March 11, 1996

DEFAMATION LAW ALERT!

The California Court of Appeal has held that the anti-SLAPP statute can apply to block a defamation lawsuit based on private communications that are not related to an issue under consideration by government. In Averill v. Superior Court (no. G018293), decided February 23, 1996, the Court of Appeal (Fourth Appellate District, Division Three) stated that the statute's list of acts in furtherance of First Amendment rights (Cal. Civ. Proc. Code § 425.16(e)) is not exclusive. The court explained: "Considering the stated purpose of the statute, which includes protection of not only the constitutional right to 'petition for the redress of grievances,' but the broader constitutional right of freedom of speech, we conclude the Legislature intended the statute to have broad application." (The opinion is published at 96 C.D.O.S. 1268.)

The Court of Appeal ordered the Orange County Superior Court to grant Jeannie Averill's special motion to strike the slander complaint against her by The Eli Home, Inc. The trial court had previously denied the motion. Ms. Averill, an Anaheim homeowner, was one of a group of neighbors who opposed Eli Home's plan to open a battered women's shelter in her neighborhood. In addition to her public opposition (including letters to the city council and a local newspaper), Ms. Averill unsuccessfully urged her employer to withdraw its support of Eli Home as a "Christmas charity." Eli Home, which had threatened litigation following her public statements, limited its slander complaint to Ms. Averill's private statements to her employer, presumably in an effort to avoid the anti-SLAPP statute.

The Court of Appeal stated that the allegedly slanderous statements might fall within the enumerated protected acts in subdivision (e) of the anti-SLAPP statute, because they were "made in connection with an issue arguably still subject to review by the city." The court found it unnecessary, however, to make an explicit holding on that issue, because the Legislature's use of the word "includes" in introducing the list of protected acts "implies that other acts which are not mentioned are also protected under the statute."

The anti-SLAPP statute requires a claim based on the exercise of free speech or petition rights to be stricken unless "the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Cal. Civ. Proc. Code § 425.16(b).) On that point, the Court of Appeal held that Eli Home's action was "meritless," because Ms. Averill's comments had no effect on her employer and Eli Home presented no evidence of damages. The court stated, "The suit itself appears to have been filed solely to punish Averill for her criticism of the Eli project and to impose litigation costs upon her for exercising her right to free speech and to petition the government. To allow this matter to proceed against Averill would have the precise effect the statute was designed to avoid."

Please direct questions and comments about this DEFAMATION LAW ALERT! to Martin Kassman at (415) 564-6732 (voice), [a fax number and an e-mail address, no longer current, appeared here].

© Martin Kassman 1996, 2005