GREWAL v.JAMMU










Filed 1/11/11





CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

HARDEV SINGH GREWAL, Plaintiff and Respondent, v. AMOLAK SINGH JAMMU et al., Defendants and Appellants.

A126239 (Alameda County Super. Ct. No. RG06274673)

Story Continued From Part I………….


The Anti-SLAPP Statute: Its Purpose, Use, Misuse, and Abuse
Section 425.16, the anti-SLAPP statute, was enacted in 1992, with the following preamble: “(a) 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. . . .” (Stats. 1992, ch. 726, § 2.)
The purpose of the statute was the subject of extensive discussion by our Division One colleagues, in Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, which began as follows: “SLAPP Suits, and Legislative Response to SLAPP Suits [¶] The court in Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 (disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5), one of the first cases to apply anti-SLAPP legislation, explained:
“ ‘Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as “civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.” (Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Social Problems 506.) The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants’ continued political or legal opposition to the developers’ plans. [Citations.]
“ ‘The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. [Citation.] Plaintiffs in these actions typically ask for damages which would be ruinous to the defendants. [Citations.]
“ ‘SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [Citation.] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant’s resources for a sufficient length of time to accomplish plaintiff’s underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.] . . .
“ ‘Thus, while SLAPP suits ‘masquerade as ordinary lawsuits’ the conceptual features which reveal them as SLAPP’s are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. [Citation.]’ ” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 890-891.)
The early cases were not consistent in interpreting the scope of the anti-SLAPP statute. (See generally Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1113 (Briggs) [discussing the “divided” decisions of the Courts of Appeal].) Proponents of the anti-SLAPP procedure became concerned that the statute was being applied too narrowly, and sought legislative relief. This resulted in a 1997 amendment to section 425.16, which expanded the definition of activity “in furtherance of a person’s right of petition or free speech” to include “any other conduct in furtherance of the right of petition or the constitutional right of free speech in connection with a public issue or issue of public interest.” The 1997 amendment also added this last sentence to the preamble: “To this end, this section shall be construed broadly.” (Stats. 1997, ch. 271, § 1.)
Shortly after this amendment, the Supreme Court decided Briggs, holding that an anti-SLAPP motion brought under section 425.16, subdivisions (e)(1) and (2) did not need to show that the statement concerned an issue of public significance. Doing so, the court expressly relied on the newly added language that section 425.16 “shall be construed broadly.” (Briggs, supra, 19 Cal.4th at p. 1119.) Interestingly—if not presciently—the majority opinion ends with the observation that “[i]f we today mistake the Legislature’s intention, the Legislature may easily amend the statute.” (Id. at p. 1123.) In dissent, Justice Baxter expressed concern that “[t]he majority’s holding expands the definition of a SLAPP suit to include a potentially huge number of cases, thereby making the special motion to strike available in an untold number of legal actions that will bear no resemblance to the paradigm retaliatory SLAPP suit to which the remedial legislation was specifically addressed.” (Id. at p. 1129 (conc. & dis. opn. of Baxter, J.).)
Whatever the reason, concern quickly galvanized in the direction that the anti‑SLAPP statute was being misused. This concern immediately made its way to the Legislature, which in the 1999-2000 session, passed a bill precluding application of the anti-SLAPP statute to purely consumer interest actions. But Governor Davis vetoed the bill. This concern was resurrected in the 2003-2004 session, in Senate Bill 515, [1] which passed, and became the new Code of Civil Procedure section 425.17, which begins with this observation: “The Legislature finds and declares that there has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16.” (Stats. 2003, ch. 338, § 1.)
Concern that the anti-SLAPP procedure was being abused also extended to the courts, where various justices expressed the concern in various ways. Comments in three cases illustrate the point.
Navallier v. Sletten, supra, 29 Cal.4th 82, involved the issue whether a defendant’s having filed counterclaims in a prior, unrelated proceeding in federal court was one arising from “protected activity.” (Id. at p. 85.) A divided Supreme Court held that it was. Claiming that such holding was an unwarranted expansion of the anti-SLAPP law, dissenting Justice Brown, writing for herself and Justices Baxter and Chin, asserted that the majority’s “presumptive application of section 425.16 will burden parties with meritorious claims and chill parties with nonfrivolus ones.” And she added this flourish: “The cure has become the disease—SLAPP motions are now just the latest form of abusive litigation.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 96 (dis. opn. of Brown, J.).)
Moore v. Shaw (2004) 116 Cal.App.4th 182 was a defendant’s appeal from the denial of an anti‑SLAPP motion. The Court of Appeal affirmed and, holding that the motion was frivolous, reversed the trial court’s denial of attorney fees to the plaintiff. Doing so, Presiding Justice Klein ended with this: “We cannot help but observe the increasing frequency with which anti-SLAPP motions are brought, imposing an added burden on opposing parties as well as the courts. While a special motion to strike is an appropriate screening mechanism to eliminate meritless litigation at an early stage, such motions should only be brought when they fit within the parameters of section 425.16.” (Id. at p. 200, fn. 11.)
Moran v. Endres (2006) 135 Cal.App.4th 952was an appeal by defendants who had been denied attorney fees, which defendants had prevailed in obtaining dismissal of only “one of many causes of action,” (id. at p. 953) and that for conspiracy, which is not a cause of action in any event. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Affirming the denial of attorney fees, an exasperated Justice Armstrong observed: “Section 425.16 was enacted because the Legislature found 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.’ Neither the public’s nor defendant’s right to participate was advanced by this motion.” (Moran v. Endres, supra, at p. 955.) A concurring Justice Mosk added this: “Code of Civil Procedure section 425.16 . . . has resulted in numerous appeals that involve various ambiguities and apparent unintended consequences.” (Id. at p. 956 (conc. opn. of Mosk, J.).)
Meanwhile, commentators were also writing on the explosion of anti-SLAPP motions, claiming to support their conclusions with counts and statistics. An early example said this: “The statute went from a little-used statutory protection for environmental and other protestors . . . [to a] . . . veritable explosion in appellate court decisions dealing with the statute. Between 1992, when the statue was first enacted, and January 1, 2000 there were only 34 published appellate decisions on the statue. But between January 1, 2000 and September 25, 2003, there were 184 published and unpublished decisions. Of those decisions, 148 have been rendered from September 25, 2002 to September 25, 2003.” (Arkin, supra, 31 W. St. U. L.Rev., at p. 2, fns. omitted.)[2]
We have attempted no such case count ourselves, but have reviewed the annotations to section 425.16 in West’s Annotated California Code, which we find revealing indeed: the annotations for the 12-year period between 1992 and 2004 are 82 pages, an average of 6-plus pages per year; the annotations for the five‑year period between 2005 and 2009 are 107 pages, an average of 20-plus pages per year. And no let up seems in sight, as one cannot pick up a volume of the official reports without finding an anti-SLAPP case. Or four. (See 177 Cal.App.4th. at pp. 471, 940, 1049, 1264.) This, of course, is just the published opinions.
There is precise evidence of this explosion in the record of anti-SLAPP filings that the Judicial Council is required to keep in accordance with the express directive of subdivision (j)(1) of section 425.16.[3] That Judicial Council record shows the following filings of anti-SLAPP motions since 1999: 1999—55; 2000—327; 2001—302; 2002—543; 2003—587; 2004—542; 2005—515; 2006—598; 2007—508; 2008—555; and 2009—558.[4]
The reason(s) behind this explosion are not necessarily germane to our discussion, and thus we offer nothing on the subject save this. A well-known saying, generally attributable to William Gladstone, is that “Justice delayed is justice denied.” A lesser known saying, known to be attributable to prominent defense lawyers from major law firms, is that “Justice delayed is justice.” Maybe it is that simple. Maybe not.
What is germane to our discussion is the ways in which the anti-SLAPP procedure is being misused—and abused. Without attempting to describe all the ways, we offer two examples, one obvious, one not.
The obvious example is found in the numerous cases that involve complaints that simply do not “arise from” protected activity, but generate anti-SLAPP motions nevertheless. Examples include actions against attorneys. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539 [“ ‘garden variety’ attorney malpractice”]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1187 [duty of loyalty]; Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630; Moore v. Shaw, supra, 116 Cal.App.4th 182 [breach of trust]; Beech v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82 [failure to timely arbitrate].) And personal injury claims. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193 [“garden variety personal injury claims” against dietary product manufacturer].) And insurance coverage cases. (State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 975 [declaratory relief action to resolve coverage issues].)
But another, and more subtle, abuse can be found in a case where the defendant could in good faith claim that plaintiff’s action arose from protected activity, and thus could meet the burden under step one of the anti-SLAPP analysis. But as seen, that is only the beginning. And suppose further that defendant (or defendant’s attorney) knows that the plaintiff could meet the burden under step two. Defendant nevertheless files the anti-SLAPP motion, knowing that it will cause plaintiff to expend thousands of dollars to oppose it, all the while causing plaintiff’s case, and ability to do discovery, to be stayed. Would this not constitute a misuse of the procedure‌ But even if it might not in the abstract, might it not here, where an earlier anti-SLAPP motion had been denied, the court expressly holding that plaintiff had met his burden under step two—a holding, not incidentally, made against three defendants who, unlike the Jammu defendants, were not even the publishers of the articles. We would say that this filing alone would be an abuse. And certainly when followed by the abuse coup de grâce—the appeal.
A Losing Defendant’s Right to Appeal
Is the Aspect of the Anti-SLAPP Statute Most Subject to Abuse

As originally enacted, section 425.16 made no reference to appeal (though obviously a losing plaintiff whose case was stricken could appeal any judgment of dismissal). In 1999 subsection (j) was added to the statute, providing that “[a]n order granting or denying a special motion to strike shall be appealable under section 904.1.”[5] (Stats. 1999, ch. 960, § 1.)
The legislative history leading to subdivision (i) is not particularly illuminating, as shown by the brief discussion in the Senate Judiciary Report, which reads in its entirety as follows: “1. Stated need for legislation [¶] According to the proponents, this bill would further the purpose of the anti-SLAPP statute by allowing the defendant to immediately appeal a denial of a special motion to strike. Without this ability, a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated. [¶] The proponents contend that when a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal [sic], which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP statute is useless and has failed to protect the defendant’s constitutional rights. The proponents assert that since the right of petition and free speech expressly granted by the U.S. Constitution are at issue when these motions are filed, the defendant should have the immediate right to appeal and have the matter reviewed by a higher court. [¶] The author is submitting amendments in Committee to clarify that the right of appeal would apply to motions granted or denied in order to assure that both the plaintiff and defendant are given equal rights to appeal an adverse order.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1675 (1999-2000 Reg. Sess.) as amended May 28, 1999, p. 3.)
The right of a defendant to appeal a losing anti-SLAPP motion quickly became, like so much else of the anti-SLAPP procedure, the subject of criticism. Indeed, such criticism was acknowledged by the Legislature itself in 2003 when, in discussing Senate Bill 515, the Senate Judiciary Committee noted the claim by the proponent of the bill “that current law is being used by defendants to unreasonably delay a case from being heard on the merits, thus adding litigation costs and making it more cumbersome for plaintiffs to pursue legitimate claims. . . . The filing of the meritless SLAPP motion by the defendant, even if denied by the court, is instantly appealable, which allows the defendant to continue its unlawful practice for up to two years, the time of the appeal.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, pp. 11-12.) As enacted, section 425.17 expressly states that if a motion is denied based on that section, “the appeal provisions . . . of section 425.16 . . . do not apply.” (§ 425.17, subd. (e).) Unfortunately, section 425.16 was left untouched.
The concern about possible abuse of a losing defendant’s right to appeal caught the attention of the Supreme Court in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180. While holding that the defendant’s appeal stayed all proceedings in the trial court affecting the merits of the case, the court recognized the opportunity for abuse: “In light of our holding today, some anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. As the Court of Appeal observed and plaintiffs contend, such a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes.’ ” (Id. at p. 195.)
Commenting on this in Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283‑284 (Olsen), Justice Sims observed as follows: “Both the Legislature and the Supreme Court have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse. As to abuse occasioned by the stay of proceedings on appeal of the denial of an anti-SLAPP motion, the Supreme Court has ‘encouraged’ us ‘to resolve these . . . appeals as expeditiously as possible. To this end, reviewing courts should dismiss frivolous appeals as soon as practicable and do everything in their power to “ ‘prevent . . . frustration of the relief granted.’ ” ’ [Citation.]” (Fns. omitted.) Nothwithstanding our great respect for Justice Sims, such dismissal is easier said than done.
Olsen involved an appeal that claimed that the trial court abused its discretion in denying an anti-SLAPP motion that was clearly untimely, an appeal, Justice Sims rightly concluded, that indisputably had no merit. However, while ultimately dismissing the appeal, Justice Sims first recognized the “general rule” that a motion to dismiss should never be granted if ruling on the motion “requires a consideration of the merits.” (Olsen, supra, at p. 284, citing Reed v. Norman (1957) 48 Cal.2d 338, 342.) “The general rule is grounded on policies of avoiding double work by this court and avoiding unwarranted advancement of the case on calendar. (See 9 Witkin, Cal. Procedure [(5th ed. 2010)] Appeal, §§ [747-748], pp. [811-812].) The Supreme Court’s admonition for dispatch in Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, warrants an exception from the general rule here.” (Olsen, supra, 134 Cal.App.4th at p. 284, fn. 5). From there, Justice Sims went on to grant the motion to dismiss the appeal because it was “frivolous.” (Olsen, supra, 134 Cal.App.4th at p. 280.)
Not all cases are so easily disposed of, especially if dismissal cannot be done without some meaningful analysis of the merits. And therein lies the rub. What to do‌ Eliminating a losing defendant’s right to appeal is certainly one solution. And, we urge, one that should seriously be considered by the Legislature, especially as it would not necessarily leave the defendant without recourse.
In those relatively rare circumstances where a trial court has clearly erred in denying a meritorious anti-SLAPP motion, relief might be obtained by a writ, as it has been in similar circumstances where an appeal does not lie. (See, e.g., West Shield Investigations and Security Consultants v. Superior Court (2000) 82 Cal.App.4th 935 [denial of summary adjudication; mandate ordering grant of motion]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [order overruling demurrer; mandate to sustain demurrer without leave to amend]; Holtz v. Superior Court (1970) 3 Cal.3d 296, 304 [order striking strict liability inverse condemnation count; mandate compelling reinstatement]; Fair Employment and Housing Com. v. Superior Court (2004) 115 Cal.App.4th 629, 633 [mandate to vacate order overruling demurrer]; American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 755 [writ review entertained following denial of judgment on the pleadings].) But even if a writ were not obtained, the defendant could quickly move for summary judgment, as the primary basis on which a defendant should prevail—and thus, where the trial court has clearly erred—is generally a legal question, such as where the litigation privilege applies.
We recognize the observation by Presiding Justice Sills in People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317-1318, commenting on the defendant’s right to appeal a denial of an anti‑SLAPP motion: “The right to appeal has a certain logic to it. After all, what use is a mechanism to allow you to get out of a case early if it is undercut by an erroneous decision of the trial judge‌ The point of the anti‑SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights. The right to appeal a denial of an anti-SLAPP motion is important because it protects the interest validated by the anti-SLAPP statute.”
After describing that right as “important,” Justice Sills went on to observe that “the right to appeal has its own consequences. As we write, at least one appellate court has drawn the correlative conclusion that an appeal from the denial of anti-SLAPP motion also stays proceedings in the trial court. [Citation.] You don’t just get the right to go to the appellate court, you also get a free time-out in the trial court.” (Lockyer v. Brar, supra, at p. 1318.) And from there he went further—to dismiss the appeal as frivolous. (Ibid.)
We do not disagree that the right to appeal can be “important.” But it should not trump all else. And a losing defendant’s “loss” of the right to appeal a lost anti-SLAPP motion, we submit, is a much smaller price to pay than a winning plaintiff having to expend thousands of dollars in attorney fees on appeal, while plaintiff’s case is stayed for anywhere from 19 to 26 months,[6]all in a setting where the original motion was without merit, if not downright frivolous.
It is now almost five years since plaintiff filed his lawsuit, and trial is not yet in sight. Such delay hardly seems defensible, particularly when it is due in no small part to non-meritorious appeals by defendants who lost anti-SLAPP motions, the first appeal voluntarily dismissed after languishing for a long period (see fn. 2 ante), and this appeal rejected as utterly without merit. As we said, something is wrong with this picture, and we hope the Legislature will see fit to change it.
DISPOSITION
Judge Lee’s order denying the motion to strike is affirmed. Plaintiff shall recover costs.


_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.

Trial Court:	Alameda Superior Court
Trial Judge:	Honorable Jo-Lynn Q. Lee
Attorney for Defendants and Appellants:	Mark Cohen
Attorneys for Plaintiff and Respondent:	Njelita Law Offices, N. Maxwell Njelita

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