Rare North-American SLAPP Platypus
A few months back I won on an anti-SLAPP motion that I brought long after the case was filed. The thing is, I was not representing the Defendant initially, but when I was retained the first thing I saw from my review of the case was that the case was a quintessential SLAPP. No discovery or anything beyond the complaint and answer had occurred, so I persuaded the court to allow me to bring a SLAPP motion well beyond the normal 60-day deadline. I won the motion, the case was over, the client celebrated with champagne, and all was good with the world.
That case got some publicity, and now it seems like every attorney thinks they can file an anti-SLAPP motion at any time during the litigation, even on the eve of trial. It just happened to me today. Our case is nearly two years old, and the trial is about a month away. All of a sudden, defense counsel decided that our action is a SLAPP, and it would be an unforgivable miscarriage of justice to allow this matter to go to trial without first bringing an anti-SLAPP motion. Indeed, this was such an emergency, that defense counsel had to go into court on an ex parte basis to ask the court to shorten the notice period to bring the motion because there is not enough time before the trial. An ex parte application requires a showing of irreparable harm, and defense counsel so argued.
The anti-SLAPP motion, which was attached to the ex parte application, was utterly without merit, which is not surprising given that if the complaint was a SLAPP the defendant’s counsel certainly would have been able to reach that conclusion in the prior 22 months. Not surprisingly, the application DENIED.
Why would an attorney do such a thing? By Code, an anti-SLAPP motion is supposed to be brought within 60 days of service of the complaint. It can be brought later upon a showing of good cause to the court, but any delay is counterproductive. The point of an anti-SLAPP motion is to stop a SLAPP action from going forward, and stay the discovery. The discovery stay is one of its most powerful attributes, since the plaintiff is basically frozen in time and made to show his proof without the benefit of any discovery. If the motion is brought after discovery, the defendant loses the biggest advantage of the anti-SLAPP motion. And nothing changes during an action that somehow makes a complaint a SLAPP when it was not previously. In other words, discovery might reveal that an action is ripe for a motion for summary judgment, but it is very unlikely that discovery will reveal that an action was a SLAPP if that was not apparent from the complaint.
So, what possible justification could there be for this tactic of waiting until the eve of trial to bring a meritless anti-SLAPP motion?
Delay.
The ruling on an anti-SLAPP motion can be appealed. The judge today could have easily said, “Well, Mr. Morris, he is seeking only permission to file the motion on shortened notice; the motion is not yet before me, so I can’t decide its merits now. I’ll go ahead and let him file it, and then we can take a look at the merits.” If the judge had gone down that road, the defendant would have bought himself about a one year delay, since he would then have appealed the denial of the anti-SLAPP motion.
“Isn’t that a costly proposition for the defendant, given that you can recover attorney fees on a SLAPP motion?”, you might ask. Actually, attorney fees are not reciprocal with an anti-SLAPP motion. If the defendant successfully brings an anti-SLAPP, he gets his fees, but if the plaintiff defeats the anti-SLAPP, fees are only awarded if the motion was frivolous, and that is a very high standard. Thus, beyond paying his own attorney, there was very little downside to attempting this delaying tactic.
This precise strategy was successfully employed in Platypus Wear, Inc. v. Goldberg. In that case, the defendant waited about a year to bring an anti-SLAPP motion. The trial judge, probably thinking he was being fair to give defendant a chance to present the motion, granted leave to file the motion, which was then denied. Of course, defendant appealed, and the Court of Appeal took the opportunity to explain that judges must not fall prey to this delaying tactic. The heart of the court’s reasoning is set forth at length below, if you are curious, but here is the essential part of the reasoning:
“The primary reasons that Goldberg offered, and that the trial court cited, for allowing the late filing of his anti-SLAPP motion were that doing so would serve both judicial economy and the public policy behind the anti-SLAPP statute. However, these reasons could apply to any late filing. Implicit in Goldberg’s argument is the premise that a trial court should hear any potentially anti-SLAPP meritorious motion, no matter how late in the case it is filed.
…
In this unusual statutory context, in which a party has the right to an interlocutory appeal of a denial of anti-SLAPP motion, a trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60–day deadline. As reflected in Olsen and Morin, the Legislature’s act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint.
…
Rather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits, the trial court’s ruling had the effect of undermining that statute, as discussed in Olsen.”
We are well award of the anti-SLAPP tricks, and as today’s victory illustrates, know how to stop them.
[Platypus Wear, Inc. v. Goldberg, 166 Cal.App.4th 772 at 783 – 787.]
“There are two potential purposes of the 60–day limitation. One is to require presentation and resolution of the anti-SLAPP claim at the outset of the litigation before the parties have undertaken the expenses of litigation that begin to accrue after the pleading stage of the lawsuit. The other is to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings. The ‘prejudice’ to the opponent pertinent to these purposes is that which attends having to suffer such expenses or be subjected to such a stay. ( Olsen, supra, 134 Cal.App.4th at p. 287, 35 Cal.Rptr.3d 909.)
The 60 day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended 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. [Fn. omitted.] ( Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
[B]y the time Goldberg filed his application on October 31, 2006, the parties had already completed a substantial amount of discovery, and the trial was scheduled to commence in less than three months. By the time the trial court held a hearing on Goldberg’s anti-SLAPP motion, on January 19, 2007, the December 15, 2006 discovery cut-off date had already passed, and the trial was scheduled to begin in a week. Thus, one of the basic purposes of the anti-SLAPP statute—to allow for the prompt resolution of disputes before significant pretrial discovery expenses are incurred—could not be met in this case. In fact, allowing the late filing undermined this goal, in that the trial court continued the trial date, at Goldberg’s request, after the hearing on the anti-SLAPP motion.
The primary reasons that Goldberg offered, and that the trial court cited, for allowing the late filing of his anti-SLAPP motion were that doing so would serve both judicial economy and the public policy behind the anti-SLAPP statute. However, these reasons could apply to any late filing. Implicit in Goldberg’s argument is the premise that a trial court should hear any potentially anti-SLAPP meritorious motion, no matter how late in the case it is filed. The Olsen court rejected this argument. ( Olsen, supra, 134 Cal.App.4th at p. 286, 35 Cal.Rptr.3d 909 [“Discretion to permit or deny an untimely motion cannot turn on the final determination of the merits of the motion”].) In addition, because Goldberg could have attempted to narrow the issues in the case by way of a motion for summary judgment or a motion for judgment on the pleadings, these rationales have very little persuasive force. (See Kunysz, supra, 146 Cal.App.4th at p. 1543, 53 Cal.Rptr.3d 779 [“The same issues raised by [defendant’s] renewed anti-SLAPP motion could just as easily have been raised by, for example, a motion for summary judgment or a motion for judgment on the pleadings”].)
The arguments Goldberg made at the hearing on his application are equally unpersuasive. Goldberg’s counsel’s explanation that Goldberg did not file an anti-SLAPP motion earlier because the case had been “focused on other issues,” is little different from the explanation the Morin court rejected, i.e., that the party had been “devot[ing] time, energy and resources,” to litigating the case rather than pursuing an anti-SLAPP motion. (Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
Goldberg’s suggestion at the hearing that the trial court should grant his application to allow the late filing because his current counsel had not been counsel of record during the initial 60–day period is also without merit. Goldberg’s current counsel substituted into the case in March of 2005, far in advance of the October 31, 2006 application to allow a late filing. ( Olsen, supra, 134 Cal.App.4th at p. 285, 35 Cal.Rptr.3d 909 [“A claim of excuse from untimeliness based on late discovery after obtaining new counsel is generally unavailing”].) In addition, Goldberg’s counsel’s suggestion that Goldberg should be allowed to bring the anti-SLAPP motion in order to afford the trial court greater discretion to “parse causes of action,” is misguided, since an anti-SLAPP motion is not to be used for this purpose. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106, 15 Cal.Rptr.3d 215
Goldberg has not demonstrated anything in the procedural history of this case, and specifically, in the litigation involving other parties, that would justify allowing the late filing. The lengthy delay in bringing the matter to trial occasioned by Luce Forward’s interlocutory appeal is, if anything, a factor that weighs against granting Goldberg’s application.
In this unusual statutory context, in which a party has the right to an interlocutory appeal of a denial of anti-SLAPP motion, a trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60–day deadline. As reflected in Olsen and Morin, the Legislature’s act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint. (See Olsen, supra, 134 Cal.App.4th at p. 287, 35 Cal.Rptr.3d 909; Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
While a trial court enjoys considerable discretion regarding whether to allow the late filing of an anti-SLAPP motion, in this case, the delay was extreme, the reasons Goldberg offered in his application for the delay in filing the motion were weak, the court’s reasons for granting the application were unrelated to the purpose of the SLAPP statute, and the potential prejudice to Platypus, given the lengthy delay occasioned by the appeal, is great. Rather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits, the trial court’s ruling had the effect of undermining that statute, as discussed in Olsen.
In applying the standard of review articulated in Olsen to this case, “[T]he grounds given by the court for finding the anti-SLAPP motion [timely] are inconsistent with the substantive law of section 425.16, [and] the application to the facts of this case is outside the range of discretion conferred upon the trial court under that statute, read in light of its purposes and policy.” (Olsen, supra, 134 Cal.App.4th at p. 285.)
