Recent Developments in Anti-SLAPP Cases for Determining Protected Activities

The basics of anti-SLAPP procedure are well-known to most entertainment and media practitioners at this point. In California, a defendant carries the initial burden to prove that its conduct is covered by the anti-SLAPP statute by showing that the plaintiff's claim arises from “any act of [defendant] in furtherance of [its] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Cal. Civ. Proc. Code '425.16(b)(1). If so, the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on his or her claims. Id. In order to do so, “the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor.” Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1346 (2007) (emphasis added). If the plaintiff meets this burden, “the moving defendant can defeat the plaintiff's evidentiary showing only if the defendant's evidence establishes as a matter of law that the plaintiff cannot prevail.” Id.

Section 425.16(e) of the California Code of Civil Procedure identifies the conduct that may satisfy the defendant's burden, including the following:

(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; (4) or 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.

In order for the defendant to prevail on an anti-SLAPP motion, the claim at issue must satisfy both prongs of the analysis. The claim must arise from protected activity and be one as to which plaintiff cannot make out a prima facie case for liability or as to which the plaintiff cannot prevail as a matter of law.