant does not know why defendant is being sued because a plaintiff fails to spell it out with any specificity in plaintiff’s complaint, how can a defendant meet its first prong burden of “identifying all allegations of protected activity”?
In this particular case, perhaps the Taylor Court felt that the October 1, 2018 date in the FAC, as well as the vague reference to “public” disclosure, was sufficient to put the defendant on notice that plaintiff had the two aforementioned press comments in mind when she filed her FAC. The problem is that defendant would have to infer or assume this point, and it is unclear from the opinion how many and what public disclosures defendant may have made in late September / early October 2018 about the plaintiff. An anti-SLAPP motion would be premised on assumed facts and allegations, instead of the actual facts and allegations set forth in the Complaint. Without confirmation from the plaintiff in her Opposition (or via SLAPP special discovery), a trial court would be hard-pressed to conclude that the moving defendant’s inferred claims actually were the plaintiff’s claims.
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While the Taylor Court spent a fair bit of time focusing on the Newport Harbor Ventures interpretation of 425.16(f). it spent near zero time analyzing the trial court’s refusal to exercise its discretion and hear the motion, even if it was technically late.
There is plenty of authority urging a trial court to exercise its discretion and hear and rule on an anti-SLAPP motion, even if it is untimely. As summarized in San Diegans for Open Gov’t v. Har Constr., Inc. (2015) 240 Cal.App.4th 611, 624, “a court ‘enjoys considerable discretion’ on whether to hear an arguably late-filed anti-SLAPP motion but it “must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60–day deadline is the general rule.” (quoting Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775-776, 782-784, 787. “In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings.” San Diegans, supra, 240 Cal.App.4th at 624 (citing Platypus, supra, 166 Cal.App.4th at 775–776, 782–784, 787, 83 Cal.Rptr.3d 95; see Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682).
“Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff.” San Diegans, supra, 240 Cal.App.4th at 624 (citing Platypus, supra, 166 Cal.App.4th at 787.
“The purpose of the time limitation is to permit ‘the defendant to test the foundation of the plaintiff’s action before having to ‘devote its time, energy and resources to combating’ a ‘meritless’ lawsuit….’ ” San Diegans, supra, 240 Cal.App.4th at 624 (citing Platypus, supra, 166 Cal.App.4th at 783. “The statutory deadline also seeks ‘to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings.’” Ibid.
In Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1188 the Court of Appeal explained the purpose of the sixty-day deadline at some length, i.e. to ensure “‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target’” (emphasis in original) (quoting Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [internal citations omitted]). Further per Hewlett-Packard, “[a] late anti-SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense.” Id.
Examples of published opinions affirming the denial of anti-SLAPP motions as untimely are relatively extreme.
In San Diegans, supra, the Court of Appeal held an anti-SLAPP motion as untimely and not subject to discretionary adjudication when it was filed over sixteen (16) months after the targeted complaint had been filed, the parties appeared before the court on various motions, and defendant served written discovery requests to which plaintiff responded. Then there was an additional seven-month delay on discovery while the parties waited for a hearing on defendant’s anti-SLAPP motion. 240 Cal.App.4th at 624.
In Hewlett-Packard, supra, the Court concluded the anti-SLAPP motion was untimely because it was brought close to two (2) years after the sixty-day period began to run, and was heard “on the last court day before trial” (emphasis in original). 239 Cal.App.4th at 1189. Further, per the online docket, the parties and the Court collectively filed 483 entries between the complaint filing and the anti-SLAPP motion filing, conducted extensive motion practice – including cross motions for summary judgment, participated in numerous hearings, and even conducted part of the bifurcated case trial. Id. at 1190.
In Chitsazzadeh, supra, the Court concluded the anti-SLAPP motion was untimely because it was brought close to two (2) months after the targeted complaint was filed. 199 Cal.App.4th at 680-681.
There also is plenty of authority, including statutory authority, whereby courts are supposed to broadly construe and apply the anti-SLAPP statute in a manner favorable to the First Amendment and the exercise of free speech. In 1997, the Legislature amended C.C.P. § 425.16(a), expressly instructing California Courts to “broadly… construe[]” this statute. Stats. 1997, ch. 271, § 1; amending 425.16(a). In 1999, the California Supreme Court further directed all California Courts “whenever possible… [to] interpret the First Amendment and section 425.16 in a manner ‘favorable to the exercise of freedom of speech, not to its curtailment.’” Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119 (quoting Bradbury v. Superior Court(1996) 49 Cal.App.4th 1170, 1176).
More generally, there is plenty of authority whereby trial courts are supposed to weed out unmeritorious cases via motion practice. “It is in the public interest, including the court’s interest in the efficient and economical administration of justice and the parties’ interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter.” Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 (citing Reader’s Digest Assn. v. Sup. Ct. (1984) 37 Cal.3d 244, 251-252; Blair v. Pitchess(1971) 5 Cal.3d 258, 284; DeLeon v. Commercial Manufacturing & Supply Co. (1983) 148 Cal.App.3d 336, 342; 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 274, pp. 573-574) [discussing purpose of summary judgment procedure]. “Justice requires that a defendant be entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.” Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1061 (citing Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 469; Larson v. Johannes (1970) 7 Cal.App.3d 491, 507).
Here in this unpublished opinion, the Taylor Court conducted no such analysis regarding the trial court’s exercise of discretion to hear an arguably untimely motion. It conducted no analysis on whether the trial court’s refusal to entertain defendant’s anti-SLAPP motion was consistent with the purpose of the anti-SLAPP statute, although it did touch on defendant’s proffered justification for its “late” filing. The Taylor Court simply repeated the trial court’s conclusion that defendant “failed ‘to establish good cause justifying the substantial delay in bringing this motion.’” Taylor at *7.
Given the Taylor Court’s acknowledgment that the plaintiff made “minimal at best” allegations sufficient to give notice to defendant of the nature of defendant’s targeted actions, that seems like good cause to hear the anti-SLAPP motion, even if it was technically filed late per the Newport Harbor rule. It is otherwise unclear from the opinion whether the parties conducted any discovery or significant motion practice prior to the filing of the Motion. Per the case docket online, it appears that at least one CMC was held, and a single Motion to Quash a subpoena was filed by the plaintiff about a week before defendant filed its anti-SLAPP motion.
Conclusions
The overall take-away for defendants facing dubious or possible SLAPP claims is to file the anti-SLAPP motion, even if it’s a stretch, even if the defendant has to infer or explain what exactly is being targeted because the plaintiff fails to provide sufficiently specific allegations in the complaint. Otherwise, a defendant faces denial of the anti-SLAPP motion for being untimely, as happened to defendant here. If the claim(s) are super vague, don’t forget to demurrer to the claim(s), too. Make sure your anti-SLAPP motion is heard before the demurrer or else your anti-SLAPP motion might be mooted by the demurrer ruling.
Since the California Supreme Court’s opinion in Baral v. Schnitt (2016) 1 Cal.5th 376, defense attorneys are now able to target selected portions of a plaintiff’s causes of action, so long as the discrete portions targeted comprise a distinct cause of action. CITE
If you are a plaintiff worried about a potential anti-SLAPP motion being filed against you based on a selected portion of your claims, this opinion provides some suggestions on how to avoid the potentially disastrous consequences of an adverse SLAPP motion ruling.
Per the Taylor Court’s stated logic, it makes more sense to keep the potential SLAPP part of your Complaint vague, so vague that a defendant presumably will be deterred from filing an anti-SLAPP motion but instead may file a demurrer for uncertainty. The defendant will be forced to meet-and-confer beforehand, which will run a significant part of the 60-day C.C.P. § 425.16(f) clock, and given the often lengthy turn-around time for California Courts to hear Demurrers, the initial 60-day C.C.P. § 425.16(f) will likely run well before the Demurrer is ruled upon. Depending on the circumstances and depending on how much you and your client want to gamble on the Court’s inclination to give you leave to amend your Complaint, you can file your FAC before or after the Demurrer hearing. Your FAC can contain the specific allegations that potentially subject the Complaint to an anti-SLAPP motion. Should the defendant consequently file an anti-SLAPP motion targeting the FAC, you can use the Newport Harbor rule to argue that the anti-SLAPP motion is untimely.
In this instance, the Taylor plaintiff successfully employed this strategy and will get away with litigating a SLAPP against the defendant school without facing the SLAPP motion or an award of SLAPP fees.
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