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Special motion to strike in California

A special motion to strike also known as an anti-SLAPP motion in California under Code of Civil Procedure section 425.16 is the subject of this blog post.  A SLAPP lawsuit is an acronym for a strategic lawsuit against public participation.  The special motion to strike is used by a defendant or cross-defendant on the grounds that the lawsuit or certain causes of action filed against the defendant or cross-defendant be stricken as the lawsuit arises from an act or acts of the defendant in furtherance of the their right of petition or free speech under the United States or California Constitution in connection with a public issue.

Code of Civil Procedure § 425.16 states in pertinent part that a cause of action against a person arising from any act of that person in furtherance of the person’s constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike unless plaintiff establishes that there is a probability that plaintiff will prevail on the claim and that its provisions are to be construed broadly.  It further states that any special motion to strike may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.

The California Supreme Court has stated that the intent of the California Legislature in enacting section 425.16 was to allow for early dismissal of claims that have no merit as they interfere with the valid exercise of rights of freedom of speech and petition for redress of grievances.

Once a defendant has made a showing that their acts arise from protected activity the burden shifts to the plaintiff to demonstrate a probability of prevailing on their claim or claims.

In order to establish a probability of prevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim or the motion to strike will be granted.

“Put another way, the 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 the plaintiff is credited.” Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056. (Citations and quotations omitted.)

“The motion to strike should be granted if the defendant defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” Carver v. Bonds (2005) 135 Cal.App.4th 328, 344. (Citations and quotations omitted.)

Section 425.16 states that a defendant prevailing on a special motion to strike is entitled to recover his or her attorney’s fees and costs.  However if the court finds that that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion so any special motion to strike should be well supported with competent evidence.

Attorneys or parties in California who would like to view a portion of a sample special motion to strike complete with a memorandum of points and authorities sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing.  Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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