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Using California’s Anti-SLAPP Statute in Employment Litigation

California has a statute that is designed to discourage Strategic Lawsuits Against Public Participation. It is written broadly enough to permit its use in some employment lawsuits. The advantage to defendants in cases where the anti-SLAPP statute applies is that it puts the burden on the plaintiffs early in their lawsuits to provide some evidence to support their claims. This post will discuss the types of cases and the procedure to be followed where the statute applies.

The defendant may invoke the anti-SLAPP statute (Cal. Civ. Proc. Code section 425.16) if the lawsuit includes a cause of action arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. An “act” is defined very broadly, and the statute has been applied to a wide variety of claims, including defamation, invasion of privacy, infliction of emotional distress, malicious prosecution, trade secrets, and whistle-blowing. For an example of successful use of the statute to defeat a former employee’s defamation cause of action, see Neville v. Chudacoff, 160 Cal.App.4th 1255, 73 Cal.Rptr.3d 383 (2008).

If the plaintiff’s complaint includes a cause of action within the scope of the statute, the defendant has 60 days within which to file the anti-SLAPP motion. Filing the motion stays all discovery unless the court allows it for good cause shown. If the defendant’s moving papers establish that a claim is subject to the statute, the burden shifts to the plaintiff to provide admissible evidence to establish a probability that he or she will prevail. It is in the nature of a reverse summary judgment motion. Defendants may invoke the procedure in federal court against claims based on state law. Thomas v. Fry’s Electronics, Inc. (9th Cir. 2005) 400 F3d 1206. If the defendant prevails, it may recover its fees and costs.

The employer must be careful to avoid invoking the statute without good grounds. Upon denial of a frivolous anti-SLAPP motion, the court may award fees and costs against the moving party.