Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 375 MOTIONS TO STRIKE

Part I SCOPE
§ 375.01 Scope of Chapter
This chapter discusses motions to strike the whole or parts of pleadings in civil actions [see § 375.10 et seq.]. It includes discussion of special motions to strike SLAPP suits, that is, Strategic Litigation Against Public Participation [see § 375.24]. It contains the following forms:

· Notice of motion to strike the entire pleading [see § 375.60].

· Notice of motion to strike a portion of a pleading [see § 375.61].

· Order on the motion [see § 375.62].

· Notice of motion to strike a SLAPP suit [see § 375.63] and supporting declaration [see § 375.64].

The chapter also includes Procedural Checklists for the moving and opposing parties on a motion to strike [see §§ 375.50, 375.51] and on a special motion to strike [see §§ 375.52, 375.53], as well as a Research Guide [see § 375.40 et seq.].
§ 375.02 Cross References
For orders striking the whole or parts of pleadings as a sanction under Code Civ. Proc. § 2023(b)(4)(A)[Deering's] for failure to obey a discovery order, see Ch. 190, Discovery: Scope, Regulation, and Timing.

For discussion of motion practice generally, see Ch. 372, Motions and Orders.

For procedure and forms for use in securing a summary judgment under Code Civ. Proc. § 437c[Deering's] if it is contended the action has no merit or there is no defense to the action, see Ch. 537, Summary Judgment. For discussion of motions to strike in proceedings under the Family Code [see Fam. Code § 210[Deering's] ;], see Ch. 220, Dissolution of Marriage and Related Proceedings, Pt. I, ``Procedure.''

For discussion and forms for use in having the court take judicial notice, see Ch. 321, Judicial Notice
§§ 375.03-375.09 [Reserved]

Part II LEGAL BACKGROUND
§ 375.10 Governing Statutes
Definitions and procedure regarding motions to strike are governed by Code Civ. Proc. § 435[Deering's] . Grounds for those motions are governed by Code Civ. Proc. § 436[Deering's] , and requirements for setting forth the grounds by Code Civ. Proc. § 437[Deering's] .

Other statutory provisions authorizing the use of a motion to strike under Code Civ. Proc. § 435[Deering's] in specific actions [see, e.g., Code Civ. Proc. § 340.1(i)[Deering's] (failure to file certificates in accordance with Code Civ. Proc. § 340.1[Deering's] in action by plaintiff 26 years of age or older to recover damages suffered as a result of childhood sexual abuse)].

Authority for a special motion to strike a SLAPP suit is contained in Code Civ. Proc. § 425.16[Deering's] .
§ 375.11 Grounds for Motion to Strike
[1]--In Unlimited Civil Cases
In superior court, the court may, on a motion to strike made pursuant to Code Civ. Proc. § 435[Deering's] or at any time in its discretion and on terms it deems proper, take the following action [ Code Civ. Proc. § 436[Deering's] ]:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading [see Code Civ. Proc. § 431.10[Deering's] (immaterial allegation and irrelevant matter)]; or

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.

``Pleading'' means a demurrer, answer, complaint, or cross complaint [ Code Civ. Proc. § 435(a)(2)[Deering's] ].

The term ``false'' in Code Civ. Proc. § 436(a)[Deering's] , replaces ``sham'' in the predecessor statute (former Code Civ. Proc. § 453), which was repealed on enactment of Section 436. One court has noted that a legislative intent to change the law is presumed when one statute is repealed and another statute with different phraseology is enacted on the same subject [ Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 21, 221 Cal. Rptr. 349 ]. Consequently, in determining a proper ground under Section 436, the term ``false'' cannot be construed according to any historical meaning of ``sham'' that is not synonymous with the current term ``false'' [ Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 21, 221 Cal. Rptr. 349 ].

The trial court has inherent power apart from statute to strike a pleading filed in disregard of established procedural requirements or that is otherwise violative of orderly judicial administration [ Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ; Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 331, 325 P.2d 130 ; see also Williams v. International Longshoremen's & Warehousemen's Union (1959) 172 Cal. App. 2d 84, 87, 341 P.2d 729 ]. Thus, a court has inherent power to strike, for example, an amended complaint that does not in fact or spirit conform to the previous rulings of the court [ Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 172, 47 Cal. Rptr. 592 ; see also Janis v. California State Lottery Com. (1998) 68 Cal. App. 4th 824, 829, 89 Cal. Rptr. 2d 149 (amended complaint not in conformity with court's previous ruling stricken)]. The motion should be made within the time limits prescribed by Cal. Rules of Ct., Rules 301[Deering's], 329[Deering's] .

Some examples of pleadings subject to a motion to strike are the following:

· An unverified pleading if verification is required [see Code Civ. Proc. § 446[Deering's] ; Hearst v. Hart (1900) 128 Cal. 327, 328, 60 P. 846 ; Henderson v. Palmer Union Oil Co. (1923) 64 Cal. App. 81, 84, 220 P. 672 ];

· An unauthorized pleading, such as one filed by a corporation in propria persona [see Himmel v. City Council (1959) 169 Cal. App. 2d 97, 100, 336 P.2d 996 ] or by a person who is not a party to the lawsuit [see, e.g., Milstein v. Turner (1951) 107 Cal. App. 2d 184, 185-186, 236 P.2d 606 ; Estate of Walters (1949) 89 Cal. App. 2d 797, 799-800, 202 P.2d 89 ];

· An original, amended, or supplemental pleading filed without leave of court if leave is required [see, e.g., Williams v. International Longshoremen's & Warehousemen's Union (1959) 172 Cal. App. 2d 84, 87-88, 341 P.2d 729 ; Himmel v. City Council (1959) 169 Cal. App. 2d 97, 101, 336 P.2d 996 ];

· An original or amended pleading that is not timely filed [see, e.g., Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 464-465, 250 P.2d 270 (demurrer); Lincoln Holding Corp. v. Union Indem. Co. (1933) 129 Cal. App. 399, 401, 18 P.2d 744 (amended complaint)];

· An amended complaint that fails to amend a previous complaint to which a demurrer was sustained [see, e.g., Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ; Neal v. Bank of America (1949) 93 Cal. App. 2d 678, 683, 209 P.2d 825 ];

· Punitive damages allegations when punitive damages are not available for that cause of action [ Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 164, 203 Cal. Rptr. 556 ]; or

· An amended pleading filed after a motion for judgment on the pleadings that was granted with leave to amend if the time for filing an amended pleading has expired or the pleading violates the court's order [ Code Civ. Proc § 438(i)(1)(A)[Deering's] ]. In this situation the time limit specified in Code Civ. Proc. § 435(b)(1)[Deering's] does not apply [ Code Civ. Proc. §§ 435(b)(1)[Deering's], (e)[Deering's] ].
[2]--Specific Types of Actions
[a]--Actions Against Architects, Engineers, and Land Surveyors
A motion to strike may properly be based on the plaintiff's failure to file the required professional consultation certificate in actions arising out of the professional negligence of a person holding a valid architect's, engineer's, or land surveyor's certificate [ Code Civ. Proc. § 411.35[Deering's] ]. For further discussion, see Ch. 206, Demurrers and Motions for Judgment on the Pleadings, § 206.114[9], and Ch. 56, Architects.
[b]--Actions Chilling Free Speech (SLAPP Suits)
A cause of action against a person arising from any act of that person in furtherance of his or her constitutional right of petition or free speech in connection with a public issue (SLAPP suit) is subject to a special motion to strike, absent plaintiff's showing that plaintiff will probably prevail on the claim [see Code Civ. Proc. § 425.16[Deering's] ]. This special motion to strike was provided to encourage participation in matters of public significance and to reduce the increase in lawsuits brought primarily to chill the valid exercise of free speech and the right to petition for redress of grievances, commonly know as SLAPP (that is, strategic litigation against public participation) suits [see Code Civ. Proc. § 425.16(a)[Deering's] ]. For discussion of section 425.16, see § 375.24, below.
[3]--In Limited Civil Cases
Motions to strike are not allowed in limited civil cases, except on the ground that the damages or relief sought are not supported by the allegations of the complaint [see Code Civ. Proc. §§ 91[Deering's], 92(d)[Deering's] ].
§ 375.12 Grounds for Motion Must Appear on Pleading
Grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice [ Code Civ. Proc. § 437(a)[Deering's] ]. If the motion to strike is based on matter of which the court may take judicial notice pursuant to Evid. Code §§ 452[Deering's] or 453[Deering's] , the matter must be specified in the notice of motion or in the supporting points and authorities, except as the court may otherwise permit [ Code Civ. Proc. § 437(b)[Deering's] ].
§ 375.13 Motion to Strike Compared to Demurrer
A motion to strike the whole or part of a pleading is a counterpart to a demurrer. The function of both a demurrer and a motion to strike is to raise objections to pleadings on grounds that appear on the face of the pleading or from matters of which the court is required to take judicial notice [see Code Civ. Proc. §§ 430.30(a)[Deering's], 430.70[Deering's] (demurrers), 437[Deering's] (motions to strike)]. The function of a demurrer is to raise certain statutory objections [see Code Civ. Proc. §§ 430.10[Deering's], 430.20[Deering's] ]. That is, a demurrer tests whether sufficient facts have been stated with requisite clarity and not, for example, to challenge the presence of surplusage or other objectionable matter in a pleading [ Henke v. Eureka Endowment Assn. (1893) 100 Cal. 429, 433, 34 P. 1089 ; Mitchell v. Steelman (1857) 8 Cal. 363, 369 ]. A motion to strike, on the other hand, is used to raise objections that do not constitute a ground of demurrer [see, e.g., White Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336, 353, 66 Cal. Rptr. 697, 438 P.2d 345 ; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal. App. 3d 24, 41, 96 Cal. Rptr. 317 ].

A motion to strike is not a proper substitute for a special demurrer to attack a pleading that is uncertain or otherwise formally defective if the objection may be reached by demurrer [ Allerton v. King (1929) 96 Cal. App. 230, 233-234, 274 P. 90 (motion to strike allegations in answer; decided before enactment of Code Civ. Proc. §§ 435[Deering's], 436[Deering's] )].

For discussion of demurrers, see Ch. 206, Demurrers and Motions for Judgment on the Pleadings.
§ 375.14 Inappropriate Motion to Strike
[1]--Summary Judgment Motion
A motion to strike that is supported by facts outside the pleadings, ordinarily set forth in affidavits, that is, a ``speaking motion,'' will ordinarily be treated as a motion for summary judgment under Code Civ. Proc. § 437c[Deering's] [ City and County of San Francisco v. Strahlendorf (1992) 7 Cal. App. 4th 1911, 1914, 9 Cal. Rptr. 2d 817 ]. A motion so treated must therefore comply with the specific provisions of Code Civ. Proc. § 437c[Deering's] [see, e.g., Vesely v. Sager (1971) 5 Cal. 3d 153, 167, 95 Cal. Rptr. 623, 486 P.2d 151 ]. Thus, such a motion to strike will be granted only if the affidavits filed in support of the motion are sufficient to sustain a judgment in favor of the moving party and the affidavits filed in opposition are insufficient to raise a triable issue of fact [see Mediterranean Exports, Inc. v. Superior Court (1981) 119 Cal. App. 3d 605, 616, 174 Cal. Rptr. 169 ; see also Ch. 537, Summary Judgment ].
[2]--Judgment on Pleadings
A ``motion to strike'' that attacks a complaint on the ground that a claim fails to state facts sufficient to constitute a cause of action effectively seeks a judgment on pleadings and may be treated accordingly by the court [ Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 342-343, 264 Cal. Rptr. 673 ].
§ 375.15 Time Limitations
Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading [ Code Civ. Proc. §§ 435(b)(1)[Deering's], 585(f)[Deering's] ].

Filing a motion to strike does not extend the time in which to demur [ Code Civ. Proc. § 585(f)[Deering's] ].

A motion to strike may also be made without regard to these time limitations if it is made to strike an untimely or otherwise improper amended pleading filed after a motion for judgment on the pleadings has been granted with leave to amend [see Code Civ. Proc. §§ 435(b)(1)[Deering's], (e)[Deering's], 438(i)(1)(A)[Deering's] ; for discussion, see Ch. 389, Nonsuit and Motions for Judgment ].
§ 375.16 Notice Requirement
[1]--Motion to Strike Answer, Complaint, or Cross Complaint
A notice of motion to strike the answer or the complaint or cross complaint, or a portion of it, must specify a hearing date set in accordance with Code Civ. Proc. § 1005[Deering's] [ Code Civ. Proc. §§ 435(b)(2)[Deering's], 585(f)[Deering's] ; see Code Civ. Proc. § 435(a)(1)[Deering's] (``complaint'' includes cross complaint)]. A notice of motion to strike a demurrer, or a portion of it, must set the hearing concurrently with the hearing on the demurrer [ Code Civ. Proc. § 435(b)(3)[Deering's] ].

Notice of a motion to strike the answer or the complaint (or cross complaint; see Code Civ. Proc. § 435(a)[Deering's] ), or a portion of it, must be given at least 21 calendar days before the hearing. However, if the notice is served by mail, the 21-day period must be increased by 5 calendar days if the place of mailing and address are within California, 10 calendar days if either the place of mailing or address is outside California but within the United States, and 20 calendar days if either the place of mailing or address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of overnight delivery, the required 21-day period of notice before the hearing is increased by 2 calendar days [ Code Civ. Proc. §§ 435(b)(2)[Deering's], 1005(b)[Deering's] ]. An extension period of two court days may apply in the case of electronic service [see Code Civ. Proc. § 1010.6(a)(6)[Deering's] ; for discussion, see Ch. 518, Service of Summons and Papers, § 518.41[8]].
[2]--Motion to Strike Demurrer
A notice of motion to strike a demurrer or portion of a demurrer must set the hearing thereon concurrently with the hearing on the demurrer [ Code Civ. Proc. § 435(b)(3)[Deering's] ].
§ 385.17 Time to File Demurrer Not Extended
The filing of a notice of motion to strike an answer, complaint, or cross complaint, or portion of it, does not extend the time within which to demur [ Code Civ. Proc. § 435(d)[Deering's] ; see Code Civ. Proc. § 435(a)(1)[Deering's] (``complaint'' includes cross complaint)].
§ 375.18 Time to Answer Extended if Demurrer Not Filed
If a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended, and no default may be entered against that defendant, except as provided in Code Civ. Proc. §§ 585[Deering's] and 586[Deering's] [ Code Civ. Proc. § 435(c)[Deering's] ; see Code Civ. Proc. § 472a(d)[Deering's] (court to allow party to answer if motion to strike complaint is denied)].

Section 585 allows the plaintiff to take the defendant's default if the defendant fails to respond to the complaint. The responses that preclude the taking of default include timely service of a notice of motion to strike a pleading [ Code Civ. Proc. § 585(c)[Deering's], (f)[Deering's] ; see Code Civ. Proc. § 585(e)[Deering's] (application to cross complaints)], so that an untimely notice of motion to stike, if no other response has been made to the pleading, exposes the defendant to default. Section 586 contains a comparable provision relating to the defendant's failure to respond to an amended complaint [ Code Civ. Proc. § 586(a)(1)[Deering's] ]. Section 586 also governs the taking of defaults after the court has ruled on a demurrer or motion to strike [ Code Civ. Proc. § 586(a)(2)[Deering's], (3)[Deering's], (7)[Deering's] ].

For discusssion and forms relating to defaults, see Ch. 205, Defaults and Default Judgments.
§ 375.19 Motion Constitutes General Appearance
A motion to strike constitutes a general appearance in the case [see Code Civ. Proc. § 1014[Deering's] ; Davenport v. Superior Court (1920) 183 Cal. 506, 511, 191 P. 911 ].
§ 375.20 Ruling on Motion
In ruling on a motion to strike, courts do not read allegations in isolation. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth [ Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255, 79 Cal. Rptr. 2d 747 ].
§ 375.21 Hearing
For discussion of tentative rulings and appearance by telephone, see Ch. 206, Demurrers and Motions for Judgment on the Pleadings. For further general discussion of hearings on motions, see Ch. 372, Motions and Orders.
§ 375.22 Order and Judgment
[1]--Motion Granted Without Leave to Amend Complaint
A judgment of dismissal may be entered if a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal [ Code Civ. Proc. § 581(f)(3)[Deering's],(4)[Deering's] ].
[2]--Motion Granted With Leave to Amend Complaint
When a motion to strike is granted pursuant to Code Civ. Proc. § 436[Deering's] , the court may order that an amendment or amended pleading be filed on terms it deems proper [ Code Civ. Proc. § 472a(d)[Deering's] ]. If a motion to strike all or part of a complaint is granted with leave to amend and the plaintiff fails to amend within the time allowed by the court, either party may move for dismissal. On that motion, the court may enter a judgment of dismissal [ Code Civ. Proc. § 581(f)(4)[Deering's] ].
[3]--Time to Answer if Demurrer Is Stricken
If a demurrer is stricken pursuant to Code Civ. Proc. § 436[Deering's] and there is no answer filed, the court must allow an answer to be filed on terms that are just [ Code Civ. Proc. § 472a(c)[Deering's] ].
[4]--Default After Answer Is Stricken
A default judgment may be taken when a motion to strike the entire answer is granted without leave to amend or when a motion to strike all or part of the answer is granted with leave to amend and the defendant fails to amend within the time allowed by the court [ Code Civ. Proc. § 586(a)(7)[Deering's] ].
[5]--Time to Answer if Motion Denied
If a motion to strike a complaint or cross complaint, or a portion of it, is denied, the court must allow the party filing the motion to strike to file an answer [ Code Civ. Proc. § 472a(d)[Deering's] ; see Code Civ. Proc. § 435(c)[Deering's] (extension of time to answer)].
§ 375.23 Review of Order
[1]--By Appeal
An order granting or denying a motion to strike the whole or any part of a pleading is usually not appealable, although the ruling may be reviewed on appeal from the final judgment in the action. If the order operates to remove from the case the only cause of action or defense or leaves no further issue to be determined, the order is appealable [see Wilson v. Sharp (1954) 42 Cal. 2d 675, 677, 268 P.2d 1062 ; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 878, 150 Cal. Rptr. 606 (exception applicable to order striking complaint in intervention)].

If, for example, the parties to a complaint and cross complaint are the same, an order granting or denying a motion to strike the cross complaint is not appealable. If the parties are not the same, the order striking the cross complaint is appealable [ Lerner v. Ehrlich (1963) 222 Cal. App. 2d 168, 170, 35 Cal. Rptr. 106 ].
[2]--By Extraordinary Writ
In appropriate cases, the ruling on a motion to strike may be subject to review by a higher court by extraordinary writ [see, e.g., Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255, 79 Cal. Rptr. 2d 747 (mandate directing trial court to issue new order denying motion to strike punitive damage allegations in complaint); Evans v. Superior Court (1977) 67 Cal. App. 3d 162, 170-171, 136 Cal. Rptr. 596 (mandate directing trial court to enter order striking cross complaint); Ford Motor Co. v. Superior Court (1971) 16 Cal. App. 3d 442, 449, 94 Cal. Rptr. 127 (mandate directing trial court to reinstate affirmative defenses of collateral estoppel in answers that had been stricken on motion)].
§ 375.24 SLAPP Suits (Strategic Litigation Against Public Participation)
[1]--Special Motion To Strike
A cause of action against a person arising from any act of that person in furtherance of his or her right of petition or free speech under the United States or California Constitution in connection with a public issue is subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim [ Code Civ. Proc. § 425.16(b)(1)[Deering's] ].

In enacting this special motion to strike, the Legislature noted that there had 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, commonly known as SLAPP suits (that is, strategic litigation against public participation) [see Code Civ. Proc. § 425.16(a)[Deering's] ]. The purpose of this legislation is to encourage continued participation in matters of public significance without this participation being chilled through abuse of the judicial process [see Code Civ. Proc. § 425.16(a)[Deering's] ] and to eliminate meritless litigation at an early stage [ Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 672, 64 Cal. Rptr. 2d 222 ; Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1113, 57 Cal. Rptr. 2d 207 ]. Thus, Code Civ. Proc. § 425.16[Deering's] was enacted to curtail SLAPP suits [ Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1111, 57 Cal. Rptr. 2d 207 ] by providing an economical and expeditious remedy to SLAPP suits [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 647 n.3, 49 Cal. Rptr. 2d 620 ]. The anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental speakers. The identity of the speaker is not a decisive factor in determining whether the speech activity is protected under the First Amendment [ Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1117, 57 Cal. Rptr. 2d 207 ; see Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 730, 77 Cal. Rptr. 2d 1 (county; disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 )]. At the same time, the protection of the statute is not limited to activities that go to the heart of self-government [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1116, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].

Code Civ. Proc. § 425.16[Deering's] does not apply to any enforcement action brought in the name of the people of the state of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor [ Code Civ. Proc. § 425.16(d)[Deering's] ]. This statute has been held to not violate the equal protection clause of the constitution [ People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 451, 104 Cal. Rptr. 2d 618 ].
[2]--Nature of a SLAPP Suit Generally
In very general terms, a SLAPP suit has been described as a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights [ Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 672, 64 Cal. Rptr. 2d 222 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 815-816, 33 Cal. Rptr. 2d 446 ]. The actions falling within this category have been generally recognized as civil lawsuits aimed at preventing citizens from exercising their political rights or at punishing those who have done so. The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill political or legal opposition to the developer's plans, but SLAPP's are not limited to environmental issues or to defendants who are local organizations with limited resources [ Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 815, 33 Cal. Rptr. 2d 446 ; see Conroy v. Spitzer (1999) 70 Cal. App. 4th 1446, 1448, 83 Cal. Rptr. 2d 443 (SLAPP suits by definition are aimed at chilling valid exercise of political rights, particularly right of freedom of speech and right to petition government for redress of grievances); see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 240, 83 Cal. Rptr. 2d 677 ( Code Civ. Proc. § 425.16[Deering's] is not limited to paradigm SLAPP suits filed by powerful and wealthy developers against impecunious protestors, and applies to media defendants in libel actions)].

SLAPP suits are likely to involve alleged causes of action for defamation, various business torts (such as interference with prospective economic advantage), nuisance, and intentional infliction of emotional distress [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 652, 49 Cal. Rptr. 2d 620 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 816, 33 Cal. Rptr. 2d 446 ]. The Legislature, however, did not limit application of the provision to such actions, recognizing that all kinds of claims could achieve the objective of a SLAPP suit, that is, to interfere with and burden the defendant's exercise of his or her rights [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 652, 49 Cal. Rptr. 2d 620 ; see also Navellier v. Sletten (2002) 29 Cal. 4th 82, 92-93, 124 Cal. Rptr. 2d 530 ; Foothills Townhome Assn. v. Christiansen (1998) 65 Cal. App. 4th 688, 696, 76 Cal. Rptr. 2d 516 (SLAPP suits can conceivably be pleaded in terms of breach of contract or other valid actions)].br> [3]--Code Civ. Proc. § 425.16 to Be Construed Broadly
In Code Civ. Proc. § 425.16(a)[Deering's] the Legislature has declared that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, the section shall construed broadly [ Code Civ. Proc. § 425.16(a)[Deering's] (last sentence added by Stats. 1997, ch. 271 § 1); see Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1119, 81 Cal. Rptr. 2d 471, 969 P.2d 564 (1997 amendment to section 425.16 mandates broad construction of that section); accord Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 236-240, 83 Cal. Rptr. 2d 677 ].
[4]--Complaint, Plaintiff and Defendant Defined For Purpose of Statute
For the purpose of Code Civ. Proc. § 425.16[Deering's] , ``complaint'' includes ``cross-complaint'' and ``petition,'' ``plaintiff'' includes ``cross-complainant'' and ``petitioner,'' and ``defendant'' includes ``cross-defendant'' and ``respondent'' [ Code Civ. Proc. § 425.16(h)[Deering's] ].
[5]--Two-Part Test for Whether Action Is Subject to Protection of Statute
Code Civ. Proc. § 425.16(b)(1)[Deering's] (formerly Code Civ. Proc. § 425.16(b)[Deering's]) contains a two part test to determine whether an action is a SLAPP suit subject to a special motion to strike. The first part tests whether the action is a SLAPP suit; the second decides whether, if it is a SLAPP suit, it may nontheless survive the motion to strike because the plaintiff has established a probability of prevailing on the complaint. The second part need not be addressed if the action is determined not to be a SLAPP suit [ Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal. App. 4th 1591, 1601, 1603, 57 Cal. Rptr. 2d 491 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 )]. On the other hand, once the court determines the first prong of the statute has been met, a plaintiff must provide the court with sufficient evidence to permit the court to determine whether there is a probability that the plaintiff will prevail on the claim [ Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54, 87 P.3d 802 ; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 568, 92 Cal. Rptr. 2d 755 ].
[6]--What Constitutes a SLAPP Suit
[a]--Four Types of Speech or Conduct
A SLAPP suit is 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 [see Code Civ. Proc. § 425.16(b)(1)[Deering's] ].

As used in Code Civ. Proc. § 425.16[Deering's] , an 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 [ Code Civ. Proc. § 425.16(e)[Deering's] ]:

(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;

(3) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or

(4) Any other conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest.

These four clauses operate independently [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1117, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].

In addition, even if statements are not expressly covered under Code Civ. Proc. § 425.16(e)[Deering's] , the categories enumerated there are not all-inclusive. The acts in furtherance of a person's right to free speech specified by the statute is preceded by the word ``includes'' which is ordinarily a term of enlargement rather than limitation. The use of ``includes'' implies that other acts which are not mentioned are also protected under the statute [ Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 1175, 50 Cal. Rptr. 2d 62 ].
[b]--Statements or Writings Before or in Connection With Official Proceeding
The first two subdivisions of subd. (e) of Code Civ. Proc. § 425.16[Deering's] define an 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 to include the following:

(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.

Under the plain and unambiguous language of the statute, an action may be a SLAPP suit under clauses (1) and (2) without any separate demonstration by the defendant that the statement concerned an issue of public signifcance [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1113, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ; Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 236-237, 83 Cal. Rptr. 2d 677 ; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 566-567, 92 Cal. Rptr. 2d 755 ]. Clauses (3) and (4) include an express limitation to ``issue[s] of public interest'' and that limitation is not to be read into clauses (1) and (2) [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1117-1118, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 566-567, 92 Cal. Rptr. 2d 755 ; for the language of clause (3) and (4), see § 375.24[6][a].

Earlier cases that more narrowly construed Code Civ. Proc. § 425.16[Deering's] have been disapproved [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].

Thus, as to acts covered by the first two clauses of Code Civ. Proc. § 425.16(e)[Deering's] , the statute requires simply any writing or statement made in, or in connection with an issue under consideration or review by, the specified proceeding or body [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1116-1117, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ; Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1046-1047, 61 Cal. Rptr. 2d 58 ].

Nothing in Code Civ. Proc. § 425.16(e)[Deering's] confines free speech to speech which furthers the exercise of petition rights [ Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1046, 61 Cal. Rptr. 2d 58 ]. Under the statute's plain terms it is the context or setting itself that makes the issue a publc issue; all that matters is that the First Amendment activity take place in an official proceeding, or be made in connection with an issue being reviewed by an official proceeding [ Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1047, 61 Cal. Rptr. 2d 58 ]. Thus, news reports published by media defendants made in connection with an issue under consideration or review by an authorized official proceeding fall within the scope of Code Civ. Proc. § 425.16(e)(2)[Deering's] [ Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1046, 61 Cal. Rptr. 2d 58 ; see Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 862-864, 44 Cal. Rptr. 2d 46 ; see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 237-238, 83 Cal. Rptr. 2d 677 (article, insofar as it discussed statements made during deposition or at hearing at child custody trial, was within Code Civ. Proc. § 425.16(e)(1)[Deering's] )].
[c]--Private Conversations Regarding Public Issues
Because the categories enumerated in Code Civ. Proc. § 425.16(e)[Deering's] are not all-inclusive, private conversations regarding a public issue are protected under the statute [ Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 1175-1176, 50 Cal. Rptr. 2d 62 ].

For example, in Averill, the appellate court issued a writ of mandate directing the trial court to strike the complaint when the defendant homeowner, a critic of the plaintiff's plan to convert a house in defendant's neighborhood into a shelter, opposed the plan before the city council and in a letter to the local newspaper, and on discovering that defendant's employer intended to support plaintiff as a charity, opposed the employer's support for the project through internal channels. Although the plaintiff's only cause of action against the defendant was based on the comments defendant made in private to defendant's employer, the court indicated that they might be considered within the enumerated protected acts of section 425.16(e), and that given the ``includes'' language, private conversations could not be excluded from protection. The court noted that even though the plaintiff carefully crafted the lawsuit to exclude the public comments and limit it to the private comments to the defendant's employer, the suit appeared to have been filed solely to punish the defendant for criticizing the project and to impose litigation costs on plaintiff for having exercised the right of free speech and to petition the government [ Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 1172-1173, 1176, 50 Cal. Rptr. 2d 62 ; see also Dove Audo, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 784, 54 Cal. Rptr. 2d 830 (fact communications were made to other private citizens rather than to official agency does not exclude it from protection of anti-SLAPP suit statute)].
[d]--Commercial Conduct and Speech
Commercial conduct and speech made in connection with an issue of public concern under consideration by a legislative body are subject to the SLAPP statute. Thus, protection may apply in an action by a developer against a paid environmental consultant that had been hired by a county to evaluate the developer's proposed project in connection with an environmental impact report [ Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 728, 77 Cal. Rptr. 2d 1 (disapproved by Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 to extent it suggests statement must concern issue of public significance to be protected under Code Civ. Proc. § 425.16(e)(1)[Deering's] or (2)[Deering's] ); see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 566-567, 92 Cal. Rptr. 2d 755 (applying Briggs; lobbying and other activities seeking to influence decisions of regulatory and legislative bodies)].
[e]--Defendant Not Required to Demonstrate Intent to Chill First Amendment Rights
Prior to 2002, California appellate courts had divided over the question whether a defendant who moves under the SLAPP statute 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) 85 Cal. App. 4th 468, 480, 102 Cal. Rptr. 2d 205 with Foothills Townhome Assn. v. Christiansen (1998) 65 Cal. App. 4th 688, 696, 76 Cal. Rptr. 2d 516 ]. In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507 , the California Supreme Court resolved this issue by holding that the defendant has no such burden. [ Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58-59, 24 Cal. Rptr. 2d 507 ].

The court in Equilon Enterprises relied heavily on the fact that the statute's plain language did not require an inquiry as to the plaintiff's subjective motivations. Code Civ. Proc. § 425.16[Deering's] , the court stated, merely makes subject to a special motion to strike any ``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'' as to which the plaintiff has not ``established that there is a probability that [he or she] will prevail on the claim'' [ Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58-59, 124 Cal. Rptr. 2d 507 , quoting Code Civ. Proc. § 425.16[Deering's] ]. Looking toward legislative intent as well, the court pointed out that judicial imposition of an intent-to-chill proof requirement would undermine the Legislature's expressed aim that public participation not be chilled, because of the possibility that a defendant's speech could be chilled without plaintiff intending to do so [ Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 59-62, 124 Cal. Rptr. 2d 507 ]. The court clarified that the only element the defendant needs to establish to invoke the protection of the SLAPP statute is that the plaintiff's lawsuit arose from an act on the part of defendant in furtherance of defendant's right of petition or free speech. From that fact the court may ``presume'' the purpose of the action was to chill the defendant's exercise of First Amendment Rights. It is then up to plaintiff to rebut the presumption by showing a reasonable probability of success on the merits [ Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 61, 124 Cal. Rptr. 2d 507 , quoting Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 307, 106 Cal. Rptr. 2d 906 ].

In City of Cotati v. Gene Cashman (2002) 29 Cal. 4th 69, 124 Cal. Rptr. 2d 519 , a companion case to Equilon Enterprises, the California Supreme Court reiterated that the anti-SLAPP statute in Code Civ. Proc. § 425.16[Deering's] does not contain an intent-to-chill pleading or proof requirement [ City of Cotati v. Gene Cashman (2002) 29 Cal. 4th 69, 75, 124 Cal. Rptr. 2d 519 , see also Navellier v. Sletten (2002) 29 Cal. 4th 82, 87-88, 124 Cal. Rptr. 2d 530 ]. The Cotati court also explained that the anti-SLAPP statute's requirement that the cause of action is one ``arising from'' protected activity is not synonymous with ``in response to'' protected activity. In Cotati, plaintiff City of Cotati adopted a mobile home park rent stabilization program, and subsequent owners of mobile home parks sued the City in federal court. City then sued the owners in state court, outlining a cause of action for declaratory relief. The owners responded to the state court lawsuit with a SLAPP motion to strike, alleging that the City's state court action arose from the owners' filing of their earlier federal action. The court held that simply because City filed its state court action after owners had filed their federal lawsuit did not mean the state court action was ``arising from'' the federal court action within the meaning of the anti-SLAPP statute. The court pointed out that to construe ``arising from'' as meaning ``in response to'' would in effect render all cross-actions potential SLAPP suits [ City of Cotati v. Gene Cashman (2002) 29 Cal. 4th 69, 77, 124 Cal. Rptr. 2d 519 ]. The court held that City's state court cause of action arose from the actual controversy giving rise to both the federal and state actions--the City's rent stabilization program--and not the owners' federal lawsuit. Therefore, City's state court action was not subject to a special motion to strike [ City of Cotati v. Gene Cashman (2002) 29 Cal. 4th 69, 78, 124 Cal. Rptr. 2d 519 ].
[7]--Persons Protected by Code Civ. Proc. § 425.16
[a]--Persons Who Engage in or Support Protected Activity
By its terms, Code Civ. Proc. § 425.16[Deering's] applies to persons who act in furtherance of their own right of petition or free speech [see Code Civ. Proc. § 425.16(a)[Deering's], (b)(1)[Deering's] ].

A defendant moving to strike a SLAPP suit need not, however, demonstrate that its protected statements or writings were made on its own behalf, as opposed to on behalf of its clients or the general public [see Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1116, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].

Code Civ. Proc. § 425.16[Deering's] expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body [ Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 17, 43 Cal. Rptr. 2d 350 ]. A person can exercise his or her own rights by supporting the forceful activities of others. Thus, both a confident opponent who takes the public podium and a shy opponent who prefers to lend moral support by standing silently in the audience are protected under the statute. Furthermore, there is no meaningful difference between a person who supports and encourages the filing of a lawsuit, and one who supports and encourages a third party to speak out publicly at a public hearing on a matter of public interest [ Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 18, 43 Cal. Rptr. 2d 350 ].

Examples include the following:

· A defendant who has instigated and funded litigation involving a colorable claim brought by others, for example, antidevelopment, environmentally based litigation, or has encouraged others to speak out publicly at a public hearing on a matter of public interest, may be protected [ Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 17-18, 43 Cal. Rptr. 2d 350 ].

· A defendant that counseled a tenant in a dispute with a landlord in anticipation of litigation may be protected [ Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1115, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].
[b]--Governmental Entities and Employees
The word ``person'' as used in Code Civ. Proc. § 425.16[Deering's] includes a governmental entity and Section 425.16 extends to public employees who issue reports and comment on issues of public interest relating to their official duties. Thus, as with private parties, Code Civ. Proc. § 425.16[Deering's] also protects governmental entities and their employees and if they are sued as a result of written and verbal comments on issues of public interest relating to their official duties, both may move to specially strike under Section 425.16 [ Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1113-1117, 57 Cal. Rptr. 2d 207 ; see Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 727, 730, 77 Cal. Rptr. 2d 1 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 )].
[c]--Persons Engaged in Illegal Acts Involving Constitutional Rights
Even if the acts alleged in the complaint are done in furtherance of the constitutional rights of free speech or petition for redress of grievances in connection with a public issue, if those acts are themselves illegal, defendant is not entitled to protection under Code Civ. Proc. § 425.16[Deering's] because the plaintiff's lawsuit must be brought primarily to chill a valid exercise of defendant's constitutional rights [ Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356, 1363-1367, 102 Cal. Rptr. 2d 864 ]. In Paul for Council, a political candidate who unsuccessfully ran for city council filed an action against several defendants who had illegally laundered campaign contributions to plaintiff's opponent. The defendants filed an anti-SLAPP motion to strike, arguing that their campaign activities were covered by Code Civ. Proc. § 425.16[Deering's] . The trial court ruled in favor of the defendants and dismissed the action after the plaintiff failed to establish a probability of success on his claims. The court of appeal reversed the trial court's ruling and reinstated the action, concluding that the making of a political campaign contribution is a type of political speech, and ``[a] contribution serves as a general expression of support for the candidate and his views... .'' However, the court next addressed the preamble of Code Civ. Proc. § 425.16(a)[Deering's] , which states that the statute was enacted to combat suits brought primarily to chill the valid exercise of a defendant's constitutional rights of speech and petition. The probability that the Legislature intended to give defendants protection from a lawsuit based on injuries they are alleged to have caused by their illegal campaign money laundering scheme ``is as unlikely as the probability that such protection would exist for them if they injured plaintiff while robbing a bank to obtain the money for the campaign contributions or while hijacking a car to drive the campaign contributions to the post office for mailing.'' Under the facts demonstrated by this record, the court could not permit the defendants to wrap themselves in this vital legislation. While it is technically true that laundering campaign contributions is an act in furtherance of the giving of such contributions, that is, in furtherance of an act of free speech, the court rejected the notion that the statute exists to protect such illegal activity. Because the defendants did not show that plaintiff's suit was brought primarily to chill a valid exercise of their constitutional rights of free speech or petition for redress of grievances in connection with a public issue, plaintiff had no obligation to establish a probability that he would prevail on his causes of action, and the trial court was therefore required to deny defendants' motion to strike plaintiff's causes of action [ Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356, 1364-1367, 102 Cal. Rptr. 2d 864 ].
[7A]--Statutory Exceptions to Special Motion to Strike SLAPP Suits
[a]--Legislative Findings and Declarations
In 2003, the Legislature determined that there had been a ``disturbing abuse'' of California's anti-SLAPP laws codified in Code Civ. Proc. § 425.16[Deering's] which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16 [ Code Civ. Proc. § 425.17(a)[Deering's] ]. Consumer groups argued that large corporations were invoking the anti-SLAPP statute to delay and discourage litigation against them by filing SLAPP motions, using the statute as a litigation weapon [Senate Rules Committee Analysis to SB515, 8/22/03]. The Legislature enacted Code Civ. Proc. § 425.17[Deering's] which provides that certain actions, as specified below, are not subject to a special motion to strike, and further found that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process or Section 425.16 [ Code Civ. Proc. § 425.17(a)[Deering's] ].
[b]--Actions Brought Solely in the Public Interest or on Behalf of General Public
The special motion to strike procedure of Code Civ. Proc. § 425.16[Deering's] does not apply to any action brought solely in the public interest or on behalf of the general public provided that all of the following conditions exist [ Code Civ. Proc. § 425.17(b)[Deering's] ]:

· The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. Claims for attorney's fees, costs, or other penalties do not count as seeking ``greater'' or ``different'' relief.

· The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.

· Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter.
[c]--Actions Brought Against a Person Primarily Engaged in the Business of Selling Goods or Services
The special motion to strike procedure of Code Civ. Proc. § 425.16[Deering's] does not apply to any action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person. Both of the following conditions must exist [ Code Civ. Proc. § 425.17(c)[Deering's] ]:

· The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services.

· The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding or investigation not withstanding that the conduct or statement concerns an important public issue.

· The exception found in this provision does not apply where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor.
[d]--Circumstances Under Which Statutory Exceptions Are Inapplicable
There are circumstances when the foregoing statutory prohibitions against bringing a special motion to strike do not apply. An anti-SLAPP motion is permitted as an exception to the foregoing prohibitions as follows [ Code Civ. Proc. § 425.17(d)[Deering's] ]:

· The anti-SLAPP motion can be employed against claims arising from gathering, receiving, or processing information for communication to the publisher, editor, reporter, or other person connected or employed upon a newspaper, magazine, or other periodical publication, press association, or wire service, or a person engaged in the dissemination of ideas or expression in any book or academic journal [ Code Civ. Proc. § 425.17(d)(1)[Deering's] ].

· The anti-SLAPP motion can be employed against claims against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other promotion of any dramatic, literary, musical, political, or artistic work [ Code Civ. Proc. § 425.17(d)(2)[Deering's] ].

· The anti-SLAPP motion can be employed against claims against any non-profit organization that receives more than 50% of its annual revenue from federal, state, or local government grants, awards, programs, or reimbursements for services rendered [ Code Civ. Proc. § 425.17(d)(3)[Deering's] ].
[8]--Time Limitation for Motion and Hearing Date
A special motion to strike under Code Civ. Proc. § 425.16[Deering's] may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time on terms the court deems proper [ Code Civ. Proc. § 425.16(f) ]. The motion must be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing [ Code Civ. Proc. § 425.16(f)[Deering's] ]. When a reasonable exercise of judicial discretion dictates, the court may continue the hearing date to allow completion of discovery that the court may have authorized [ Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 868, 44 Cal. Rptr. 2d 46 ].

The 60-day requirement in Code Civ. Proc. § 425.16(f)[Deering's] for filing an anti-SLAPP motion runs from the service of the complaint or an amended complaint, and if the amended complaint is served by mail, defendant has an extra 5 days in which to file the motion [ Lam v. Ngo (2001) 91 Cal. App. 4th 832, 840-842; 111 Cal. Rptr. 2d 582 ].
[9]--Notification to Judicial Council
Any party who files a special motion to strike under Code Civ. Proc. § 425.16[Deering's] , and any party that files opposition to a special motion to strike must, promptly on so filing, transmit to the Judicial Council, by e-mail or fax, the following [ Code Civ. Proc. § 425.16(k)(1)[Deering's] ]:

· A copy of the endorsed-filed caption page of the motion or opposition,

· A copy of any related notice of appeal or petition for a writ, and

· A conformed copy of any order issued pursuant to Code Civ. Proc. § 425.16[Deering's] , including any order granting or denying any a special motion to strike, discovery or fees.

Transmission by fax should be sent to 415-865-4332. A clearly addressed cover sheet should direct the fax to:

Judicial Council of California
Council and Legal Services Division
RE: SLAPP Documents Per CCP 425.16[Deering's]
Attn: Research & Planning Unit Secretary

If documents are transmitted by e-mail, the documents should be in Word 97. The e-mail message, with the documents in an attachment, must include the date the documents were filed with the court. The message should be addressed to SLAPP@jud.ca.gov.

The Judicial Council must maintain a public record of the information transmitted under Code Civ. Proc. § 425.16(k)[Deering's] for at least three years, and may store the information on microfilm or other appropriate electronic media [ Code Civ. Proc. § 425.16(k)(2)[Deering's] ]. The Judicial Council is posting the log on the California Courts Web site (www.courtinfo.ca.gov). The log is an Excel 97 file, and will be updated by the fifth business day of every month.
[10]--Stay of Discovery Proceedings
All discovery proceedings in the action must be stayed on the filing of a notice of motion made pursuant to Code Civ. Proc. § 425.16[Deering's] [ Code Civ. Proc. § 425.16(g) ]. The stay of discovery must remain in effect until notice of entry of the order ruling on the motion. The court, however, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this stay requirement [ Code Civ. Proc. § 425.16(g)[Deering's] ].

Code Civ. Proc. § 425.16[Deering's] motions to strike will commonly be filed early in the legal proceedings before the plaintiff has the opportunity to conduct or complete significant and necessary discovery. For example, in a libel action against a media defendant, the media defendant will generally be the principal, if not the only source, of evidence concerning such matters as whether the defendant knew the published statement was false, or published the statement in reckless disregard of whether the matter was false and defamatory, or acted negligently in failing to ascertain whether the published matter was false and defamatory. Accordingly, if a plaintiff makes a timely and proper showing in response to a motion to strike, that a defendant or witness possesses evidence that the plaintiff needs to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion is adjudicated. The trial court must liberally exercise its discretion to authorize reasonable and specified discovery timely requested for by a plaintiff, when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees [ Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 868, 44 Cal. Rptr. 2d 46 ; see also Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1499, 45 Cal. Rptr. 2d 624 (failure to comply with statute by not making a timely and proper showing in the trial court for discovery made discovery request on appeal meritless)].

However, a plaintiff fails to show good cause for discovery in a defamation action if the plaintiff fails to identify additional facts plaintiff expects to discover or facts necessary to establish the absence of privilege or the existence of actual malice [ Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 231, 83 Cal. Rptr. 2d 677 ]. The trial court does not abuse its discretion in denying discovery when it does not appear that further discovery could result in disclosure of information that would permit the plaintiff to demonstrate a prima facie case on any of plaintiff's claims [ Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 247, 83 Cal. Rptr. 2d 677 ].

For discussion of the continuance of the hearing date when such a request has been granted, see [8], above.
[11]--Required Prima Facie Showing
[a]--Defendant
The defendant pursuing an anti-SLAPP motion must make an initial prima facie showing that plaintiff's suit arose from an act in furtherance of defendant's right of petition or free speech [ Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54, 87 P.3d 802 ; Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67, 124 Cal. Rptr. 2d 507, 52 P.3d 685 ]. A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in Code Civ. Proc. § 425.16(e)[Deering's] [ Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1043, 61 Cal. Rptr. 2d 58 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820, 33 Cal. Rptr. 2d 446 ; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 565-567, 92 Cal. Rptr. 2d 755 and discussion in [6][a], above, and Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58, 124 Cal. Rptr. 2d 507 , and discussion in [6][e], above].
The fact of a prior grant of a preliminary injunction in favor of plaintiff does not have a preclusive, res judicata effect on the later filing by defendant of an anti-SLAPP motion [ Lam v. Ngo (2001) 91 Cal. App. 4th 832, 843-844, 111 Cal. Rptr. 2d 582 ].
[b]--Plaintiff
[i]--Probability That Plaintiff Will Prevail
If the defendant establishes a prima facie showing, then the burden shifts to the plaintiff to establish a probability that plaintiff will prevail on the claim [ Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 63, 124 Cal. Rptr. 2d 507, 52 P.3d 685 ; Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 646, 49 Cal. Rptr. 2d 620 ; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 567, 92 Cal. Rptr. 2d 755 ; Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907, 84 Cal. Rptr. 2d 303 ]. The burden on the plaintiff is similar to the standard used in determining a motion for nonsuit, directed verdict, or summary judgment [ Slauson Partnership v. Ochoa (2003) 112 Cal. App. 4th 1005, 1020, 5 Cal. Rptr. 3d 668 ; Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907, 84 Cal. Rptr. 2d 303 ; Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 653-654, 49 Cal. Rptr. 2d 620 ].

In order to preserve the plaintiff's right to a jury trial the court's determination of the motion cannot involve a weighing of the evidence [ Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54, 87 P.3d 802 ; Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 907-908, 84 Cal. Rptr. 2d 303 ; Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 654, 49 Cal. Rptr. 2d 620 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 825, 33 Cal. Rptr. 2d 446 ]. Rather, to establish a probability of success on the merits, the plaintiff must make a prima facie showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor [ Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 824, 33 Cal. Rptr. 2d 446 ; see Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 744, 36 Cal. Rptr. 2d 687 ]. Whether or not plaintiff has established a prima facie case is a question of law [ Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54, 87 P. 3d 802 ]. To establish a probability of success the plaintiff must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited [ Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 61, 124 Cal. Rptr. 2d 507, 52 P.3d 685 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 823, 33 Cal. Rptr. 2d 446 ]. To accomplish this, the burden is on the plaintiff to meet the defendant's constitutional defenses. This burden is met in the same manner the plaintiff meets the burden of demonstrating the merits of the cause of action, that is, by showing the defendant's purported constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses [ Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 824, 33 Cal. Rptr. 2d 446 ].

To satisfy plaintiff's burden, it is not sufficient that plaintiff's complaint had survived a demurrer. Plaintiff must also substantiate the legal sufficiency of its claims. Substantiation requires something more than mere allegations of an unverified complaint. Once the court determines the first prong of the statute has been met, a plaintiff must provide the court with sufficient evidence to permit the court to determine whether there is a probability that the plaintiff will prevail on the claim [ DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 568, 92 Cal. Rptr. 2d 755 ].

The court, in making its determination that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim, must consider the pleadings, and supporting and opposing affidavits stating the facts on which the liability or defense is based [ Code Civ. Proc. § 425.16(b)(2)[Deering's] ; see Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal. App. 4th 1057, 1063-1064, 82 Cal. Rptr. 2d 10 ]. The court will accept as true all evidence favorable to the plaintiff [ Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 746, 36 Cal. Rptr. 2d 687 ]. The plaintiff, however, must base his or her prima facie showing on admissible evidence [ Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 830, 33 Cal. Rptr. 2d 446 ; see Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 654-655, 49 Cal. Rptr. 2d 620 ; see also Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 675, 64 Cal. Rptr. 2d 222 ]. A showing to support a cause of action must be made by competent evidence within the personal knowledge of the declarant [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 654, 49 Cal. Rptr. 2d 620 ]. Averments on information and belief are insufficient [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 654, 49 Cal. Rptr. 2d 620 ; Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1493, 1497-1498, 45 Cal. Rptr. 2d 624 ]. Moreover, a party cannot simply rely on allegations in its own pleadings, even if verified, to make the required evidentiary showing. The pleadings merely frame the issues to be decided [ Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 656, 49 Cal. Rptr. 2d 620 ].

If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination is admissible in evidence at any later stage of the case [ Code Civ. Proc. § 425.16(b)(3)[Deering's] ]. Furthermore, no burden of proof or degree of proof otherwise applicable is affected by that determination [ Code Civ. Proc. § 425.16(b)(3)[Deering's] ].
[11A]--Amending Pleadings
There is no express or implied right for the plaintiff to amend a SLAPP complaint, once the motion to strike has been granted [ Simmons v. Allstate Ins. Co. (2001) 92 Cal. App. 4th 1068, 1074, 112 Cal. Rptr. 2d 397 ].

The plaintiff cannot amend the pleading if the motion to strike is denied and the defendant has appealed the decision. Rather, there is an implied stay in the proceedings, so that the plaintiff cannot deprive the defendant of the right to the appellate review granted by the Legislature so that the appellate court can determine if the defendant had made a prima facie showing [ Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal. App. 4th 604, 613, 129 Cal. Rptr. 2d 546 ].
[12]--Standard of Review on Appeal
An order granting or denying a special motion to strike under Code Civ. Proc. § 425.16[Deering's] is appealable under Code Civ. Proc. § 904.1[Deering's] [ Code Civ. Proc. § 425.16(j)[Deering's] ]. However, if the special motion to strike was denied on the grounds that the action or cause of action is exempt from the special motion to strike rules under Code Civ. Proc. § 425.17[Deering's] , the appeal provisions do not apply [ Code Civ. Proc. § 425.17(e)[Deering's] ].

In reviewing a judgment of dismissal after the trial court grants a special motion to strike pursuant to Code Civ. Proc. § 425.16[Deering's] , the appellate court uses its independent judgment to determine whether defendant acted in furtherance of its right of petition or free speech in connection with a public issue. Defendant bears the burden to make this prima facie case. If the defendant bears its burden, the appellate court then considers whether the plaintiff has produced sufficient admissible evidence to establish the probability of prevailing on the merits on every cause of action asserted [ Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 721, 77 Cal. Rptr. 2d 1 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ); see Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal. App. 4th 1057, 1064, 82 Cal. Rptr. 2d 10 (appellate court independently reviews entire record to determine if plaintiff made sufficient prima facie case that plaintiff would prevail in light of applicable law regarding complaint); Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 653, 49 Cal. Rptr. 2d 880 (same)].
[13]--Attorney Fees, Costs, and Sanctions
[a]--Recovery by Defendant
In any action subject to Code Civ. Proc. § 425.16(b)[Deering's] , a prevailing defendant on a special motion to strike is entitled to recover his or her attorney's fees and costs [ Code Civ. Proc. § 425.16(c)[Deering's] ; see Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 729-731, 77 Cal. Rptr. 2d 1 (county may be a prevailing defendant entitled to reasonable attorney's fees; disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 )]. A prevailing defendant is entitled to recover fees even if they were paid by a third party [ Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 675-676, 64 Cal. Rptr. 2d 222 ; see Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1423, 103 Cal. Rptr. 2d 174 (SLAPP defendant who initially appears pro se and later retains counsel who successfully brings motion to strike complaint under section 425.16, is entitled to award of reasonable attorney fees under mandatory attorney fees provision of Code Civ. Proc. § 425.16(c)[Deering's] )].
[b]--Effect of Voluntary Dismissal of Suit
A plaintiff may have a voluntary dismissal entered by the clerk after a Code Civ. Proc. § 425.16[Deering's] motion is filed by the defendant and a hearing is held, but before the court rules on the motion [ Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 908 n.4, 84 Cal. Rptr. 2d 303 (voluntary dismissal with prejudice; court expressly did not decide whether tentative ruling cuts off plaintiff's right to dismiss)].

The court retains jurisdiction to determine whether to award defendant attorney's fees pursuant to a Section 425.16 motion filed before the voluntary dismissal [ Coltrain v. Shewalter (1998) 66 Cal. App. 4th 94, 107, 77 Cal. Rptr. 600 ; see Liu v. Moore (1999) 69 Cal. App. 4th 745, 753, 81 Cal. Rptr. 2d 807 ].

The courts of appeal differ, however, as to the method for determining whether to award attorney's fees under Section 425.16 when the case has been voluntarily dismissed.

One court has held that when the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending under Code Civ. Proc § 425.16[Deering's] , the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under Code Civ. Proc § 425.16(c)[Deering's] . In making that determination, the critical issue is which party realized its objectives in the litigation. Since the defendant's goal is to make the plaintiff go away, ordinarily the defendant will be the prevailing party. Thus, a presumption arises that the defendant is the prevailing party. The plaintiff, however, may try to show it actually dismissed because it had substantially achieved its goals through settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits so as to rebut the presumption [ Coltrain v. Shewalter (1998) 66 Cal. App. 4th 94, 107, 77 Cal. Rptr. 2d 600 (Fourth Dist., Div. Two; case involved voluntary dismissal without prejudice)].

Another court, disagreeing with the reasoning in Coltrain, has held that a defendant who is voluntarily dismissed, with or without prejudice, after filing a Section 425.16 motion to strike, is entitled to have the merits of the motion heard as a predicate to a determination of the defendant's motion for attorney's fees and cost under Code Civ. Proc. § 425.16(c)[Deering's] [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 751, 81 Cal. Rptr. 2d 807 (Second Dist., Div. Three)]. The Moore court criticized Coltrain's rationale that the plaintiff might have good-faith reasons for dismissing a SLAPP suit that have nothing to do with oppressing the defendant or avoiding liability for attorney fees, because, for example, if the plaintiff in a SLAPP suit substantially achieved its goals through a settlement or other means, then the plaintiff succeeded in chilling the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances since that is the purpose of a SLAPP suit. Also, it is quite possible that a plaintiff in a SLAPP suit is not worried that a defendant might be insolvent, since the focus of the SLAPP suit is to chill speech and/or the petitioning of government, not necessarily to line the plaintiff's pockets with money. Thus, the Moore court viewed adjudication of a defendant's motion to strike as an essential predicate to ruling on the defendant's request for an award of fees and costs. If judicial determination of the motion were not first required, and a fair procedural opportunity to obtain it allowed, then a plaintiff's voluntary dismissal of the action could have the effect of (1) depriving a true SLAPP defendant of statutory authorized fees or (2) entitling a defendant to such relief in a non-SLAPP action which was dismissed by the plaintiff for entirely legitimate reasons. The purpose of the statute's remedial provisions would be frustrated in either situation [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 752-753, 81 Cal. Rptr. 2d 807 ].

Code Civ. Proc. § 128.7[Deering's] is not a viable alternative to the attorney's fees and costs relief afforded by Code Civ. Proc. § 425.16[Deering's] when there has been a voluntary dismissal while a motion to strike under Code Civ. Proc. § 425.16[Deering's] is pending [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 750-751, 81 Cal. Rptr. 2d 807 ].

A trial court has jurisdiction to award attorney fees to a prevailing defendant whose SLAPP motion was not heard solely because the matter was dismissed by the court before defendants obtained a ruling on the SLAPP motion. [ Pfeiffer Venice Properties v. Bernard (2002) 101 Cal. App. 4th 211, 218-219, 123 Cal. Rptr. 2d 647 ].

Attorney fees are not automatically available under Code Civ. Proc. §§ 1032[Deering's] and 1033.5(a)(10)(B)[Deering's] (recovery as costs of attorney's fees authorized by statute) if a defendant is dismissed from what defendant contends is a SLAPP suit because Code Civ. Proc. § 425.16[Deering's] authorizes attorney fees only if the defendant prevails on the motion to strike [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 753-754, 81 Cal. Rptr. 2d 807 ].
[c]--Recoverable Fees
By its terms, Code Civ. Proc. § 425.16[Deering's] permits the use of the lodestar adjustment method whereby the lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate, and that figure may be adjusted based on consideration of factors specific to the case, in order to fix the fee at the market rate for legal services provided [ Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1136, 104 Cal. Rptr. 2d 377 ]. The Supreme Court noted that because the anti-SLAPP provisions referred to attorney fees and costs without indicating any restrictions on how they are to be calculated, the Legislature presumably intended courts to use the prevailing lodestar method [ Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1135-1136, 104 Cal. Rptr. 2d 377 ]. The trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill or other factors, but retains discretion to do so [ Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138, 104 Cal. Rptr. 2d 377 ]. In remanding the case in Ketchum to redetermine the amount of the fee enhancement, the Court found that it was improper to impose an enhancement for contingent risk as to the attorney fees on fees accrued after the motion to strike was granted. The Court also directed that any disapproval on the part of the trial court as to the plaintiff's litigation strategy (to keep the defendant in court) could not be a basis of imposing an enhancement for contingent risk or quality of representation merely for the purpose of punishing the plaintiff [ Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1142, 104 Cal. Rptr. 2d 377 ].

With regard to the extent of recoverable attorney fees and costs, one court has held that a prevailing defendant on a motion to strike is allowed to recover attorney fees and costs on the motion to strike, not the entire suit [ Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal. App. 4th 1379, 1383, 46 Cal. Rptr. 2d 542 (First Dist., Div. Five) ]. Other courts, however, have awarded attorney fees and cost without addressing this specific point [see, e.g., Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 785, 54 Cal. Rptr. 2d 830 (Second Dist., Div. Four; section authorizes court to make award of reasonable attorney's fees to prevailing defendant which will adequately compensate defendant for expense of responding to baseless lawsuit); accord Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 360-362, 42 Cal. Rptr. 2d 464 (Second Dist., Div. Three); see also Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 658-659, 49 Cal. Rptr. 2d 620 (Second Dist., Div. Three)].

In addition, because Code Civ. Proc. § 425.16(c)[Deering's] provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees and costs by a prevailing defendant-respondent, those fees are recoverable [ Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 785, 54 Cal. Rptr. 2d 830 ; Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659, 49 Cal. Rptr. 2d 620 ; see Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 250, 83 Cal. Rptr. 2d 677 (defendants entitled to attorney fees and costs on appeal; Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1493, 1499-1500, 45 Cal. Rptr. 2d 624 (appellate attorney fees recoverable)].
[d]--Stay of Enforcement of Judgment Awarding Attorney Fees Pending Appeal
A SLAPP plaintiff's perfecting of an appeal from a judgment awarding attorney fees and costs to a prevailing defendant under Code Civ. Proc. § 425.16[Deering's] does not automatically stay enforcement of the judgment. To stay enforcement of such a judgment, the SLAPP plaintiff must give an appropriate appeal bond or undertaking under the money judgment exception to the automatic stay rule Code Civ. Proc. § 916(a)[Deering's] [ Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1427-1433, 103 Cal. Rptr. 2d 174 ].

For general discussion and forms, see Ch. 43, Appeal: Stay of Proceedings.
[e]--Recovery by Plaintiff
If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney's fees pursuant to Code Civ. Proc. § 128.5[Deering's] to a plaintiff prevailing on the motion [ Code Civ. Proc. § 425.16(c)[Deering's] ; Moore v. Shaw (2004) 116 Cal. App. 4th 182, 198-200, 10 Cal. Rptr. 3d 154 ].
[14]--Application of Statute to Causes of Action That Accrued Prior to Its Enactment
Code Civ. Proc. § 425.16[Deering's] is a procedural statute which applies prospectively to an existing cause of action even though the cause of action may have accrued before the statute's effective date [ Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 356-357, 42 Cal. App. 4th 464 ].
§§ 375.25-375.39 [Reserved]

Part III RESEARCH GUIDE
§ 375.40 Related Matthew Bender Publications
For memoranda of points and authorities in support of and in opposition to motions to strike, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 160, Motions to Strike (Matthew Bender)
§ 375.41 State Statutes
Motion to strike in limited civil case. Code Civ. Proc. §§ 91[Deering's], 92(d)[Deering's]

Motion to strike action chilling exercise of free speech or right to petition for redress of grievances. Code Civ. Proc. § 425.16[Deering's]

Notice of motion to strike. Code Civ. Proc. § 435[Deering's]

Grounds for motion to strike. Code Civ. Proc. § 436[Deering's]

Motion to strike after motion for judgment on the pleadings has been granted with leave to file amended pleading, and pleading is not filed within time allowed or otherwise in violation of court order. Code Civ. Proc. § 438(i)(1)(A)[Deering's]

Motions to strike as limited to defects appearing on face of pleading or from matter subject to judicial notice. Code Civ. Proc. § 437[Deering's]

Time for answer if demurrer is stricken. Code Civ. Proc. § 472a(c)[Deering's]

Time for answer if motion to strike complaint is denied. Code Civ. Proc. § 472a(d)[Deering's]

Allowance of amendment of pleading when motion to strike is granted. Code Civ. Proc. § 472a(d)[Deering's]

Dismissal of action after motion to strike granted. Code Civ. Proc. § 581(f)(3)[Deering's],(4)[Deering's]

Default judgment after motion to strike is granted or denied and defendant fails to answer complaint or unstricken portion. Code Civ. Proc. § 586(a)(2)[Deering's],(3)[Deering's]

Default judgment after motion to strike answer is granted. Code Civ. Proc. § 586(a)(7)[Deering's]

Motion to strike pursuant to Code Civ. Proc. § 435[Deering's], 436[Deering's], or 473[Deering's] as raising issue of law. Code Civ. Proc. § 589(b)[Deering's]

Motion to strike as appearance. Code Civ. Proc. § 1014[Deering's]
§ 375.42 California Rules of Court
Requirements of motions to strike. Cal. Rules of Ct., Rules 301[Deering's], 312(a)[Deering's], 313[Deering's], 329[Deering's]

Notice of motion to strike. Cal. Rules of Ct., Rule 329[Deering's]
§ 375.43 Local Court Rules
[1]--Los Angeles County
Assignment of judge for law and motion matters. Los Angeles Co. Super. Ct. Rules, Rules 7.3(i), 7.4

Time; trial court delay reduction standards. Los Angeles Co. Super. Ct. Rules, Rule 7.7(a)(3)

Judicial notice. Los Angeles Co. Super. Ct. Rules, Rule 9.2
§ 375.44 Decisions
[1]--Appealability of Order
Order granting motion to strike third amended complaint, which removed particular defendant from case and left no issues to be determined between that defendant and plaintiff, as appealable as final judgment within meaning of Code Civ. Proc. § 904.1[Deering's] . Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal. App. 3d 943, 946-947, 241 Cal. Rptr. 187

Appealability of order on motion to strike that operates to leave no issues to be determined between pleader and moving party. Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal. App. 3d 24, 40 n.11, 96 Cal. Rptr. 317 ; Lerner v. Ehrlich (1963) 222 Cal. App. 2d 168, 170, 35 Cal. Rptr. 106

Order granting motion to strike complaint that would operate to remove from case only cause of action alleged against defendants and to leave no issues to be determined between opposing parties as appealable, even if it is void. Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 370-371, 63 Cal. Rptr. 123

Order striking demurrer on motion as not independently appealable, but as reviewable, if at all, on appeal from judgment. Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 462, 250 P.2d 270 ; see also Cuddahy v. Gragg (1920) 46 Cal. App. 578, 580, 189 P. 721
[2]--Demurrer Distinguished
Motion to strike as generally used to reach defects in pleading that are not subject to demurrer; motion to strike as not lying to attack complaint for insufficiency of allegations to justify relief, which is ground for general demurrer. Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 342, 264 Cal. Rptr 673
[3]--Grounds for Motion to Strike
[a]--Proper Grounds
Trial court has authority to strike sham pleadings, or those not in conformity with its prior ruling. Janis v. California State Lottery Com. (1998) 68 Cal. App. 4th 824, 829, 80 Cal. Rptr. 2d 549

Motion to strike is appropriate vehicle for attacking allegations in complaint requesting improper relief. Satz v. Superior Court (1990) 225 Cal. App. 3d 1525, 1533 n.9, 275 Cal. Rptr. 710 ; Saberi v. Bakhtiari (1985) 169 Cal. App. 3d 509, 517, 215 Cal. Rptr. 359

Under Code Civ. Proc. § 436(a)[Deering's] , trial court has discretion to strike from pleading any irrelevant, false, or improper matter. La Jolla Village Homeowners' Assn. v. Superior Court (1989) 212 Cal. App. 3d 1131, 1141, 261 Cal. Rptr. 146

In action by hospital patient for, among other things, battery and violation of constitutional rights, based on defendant's life-sustaining measures in light of patient's wish to die, motion to strike allegations that defendant's conduct was extreme, malicious, and outrageous and related allegations, was properly granted because patient's right to have treatment withdrawn was not established at that time and allegations were not supported by fact. Bartling v. Glendale Adventist Medical Center (1986) 184 Cal. App. 3d 961, 969-971, 229 Cal. Rptr. 360

Trial court may dismiss complaint sua sponte pursuant to Code Civ. Proc. § 436(b)[Deering's] because complaint failed to state cause of action and was therefore not drawn in comformity with Code Civ. Proc. § 425.10[Deering's] . Lodi v. Lodi (1985) 173 Cal. App. 3d 628, 630-631, 219 Cal. Rptr. 116

Cross complaint filed without leave of court after trial date had been set and vacated by stipulation of parties was properly stricken. Loney v. Superior Court (1984) 160 Cal. App. 3d 719, 721-724, 206 Cal. Rptr. 769
[b]--Improper Grounds
In civil action under Fair Employment and Housing Act ( Gov. Code § 12900[Deering's] et seq. ), all relief generally available in noncontractual actions, including punitive damages, is available; defendant's motion to strike prayers for punitive damages was properly denied. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d 211, 221, 185 Cal. Rptr. 270, 649 P.2d 912

In action by workers' compensation carrier against State Compensation Insurance Fund stating causes of action for breach of covenant of good faith and constructive fraud based on alleged improper calculation of premiums, punitive damages allegations were improperly stricken because complaint alleged specific intent sufficient as matter of pleading to show malice, and conduct properly characterized as despicable. Courtesy Ambulance Service v. Superior Court (1992) 8 Cal. App. 4th 1504, 1519, 11 Cal. Rptr. 2d 161

Trial court abused its discretion by granting motion to strike allegations and references in complaint that adequately pleaded cause of action for punitive damages when language at issue could be determined to be ultimate facts rather than conclusions of law, and granting motion would have deprived plaintiff of opportunity to plead action and possibly would have required retrial or reversal. Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 5, 6-7, 172 Cal. Rptr. 427

Right to have pleading (demurrer) stricken for lack of timeliness is not absolute and within trial court's discretion if no question of jurisdiction is involved and if late filing is mere irregularity. Tuck v. Thuesen (1970) 10 Cal. App. 3d 193, 196, 88 Cal. Rptr. 759 (disapproved on other grounds in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 190 n.29, 98 Cal. Rptr. 837, 491 P.2d 421 )
[4]--Mandate
In mandate proceeding challenging order striking punitive damage allegations in second amended complaint, appellate court reviews order de novo; in passing on correctness of ruling on motion to strike, judges read allegations of pleading subject to motion to strike as a whole, all parts in their context, and assume their truth; in ruling on motion to strike, courts do not read allegations in isolation. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255, 79 Cal. Rptr. 2d 747

In mandate proceeding reviewing trial court's order striking causes of action and granting motions for judgment on pleadings without leave to amend, reviewing court as considering de novo whether trial court's ruling deprived party of opportunity to plead cause of action, which would be abuse of discretion. La Jolla Village Homeowners' Assn. v. Superior Court (1989) 212 Cal. App. 3d 1131, 1140, 261 Cal. Rptr. 146
[5]--Ruling on Motion
In ruling on motion to strike, courts do not read allegations in isolation; in passing on correctness of ruling on motion to strike, judges read allegations of pleading subject to motion to strike as a whole, all parts in their context, and assume their truth. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255, 79 Cal. Rptr. 2d 747
[6]--Special Motion Strike SLAPP Suits (Strategic Litigation Against Public Participation)
[a]--Examples of Motion Granted
California Supreme Court affirmed the trial court's granting of defendant's motion to strike under Code Civ. Proc. § 425.16[Deering's] in a case where plaintiff Equilon Enterprises, LLC (formerly Shell Pipe Line Corp. And Texaco, Inc.) filed suit against Consumer Cause, Inc. after Consumer Cause had served plaintiff with a notice of its intent to sue for alleged violations of Proposition 65. Following the service of this intent to sue notice, Equilon filed its suit against Consumer Cause for declaratory and injunctive relief. Consumer Cause then moved under the anti-SLAPP statute to strike Equilon's complaint. The trial court granted the motion, and the Court of Appeal and California Supreme Court both affirmed that ruling. The court noted that the California courts of appeal had divided over the question of whether a defendant must prove a plaintiff had an intent to chill defendant's exercise of speech in order to prevail on an anti-SLAPP motion to strike. The court held there is no such requirement based on the plain language of the statute and on legislative intent. In this particular case, the court held that the pleadings and affidavits submitted established that Equilon's action was one arising from Consumer Cause's activity in furtherance of its constitutional rights of speech, i.e., the filing of the intent to sue notices. The trial court had found that Equilon had not established a probability of prevailing on is claim, so the granting of the motion was affirmed. Equilon's intent in suing Consumer Cause was deemed irrelevant. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58-65, 124 Cal. Rptr. 2d 507

The key question in the first prong of a Code Civ. Proc. § 425.16[Deering's] anti-SLAPP determination is whether the plaintiff's cause of action is based on the defendant's protected free speech or petitioning activity, not whether plaintiff intended to chill defendant's rights in filing the lawsuit. Once the first prong is satisfied, the plaintiff has the opportunity to overcome the anti-SLAPP motion to strike by demonstrating that they have a probability of prevailing on their claim. Plaintiffs in this case filed a lawsuit against defendant for fraud and breach of contract in connection with a prior federal lawsuit in which defendants had filed counterclaims against plaintiffs. The court held that in as much as the plaintiffs' lawsuit arose from defendant's counterclaims in the federal court suit, defendant had satisfied the first prong of the statute. The case was remanded to the trial court for a determination regarding the second prong of the statute's test. Navellier v. Sletten (2002) 29 Cal. 4th 82, 87-104, 124 Cal. Rptr. 2d 530

Appellate court affirmed the trial court's granting of defendant's motion to strike under the anti-SLAPP statute in a case in which plaintiff, a discount seller of contact lenses, sued defendant, an optometrist and lawyer, for inducing breach of fiduciary duties and breach of contract; suit arose out of defendant's communications with other optometrists and optometric agency representatives inviting pursuit of prospective legislation concerning mail order contact lens sales, particularly with plaintiff's former in-house lawyer, against whom breaches of fiduciary duty and contract were alleged in a separate suit. Defendant's communications were found to be statements made in connection with an issue under consideration by a legislative body, statements on an issue of public interest made in a place open to the public, or any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public interest under Code Civ. Proc. § 425.16(e)[Deering's] ; the question of whether the communications were unlawful was irrelevant in the determination of the first prong of the anti-SLAPP statute test and was properly considered in the secondary inquiry as to whether plaintiff had established a probability of success. 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568, 583-584, 132 Cal. Rptr. 2d 789

Issue of whether defendants' communications were made in connection with an issue under consideration or review by a legislative, executive, or judicial body was irrelevant for purposes of determination under first prong of anti-SLAPP statute because there appeared to be no dispute that the subject of the communications, the commercial development of the Crystal Bay area of the city of Chula Vista, was a matter of public interest because the anti-SLAPP statute has been broadly construed to involve not only governmental matters but also private conduct that impacts a broad segment of society and/or affects a community in a manner similar to that of a governmental entity (quoting Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 479, 102 Cal. Rptr. 2d 205 ). Plaintiff's argument that it did not intend to chill free speech rights by its lawsuit was irrelevant. Plaintiff was unable to demonstrate a probability of prevailing on the merits, and therefore the trial court's granting of the motion was affirmed. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal. App. 4th 1219, 1231-1235, 132 Cal. Rptr. 2d 57

County bar association's evaluation of candidates for judicial office is constitutionally protected free speech, and lawsuit against it for giving ``not qualified'' rating to judicial candidate is a SLAPP suit subject to motion to strike under Code Civ. Proc. § 425.16[Deering's] if candidate does not show likelihood of prevailing. Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal. App. 4th 604, 614-615, 129 Cal. Rptr. 2d 546

In defamation action by former manager of homeowners association against several association members, board of director members, and private homeowners association club, court of appeal affirmed trial court's granting of defendants' motion to strike under Code Civ. Proc. § 425.16[Deering's] where allegedly defamatory statement made concerning plaintiff's services as manager of homeowners association at board meetings and in newsletter fell within category of any written or oral statement or writing made in place open to public or public forum in connection with issue of public interest under Code Civ. Proc. § 425.16(e)(3)[Deering's] ; newsletter was public forum since stated purpose of newsletter was to communicate information of interest and/or concern to residents, it was distributed to residents of community and neighboring businesses, and, while most of articles and letters were critical of plaintiff's management, newsletter also printed letters reflecting contrary viewpoints; ``public forum'' requirement should be construed in keeping with 1997 amendment to section 425.16 requiring broad interpretation of that section; each of allegedly defamatory statements involved issues of public interest in that they concerned (1) decision whether to continue to be self-governed or to switch to professional management company and (2) plaintiff's competency to manage association; although homeowners association was private, statements concerned issues of critical importance to large segment of local population; plaintiff's subjective intent in bringing suit was irrelevant. Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 474-480, 102 Cal. Rptr. 2d 205

In action by nationally known political consultant for libel, intentional interference with contract, and intentional interference with prospective economic advantage concerning article that focused on custody dispute between plaintiff and his first wife, court of appeal affirmed trial court's granting of defendants' motion to strike under Code Civ. Proc. § 425.16[Deering's] when lawsuit fell under ambit of Section 425.16, and plaintiff failed to show probability of prevailing on claim because article was privileged under Civ. Code § 47(d)[Deering's] , article was a fair and true report, and plaintiff, as public figure, failed to show by clear and convincing evidence that article was published with malice. Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 230-250, 83 Cal. Rptr. 2d 677

Court of appeal affirmed trial court's granting of defendant's motion to strike under Code Civ. Proc. § 425.16[Deering's] when (1) plaintiff had been California State Assemblyman whose former assistant had filed sexual harassment charges against him, and had been investigated by Assembly and reprimanded for violating Assembly's sexual harassment policy and various newspapers reported on the sexual harassment suit, plaintiff's reprimand and cost of the defense, (2) plaintiff brought action against defendant, a political rival in 1996 elections for Orange County Board of Supervisors, for libel, slander per se, intentional infliction of emotional distress and negligent infliction of emotional distress, based on numerous comments made about the sexual harassment suit contained in a letter sent by defendant to absentee voters, and (3) once defendant showed that his statements were acts in furtherance of his right of free speech and made in connection with a public issue, plaintiff failed in his burden to show a probability of prevailing on his defamation claim; Section 425.16 applies to suits involving statements made during political campaigns; to establish probability of plaintiff prevailing on his defamation claim against defendant, plaintiff had to make prima facie showing of facts which would, if credited, support judgment in plaintiff's favor; as public official, plaintiff could not recover damages for defendant's statements about plaintiff's fitness for office unless plaintiff proved by clear and convincing evidence that statements were made with actual malice; factual statements made during campaign by defendant were true or based on reliable evidence, that is, Assembly investigation report and reprimand letter, newspaper articles and plaintiff's own statements, and thus defendant did not make them with actual malice; moreover, defendant's expressions of personal opinion about plaintiff's fitness for office are not actionable. Conroy v. Spitzer (1999) 70 Cal. App. 4th 1446, 1448-1455, 83 Cal. Rptr. 2d 443

In defamation action against labor union and its research analyst based on statement made by analyst during television newscast concerning firing by plaintiff of two of plaintiff's employees, court of appeal affirmed trial court's granting of defendants' motion to strike under Code Civ. Proc. § 425.16[Deering's] when defendants carried initial burden of establishing prima facie showing that plaintiff's complaint arose from defendants' free speech activity and plaintiff failed to establish prima facie case of slander in its pleadings and supporting declarations that defendants made false statement with malice; constitutional protection extended to statements relating to labor disputes provided statements are not made maliciously; as with statements regarding public officials, standard requires determination whether statement was made with knowledge that it was false or with reckless disregard whether or not statement false. Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal. App. 4th 1057, 1063-1066, 82 Cal. Rptr. 2d 10

When developer, who was disgruntled with findings of draft environmental impact report (DEIR) prepared by consultant county hired to evaluate developer's proposed project, sued county, consultant and others after county board of supervisors denied proposed project, Code Civ. Proc. § 425.16[Deering's] held to apply to defendants, and trial court's granting of special motion to strike under Section 425.16 upheld; commercial conduct and speech made in connection with issue of public concern under consideration by a legislature body are subject to SLAPP; Section 425.16 is to be broadly construed to be applicable to any statement, writing or conduct made in connection with issue of public concern which is under consideration or review by legislative body or which is made in preparation for such review. Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 729, 77 Cal. Rptr. 2d 1 (disapproved by Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 to extent it suggests statement must concern issue of public significance to be protected under Code Civ. Proc. § 425.16(e)(1)[Deering's] or (2)[Deering's] )

Anti-SLAPP law applies to defamation actions arising out of statements made in a union election; public issue was union election affecting 10,000 members and plaintiff's qualifications to serve as president; speech by mail, that is, mailing of campaign flyer, is a recognized public forum under the SLAPP statute; private conversations concerning the campaign flyer also protected under anti-SLAPP statute. Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 672-675, 64 Cal. Rptr. 2d 222

News reports made in connection with issue under consideration or review by an authorized official proceeding and published by media defendants fall within scope of Code Civ. Proc. § 425.16(e)(2)[Deering's] ; moreover, news reporting activity is free speech; fact that investigative audit on which report was based was confidential did not bar application of Code Civ. Proc. § 425.16[Deering's] in that investigative audit was authorized official proceeding and newspaper articles were made in connection with this proceeding; while investigative audit itself was confidential, topics and events were not. Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1045, 1048-1049, 61 Cal. Rptr. 2d 58

Code Civ. Proc. § 425.16[Deering's] applies to and protects governmental entity and its representatives who are sued for their written and verbal comments concerning an official investigation; when both are sued both may move under Section 425.16; private conversations concerning report also protected under anti-SLAPP statute. Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1111, 1114-1115, 57 Cal. Rptr. 2d 207

Code Civ. Proc. § 425.16[Deering's] applied to cause of action brought in state court alleging violation of federal civil rights under 42 U.S.C. § 1983 ; state procedure controls when action founded on federal statute is brought in state court unless federal statute provides otherwise. Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1111, 1117-1118, 57 Cal. Rptr. 2d 207

Communications preparatory to or in anticipation of bringing action or other official proceeding fall within protection of litigation privilege of Civ Code § 47(b)[Deering's] and such statements are equally entitled to benefit of Code Civ. Proc. § 425.16[Deering's] ; law firm's letter to private individuals confirming their endorsement of filing of complaint to Attorney General with regard to plaintiff's alleged underpayment of royalties to individuals' designated charities was communication that (1) raised question of public interest, that is, whether money designated for charities was being received by those charities (2) was made in connection with official proceeding authorized by law, that is, proposed complaint to Attorney General seeking investigation. Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 783-785, 54 Cal. Rptr. 2d 830

Anti-SLAPP law protects statements made by candidate for public office and the candidate's supporters concerning alleged libelous campaign literature. Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 946-950, 52 Cal. App. 4th 357

Private conversations, regarding public issue are protected under statute. Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 1174-1176, 50 Cal. Rptr. 2d 62

Cause of action arising from defendant's litigation activity may appropriately be the subject of a Code Civ. Proc. § 425.16[Deering's] motion to strike. Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 647-648, 49 Cal. Rptr. 2d 620

Alleged defamatory statements in notice of intention to circulate a petition to recall an elected official fell within scope of statute. Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 45 Cal. Rptr. 624

In action by plaintiffs who were certified shorthand reporters against defendants, also certified shorthand reporters, in which plaintiffs alleged that direct contracting as practiced by defendants constituted unfair business practice, intentional interference with plaintiffs' prospective economic advantage and interference with existing contracts, cross-defendant who was not a party to original action who was sued for, among other things, defamation, based on memorandum cross defendant circulated to other shorthand reporters supporting plaintiffs in underlying action and soliciting financial contributions for the cost of that litigation was subject to protection of statute. Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 819-827, 33 Cal. Rptr. 2d 446

Allegedly slanderous and libelous comments made during public review period contemplated by CEQA (California Environmental Quality Act) were comments made in connection with public issue and fall within statutory definition of Code Civ. Proc. § 425.16[Deering's] . Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 742-744, 36 Cal. Rptr. 2d 687
[b]--Examples of Motion Denied
Court of appeal affirmed trial court's denial of Metabolife's motion to strike plaintiff's complaint in action where plaintiff sued Metabolife for product liability, negligence, breach of implied warranty, breach of express warranty, and fraud. The court held that because the bulk of the complaint alleged garden-variety personal injury claims for physical injuries proximately caused by activity distinct and apart from any protected conduct (i.e., Metabolife's advertising of its products), the complaint was not based on protected activity as defined under the anti-SLAPP statute. It was therefore distinguishable from cases in which the core of the wrongful, injury-producing conduct was the false advertising. Martinez v. Metabolife Int'l, Inc. (2003) 113 Cal. App. 4th 181, 193, 6 Cal. Rptr. 3d 494

California Supreme Court affirmed the appellate court's reversal of a trial court's granting of an anti-SLAPP motion in a case where a municipality filed a state court action for declaratory relief against mobile home park owners following the owners' filing of a federal court declaratory relief action against the City regarding a mobile home park rent stabilization ordinance. The court emphasized that the fact the City filed the state court lawsuit in response to the owners' federal court lawsuit did not automatically mean the City's state court lawsuit ``arose from'' the federal court suit within the meaning of Code Civ. Proc. § 425.16[Deering's] . The court noted such a meaning would render all cross-actions potential SLAPPs. Instead, the state court action arose out of a dispute between the owners and the City regarding the rent stabilization ordinance. Thus, the plaintiff City's cause of action was not based on an act in furtherance of the defendant's right of petition or free speech, as required by the statute. The City's lawsuit was therefore not subject to a motion to strike under the anti-SLAPP statute. City of Cotati v. Gene Cashman (2002) 29 Cal. 4th 69, 73-81, 124 Cal. Rptr. 2d 519

Defendants were unable to satisfy the first prong of the anti-SLAPP statute because the commercial speech involved did not implicate a matter of public interest within the meaning of Code Civ. Proc. § 425.16(e)[Deering's] ; defendant's claims of an ``herbal product that provides a 100% natural alternative to breast implants'' was commercial speech about the specific properties and efficacies of a particular product and not a matter of public interest; if the court were to find a matter of public interest in this case, nearly any product could claim its speech was about a topic of public interest. Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal. App. 4th 595, 599-605, 132 Cal. Rptr. 2d 191

Classification created by Code Civ. Proc. § 425.16(d)[Deering's] exempting public prosecutors' enforcement actions from anti-SLAPP motions bears directly on furthering state's legitimate interest of allowing prosecutors, who did not create the SLAPP problem, to pursue actions to enforce laws, unencumbered by delay, intimidation, or distraction, and therefore, statute does not violate the equal protection clause of either United States or California Constitutions; court affirmed trial court's order denying special motion to strike by manufacturer of weight loss product in action for false or misleading advertising and unfair competition brought by district attorneys of two counties. People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 450-451, 104 Cal. Rptr. 2d 618

In action by insurance company alleging that company that assisted individuals in preparing repair estimates for earthquake damage to their homes violated Ins. Code § 1871.7(a)[Deering's] , which makes it unlawful to procure clients to perform services or benefits under contract of insurance or that will be basis for claim against insurer, trial court properly denied defendants' special motion to strike complaint under Code Civ. Proc. § 425.16[Deering's] , where defendants failed to make prima facie showing that causes of action in lawsuit arose from free speech or petition activity under Code Civ. Proc. § 425.16(b)(1)[Deering's] ; there was no issue under consideration pending before any official proceeding at time damage reports prepared by defendants were sent to plaintiff insurer; to protect reports and claims under Code Civ. Proc. § 425.16[Deering's] because they eventually could be used in connection with official proceeding would be to provide immunity for any kind of criminal fraud so long as defrauding party was willing to litigate its cause. People ex rel. 20th Century Insurance Co. v. Building Permit Consultants, Inc. (2000) 86 Cal. App. 4th 280, 283-285, 103 Cal. Rptr. 2d 71

Complaint alleging that defendants interfered with plaintiff's reelection campaign to city council by influencing election with illegal campaign contributions did not constitute SLAPP suit; when defendants effectively conceded that activities were illegal, the activities, as a matter of law, were not a valid exercise of constitutional rights protected by Code Civ. Proc. § 425.16[Deering's] ; since defendants had not shown that plaintiff's suit was brought primarily to chill valid exercise of their constitutional rights of free speech or petition for redress of grievances in connection with public issue, plaintiff had no obligation to establish probability that he would prevail on merits. Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356, 1363, 1367, 102 Cal. Rptr. 2d 864
[c]--Malicious Prosecution Actions
In Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 741 3 Cal. Rptr. 3d 636, 74 P.3d 737 , the court declined to create a categorical exemption from the anti-SLAPP statute for malicious prosecution actions. Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54
[7]--Timeliness of Motion to Strike
Defendant as permitted under Code Civ. Proc. § 435[Deering's] to move to strike complaint only prior to answer. Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 370-371, 63 Cal. Rptr. 123
§ 375.45 Text References
Witkin, Calfornia Procedure, vol. 5, Pleading, §§ 960-971, 984-985 (4th ed. 1997)
§§ 375.46-375.49 [Reserved]

Part IV PROCEDURAL CHECKLISTS
§ 375.50 Moving Party's Checklist
[1]--Preliminary Determinations
1. Examine the adverse pleading to determine whether the whole or part is subject to a motion to strike, as opposed, for example, to a demurrer or to a motion for summary judgment.

NOTE: Motions to strike are not allowed in limited civil cases except on the ground that the damages or relief sought are not supported by the allegations of the complaint [ Code Civ. Proc. §§ 91[Deering's], 92(d)[Deering's] ].

2. Determine the date the notice of motion must be filed.

NOTE: A notice of motion to strike must be given within the time to plead and, if a demurrer is interposed, concurrently with the demurrer [ Cal. Rules of Ct., Rule 329[Deering's] ].
[2]--Preparation of Papers
1. Notice of Motion to Strike.

a. Draft notice of motion to strike [FORMS: §§ 375.60 and 375.61].

b. Sign the notice of motion.

2. Draft supporting memorandum of points and authorities [see Cal. Rules of Ct., Rule 313[Deering's] ]. For forms of memoranda, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 160, Motions to Strike (Matthew Bender), and the General Index to that publication. See also Ch. 417, Points and Authorities, in this publication.

3. Prepare any supporting declaration.

NOTE: Although Code Civ. Proc. § 2009[Deering's] generally authorizes the use of affidavits to support motions, Code Civ. Proc. § 437(a)[Deering's] provides that the grounds for a motion to strike must appear on the face of the challenged pleadings or from matters of which the court is required to take judicial notice. The grounds for these motions most often appear in the court's file, to which sufficient reference may usually be made in the notice of motion or in the accompanying points and authorities [see Code Civ. Proc. § 437(b)[Deering's] ].

Should counsel determine that sworn statements are needed in support of the motion, he or she should consider whether the motion is not, in reality, one for summary judgment [ Code Civ. Proc. § 437c[Deering's] ], rather than a motion to strike.

4. Prepare declaration or certificate regarding proof of service [see Code Civ. Proc. § 1013a[Deering's] and Ch. 518, Service of Summons and Papers ].

5. Prepare proposed order [FORM: § 375.62].

6. Demurrer or other responsive paper, if desired.

If counsel is interposing both a demurrer and a motion to strike, they must be made concurrently and be noticed for hearing and heard on the same date [ Cal. Rules of Ct., Rule 329[Deering's] ].

NOTE: Filing of the notice of motion does not extend the time in which to demur [ Code Civ. Proc. § 435(d)[Deering's] ; for discussion and forms relating to demurrers, see Ch. 206, Demurrers and Motions for Judgment on the Pleadings. Although a motion to strike extends the time to answer [ Code Civ. Proc. §§ 435(c)[Deering's], 585(f)[Deering's] ], counsel may wish to consider going ahead and preparing an answer as well, particularly if the motion to strike goes only to part of a complaint.
[3]--Service and Filing
1. Serve copies of the notice of motion and memorandum of points and authorities on the attorney for the party whose pleading is challenged or, if the party has no attorney, on the other party [ Code Civ. Proc. §§ 1005[Deering's], 1011[Deering's], 1012[Deering's], 1015[Deering's] ; Cal. Rules of Ct., Rules 200.1(9)[Deering's], 301[Deering's], 303(b)[Deering's], 329[Deering's] ].

a. Service is commonly made in person or by mail [ Code Civ. Proc. §§ 1011[Deering's], 1012[Deering's] ].

b. Service in person must be completed at least 21 calendar days before the selected hearing date [see Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 329[Deering's] ].

(1) When service is by mail, this 21-day period for completing service before the hearing date is extended by 5 calendar days if the place of mailing and the place of address are within California, by 10 calendar days if either of these places is outside California but within the United States, or by 20 calendar days if either of these places is outside the United States [see Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 329[Deering's] ].

(2) When service is by fax transmission, express mail, or another form of overnight delivery, this 21-day period is extended by 2 calendar days [see Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 329[Deering's] ]. An extension period of two court days may apply in the case of electronic service [see Code Civ. Proc. § 1010.6(a)(6)[Deering's] ; for discussion, see Ch. 518, Service of Summons and Papers, § 518.41[8]].

2. File the originals of the notice of motion to strike and accompanying papers with the clerk of the court in which the action is pending [ Code Civ. Proc. §§ 1005(b)[Deering's], 1013a[Deering's] ; Cal. Rules of Ct., Rule 329[Deering's] ].

NOTE: A motion on all the grounds stated in the written notice is deemed to have been made and to be pending before the court for all purposes on the due service and filing of the notice of motion [ Code Civ. Proc. § 1005.5[Deering's] ].

a. Pay filing fee.

b. Generally, it is good practice to submit the office copy to the clerk to be stamped together with the original, to serve as a check on the contents of the original.

c. File proof of service no later than five calendar days before the hearing date [see Cal. Rules of Ct., Rule 317(c)[Deering's] ].
[4]--Response to Opposing Party's Memorandum
1. File response if appropriate.

a. Examine the memorandum of points and authorities, if any, filed in response to the motion to strike.

b. If time permits, counsel may wish to file a supplemental memorandum of points and authorities, with proof of service, in opposition to the opposing party's memorandum. Local practice may vary, but usually this supplemental memorandum should be filed directly with the clerk of the law and motion department or division, rather than in the office of the court clerk, so that the court will have sufficient time to consider the memorandum prior to the hearing on the motion.

NOTE: Local court rules may, however, impose limitations on when and with whom the supplemental memorandum may be filed and should be checked if counsel is unfamiliar with them.

2. Serve and file any response papers.

All reply papers must be filed and a copy served at least five calendar days before the time appointed for the hearing. All reply papers must be served by personal delivery, facsimile transmission, express mail, or other means consistent with the provisions of Code Civ. Proc. §§ 1010[Deering's], 1011[Deering's], 1012[Deering's], and 1013[Deering's] , and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the reply papers are filed [ Code Civ. Proc. § 1005(b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to section 1010.6)]. Unless otherwise provided by local court rule, all papers relating to a law and motion proceeding must be filed in the clerk's office [ Cal. Rules of Ct., Rule 319(a)[Deering's] ].
§ 375.51 Opposing Party's Checklist
[1]--Preliminary Determinations
1. On receipt of the notice of motion and supporting memorandum, ascertain if it was timely served. Read the notice of motion to ascertain the alleged defects in the pleading and what is sought to be stricken.

2. Read the supporting memorandum of points and authorities and verify the citations to determine whether they support the points or statements for which they are cited.

NOTE: Points may be inaccurately stated or not supported by the authorities cited. Moreover, a case cited may superficially support the point in that it makes an identical or similar statement, but may actually hold that the statement is not applicable to the facts of that case or that the case presents an exception to the rule. In that situation, the case is usually not authority for the statement made but, rather, an authority in opposition to it.

3. If the motion is well taken, determine the advisability of not opposing it or of stipulating that the motion be granted with leave to amend the pleading.
[2]--Preparation of Papers
1. If counsel intends to oppose the motion, prepare an opposing memorandum of points and authorities. For forms of memoranda, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 160, Motions to Strike (Matthew Bender), and the General Index to that publication. See also Ch. 417, Points and Authorities, in this publication.

2. Prepare the certificate, affidavit, or declaration, as the case may be, of service [ Code Civ. Proc. §§ 1013(b)[Deering's], 1013a[Deering's], 2009[Deering's], 2015.5[Deering's] ].
[3]--Service and Filing
1. Serve copies of the opposing memorandum of points and authorities on the moving party's attorney or, if none, on the moving party [ Code Civ. Proc. §§ 1005(b)[Deering's], (c)[Deering's], 1011[Deering's], 1012[Deering's], 1015[Deering's] ; Cal. Rules of Ct., Rules 200.1(9)[Deering's], 301[Deering's], 303[Deering's] ].

NOTE: Service is commonly by mail or in person, although alternative methods are authorized. Unless otherwise ordered or specifically provided by law, all papers opposing a motion must be served at least 10 calendar days before the hearing. All papers opposing a motion must be served by personal delivery, facsimile transmission, express mail, or other means consistent with the provisions of Code Civ. Proc. §§ 1010[Deering's], 1011[Deering's], 1012[Deering's], and 1013[Deering's] , and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers are filed [ Code Civ. Proc. § 1005(b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to Code Civ. Proc. § 1010.6[Deering's] )].

2. File the original opposing papers with the clerk of the court in which the action is pending. The papers may be delivered in person or by mail.

a. Unless otherwise ordered or specifically provided by law, all papers opposing a motion must be filed at least 10 calendar days before the hearing [ Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to Code Civ. Proc. § 1010.6[Deering's] )].

b. Unless otherwise provided by local rule, all papers relating to a law and motion proceeding must be filed in the clerk's office [ Cal. Rules of Ct., Rule 319(a)[Deering's] ]. If the court has a law and motion department or division, local court rule may require that the memorandum be filed with the clerk thereof, rather than with the court clerk, to ensure that the judge has an opportunity to consider it before the hearing.
§ 375.52 Moving Defendant's Checklist--Special Motion to Strike SLAPP Suit
[1]--Preliminary Determinations
1. Examine complaint or cross-complaint to determine whether all or any causes of action are subject to a special motion to strike under Code Civ. Proc. § 425.16[Deering's] . Also determine if there is a bar to bringing a special motion to strike under Code Civ. Proc. § 425.17[Deering's] .

2. Determine the date the notice of motion must be filed and the hearing date.

NOTE: The motion may be filed within 60 days of the service of the complaint, or in the court's discretion, at any later time on terms it deems proper [ Code Civ. Proc. § 425.16(f)[Deering's] ].

3. Plan on noticing motion for hearing not more than 30 days after service unless the court's docket conditions require a later hearing [ Code Civ. Proc. § 425.16(f)[Deering's] ].

4. If not already done, consider other responsive pleadings, as appropriate.

NOTE: An ordinary motion to strike extends the time to answer, but not the time to demur [see Code Civ. Proc. § 435(c)[Deering's], (d)[Deering's] ]. Because this special motion to strike can be made up to 60 days after service of the complaint and Code Civ. Proc. § 425.16[Deering's] makes no mention of extending time to plead, although discovery is stayed [ Code Civ. Proc. § 425.16(f)[Deering's], (g)[Deering's] ], even though it can be argued that such a special motion made within 30 days after service of the complaint extends the time to answer (see Code Civ. Proc. §§ 435(c)[Deering's], 585(f)[Deering's] , a defendant who desires to make such a motion within 30 days after service of the complaint should probably also file an answer, or should file the motion and a demurrer, unless plaintiff is willing to stipulate to an extension.
[2]--Preparation of Papers
1. Motion and Notice of Motion on Special Motion to Strike.

a. Draft motion and notice of hearing on special motion to strike [FORM: § 375.63].

b. Sign special motion and hearing special motion.

2. Prepare Supporting Declaration(s) [FORM: § 375.64].

3. Draft supporting memorandum of points and authorities [see Cal. Rules of Ct., Rule 313[Deering's] ]. For forms of memoranda, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 160, Motions to Strike (Matthew Bender), and the General Index to that publication. See also Ch. 417, Points and Authorities, in this publication.

4. Prepare declaration or certificate regarding proof of service [see Code Civ. Proc. § 1013a[Deering's] ; see also Ch. 518, Service of Summons and Papers ].

5. Prepare proposed order [FORM: see § 375.62].
[3]--Service and Filing
1. Serve copies of the special motion and notice of hearing and memorandum of points and authorities on the attorney for the party whose pleading is challenged or, if the party has no attorney, on the other party [ Code Civ. Proc. § 1005[Deering's], 1011[Deering's], 1012[Deering's], 1015[Deering's] ; Cal. Rules of Ct., Rules 200.1(9)[Deering's], 301[Deering's], 303(b)[Deering's] ].

a. Service is usually made in person or by mail [see Code Civ. Proc. §§ 1011[Deering's], 1012[Deering's] ].

b. Service in person must be completed at least 21 calendar days before the selected hearing date [see Code Civ. Proc. § 1005(b)[Deering's] ].

(1) When service is by mail, this 21-day period for completing service before the hearing date is extended by 5 calendar days if the place of mailing and the place of address are within California, by 10 calendar days if either of these places is outside California but within the United States, or by 20 calendar days if either of these places is outside the United States [see Code Civ. Proc. § 1005(b)[Deering's] ].

(2) When service is by fax transmission, express mail, or another form of overnight delivery, this 21-day period is extended by 2 calendar days [see Code Civ. Proc. § 1005(b)[Deering's] ]. An extension period of two court days may apply in the case of electronic service [see Code Civ. Proc. § 1010.6(a)(6)[Deering's] ; for discussion, see Ch. 518, Service of Summons and Papers, § 518.41[8]].

2. File the originals of the special motion and notice of hearing on the special motion to strike and accompanying papers with the clerk of the court in which the action is pending [see Code Civ. Proc. §§ 1005(b)[Deering's], 1013a[Deering's] ].

NOTE: A motion on all the grounds stated in the written notice is deemed to have been made and to be pending before the court for all purposes on the due service and filing of the notice of motion [ Code Civ. Proc. § 1005.5[Deering's] ].

a. Pay filing fee.

b. Generally, it is good practice to submit the office copy to the clerk to be stamped together with the original, to serve as a check on the contents of the original.

c. File proof of service no later than five calendar days before the hearing date [see Cal. Rules of Ct., Rule 317(c)[Deering's] ].
[4]--Response to Plaintiff's Declarations and Memorandum
1. File response if appropriate.

a. Examine declarations submitted by plaintiff to establish a probability that plaintiff would prevail on the claim to determine if any evidentiary objections exist to the declarations.

b. If evidentiary objections exist, consider preparing written objections to the evidence to be submitted to the court in a separate document, reply memorandum of points and authorities, or both, similar to the manner for objecting to evidence in papers submitted on a summary judgment motion [see Cal. Rules of Ct., Rule 343[Deering's] (party desiring to object in summary judgment motion must either submit written objections pursuant to Rule 345, or arrange for court reporter to be present at hearing); Cal. Rules of Ct., Rule 345[Deering's] (written objections to evidence in summary judgment motion must (a) state page and line number of document to which objection made, (b) state grounds of objection with same specificity as motion to strike evidence at trial, and (c) be filed and served no later than 4:30 p.m. on the third court day proceeding the hearing)].

c. Examine the memorandum of points and authorities, if any, filed in response to the motion to strike.

d. Counsel may wish to file a reply memorandum of points and authorities, with proof of service, in opposition to plaintiff's opposing memorandum. Local practice may vary, but usually this reply memorandum should be filed directly with the clerk of the law and motion department or division, rather than in the office of the court clerk, so that the court will have sufficient time to consider the memorandum prior to the hearing on the motion. Counsel should check local court rules and practices to determine if there are any local filing or other requirements concerning the reply memorandum For example, local court rules may impose limitations on when and with whom a reply memorandum may be filed

2. Serve and file any response papers.

All reply papers must be filed and a copy served at least five calendar days before the time appointed for the hearing. All reply papers must be served by personal delivery, facsimile transmission, express mail, or other means consistent with the provisions of Code Civ. Proc. §§ 1010[Deering's], 1011[Deering's], 1012[Deering's], and 1013[Deering's] , and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the reply papers are filed [ Code Civ. Proc. § 1005(b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317(a)[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to Code Civ. Proc. § 1010.6[Deering's] )]. Unless otherwise provided by local court rule, all papers relating to a law and motion proceeding must be filed in the clerk's office [ Cal. Rules of Ct., Rule 319(a)[Deering's] ].
§ 375.53 Opposing Party's Checklist
[1]--Preliminary Determinations
1. On receipt of the special motion and notice of hearing on the special motion to strike, supporting declaration(s) and supporting memorandum, ascertain if it was timely served and if the motion and notice is in any way defective.

2. Read the supporting papers to determine if the defendant has met defendant's initial burden of making a prima facie showing that the plaintiff's cause(s) of action arose from defendant's acts in furtherance of defendant's rights of petition or free speech under the United States or California Constitution in connection with a public issue. For discussion of defendant's required showing, see § 375.24[11][a], above. Verify the citations to determine whether they support the points or statements for which they are cited. For discussion of making evidentiary objections, see discussion under § 375.52[4].

NOTE: Points may be inaccurately stated or not supported by the authorities cited. Moreover, a case cited may superficially support the point in that it makes an identical or similar statement, but may actually hold that the statement is not applicable to the facts of that case or that the case presents an exception to the rule. In that situation, the case is usually not authority for the statement made but, rather, an authority in opposition to it.

3. If the motion is well taken, determine the advisability of not opposing it or of stipulating that the motion be granted with leave to amend the pleading.
[2]--Preparation of Papers
1. Prepare opposing declarations to establish a probability that plaintiff will prevail on the claim supported by admissible evidence. For prima facie showing that the plaintiff must make to prevail concerning a special motion to strike under Code Civ. Proc. § 425.16[Deering's] and evidentiary rules, see discussion under § 375.24[11][b][1].

2. Prepare an opposing memorandum of points and authorities. For forms of memoranda, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 160, Motions to Strike (Matthew Bender), and the General Index to that publication. See also Ch. 417, Points and Authorities, in this publication.

3. Prepare the certificate, affidavit, or declaration, as the case may be, of service [ Code Civ. Proc. §§ 1013(b)[Deering's], 1013a[Deering's], 2009[Deering's], 2015.5[Deering's] ].
[3]--Service and Filing
1. Serve copies of the opposing declarations and memorandum of points and authorities on the moving party's attorney or, if none, on the moving party [ Code Civ. Proc. §§ 1005(b)[Deering's], 1011[Deering's], 1012[Deering's], 1015[Deering's] ; Cal. Rules of Ct., Rules 249(c)(5)[Deering's], 301[Deering's], 303[Deering's] ].

NOTE: Unless otherwise ordered or specifically provided by law, copies of all papers opposing a motion must be served at least 10 calendar days before the hearing. All papers opposing a motion must be served by personal delivery, facsimile transmission, express mail, or other means consistent with the provisions of Code Civ. Proc. §§ 1010[Deering's], 1011[Deering's], 1012[Deering's], and 1013[Deering's] , and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers are filed [ Code Civ. Proc. § 1005(b)[Deering's], (c)[Deering's] ; Cal. Rules of Ct., Rule 317[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to Code Civ. Proc. § 1010.6[Deering's] )].

2. File the original opposing papers with the clerk of the court in which the action is pending. The papers may be delivered in person or by mail.

a. Unless otherwise ordered or specifically provided by law, all papers opposing a motion must be filed at least 10 calendar days before the time appointed for the hearing [ Code Civ. Proc. § 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317[Deering's] ; cf. Code Civ. Proc. § 1010.6(a)(6)[Deering's] (two court day extension in case of electronic service; although Code Civ. Proc. § 1005(b)[Deering's] expressly excludes extensions under Code Civ. Proc. § 1013[Deering's] , it is silent as to Code Civ. Proc. § 1010.6[Deering's] )].

b. Unless otherwise provided by local rule, all papers relating to a law and motion proceeding must be filed in the clerk's office [ Cal. Rules of Ct., Rule 319(a)[Deering's] ]. If the court has a law and motion department or division, local court rule may require that the declarations and memorandum be filed with the clerk thereof, rather than with the court clerk, to ensure that the judge has an opportunity to consider it before the hearing.
§§ 375.54-375.59 [Reserved]

Part V FORMS
§ 375.60 Notice of Motion for Order to Strike Entire Pleading [ Code Civ. Proc. §§ 435, 436 ]
[1]--FORM
Notice of Motion for Order to Strike Entire Pleading [ Code Civ. Proc. §§ 435, 436 ]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



)NO. __________
_________________________ [name ], )MOTION AND NOTICE OF
)MOTION TO STRIKE ______
)_________ [specify
)pleading ]
Plaintiff,)Date: _______________
)Time: _______________
vs. )Location: _____________
_________________________ [name ], )Judge: _______________
Defendant.)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [identify party, e.g., plaintiff] _________________ [name ] and to his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of ] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking the _________________ [complaint or answer to the complaint] on file herein. The motion will be made on the ground(s) that _________________ [specify, e.g., _________________ (the complaint is unverified and is required to be verified]. The motion will be made on the ground(s) that _________________ [specify, e.g., the portions of the paragraphs sought to be stricken are irrelevant and redundant].

The motion will be based on this notice of motion, on the declaration(s) of _________________ [name(s) ] and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________ [party's status and name ]
[2]--Use of Form
The notice of motion in [1], above, is for use by a plaintiff or defendant to secure an order striking the entirety of the adverse party's pleading pursuant to Code Civ. Proc. § 435[Deering's] on the grounds set out in Code Civ. Proc. § 436[Deering's] or pursuant to the court's inherent power. With appropriate modifications, it may also be used by a cross complainant or cross defendant to secure an order striking all or a portion of the cross complaint or answer to the cross complaint or by any party to secure an order striking a belatedly filed demurrer to the party's pleading. For discussion of the time within which the motion must be made, see § 375.15, above.
[3]--Accompanying Papers
A memorandum of points and authorities must be filed and a copy served with the this notice of motion [see Code Civ. Proc. §§ 1005[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rules 312(a)[Deering's], 313(a)[Deering's] ].
[4]--Limited Civil Cases
Motions to strike are not allowed in limited civil cases, except on the ground that the damages or relief sought are not supported by the allegations of the complaint [ Code Civ. Proc. §§ 91[Deering's], 92(d)[Deering's] ].
[5]--Service and Filing
Twenty one days' notice of a motion to strike a complaint or answer is required, in accordance with Code Civ. Proc. § 1005(b)[Deering's] , with extensions for service by mail, overnight delivery, facsimile transmission, or electronic service [ Code Civ. Proc. §§ 435(b)(2)[Deering's], 1005(b)[Deering's], 1010.6[Deering's] ].

Notice of a motion to strike a demurrer is to set the hearing concurrently with the demurrer [ Code Civ. Proc. § 435(b)(3)[Deering's] ].

For further discussion, see § 375.16[1], above.
[6]--Cross References
See generally Ch. 372, Motions and Orders, and Ch. 537, Summary Judgment

For discussion and forms relating to service, see Ch. 518, Service of Summons and Papers

Witkin, California Procedure, vol. 5, Pleading, § 960 et seq. (4th ed. 1997)
§ 375.61 Notice of Motion for Order Striking Portion of Pleading [ Code Civ. Proc. §§ 435, 436 ]
[1]--FORM
Notice of Motion for Order Striking Portion of Pleading [ Code Civ. Proc. §§ 435, 436 ]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



_________________________ [name ], )NO. __________
Plaintiff,)MOTION AND NOTICE OF
)MOTION TO STRIKE
)PORTION[S] OF _________
)______ [specify
)pleading ]
)Date: _______________
vs. )Time: _______________
)Location: _____________
_________________________ [name ], )Judge: _______________
Defendant.)Date Action Filed: ____
)Trial Date: ___________
)

To_________________ [identify party, e.g., plaintiff] _________________ [name ] and to his/her attorney of record:

[EITHER, if motion concerns entire count, cause of action, or defense ]

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking _________________ [specify count, cause of action, or defense to be stricken, e.g., the Second Cause of Action] appearing on page _________________ [number ], line _________________ [number ], through page _________________ [number ], line _________________ [number ], of the _________________ [specify, e.g., complaint or answer to the complaint] on file herein. The motion will be made on the ground(s) that _________________ [specify, e.g., the allegations in it are false].

[OR, if motion concerns whole paragraph(s) ]

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking paragraph(s) _________________ [number(s) ] _________________ [appearing on page _________________ (number ), lines _________________ (numbers ), respectively, or commencing on page _________________ (number ), line _________________ (number ), through page _________________ (number ), line _________________ (number ),] of [specify subdivision, if any, of paper in which the paragraphs appear, e.g., the First Cause of Action of] the _________________ [complaint or answer to the complaint] on file herein. The motion will be made on the ground(s) that _________________ [specify, e.g., the paragraph contains allegations in support of punitive damages, which are unavailable].

[OR, if motion concerns part of paragraph ]

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking that portion of [specify subdivision, if any, of paper in which the paragraphs appear, e.g., the Third Affirmative Defense of] the _________________ [complaint or answer to the complaint] on file herein, _________________ [appearing on page _________________ (number ), lines _________________ (numbers ), inclusive, or commencing on page _________________ (number ), line _________________(number ), through page _________________ (number ), line _________________ (number ),] reading as follows: ``_________________'' [specify ]. The motion will be made on the ground(s) that _________________ [specify, e.g., the portion of the paragraphs sought to be stricken is irrelevant].

[OR, if motion concerns parts of paragraph ]

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking the following portions of [specify subdivision, if any, of paper in which the paragraphs appear, e.g., the Sixth Count of] the _________________ [complaint or answer to the complaint] on file herein:

1. That portion of paragraph _________________ [number ] on page _________________ [number ], line _________________ [number ], through page _________________ [number ], line _________________ [number ], reading as follows: ``_________________'' [specify ].

2. [Repeat for each item to be striken ].

The motion will be made on the ground(s) that _________________ [specify, e.g., the portions of the paragraph sought to be stricken are irrelevant].

[OR, if motion concerns matter set forth in attached exhibit ]

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [street address ], _________________ [city ], _________________ [specify party, e.g., defendant] will, and hereby does, move pursuant to Code of Civil Procedure sections 435[Deering's] and 436[Deering's] for an order striking those portions of the _________________ [complaint or answer to the complaint] on file herein that are described and set forth verbatim in Exhibit A, which is attached hereto and made a part hereof. The motion will be made on the ground(s) that _________________ [specify, e.g., the portions of the paragraphs sought to be stricken are false].

[CONTINUE ]

The motion will be based on this notice of motion, on the declaration(s) of _________________ [name(s) ] and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [firm name, if any ]
By:_________________ [signature ]
_________________ [typed name ]
Attorney for _________________ [party's status and name ]
[2]--Use of Form
The notice of motion in [1], above, is for use by a plaintiff or defendant to secure an order striking a portion of the adverse party's pleading pursuant to Code Civ. Proc. § 435[Deering's] on the grounds set out in Code Civ. Proc. § 436[Deering's] or pursuant to the court's inherent power. With appropriate modifications, it may also be used by a cross complainant or cross defendant to secure an order striking all or a portion of the cross complaint or answer to the cross complaint or by any party to secure an order striking a belatedly filed demurrer to the party's pleading.
[3]--Accompanying Papers
A memorandum of points and authorities is required to be served and filed with the foregoing notice of motion [see Code Civ. Proc. §§ 1005[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rules 312(a)[Deering's], 313(a)[Deering's] ].

For further discussion of a notice of motion to strike, see § 375.60[2] et seq.
§ 375.62 Order Granting or Denying Motion to Strike [ Code Civ. Proc. §§ 435, 436 ]
[1]--FORM
Order Granting or Denying Motion to Strike [ Code Civ. Proc. §§ 435, 436 ]

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________



_________________________ [name ], )NO. __________
Plaintiff,)ORDER _______________
)[GRANTING or DENYING]
)MOTION TO STRIKE
)Date: _______________
vs. )Time: _______________
)Location: _____________
_________________________ [name ], )Judge: _______________
Defendant.)Date Action Filed: ____
)Trial Date: ___________
)

The motion of _________________ [identify moving party ] for an order striking [portions of] the _________________ [specify challenged pleading ] herein came on regularly for hearing by the court on _________________ [date ]. _________________ [Name ] appeared as counsel for plaintiff, and _________________ [name ] appeared as counsel for defendant. The matter having been argued and submitted, and good cause appearing therefor,

[EITHER if denied ]

IT IS ORDERED that the motion be, and it hereby is, denied[, and _________________ (identify moving party, e.g., defendant) is hereby granted _________________ days, after notice, in which to serve and file _________________ [designate pleading, e.g., an answer to the complaint].

[OR if granted in whole without leave to amend ]

IT IS ORDERED that the motion be, and is hereby, granted and that the _________________ [designate pleading, e.g., complaint] be, and hereby is, stricken.

[OR if granted in whole with leave to amend ]

IT IS ORDERED that the motion be, and is hereby, granted and that the _________________ [designate pleading, e.g., complaint] be, and hereby is, stricken.

IT IS FURTHER ORDERED that the plaintiff be, and is hereby, granted _________________ days, after notice of this order, in which to serve and file a _________________ [designate pleading, e.g., first amended] complaint.

[OR if granted in part ]

IT IS ORDERED that the motion be, and is hereby, granted as to _________________ [designate portion or portions to be stricken ] and that the same be, and hereby is/are, stricken.

[IT IS FURTHER ORDERED that the plaintiff be, and is hereby, granted _________________ days, after notice, in which to serve and file a _________________ (designate pleading, e.g., first amended) complaint.]

[ADD if order strikes a demurrer in whole or part and no answer has been filed ]

IT IS FURTHER ORDERED that the defendant be, and hereby is, granted _________________ days, after notice of this order, in which to serve and file an answer to the _________________ [specify the pleading a demurrer to which has been denied, e.g., second amended complaint].

[CONTINUE ]

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court
[2]--Use of Form
The order in [1], above, is for use when a formal order denying or granting the motion is required by the court. The general rule is that an order is ineffective unless it is filed with the clerk or entered in the minutes [ Jablon v. Henneberger (1949) 33 Cal. 2d 773, 775, 205 P.2d 1 ]. Under this rule, the order granting the motion must be entered in the official minutes and not merely in the rough minutes of the department clerk, in order that it be effective [ Jablon v. Henneberger (1949) 33 Cal. 3d 773, 774-775, 205 P.2d 1 ].
[3]--Procedure on Concurrent Demurrer and Motion to Strike
If both a general demurrer to a pleading and a motion to strike the pleading are filed concurrently, the court may, if it sustains the demurrer, place the motion off calendar, and, conversely, if it grants the motion, it may place the demurrer off calendar [see B. F. G. Builders v. Weisner & Coover Co. (1962) 206 Cal. App. 2d 752, 758-759, 23 Cal. Rptr. 815 (trial court should not both sustain demurrer and grant motion to strike)].

The court's ruling on both the notice of motion and demurrer may be contained in the same order [for a form of ruling on demurrer, see § 206.139].
[4]--Order
If a motion to strike is granted pursuant to Code Civ. Proc. § 436[Deering's] , the court may order that an amendment or amended pleading be filed on terms it deems proper. If a motion to strike a complaint or cross complaint, or a portion of it, is denied, the court must allow the party filing the motion to strike to file an answer [ Code Civ. Proc. § 472a(d)[Deering's] ].

If a demurrer is stricken pursuant to Code Civ. Proc. § 436[Deering's] and there is no answer filed, the court must allow an answer to be filed on terms that are just [ Code Civ. Proc. § 472a(c)[Deering's] ].
[5]--Judgment of Dismissal
An action may be dismissed by the court if a motion to strike the whole of a complaint is granted without leave to amend, or if a motion to strike all or part of a complaint is granted with leave to amend and the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal [ Code Civ. Proc. § 581(f)(3)[Deering's],(4)[Deering's] ]. A dismissal ordered by the court must be in the form of a written order signed by the court and filed in the action. The dismissal constitutes a judgment and is effective for all purposes [ Code Civ. Proc. § 581d[Deering's] ].
[6]--Default on Judgment After Ruling on Motion
A default judgment may be entered against the defendant in the following circumstances]:

· When defendant fails to answer the complaint within the time allowed by the court after denying defendant's motion to strike the complaint and overruling defendant's demurrer, if any [ Code Civ. Proc. § 586(a)(2)[Deering's] ].

· When defendant fails to answer the unstricken portion of the complaint within the time allowed after defendant's motion to strike has been granted in whole or in part and no demurrer has been sustained or is then pending [ Code Civ. Proc. § 586(a)(3)[Deering's] .

· When a motion to strike the entire answer is granted without leave to amend [ Code Civ. Proc. § 586(a)(7)[Deering's] ].

· When a motion to strike all or part of the answer is granted with leave to amend and the defendant fails to amend within the time allowed by the court [ Code Civ. Proc. § 586(a)(7)[Deering's] ].
[7]--Cross References
For discussion and forms relating to orders, including giving notice of orders, see Ch. 372, Motions and Orders.
§ 375.63 Special Motion to Strike All or Portion of Complaint Alleging Cause of Action Brought to Chill the Valid Exercise of the Constitutional Rights of Freedom of Speech or Petition for the Redress of Grievances [Code Civ. Proc. § 425.16]--Special Motion and Notice of Hearing on Motion
[1]--FORM
Special Motion to Strike All or Portion of Complaint Alleging Cause of Action Brought to Chill the Valid Exercise of the Constitutional Rights of Freedom of Speech or Petition for the Redress of Grievances [Code Civ. Proc. § 425.16]--Special Motion and Notice of Hearing on Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________


)NO. __________
)MOTION AND NOTICE OF
)HEARING ON MOTION FOR
)SPECIAL MOTION TO
)STRIKE __________
)[specify, e.g.,
)COMPLAINT FOR
)INTERFERENCE WITH
)PROSPECTIVE ECONOMIC
)ADVANTAGE][,
)SUPPORTING ____________
)___ (AFFIDAVIT or
)DECLARATION) OF _______
)________ (name), AND
)MEMORANDUM OF POINTS
)AND AUTHORITIES]
_________________________ [name ], )[Telephone Appearance]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name ], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

To _________________ [identify party, e.g., plaintiff] _________________ [name ] and to his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time ], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________] of this court, located at _________________ [street address ], _________________ [city ],_________________ [specify party, e.g., defendant, _________________ (name)], will, and hereby does, move for an order pursuant to Code of Civil Procedure Section 425.16[Deering's] striking _________________ [all or specify portions ] of the _________________ [specify, e.g., complaint or second cause of action], denominated as an action for _________________ [specify, e.g., interference with prospective economic advantage]. The motion will be made on the ground that the cause(s) of action alleged against the defendant arise(s) from an act of the defendant in furtherance of the defendant's right of _________________ [specify, e.g., free speech] under the United States or California Constitution in connection with a public issue and that such right will be chilled if the _________________ [specify, e.g., complaint or second cause of action] is allowed to stand and plaintiff is allowed to continue prosecuting it.

The motion will be based on this motion and notice of hearing, on the declaration(s) of _________________ [name(s) ] and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for Defendant _________________ [name ]
[2]--Use of Form
The form of motion and notice of hearing on a special motion to strike in [1], above, is for use by a defendant seeking to have a SLAPP suit (that is, strategic litigation against public participation) stricken. A special motion to strike under Code Civ. Proc. § 425.16[Deering's] is available to a defendant when an alleged cause of action against the defendant arises from an act of the defendant 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 [see Code Civ. Proc. § 425.16(b)[Deering's], (h)[Deering's] ]. For the purpose of the statute, 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 is defined in Code Civ. Proc. § 425.16(e)[Deering's] .

With appropriate modifications, this form may also be used by a cross-defendant or respondent seeking to have a SLAPP suit stricken [see Code Civ. Proc. § 425.16(h)[Deering's] ].

For discussion of SLAPP suits, see the Introduction under SLAPP Suits (Strategic Litigation Against Public Participation).

An ordinary motion to strike extends the time to answer, but not the time to demur [see Code Civ. Proc. § 435(c)[Deering's],(d)[Deering's] ]. Because this special motion to strike can be made up to 60 days after service of the complaint and Code Civ. Proc. § 425.16[Deering's] makes no mention of extending time to plead, although discovery is stayed [ Code Civ. Proc. § 425.16(f)[Deering's],(g)[Deering's] ], even though it can be argued that such a special motion made within 30 days after service of the complaint extends the time to answer (see Code Civ. Proc. §§ 435(c)[Deering's], 585(f)[Deering's] ), a defendant who desires to make such a motion within 30 days after service of the complaint should probably also file an answer, or should file the motion and a demurrer, unless plaintiff is willing to stipulate to an extension.
[3]--Time for Filing and Hearing Motion
The special motion to strike may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time on terms it deems proper [ Code Civ. Proc. § 25.16(f) ].

The motion must be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing [ Code Civ. Proc. § 425.16(f)[Deering's] ].
[4]--Accompanying Papers
A memorandum of points and authorities must be filed and a copy served with this notice of motion [ Cal. Rules of Ct., Rule 313(a)[Deering's] ; see Code Civ. Proc. §§ 1005(b)[Deering's], 1010[Deering's] ]. For discussion and forms, see Ch. 417, Points and Authorities.
[5]--Notification to Judicial Council
When a party files a special motion to strike under Code Civ. Proc. § 425.16[Deering's] , the party must promptly transmit a copy of the endorsed-filed caption page of the motion to the Judicial Council by e-mail or fax [ Code Civ. Proc. § 425.16(k)(1)[Deering's] ]. For further discussion, see § 375.24[9].
[6]--Required Prima Facie Showing By Defendant
The defendant pursuing an anti-SLAPP motion must make an initial prima facie showing that plaintiff's suit arised from an act in furtherance of defendant's right of petition or free speech. A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in Code Civ. Proc. § 425.16(e)[Deering's] [ Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th 1036, 1042-1043, 61 Cal. Rptr. 2d 58 ]. For further discussion of defendant's required showing, see § 375.24[11][a].
[7]--Attorney's Fees
In any action subject to Code Civ. Proc. § 425.16(b)[Deering's] , a prevailing defendant is entitled to recover his or her attorney's fees and costs. If the court finds that the motion to strike is frivolous or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Code Civ. Proc. § 128.5[Deering's] [ Code Civ. Proc. § 425.16(c)[Deering's] ]. For further discussion of attorney fees, see § 375.24[13].
[8]--Stay of Discovery While Motion Is Pending
All discovery proceedings in the action are stayed on the filing of a notice of motion made pursuant to Code Civ. Proc. § 425.16[Deering's] . The stay of discovery remains in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may, however, order that specified discovery be conducted despite this requirement [ Code Civ. Proc. § 425.16(g)[Deering's] ]. For further discussion of discovery, see § 375.24[10].
§ 375.64 Special Motion to Strike All or Portion of Complaint Alleging Cause of Action Brought to Chill the Valid Exercise of the Constitutional Rights of Freedom of Speech or Petition for the Redress of Grievances [Code Civ. Proc. § 425.16]--Declaration in Support of Motion
[1]--FORM
Special Motion to Strike All or Portion of Complaint Alleging Cause of Action Brought to Chill the Valid Exercise of the Constitutional Rights of Freedom of Speech or Petition for the Redress of Grievances [Code Civ. Proc. § 425.16]--Declaration in Support of Motion

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________


)NO. _______________
_________________________ [name ], )DECLARATION OF ________
)__ [name ] IN SUPPORT
)OF DEFENDANT'S SPECIAL
)MOTION TO STRIKE ______
)____ [specify, e.g.,
)COMPLAINT FOR
)INTERFERENCE WITH
)PROSPECTIVE ECONOMIC
)ADVANTAGE]
Plaintiff,)Date: _______________
vs. )Time: _______________
_________________________ [name ], )Location: _____________
Defendant.)Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

I, _________________ [name ], declare:

1. I am _________________ [identify declarant, e.g., an attorney at law duly admitted to practice before all the courts of California and the attorney of record herein for defendant _________________ [name ] and hereby make this declaration in support of defendant's special motion to strike _________________ [specify, e.g., complaint for interference with prospective economic advantage].

2. _________________ [Here, and in subsequent paragraphs, set forth applicable facts to which declarant is competent to testify, or of which court must take judicial notice, or of which court may take judicial notice with request that it do so. If additional facts not within declarant's personal knowledge and not subject to judicial notice are required, secure from persons competent to testify to those facts additional declarations setting forth those facts, and attach those declarations to this declaration.]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date ]

_________________ [signature ]
[2]--Use of Form
The form of declaration in [1], above, is for use to support a special motion to strike a SLAPP suit (that is, strategic litigation against public participation) [see Code Civ. Proc. § 425.16[Deering's] ; Code Civ. Proc. §§ 2003[Deering's] (``affidavit defined''), 2009, (use of affidavit in support of motion), 2015.5 (use of declaration in lieu of affidavit)]. For the related form of motion and notice of hearing on the motion, see § 375.63.

For discussion of the prima facie showing that the defendant must make to prevail on a special motion to strike under Code Civ. Proc. § 425.16[Deering's] , see discussion under § 375.24[14][a].

For discussion of declarations in support of motions generally, see Ch. 372, Motions and Orders.