Offensive — continued from Page 44
Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 31 n. 2 [1 Cal.Rptr.3d 390, 392 n. 2] (the concept of the
SLAPP suit arose in response to the use of traditional torts to chill free speech – “usually defamation and intentional
interference with somebody else’s busi- ness in all its permutations”).) In ruling on an anti-SLAPP motion,
the court engages in a two-step process. First, the court must decide whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Equilon, supra, 29 Cal.4th at 67.) If the court finds that such a showing has been made, it must then determine whether the plain- tiff has met its burden of demonstrating a probability of prevailing on the claim. (Ibid.) Note that as used in section 425.16, the term “defendant” includes a cross- defendant, and the term “plaintiff” includes a cross-complainant. (Code Civ. Proc., § 425.16(h).) The fact that an employer responds
with a cross-complaint alleging defama- tion or other similar claim does not auto- matically mean that the cross-complaint is a SLAPP. In order to fall under the pro- tections of the anti-SLAPP statute, the acts alleged must be “in furtherance of the person’s right of petition or free speech.” These acts include:
(1) any written or oral statement or
writing made before a legislative, execu- tive 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 author- ized 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; (4) or any other conduct in furtherance of the exercise of the con- stitutional right of petition or the con- stitutional right of free speech in con- nection with a public issue or an issue of public interest.
(Code Civ. Proc., § 425.16(e).) Counsel faced with a cross-complaint
must carefully analyze the allegations to determine if they encompass acts in fur- therance of the employee’s right of peti- tion or free speech. For example, does the cross-complaint allege that the employee made defamatory statements
46— The Advocate Magazine APRIL 2011
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112