Opinion
Must a defendant, in order to obtain a dismissal of a strategic lawsuit against public participation (SLAPP)
Background
As the Court of Appeal explained, defendant Consumer Cause, Inc., served on Shell Pipe Line Corporation and Texaco, Inc., predecessors in interest to plaintiff Equilon Enterprises, LLC (Equilon), a notice of its intent to sue for alleged violations of Proposition 65. (See Health & Saf. Code, § 25249.7, subd. (d).) Consumer Cause’s notice asserted that numerous Shell and Texaco gas stations in Southern California had, since 1994, been polluting groundwater by discharging benzene, lead, and toluene into the soil. Consumer Cause sent copies of its notice to the state Attorney General, the Los Angeles County District Attorney, and the Los Angeles City Attorney.
Equilon did not ask Consumer Cause to clarify its Proposition 65 nоtice. Instead, it filed this lawsuit for declaratory and injunctive relief, seeking a declaration that the notice failed to comply with the California Code of Regulations. Specifically, Equilon claimed the notice had not been served on the proper parties and that it failed to describe the alleged toxic discharges with sufficient particularity. Equilon also sought an injunction barring Consumer Cause from filing a Proposition 65 enforcement action.
Consumer Cause moved under the anti-SLAPP statute to strike Equilon’s сomplaint. The trial court granted the motion and dismissed the action. The Court of Appeal affirmed. We granted Equilon’s petition for review.
Section 425.16 provides, inter alia, that “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has estаblished that there is a probability that the plaintiff will prevail on the claim.” (Id., subd. (b)(1).) “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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 . . . .” (Id., subd. (e).)
Courts of Appeal reviewing the application of section 425.16 have divided over the question whether a defendant who moves under the statute to strike a cause of action must, in order to prevail, demonstrate that the cause of action was brought with the intent of chilling the defendant’s exercise of constitutional speech or petition rights. (Compare, e.g., Damon v. Ocean Hills Journalism Club (2000)
A. Statute’s Plain Language
Section 425.16 nowhere stаtes that, in order to prevail on an anti-SLAPP motion, a defendant must demonstrate that the plaintiff brought the cause of action complained of with the intent of chilling the defendant’s exercise of speech or petition rights. There simply is “nothing in the statute requiring the court to engage in an inquiry as to the plaintiffs subjective motivations before it may determine [whether] the anti-SLAPP statute is applicable.” (Damon v. Ocean Hills Journalism Club, supra,
Nor is there anything in section 425.16’s operative sections implying or even suggesting an intent-to-chill proof requirement. “The legislative concern,” rather, “is that the cause of action ‘aris[e] from’ an act in furtherance of the constitutional right to petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001)
When on previous occasions we have construed the anti-SLAPP statute, we have done so strictly by its terms (Ketchum v. Moses (2001)
B. Legislative Intent
Citing the Legislature’s finding, set out in the statute’s preamble, that “there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” and its declaration “that it is in the public interest to encourage continued participation in matters of public significance” (§ 425.16, subd. (a)), Equilon argues that the anti-SLAPP statute was intended by the Legislature to combat only actions brought with an intent to chill speech. For the following reasons we conclude that, to the contrary, judicial imposition on section 425.16 of an intent-to-chill proof requirement would contravene the legislative intent expressly stated in section 425.16, as well as that implied by the statute’s legislative history.
The anti-SLAPP statute has since its enactment contained a preamble setting forth the Legislature’s desire “to encourage continued participation in matters of public significance” (§ 425.16, subd. (a), as added by Stats. 1992,
On the other hand, judicial impositiоn of an intent-to-chill proof requirement would undermine the Legislature’s expressed aim that public participation “not be chilled” (§ 425.16, subd. (a)) by SLAPP’s. Obviously, not only when a plaintiff intends to chill speech may the filing of a lawsuit have that result. “Intimidation will naturally exist anytime a community member is sued by an organization for millions of dollars even if it is probable that the suit will be dismissed” (Comment, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions (1991) 27 Cal. Western L.Rev. 399, 405, fn. omitted). “Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights” (Church of Scientology, supra,
We previously have stated that the legislative intent underlying section 425.16 must be “ ‘gleaned from the statute as a whole’ ” (Briggs, supra,
Judicial imposition of an intent-to-chill proof requiremеnt also would contravene legislative intent by modifying the detailed remedial scheme the Legislature laid out in the statute’s operative sections. That scheme, as noted, makes subject to a special motion to strike any cause of action against a person arising from constitutionally protected speech or petitioning activity, as defined in section 425.16, subdivision (e), “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” (id., subd. (b)). Such terms are “inconsistent with a requirement the defendant prove the challenged lawsuit was brought to chill her First Amendment rights. . . . [T]he only thing the defendant needs to establish to invoke the [potential] protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech. From that fact the court may [effectively] presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.” (Fox Searchlight Pictures, Inc. v. Paladino, supra,
Where, as here, legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive; “no resort to extrinsic aids is necessary or proper.” (People v. Otto (1992)
As we observed in Briggs: “Legislative history materials respecting the origins of section 425.16 indicate the statute was intended broadly to protect, inter alia, direct petitioning of the government and petition-related statements and writings. . . . The seminal academic research on which the original version of the statute was based used ‘an operational definition of SLAPP suits as implicating “behavior protected by the Petition Clause.” ’ ” (Briggs, supra,
In short, the Legislature has in the anti-SLAPP statute expressly stated both its understanding of the problem to be addressed (see § 425.16, subd. (a)) and a detailed and specific remedy for addressing it (see id., subd. (b)). “We have no reason to suppose the Legislature failed to consider the need for reasonable limitations on the use of special motions to strike.” (Briggs, supra,
C. Constitutional Considerations
Equilon argues that an intent-to-chill proof requirement is a constitutionally compelled element of the anti-SLAPP statutory scheme. Citing Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993)
Equilon fails to demonstrate that its proffered construction of section 425.16 is constitutionally compelled. Hundreds of California statutes provide for an award of attorney fees to the prevailing party. (See Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2001) § 2.1, p. 12; see аlso id., ch. 17 [charting many such statutes].) Fee shifting simply requires the party that creates the costs to bear them. (Premier Elec. Const. Co. v. N.E.C.A., Inc. (7th Cir. 1987)
In any event, Professional Real Estate Investors—wherein the high court was at pains expressly “to reject a purely subjective definition of ‘sham’ ” (Professional Real Estate Investors, supra,
Contrary to Equilon’s implication, section 425.16 does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning. It subjects to potential dismissal only those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits (§ 425.16, subd. (b)), a provision we have read as “requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim” (Rosenthal v. Great Western Fin. Securities Corp. (1996)
Nor do the anti-SLAPP statute’s fee-shifting provisions inappropriately punish plaintiffs. Plaintiffs as well as defendants may recover fees: defendants, as discussed, only when the plaintiff burdens free spеech with an unsubstantiated claim (Rosenthal, supra,
Equilon also cites California Teachers Assn. v. State of California (1999)
Second, whereas the proponent of a speech-burdening claim may avoid an anti-SLAPP dismissal by submitting an affidavit substantiating the сlaim’s legal sufficiency (§ 425.16, subd. (b)(2); Rosenthal, supra,
D. Congruence with Privilege Law
“It is a fundamental rule of statutory construction that statutes should be construed to avoid anomalies.” (State of South Dakota v. Brown (1978)
Similarly here. Were we to impose an intent-to-chill proof requirement, petitioning that is absolutely privileged under the litigation privilege would be deprived of anti-SLAPP protection whenever a moving defendant could not prove that the plaintiff harbored an intent to chill that activity. Our construction avoids that anomalous result.
E. Public Policy
Considerations of public policy buttress the foregoing legal arguments against judicially imposing an intent-to-chill proof requirement on California’s anti-SLAPP statute. A requirement that courts confronted with antiSLAPP motions inquire into the plaintiff’s subjective intent would commit scarce judicial resources to an inquiry inimical to the legislative purpose that unjustified SLAPP’s be terminated at an early stage. “Imposing a requirement of establishing bad faith or ulterior motive adds a nеedless burden to SLAPP targets seeking relief, and destroys the relatively value-free nature of existing anti-SLAPP structures under which actions become suspect because of the circumstances of their arising and the relief sought, without need to litigate motive.” (Braun, Increasing SLAPP Protection: Unburdening the Right of Petition in California (1999) 32 U.C. Davis L.Rev. 965, 969, fn. 9.) By requiring that a moving defendant demonstrate that the targeted cause of action is one arising from protected speech or petitioning (§ 425.16, subd. (b)), our anti-SLAPP statute utilizes a reasonable, objеctive test that lends itself to adjudication on pretrial motion. Such early resolution is consistent with the statutory design “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” (Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope (2000) 33 Loyola L.A. L.Rev. 801), a purpose reflected in the statute’s short time frame for anti-SLAPP filings and hearings (§ 425.16, subd. (f)) and provision for a stay of discovery (id., subd. (g)).
Contrary to Equilon’s assertion, our conclusion will not allow the antiSLAPP statute itself to become a weapon to chill the exercise of protected petitioning activity by people with legitimate grievances. The anti-SLAPP remedy is not available where a probability exists that the plaintiff will prevail on the merits. (§ 425.16, subd. (b).) “The Legislature, moreover, has provided, and California courts have recognized, substantive and procedural limitations that protect plaintiffs against overbroad application of the antiSLAPP mechanism.” (Briggs, supra, 19 Cal.4th at pp. 1122-1123.)
As courts applying the anti-SLAPP statute have recognized, the “arising from” requirement is not always easily met. (See, e.g., ComputerXpress, Inc. v. Jackson (2001)
As discussed more fully in the companion case City of Cotati v. Cashman, supra,
In sum, as section 425.16 already contains express limitations on the availability and impact of anti-SLAPP motions, courts confronting such motions are well equipped to deny, mitigate, or even sanction them when appropriate. Contrary to Equilon’s suggestion, therefore, it is not necessary that we impose an additional intent-to-chill limitation in order to avoid jeopardizing meritorious lawsuits. (See Briggs, supra,
We are well advised not to upset the Legislature’s carefully crafted scheme for disposing of SLAPP’s quickly and at minimal expense to taxpayers and litigants. Our Legislature apparently adjudged the anti-SLAPP statute’s two-pronged test (“arising from” and minimal merit) and the statute’s other express limitations to be adequate, finding it unnecessary to add
F. Application
In light of the foregoing, we may summarize a court’s task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”
When analyzed in this manner, the Court of Appeal’s ruling is correct. The pleadings and the affidavits submitted by the parties establish that Equilon’s action for declaratory and injunctive relief is one arising from Consumer Cause’s activity in furtherance of its constitutional rights of speech or petition—viz., the filing of Proposition 65 intent-to-sue notiсes. (Health & Saf. Code, § 25249.7, subd. (d).) Since the trial court also found that Equilon had not established a probability of prevailing on its claim, the court properly granted the motion. (§ 425.16, subd. (b)(1); see also Briggs, supra,
While it may well be, as Equilon asserts, that it had pure intentions when suing Consumer Cause, such intentions are ultimately beside the point.
Disposition
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Chin, J., Brown, J., and Moreno, J., concurred.
Notes
The acronym was coined by Penelope Ganan and George W. Pring, professors at the University of Denver. (See generally Ganan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Soc. Probs. 506.)
This case has two companions. (See City of Cotati v. Cashman (2002)
“The Legislature’s 1997 amendment of the statute to mandate that it be brоadly construed apparently was prompted by judicial decisions . . . that had narrowly construed it to include an overall ‘public issue’ limitation.” (Briggs, supra,
Equilon purports to have sought declaratory relief solely in order to “get clarification of what it had to do” to avoid Proposition 65 liability after receiving Consumer Cause’s notices. Equilon neglects to mention, when arguing in this vein, that it also sought injunctive relief that expressly would restrict Consumer Cause’s exerсise of petition rights. We need not in this case, therefore, decide whether or when a pure declaratory relief action seeking mere clarification of past speech or petitioning, but alleging no “liability or defense” (§ 425.16, subd. (b)(2)) or remedy “against a person” (id., subd. (b)(1)) that significantly would burden future exercise of such rights, might evade anti-SLAPP scrutiny. Such questions in any event lie beyond the scope of our review.
To the extent they hold to the contrary, Paul for Council v. Hanyecz, supra,