Four Big Benefits to Bringing an Anti-SLAPP Motion in a California Employment Lawsuit

June 21, 2022 California enacted its anti-SLAPP (i.e., Strategic Lawsuits Against Public Participation) statute to provide a procedural remedy early in litigation to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. In the employment context, an anti-SLAPP motion most often is used to attack a defamation cause of action, but it can apply to any cause of action regardless of title, so long as it comes within the four types of protected speech.

By: Christina M. Guerin

California enacted its anti-SLAPP (i.e., Strategic Lawsuits Against Public Participation) statute to provide a procedural remedy early in litigation to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. In the employment context, an anti-SLAPP motion most often is used to attack a defamation cause of action, but it can apply to any cause of action regardless of title, so long as it comes within the four types of protected speech: (1) statements or writings made before a legislative, executive, judicial, or other official proceeding; (2) statements or writings made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other legally authorized official proceeding; (3) statements or writings made in a place open to the public or in a public forum, in connection with an issue of public interest; and (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitution right of free speech in connection with an issue of public interest.

A couple of examples where an anti-SLAPP motion applied include: Hunter v. CBS Broadcasting, Inc., (2013), in which the court applied the anti-SLAPP statute to a claim of gender and age discrimination based on a failure to hire an applicant for the position of weather anchor for KCLA; and Dible v. Haight Ashbury Free Clinics, Inc., (2009), in which the court applied the anti-SLAPP statute to a defamation cause of action arising out of an employer's statements to the state Employment Development Department, which constituted an "official proceeding" under the statute.

So, can the anti-SLAPP statute benefit your case? Well, as lawyers like to say, it depends. But given the benefits of the statute, it certainly warrants a good look if the potential is there.

Here are four big benefits to bringing an anti-SLAPP motion in a California employment lawsuit.

Early Resolution

An anti-SLAPP motion is required to be brought relatively early in litigation. As one court put it, “the point of the anti-SLAPP statute is that you have a right to not be dragged through the courts because you exercised your constitutional rights.” (Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193.) The anti-SLAPP motion can provide for an early resolution of claims that might otherwise take a year or more to move through the court system. This is an evidentiary motion similar to a motion for summary judgment, but without the need to determine if there is a “triable” issue of material fact. If you play your cards right and submit competent evidence supporting your defenses in the moving papers, the plaintiff will be required to show a probability of prevailing on their claim to defeat the anti-SLAPP motion. This is an especially inviting way to dispose of claims if, for example, a privilege applies to the alleged wrongful act, as the plaintiff will need to establish by competent evidence that the privilege does not apply.

Stay of Discovery

The filing of an anti-SLAPP motion stays all discovery in the case, absent a court order. So, not only does an employer have the potential to minimize fees and costs incurred in defending against the claim as a whole, the employer usually obtains the benefit of having the “probability of prevailing” standard apply without the need for multiple depositions or voluminous discovery taking place.

Immediate Appealability

The losing party has an immediate right to appeal a decision on an anti-SLAPP motion.

Attorneys’ Fees

The prevailing defendant in an anti-SLAPP motion is automatically entitled to recovery of its attorneys’ fees and costs related to the motion. The prevailing plaintiff can only recover fees if the motion was frivolous. In employee-friendly California, where the prevailing plaintiff attorneys’ fee statute is often a major driving force in litigation strategy, this is a particularly strong benefit. Also, since the prevailing employer’s motion for fees needs to be filed within the time to file any appeal, a prevailing employer can obtain a substantial fee award early in the case, which can be great leverage in any later settlement negotiation.

For more information on this topic, contact the author of this post. You can also subscribe to this blog to receive email alerts when new posts go up.