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California’s anti-Strategic Lawsuit Against Public Participation (“SLAPP”) law was designed to protect citizens from being harassed for exercising their rights to petition the government. Under the law, if a cause of action against him or her “arises out of” constitutionally protected conduct, that suit will be considered a SLAPP and subject to a special motion to strike, unless the party bringing the lawsuit can show a probability of prevailing. The classic SLAPP suit is brought “not to vindicate a legal right, but rather to interfere with the defendant’s ability to pursue his or her interests.”

While the anti-SLAPP law serves an important purpose by discouraging lawsuits brought to “chill” constitutional rights, the law has had the unintended effect of deterring valid lawsuits aimed at “gray area” conduct. Legitimate plaintiffs have been fearful to sue for conduct that is not clearly protected speech. This issue was recently put to the test by the Fourth Appellate District’s decision in American Meat Institute v. Leeman, in which the court upheld a trial court’s ruling that a trade association’s declaratory relief action against a potential Proposition 65 private enforcer was not a SLAPP.

Background: Environmental SLAPP Suits

In the land use and environmental areas, the SLAPP is often found in one of two scenarios: (1) a project proponent/land developer either sues a project opponent for objecting to the project publicly or brings an action against a permitting authority for appealing a decision favorable to the developer, or (2) a regulated company brings an action against a “private attorney general” or other citizen who attempts to draw attention to violation of the law.

A classic example of a SLAPP is Ramona Unified School District v. Tsiknas. Ramona Unified (“RUSD”) sought to construct a school and issued a mitigated negative declaration pursuant to the California Environmental Quality Act. When plaintiff RUSD proposed an alteration to the project, defendant Neighborhood Alliance for Safe Ramona Schools (“NASRS”) filed a writ petition alleging that the proposal violated CEQA. RUSD prevailed at trial, and the court dismissed the action. Not satisfied with mere victory, RUSD sued NASRS and its attorneys, including Tsiknas, for abuse of process and barratry. Finding that RUSD’s suit was lacking merit, the trial court refused to impose liability on NASRS for exercising its right to challenge government action and granted NASRS’s anti-SLAPP motion to strike.

A contrary suit in the land use context was Visher v. Malibu, in which the City of Malibu refused to process the plaintiffs’ application for a coastal development permit (“CDP”) to build a home on their vacant lot. Malibu was engaged in litigation over whether it was obligated to issue such a permit. Because Malibu was appealing the trial court’s order that it was compelled to issue a CDP, Malibu refused the plaintiffs’ request. The plaintiffs filed a petition for writ of mandate to compel Malibu to act, which Malibu sought to dismiss as a SLAPP, claiming that the petition arose from Malibu’s decision to exercise its right to appeal its trial court loss. The court of appeal found this unpersuasive, concluding that while appealing an order is a protected activity, the plaintiffs’ lawsuit did not “arise from” that activity, but from the plaintiffs’ “desire to get a CDP to build their home.”

American Meat Institute: The "Gray Area" Gets Clearer

Both cases above illustrate the long-standing difficulty under the anti-SLAPP statute in discerning between protected activity and legitimate bases for filing suit. The decision in American Meat Institute v. Leeman provides some clarity on the issue.

In American Meat Institute, the meat industry sought a declaratory judgment finding that Proposition 65 was preempted by the Federal Meat Inspection Act (“FMIA”), and that the California warning requirement could not be applied to meat products that comply with the FMIA. The trade groups sued after private attorney general Whitney R. Leeman had issued 60‑day intent‑to‑sue notices and threatened the industry with legal action. The trial court found that, while Dr. Leeman certainly had engaged in protected conduct, the trade association’s action was based on the conflict between state and federal law, not Dr. Leeman’s freedom of speech.

On appeal, Dr. Leeman (joined by the California Attorney General as amicus) argued that the trial court’s ruling would allow private citizens to be sued at random by trade associations if the citizens questioned the industry’s legal compliance. Rejecting this broad reading of the trial court’s opinion, the court of appeal affirmed the ruling and emphasized that the nature of the declaratory relief action controlled the analysis. The court concluded that the trade association’s claim did not “arise from” Dr. Leeman’s conduct, but instead from a legitimate desire to clarify an issue of conflicting state and federal laws.

Conclusion

This case highlights the importance of a careful reading of the anti-SLAPP statute and related case law. It is not enough for the allegedly SLAPP-ed defendant to show that she engaged in protected conduct. The defendant must establish that the claim arises from that conduct — the fact that the conduct merely “triggers” legal action is not enough. In other words, the defendant must show that the plaintiff is seeking to impose liability for the conduct or that the conduct is an essential element of the plaintiff’s cause of action. In cases involving declaratory relief, plaintiffs do not seek to impose any liability, as they are only seeking clarity from the courts regarding their respective rights and obligations.

Note:

Morrison & Foerster LLP represented the American Meat Institute and the National Meat Association in the case.

Citations:

Cal. Civ. Proc. Code §§ 425.16-425.18

Am. Meat Institute v. Leeman, Case No. D047115 (Ct. App. 4th Dist. Aug. 31, 2006)

Ramona Unified Sch. Dist. v. Tsiknas, 135 Cal. App. 4th 510 (2005)

Visher v. Malibu, 126 Cal. App. 4th 363 (2005)