To Defendants: A Notable Change in the Law of Defamation – The California Supreme Court Has Revised the Timing for filing an anti-SLAPP (motion to strike). 1
California law provides a procedure for early evaluation and resolution of meritless libel and slander lawsuits. Called a “Special Motion to Strike” one or more causes of action in a complaint, and often dubbed the ”anti-SLAPP” (strategic lawsuit against public participation) law, the statute established a period to file an anti-SLAPP motion. The motion may be filed within ” … 60 days of the service of the complaint.” (The court can, but usually doesn’t, extend the 60-day period.)
For years, this law meant a defendant could file its anti-SLAPP motion within 60 days after service of an amended complaint.
In Newport Harbor Ventures, LLC, et.al. v. Morris Cerullo World Evangelism, et.al., S239774; Ct. App.4/3, G0522660; Orange County Superior Ct., No 37-2013-00665314 (Newport Harbor Ventures), the California Supreme Court noted, “The issue before us concerns the timing of section 4 25 .16′ s special motion to strike.” The question was whether bringing the motion within 60 days of service of “the complaint” applied to an amended complaint. Historically, the answer was yes.
In 2002, the appellate court in Yu v. Signet Bank/Virginia (Yu) affirmed the then-law. In Yu, the plaintiff argued a special motion to strike was timely as it was filed within 60 days of an amended complaint. The appellate court agreed. Until early 2018, the rule remained a defendant was within its rights to move to strike within the two months prescribed after service of a first, second, or later amended complaint.
The California Supreme Court decided differently. The facts in Newport Harbor Ventures showed two years oflitigation, including discovery, had already been conducted. The court stated, “An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle oflitigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.” [citations omitted]
Under Code Civ. Proc. §425.16(f), a defendant must now move to strike the causes of action considered SLAPPs within 60 days of service of the earliest complaint containing them.
The high justices felt this holding will improve efficiency of the anti-SLAPP statute. Some on the defense side might argue otherwise, noting a defendant might have to file two or even more anti-SLAPP motions in a case, a potentially burdensome requirement.
1 Counsel: See Code of Civil Procedure §425.16 subd. (f)