California Code of Civil Procedure § 425.16, commonly referred to as the anti-SLAPP Law, provides that a cause of action arising from a defendant’s conduct in furtherance of constitutionally protected rights of free speech or petitioning may be stricken unless the plaintiff has a probability of prevailing on the merits. (Code Civ. Proc. § 425.16, subd. (b)(1).)
The California Supreme Court described the purpose of the anti-SLAPP Law in Soukup v. Hafif (2006) 39 Cal.4th 260, where it said: “The Legislature enacted section 425.16 to prevent and deter “lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. Because these meritless lawsuits seek to deplete the defendant’s energy and drain his or her resources, the Legislature sought to prevent SLAPPs by ending them early and without great cost to the SLAPP target. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. The Legislature’s purpose in enacting the anti-SLAPP statute is set forth in its findings and declarations. ‘The Legislature finds and declares that it is in the public interest to encourage participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.’ (§ 425.16, subd. (a).) Furthermore, to accomplish this purpose, the Legislature has directed that the statute be construed broadly.” (Id. at 278–279 [citations and quotations omitted].)
Courts analyze anti-SLAPP motions using a two-step analysis. In step one, “the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity.” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321.) Although the anti-SLAPP statute does not actually use the term “protected activity,” that is the shorthand phrase adopted in the case law to describe speech or petitioning activities. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [interpreting § 425.16, subd. (b)(1), to require that the court first decide whether “the challenged cause of action is one arising from protected activity”].)
Four categories of “protected activity” are set forth in section 425.16, subdivision (e), which defines an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’” Two of these categories—set forth in subdivision (e)(1) and (4)—were invoked by Defendants: “any written or oral statement or writing made before a legislative, executive, or judicial body, or any other official proceeding authorized by law” (Code Civ. Proc. § 425.16, subd. (e)(1)), and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” (Code Civ. Proc. § 425.16, subd. (e)(4)).
If this court concludes the activity at issue is protected by section 425.16, subdivision (e), it turns to the second step: “it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Barry, supra, 2 Cal.5th at 321.) Plaintiffs are required to “‘show … there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.’ [Citation.] ‘The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’” (City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute … is a SLAPP, subject to being stricken under the statute.” (Barry, supra, 2 Cal.5th at 321.)
