Cal. Supreme Court Looking Into The New "SLAPPBack" Statute
In October, 2005, Cal. CCP section 425.18 - the "SLAPPback" statute - became effective as emergency legislation. No, a "SLAPPback" is not some rule of tort or family law. It's any lawsuit (1) containing a cause of action for malicious prosecution or abuse of process, (2) that arises from a prior cause of action that has been dismissed pursuant to a special (anti-SLAPP) motion to strike under section 425.16. (CCP section 425.18, (b)(1).) This statute is like a foreign film: needs subtitles.
The new statute relaxes and eliminates some of the anti-SLAPP statute's (section 425.16's) reuirements in "SLAPPback" situations. For example, 425.18, subdivision (h) bars the defendant in the SLAPPback suit from filing an anti-SLAPP motion where the trial court granted an anti-SLAPP motion against the then-plaintiff, now defendant in the underlying action. English translation: if a party's original lawsuit has been dismissed by the granting of a special motion to strike, and the opposing party responds with an abuse of process or malicious prosecution action, the original plaintiff (now the defendant) cannot file an anti-SLAPP motion to strike the second, SLAPPback suit. Evidently the granting of the first motion to strike in the first action renders that lawsuit illegal as a matter of law.
The ink on the SLAPPback statute was barely dry when the California Supreme Court was requesting briefing on the effect of this statute to pending cases. The court had already granted review in three, fully-briefed anti-SLAPP cases: Soukup v. Stock, S126864, Soukup v. Law Offices of Herbert Hafif, S126715, and Flatley v. Mauro, S128429. Its early November order sought supplemental briefing on: (1) whether the new SLAPPback statute should be applied retroactively to pending cases, and (2) if so, what is the new statute's effect on the issues on which the court granted review in these three cases, particularly subdivision (h). Subdivision (h), for those of you who don't live and breathe this stuff, says: “A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.”
The new statute relaxes and eliminates some of the anti-SLAPP statute's (section 425.16's) reuirements in "SLAPPback" situations. For example, 425.18, subdivision (h) bars the defendant in the SLAPPback suit from filing an anti-SLAPP motion where the trial court granted an anti-SLAPP motion against the then-plaintiff, now defendant in the underlying action. English translation: if a party's original lawsuit has been dismissed by the granting of a special motion to strike, and the opposing party responds with an abuse of process or malicious prosecution action, the original plaintiff (now the defendant) cannot file an anti-SLAPP motion to strike the second, SLAPPback suit. Evidently the granting of the first motion to strike in the first action renders that lawsuit illegal as a matter of law.
The ink on the SLAPPback statute was barely dry when the California Supreme Court was requesting briefing on the effect of this statute to pending cases. The court had already granted review in three, fully-briefed anti-SLAPP cases: Soukup v. Stock, S126864, Soukup v. Law Offices of Herbert Hafif, S126715, and Flatley v. Mauro, S128429. Its early November order sought supplemental briefing on: (1) whether the new SLAPPback statute should be applied retroactively to pending cases, and (2) if so, what is the new statute's effect on the issues on which the court granted review in these three cases, particularly subdivision (h). Subdivision (h), for those of you who don't live and breathe this stuff, says: “A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.”
The court heard argument at the end of May. Decisions are expected by late summer.
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