A recent California Supreme Court decision resolved the issue of what claims can be subject to a Code of Civil Procedure section 425.16 special motion to strike attacking an amended complaint. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637.) Specifically, the issue was whether an anti-SLAPP motion attacking an amended complaint could challenge claims already present in earlier versions of the complaint. The Court answered “no.”
Under the anti-SLAPP statute, a motion must be filed “within 60 days of the service of the complaint … .” (Code Civ. Proc. § 425.16(f).) In Newport Harbor Ventures, the anti-SLAPP motion challenged the third amended complaint, which contained some of the same causes of action as earlier complaints. The anti-SLAPP motion was timely—filed within 60 days of the third amended complaint being filed, but the defendants had not filed a motion attacking any earlier complaint. The trial court denied the motion on the grounds that two of the causes of action could have been challenged earlier on, and the Court of Appeal affirmed.
The Supreme Court also affirmed, holding that anti-SLAPP motions attacking amended complaints can only be brought against new causes of action. Permitting anti-SLAPP motions attacking new causes of action in amended complaints prevents sharp plaintiffs from circumventing the protection of the statute by filing “an initial complaint devoid of qualifying causes of action and then amend[ing] to add such claims after 60 days have passed.” The Court also suggested that limiting such attacks to new causes of action eliminates abuse by those who would delay litigation by stretching out the time between inception of the suit and the filing of an anti-SLAPP motion — which carries with it the right to an immediate appeal.
That last rationale is interesting because it suggests that the beneficiaries of the statute would delay using it, waiting for a possible amended complaint—a dynamic undermined by the right to immediate appeal (as the ultimate delay tactic). The upshot of the Newport Harbor Ventures ruling is that it incentivizes defendants (and cross-defendants) to bring anti-SLAPP motions early and often. And given the right to an immediate appeal, this means that the litigation will be frozen for upwards of two years while the appeal is decided. Thus, the Court’s ruling actually appears—in some instances anyway—to encourage a serial appeals process before the pleadings ever settle. Ironically, many courts, including the Supreme Court, have expressed concerns over abuse of the anti-SLAPP statute primarily focused on the delay caused by the right to an immediate appeal.
Perhaps one of the Court’s other recent decisions, Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, will mitigate this serial appeal potential. There, the Court (yet again) sought to clarify when a cause of action attacks protected activity and when it doesn’t. But that should be the subject of another post. At any rate, when it comes to the anti-SLAPP statute, the result of Newport Harbor Ventures is when it doubt, use it. Or lose it.
Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.