Opposing a special motion to strike in California is the topic of this blog post.
A special motion to strike is also known as an anti-SLAPP motion. All briefs opposing a special motion to strike in California should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.
If you have been served with a special motion to strike you should carefully review the motion and supporting declarations to determine what grounds exist for an opposition. The first possible ground for opposition is that the special motion to strike is not timely filed as a special motion to strike must be filed within 60 days after service of the complaint on the defendant, unless the trial court exercises its discretion to consider a later-filed motion.
Code of Civil Procedure § 425.16(f) states: “The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.”
The California Supreme Court has stated that the purpose of the timing requirement is to allow for the early dismissal of any lawsuit that is subject to a special motion to strike in order to minimize the cost to the defendant.
And several decisions of the California Courts of Appeal have stated that a trial court is not required to decide the merits of any special motion to strike that is not timely filed unless the court chooses to exercise its discretion.
Another possible ground for opposition would be the fact that the moving defendant has failed to meet their burden of making a threshold showing that the challenged cause or causes of action is one arising from protected activity. Resolution of an anti-SLAPP motion requires the court to engage in a two-step process. First the moving defendant must demonstrate that the actions of which the plaintiff complains were done in furtherance of the right of the defendant to petition for redress of grievances or their right to free speech under the United States or California Constitution.
The California Supreme Court stated in a recent case that it is only in cases where the court determines that the defendant has met their burden of making a threshold showing that the plaintiff is required to show a probability of prevailing on any part of their claim. The Supreme Court has also stated that only a cause of action that arises from protected speech or petitioning and that lacks even minimal merit is subject to being stricken under the anti-SLAPP statute.
Attorneys or parties in California who would like to view a portion of a sample 13 page opposition to a special motion to strike containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.