While Code of Civil Procedure section 425.16 is alive and well in state courts, the statute may be on its way out in federal diversity cases in the Ninth Circuit. A very recent opinion from that court calls for en banc review, ostensibly to rule that no immediate appeal is available from the denial of an anti-SLAPP motion. But as anyone familiar with the Ninth Circuit’s treatment of California’s anti-SLAPP statute knows, there is a movement afoot to rule that this creature of state procedure has no place at all in federal court. Will California’s anti-SLAPP statute survive?
The ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.
As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.
I’ve been watching the ripple effects of People v. Sanchez (2016) 63 Cal.4th 665, which has been labeled “a paradigm shift” regarding out-of-court statements and expert testimony under California hearsay law. (People v. Ochoa, 7 Cal. App. 5th 575, 588 (2017).) Sanchez boils down to the difference between an expert relying on hearsay case-specific facts (which has always been permissible) and an expert relating those facts to the jury (which Sanchez now prohibits unless the hearsay problem is solved). But what about summary judgment motions?
In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that expert testimony involving case-specific facts is subject to exclusion as hearsay—just like any other testimony. In so holding, the Court overruled its prior decisions, including People v. Montiel (1993) 5 Cal.4th 877, which permitted courts wide latitude in allowing experts to base their opinions on case-specific facts that are hearsay. Montiel’s relaxed approach rested upon the use of limiting instructions informing the jury that they could consider hearsay as going to the basis of the opinion, but not for the truth. Thus, under Montiel, “there was no longer a need to carefully distinguish between an expert’s testimony regarding background information and case-specific facts.” (Sanchez, 63 Cal.4th at p. 679.)
According to Sanchez, Montiel ignored an undeniable truth, that “when any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Id. at p. 686.) As a result, if an expert will testify to case-specific out-of-court statements as part of the facts supporting the opinion, then “like any other hearsay evidence, such statements will only be admitted through an applicable hearsay exception.” (Ibid.)
A decision from the Sixth District Court of Appeal is worth a look. (Heimlich v. Shivji (May 31, 2017) 2017 WL 2351269). The opinion rests on the premise, recognized in at least one prominent practice guide as well, that Code of Civil Procedure section 998(b)(2) prevents a party from breathing a word about a 998 offer until after the arbitrator renders an award. Those perusing the statute have probably noticed the language, and perhaps wondered about its scope:
If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (Emphasis added.)