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California
Law Dictionary
Standard of Review-Special Motion to Strike Code of Civil Procedure 425.16
(Flatley v. Mauro)

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Standard of Review-Special Motion to Strike Code of Civil Procedure 425.16
(Flatley v. Mauro)

III. discussion

A. Standard of Review and Burdens of Proof

A special motion to strike may be filed in response to “‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Section 425.16, which was enacted in 1992, authorizes a court to summarily dismiss such meritless suits. (Stats.1992, ch. 726, pp. 3523-3524.) There is no requirement though that the suit be brought with the specific intent to chill the defendant’s exercise of free speech or petition rights. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-67.) The purpose of the statute was set forth in section 425.16, subdivision (a), as follows: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process . . . .” Under section 425.16, any cause of action against a person “arising from any act . . . in furtherance of the . . . right of petition or free speech . . .” in connection with a public issue must be stricken unless the courts finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 783.) In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1176.)

When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiff’s cause of action arose out of the defendant’s actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, overruled on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App .4th at p. 784; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) Section 425.16 does not apply to every claim which may have some tangential relationship to free expression or petition rights. The Supreme Court has held: “[Section 425.16] cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77, quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002, orig. italics.) Quoting from ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at page 1002, the Supreme Court in City of Cotati v. Cashman, supra, 29 Cal.4th at page 77 explained: “California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one “arising from” an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’ [Citation.]” A defendant who meets the burden of showing the cause of action arises out of the exercise of the rights of petition or free speech has no additional burden of proving either plaintiff’s subjective intent to chill (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-68) or a chilling effect. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76.)

Second, once the defendant establishes the cause of action arises out of the exercise of petition or free expression rights, the burden shifts to plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; Kyle v. Carmon (1999) 71 Cal.App .4th 901, 907; Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1450; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at pp. 784-785.) The Supreme Court has defined the probability of prevailing burden as follows: “‘[T]he 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 plaintiff is credited.”’ (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821[ ], quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 [ ].)” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.) The Supreme Court has explained that a plaintiff must only prove the challenged cause of action has “minimal merit.” (Navellier v. Sletton, supra, 29 Cal.4th at pp. 89, 93-94; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.)

In reviewing the trial court’s order denying the special motion to strike, we use our independent judgment to determine whether the Mr. Mauro engaged in a protected activity. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara, supra, 65 Cal.App.4th at p. 721; Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 695, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) The trial court can strike one or more causes of action and permit others to remain. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)

Flatley v. Mauro-B171570-9/2/04-CA2/5-Extortion

Sep 02 2004

B171570
[PDF] [DOC]

Flatley v. Mauro 9/2/04 CA2/5

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