Case Alert: California Court of Appeals Clarifies Deadline to Bring Anti-SLAPP Motion to Amended Complaint

Caution Tape

On October 17, 2019, the California Court of Appeals for the Second District (which covers Los Angeles), issued an opinion in Starview Property, LLC v. Lee regarding special motions to strike, also known as “anti-SLAPP” motions, which are motions to strike and dispose of baseless lawsuits which are in fact Strategic Lawsuits Against Public Participation.

California created its anti-SLAPP statute (Code of Civil Procedure, section 425.16) in order to quickly and efficiently (relatively) dispose of lawsuits that are brought to threaten and chill free speech on matters of public interest. Where this is the case, the defendant can bring a special motion to strike a cause of action where two conditions are met: (1) the cause of action is one “arising from any act . . . in furtherance of the . . . right of petition or free speech . . . in connection with a public issue”, and (2) the plaintiff has not established that there is a “probability that the plaintiff will prevail on the claim.” (CCP 425.16.) The “right of petition” element includes all manner of activities relating to litigation and pre-litigation. An anti-SLAPP motion is time-limited and “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.”

Starview involved a dispute between two neighbors in Brentwood over an easement, or right of way, to use a driveway. In connection with obtaining City permits for their remodel plans, the City of Los Angeles required Starview to obtain their neighbor’s (the Lees) signoff on covenants, which the Lees refused, unless they received additional concessions, including $5,000. Starview sued in 2017, asserting three contract-based claims:  (1) breach of contract; (2) specific performance; and (3) injunctive relief. Over a year later, in 2018, Starview filed an amended complaint, adding additional claims for breach of the implied covenant of good faith, negligent and intentional interference with easement, and private nuisance. 55 days later (i.e. within the 60 day period), the Lees filed an anti-SLAPP motion, directed at the new causes of action and allegations of pre-litigation communications over whether the parties would sign the covenant. The trial court denied the motion as untimely, because the amended complaint alleged the same essential acts as in the original complaint, which was the Lees’ refusal to sign the covenant and their demand for additional consideration to sign. In other words, the Lees should have brought their motion in 2017, within 60 days of the original complaint, because the complaints were similar. The Lees appealed and the appellate court agreed with them, overturning the decision and sending it back to the trial court to decide on the merits.  The Court of Appeals did so for a straightforward reason: because anti-SLAPP motions are directed, by the plain language of the statute, at “causes of action” and here there were new causes of action added for the first time in the amended complaint. The Court of Appeals ruled: “The Lees could not have brought a motion to strike those claims from the original complaint because they did not exist to be stricken.”

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