Public employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16. This availability was confirmed in a recent case named Vargas v. City of Salinas. Not much fanfare accompanied the Vargas decision, which issued last November. But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant.
To understand why, let’s review what an anti-SLAPP motion is. “SLAPP” stands for “strategic lawsuit against public participation.” In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights. The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests. Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination. By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it.
California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time. First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing. The court will dismiss the case if plaintiff cannot make this early showing. Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.
If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute? This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test). The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
Items (1) and (2) of this definition are of particular importance to public agencies. They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest. An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding. For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety's investigation into the plaintiff's involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff.