# Briggs v. Eden Council for Hope & Opportunity

> California Supreme Court · January 21, 1999 · 81 Cal. Rptr. 2d 471

URL: https://www.frixlaw.com/law-library/cases/9622375

## Case

- **Full name:** DAN BRIGGS Et Al., Plaintiffs and Appellants, v. EDEN COUNCIL FOR HOPE AND OPPORTUNITY, Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** January 21, 1999
- **Citations:** 81 Cal. Rptr. 2d 471; 19 Cal. 4th 1106; 99 Daily Journal DAR 687; 969 P.2d 564; 99 Cal. Daily Op. Serv. 554; 1999 Cal. LEXIS 7
- **Precedential status:** Published
- **Opinion:** Concurring in part by Baxter
- **Judges:** Werdegar, Baxter
- **Cited by:** 669 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9622375

## How later opinions describe it (automated extraction)

- finding that § 425.16’s definition includes “communications preparatory to or in anticipation of the bringing of an action or other offi- cial proceeding” (internal quotation marks omitted)
- explaining that the second step "requir[es] the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim" (citation and punctuation omitted)

## Opinion text

BAXTER, J., Concurring and Dissenting.
I concur in the majority’s determination to reverse the judgment of the Court of Appeal below. Eden Council for Hope and Opportunity (ECHO), a nonprofit, publicly funded fair housing counseling organization, was plainly acting in furtherance of its right of petition or free speech in connection with a public issue or issue of public interest when it assisted tenants in pursuing legal claims against their landlords, and is thus entitled to seek anti-SLAPP (strategic lawsuit against public participation) protection from a landlord’s retaliatory lawsuit aimed at punishing the nonprofit organization for assisting tenants in understanding and defending their legal rights.
I dissent from the majority’s conclusion that a defendant moving specially under subdivision (e)(1) or (2) of Code of Civil Procedure section 425.16 (hereafter section 425.16 or the anti-SLAPP legislation) to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by a legislative, executive, or judicial body, or any other official proceeding authorized by law, need never further demonstrate that such proceeding involved a public issue or issue of public interest. The anti-SLAPP legislation is a powerful tool to be broadly construed to promote “. . . the open expression of ideas, opinions and the disclosure of information.” (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 956 [ 52 Cal.Rptr.2d 357 ].) It is not, however, generally available to the parties to any civil action, but is instead expressly limited to those lawsuits “ ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances’ ‘in connection with a public issue.’ (§ 425.16, subds. (a), (b).)” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819 [ 33 Cal.Rptr.2d 446 ] (Wilcox).) The majority’s holding in this case belies that carefully delineated legislative purpose and will authorize use of the extraordinary anti-SLAPP remedy in a great number of cases to which it was never intended to apply.
I
The Legislature has expressly set forth the intent and purpose behind the anti-SLAPP legislation in subdivision (a) of section 425.16: “The Legislature finds and declares that there has been a disturbing increase in lawsuits *1125 brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares 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, this section shall be construed broadly.”
Accordingly, under the anti-SLAPP statutory scheme, “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 shall be subject to a special motion to strike . . . .” (§ 425.16, subd. (b)(1).)
The legislative intent behind the anti-SLAPP legislation could not be clearer. The Legislature enacted the remedial legislation to curtail the “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” because such lawsuits discourage persons from “participation in matters of public significance” and thereby constitute an “abuse of the judicial process.” (§ 425.16, subd. (a).)
The anti-SLAPP legislation was enacted in response to a growing number of meritless lawsuits, usually alleging tort liability, brought against persons for exercising their constitutional rights of petition and freedom of speech. (Sen. Bill No. 1264 (1991-1992 Reg. Sess.) enacted as Stats. 1992, ch. 726, § 2, pp. 3523-3524.) The term “SLAPP suit,” the acronym for “strategic lawsuit against public participation,” was coined by two University of Denver professors, George W. Pring and Penelope Ganan, who authored the seminal influential studies on this phenomenon.
In Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1769 [ 17 Cal.Rptr.2d 457 ], the court defined a SLAPP suit, plain and simple, as “one brought to intimidate and for purely political purposes.”
In Wilcox, supra, 27 Cal.App.4th 809 , the court characterized the precise nature of SLAPP suits in the following terms: “The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants’ continued political or legal opposition to the developers’ plans. [Citations.] . . . HQ The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. (Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs (1993) 26 Loyola L.A. L.Rev. *1126 395, 402-403.) Plaintiffs in these actions typically ask for damages which would be ruinous to the defendants. (See, e.g., Protect Our Mountain v. District Court [(Colo. 1984)] 677 P.2d [1361,] 1364 [developer sought $10 million compensatory and $30 million punitive damages]; Barker, supra, 26 Loyola L.A. L.Rev. at p. 403 [estimating damage claims in SLAPP’s average $9.1 million].)
“SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [Citation.] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant’s resources for a sufficient length of time to accomplish plaintiff’s underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.] The SLAPP strategy also works even if the matter is already in litigation because the defendant/cross-complainant hopes to drive up the cost of litigation to the point where the plaintiff/cross-defendant will abandon its case or have less resources available to prosecute its action against the defendant/cross-complainant and to deter future litigation. [Citation.]” ( Wilcox, supra, 27 Cal.App.4th at pp. 815-816, italics in original.)
To summarize, “while SLAPP suits ‘masquerade as ordinary lawsuits’ the conceptual features which reveal them as SLAPP’s are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. (Pring, SLAPPs: Strategic Lawsuits Against Public Participation (1989) 7 Pace Envtl. L.Rev. 3, 5-6, 9.) [Fn. omitted.] Because winning is not a SLAPP plaintiff’s primary motivation, defendants’ traditional safeguards against meritless actions, (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPP’s. Instead, the SLAPPer considers any damage or sanction award which the SLAPPee might eventually recover as merely a cost of doing business. (Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, supra, 26 Loyola L.A. L.Rev. at pp. 406-407.) By the time a SLAPP victim can win a ‘SLAPP-back’ suit years later the SLAPP plaintiff will already have accomplished its underlying objective. Furthermore, retaliation against the SLAPPer may be counter-productive because it ties up the SLAPPee’s resources even longer than defending the SLAPP suit itself. (Id. at p. 432; Comment, Strategic Lawsuits Against Public Participtaion: An Analysis of the Solutions [(1991)] 27 Cal. W. L.Rev. [399,] 403.)” ( Wilcox, supra, 27 Cal.App.4th at pp. 816-817.)
*1127 In response to the growing incidence of SLAPP suits, legislatures and courts nationwide have sought to fashion procedural remedies to allow for prompt exposure and dismissal of such abusive lawsuits. California’s legislative response to the growing problem was the enactment, in 1992, of the anti-SLAPP legislation embodied in section 425.16. The opening paragraph of California’s anti-SLAPP statutory scheme leaves no doubt that the specific intent and purpose behind the remedial legislation was to combat the pernicious problem of SLAPP suits described above, a category of litigation the Legislature deemed an “abuse of the judicial process.” (425.16, subd. (a).) 1
Given the purpose and intent behind the anti-SLAPP legislation, I conclude the Legislature could not possibly have intended that any litigation arising from any written or oral statement made during, or in connection with, any legislative, executive, judicial, or other “official” proceeding should automatically qualify as a SLAPP suit within the meaning of section 425.16.
None of the foregoing well-recognized attributes of SLAPP suits—i.e., meritless suits brought primarily to obtain an economic advantage over defendants by tying up their resources, driving up their costs of litigation, and ultimately deterring the defendants from exercising their political or legal rights, or punishing them for doing so—are acknowledged by the majority as having any significance in resolving the issue of statutory construction posed in this case. Instead, the majority suggest that “[a]ny matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights section 425.16 was intended to protect. The Legislature’s stated intent is best served, therefore, by a construction of section 425.16 that broadly *1128 encompasses participation in official proceedings, generally, whether or not such participation remains strictly focused on ‘public’ issues.” (Maj. opn., ante, at p. 1118, italics added.)
I fail to see how the majority’s broad and expansive construction of the statute will effectuate the carefully circumscribed purpose and intent behind the anti-SLAPP legislation explicitly set forth in section 425.16, subdivision (a).
Our task in this case is to construe the provisions of subdivision (e)(1) and (2) of section 425.16 in a manner that best comports with the carefully delineated purpose and intent behind the remedial legislation expressed in subdivision (a). Subdivision (e) provides in its entirety: “As used in this section, ‘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: (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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Italics added.)
The majority conclude that under section 425.16, subdivision (e)(1) and (2) there is no separate requirement that the subject inquiry of the legislative, executive, judicial or other “official” proceeding be shown to involve a public issue or issue of public interest. I do not dispute that the language of all four clauses of subdivision (e), taken as a whole, is susceptible of such a literal interpretation. However, such a construction of subdivision (e)(1) and (2) literally reads right out of the statutory scheme the very heart and purpose of this remedial legislation—legislation expressly designed to discourage the filing of a specifically defined category of lawsuits deemed by the Legislature to constitute an “abuse of the judicial process” because they, by statutory definition expressly set forth in subdivision (a), are “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
It would be an exercise in futility to attempt to quantify all possible examples of lawsuits based on actionable oral statements or writings which, under the majority’s construction of section 425.16, subdivision (e)(1) and *1129 (2), will automatically qualify as retaliatory SLAPP suits as a matter of law. Any litigation arising from any word uttered in a court of law, in a legislative or executive proceeding, or in any “official” proceeding in California, will henceforth, under the majority’s rationale, automatically constitute a retaliatory SLAPP suit. Any writing made in connection with any such proceeding (for example, every pleading or piece of paper prepared in connection with any legal proceeding transpiring in this state), if actionable on some legal basis and sued upon, will likewise, under the majority’s rationale, constitute a retaliatory SLAPP suit as a matter of law. It is highly unlikely the Legislature intended or envisioned that such an enormity of legal actions would automatically qualify as retaliatory SLAPP suits under subdivision (e)(1) and (2) when it enacted legislation specifically designed to curb the abusive practice.
The majority’s overly broad construction of section 425.16 subdivision (e)(1) and (2) will also likely have a significant impact on pretrial civil litigation in California. The special motion to strike a SLAPP suit is a drastic and extraordinary remedy. It not only allows an early summary dismissal of the plaintiff’s complaint, it also cuts off all discovery upon its filing and authorizes an award of attorney fees to the prevailing defendant. (§ 425.16, subds. (b), (c), (g).) The majority’s holding expands the definition of a SLAPP suit to include a potentially huge number of cases, thereby making the special motion to strike available in an untold number of legal actions that will bear no resemblance to the paradigm retaliatory SLAPP suit to which the remedial legislation was specifically addressed.
The decision of the Court of Appeal below (including both the majority and dissenting opinions), an earlier published opinion of the same division of that court (Zhao v. Wong, supra, 48 Cal.App.4th 1114 ), and the published decisions of several other Courts of Appeal (see, e.g., Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633 [ 58 Cal.Rptr.2d 613 ]; Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591 [ 57 Cal.Rptr.2d 491 ]), have all strived to interpret the overbroad and ambiguous language of section 425.16, subdivisions (b)(1) and (e)(1) and (2), in a .manner that preserves the original intent, purpose, and mandate of the anti-SLAPP legislation. In my view those courts have reasonably interpreted subdivision (e)(1) and (2) as requiring that the subject-matter inquiry of the legislative, executive, judicial, or other “offical” proceeding be shown to involve a public issue or issue of public interest so as to preserve and effectuate the overriding mandate of subdivision (a). The broad construction given subdivision (e)(1) and (2) by the majority, in contrast, effectively abrogates that carefully drafted statement of legislative purpose and intent.
*1130 In interpreting subdivisions (b)(1) and (e)(1) and (2) of section 425.16 in a manner at odds with the Legislature’s carefully circumscribed definition of SLAPP suits set forth in subdivision (a), the majority invoke a “ ‘longstanding rule of statutory construction—the “last antecedent rule”—[which] provides that “qualifying words and phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote.” ’ (White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [ 183 Cal.Rptr. 520 , 646 P.2d 191 ], quoting Board of Port Commrs. v. Williams (1937) 9 Cal.2d 381, 389 [ 70 P.2d 918 ].)” (Maj. opn., ante, at p. 1114.) Rules of statutory construction such as the “last antecedent rule” can oftentimes prove useful in gleaning legislative intent behind complex statutes, but they are not immutable. To my mind, “ ‘[m]ore in point here .... is the principle that such rules shall always “ ‘be subordinated to the primary rule that the intent shall prevail over the letter.’ ” ’ (Estate of Banerjee (1978) 21 Cal.3d 527, 539 [ 147 Cal.Rptr. 157 , 580 P.2d 657 ]; accord, In re Joseph B. (1983) 34 Cal.3d 952, 957 [ 196 Cal.Rptr. 348 , 671 P.2d 852 ]; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195 [ 132 Cal.Rptr. 377 , 553 P.2d 537 ].)” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 351 [ 45 Cal.Rptr.2d 279 , 902 P.2d 297 ].)
The heart of this anti-SLAPP legislation is embodied in subdivision (a) of section 425.16. This is a case in which a practical reading of the clearly stated purpose and intent behind this remedial legislation found in subdivisions (a) and (b) should take precedence over a literal reading of the broadly worded subdivision (e)(1) and (2), since the latter, expansively interpreted, is in patent conflict with the former. Unlike the majority, I conclude the Legislature’s primary intent is that this remedial statutory scheme be governed by the restricted scope of the statement of legislative purpose found in subdivision (a). As suggested by the court in Zhao v. Wong, supra, 48 Cal.App.4th at page 1129 , “The very fact that the Legislature included a precisely drafted statement of legislative purpose in the statute manifests an intent that the application of the statute be governed by this statement of purpose.”
The statutory construction invoked by the majority does, in a literal sense, appear to harmonize clauses (1) and (2) with clauses (3) and (4) of section 425.16, subdivision (e), since the latter two clauses expressly require a separate showing of involvement of a public issue or issue of public interest where the constitutionally protected written or oral statement was made “in a place open to the public” (subd. (e)(3)) or any other place (subd. (e)(4)). But that same analysis virtually nullifies the precisely drafted statement of legislative intent contained in subdivision (a) when the availability of the *1131 special motion is being assessed under subdivision (e)(1) or (2), a matter I believe should be of far greater concern to this court in our effort to reasonably construe and effectuate the Legislature’s intent and purpose behind the legislation. “[A] court is to construe a statute ‘ “so as to effectuate the purpose of the law.” ’ ” (White v. County of Sacramento (1982) 31 Cal.3d 676, 681 [ 183 Cal.Rptr. 520 , 646 P.2d 191 ].) The purpose of the anti-SLAPP legislation is to make available a drastic pretrial remedy designed to discourage the filing of a specifically defined category of lawsuits deemed by the Legislature to constitute an “abuse of the judicial process” because they are “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) The legislation was not intended to make such an extraordinary remedy broadly available in every case involving an actionable statement uttered in a court of law, or in a legislative, executive, or other “offical” proceeding.
All three justices comprising the panel that decided petitioner’s appeal below, majority and dissenting alike, agreed that the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding. (See also Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1633 ; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127 .) I would commend what I believe are the key portions of those two separate opinions, which together conclude, contrary to the holding of the majority here, that subdivision (e)(1) and (2) of section 425.16 must be construed to require a separate showing that the legislative, executive, judicial or other “official” proceeding involved inquiry into a public issue or issue of public interest. The section that follows sets forth the relevant portions of the opinions of the Court of Appeal holding to that effect.
II
In the Court of Appeal below in this case (maj. opn. by Dossee, J.; Stein, J., cone.; dis. opn. by Strankman, P. J.), the majority made the following observations in concluding that a defendant seeking anti-SLAPP protection under section 425.16, subdivision (e)(1) or (2), must separately demonstrate that such statement was made in a legislative, executive, judicial or other “official” proceeding involving a public issue or issue of public interest:
“The remedy authorized by the anti-SLAPP statute is a special motion to strike any cause of action which arises from an ‘act of [the defendant] in *1132 furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue ....’(§ 425.16, subd. (b); see generally, Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 [ 33 Cal.Rptr.2d 446 ].)
“The special motion to strike a SLAPP suit is a drastic and extraordinary remedy. It not only allows an early dismissal of the plaintiff’s complaint; it also authorizes an award of attorney fees to the prevailing defendant. (§ 425.16, subds. (b), (c).).....
“Subdivision (e) of section 425.16 [as in effect and controlling in the instant case] defines an 1 “act in furtherance of a person’s right of petition or free speech ... in connection with a public issue’” to include ‘[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; or [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.’
“In the present case, respondent ECHO contends that plaintiffs’ lawsuit qualifies as a SLAPP suit because it is based upon petitioning activities which fall within phrases [1] and [2] of section 425.16, subdivision (e). 2 ECHO asserts that statements made in assisting tenants Ford and Bond to complain to HUD and to file small claims court actions, including ECHO’S efforts to resist plaintiffs’ subpoenas, qualify as statements within an official proceeding under phrase [1]. Further, ECHO asserts that statements made in response to plaintiffs’ efforts to challenge ECHO’S public funding were connected to the issues under consideration by HUD or the courts and therefore fall within phrase [2],
“On two previous occasions, this division has been called upon to examine the scope of the anti-SLAPP statute, and on both occasions we gave the statute a narrow interpretation. First, in Zhao v. Wong[, supra,] 48 Cal.App.4th [at pp.] 1120-1121, 1129. . . , we concluded that in light of the legislative history and the declared legislative purpose of the anti-SLAPP statute, the statute applies only to lawsuits which are based upon activities closely tied *1133 to the right to petition and the freedom of speech. 3 We emphasized that the challenged petition or speech must have been ‘in connection with a public issue.’ (Zhao, supra, 48 Cal.App.4th at p. 1127 .) Specifically, we held in Zhao that within phrase [2] of section 425.16, subdivision (e), the ‘issue under consideration or review by a legislative, executive, or judicial body’ must be a public issue. ( 48 Cal.App.4th at p. 1127 .) More recently, in Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. [, supra,] 50 Cal.App.4th [at pp.] 1638-1639. . . , we followed the reasoning of Zhao to hold that within phrase [1] the statements made before an official proceeding must be on a public issue. In sum, we have concluded that the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127 .)
“Recently, Division Four of this district has disagreed with our interpretation of the anti-SLAPP statute. (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1045-1048 [ 61 Cal.Rptr.2d 58 ]; see also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650 [ 49 Cal.Rptr.2d 620 ].) The Braun court reasoned that the Legislature equated a public issue with the authorized official proceeding to which it connects. Hence, it is the setting itself—an official proceeding—that makes the issue a public 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, supra, at p. 1047 .)
“We cannot accept this construction of the anti-SLAPP statute. Certainly not every issue before the courts and other official bodies is a public issue, and we find it doubtful that the Legislature thought otherwise. (Linsco/ Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; see Zhao v. Wong, supra, 48 Cal.App.4th at p. 1131 .) Furthermore, such a broad reading of the anti-SLAPP statute would have legal consequences beyond the statute’s declared purpose, as the anti-SLAPP statute would supplant the statutory privilege for statements made in official proceedings (Civ. Code, § 47, subd. (b)). (Linsco/Private Ledger, Inc. v. *1134 Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; see Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1129-1130.) We remain committed to our earlier position that a lawsuit qualifies as a SLAPP suit only if it challenges a statement on a public issue made in an official proceeding or a statement made in connection with a public issue under review in an official proceeding. (Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127 .)”
Although Presiding Justice Strankman dissented below, he disagreed only with the majority’s conclusion that the proceedings at which statements were made that were attributed to ECHO’S employees and allegedly slandered plaintiff Briggs did. not involve a public issue. Presiding Justice Strankman joined in the majority’s threshold conclusion that a public issue showing is separately required under subdivision (e)(1) or (2) of section 425.16 in order for the special anti-SLAPP remedy to apply. The portion of his dissenting opinion relevant here read as follows:
“I agree with the majority that a defendant qualifies for anti-SLAPP protection only if the challenged suit arose from the defendant’s petitioning or speech ‘in connection with a public issue.’ ... [H] ... [H] The Legislature expressly declared that its intent in enacting the anti-SLAPP statute was ‘to encourage continued participation in matters of public significance’ and thus granted a person protection from lawsuits arising from ‘any act of that person in furtherance of the person’s right of petition or free speech . . . in connection with a public issue.’ (Code Civ. Proc., § 425.16, subds. (a), (b).) If the statute said no more, there would be no question that a defendant lodging an anti-SLAPP motion must make a prima facie showing that plaintiff’s suit arises from an act in furtherance of defendant’s right of petition or free speech in connection with a public issue. But the statute further provides that an ‘ “act in furtherance of a person’s right of petition or free speech ... in connection with a public issue” ’ includes ‘[1] any . . . statement . . . made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [2] any ... statement . . . 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; or [3] any . . . statement . . . made in a place open to the public or a public forum in connection with an issue of public interest.’ (Code Civ. Proc., § 425.16, subd. (e).)
“The public issue, or public interest, element is expressly included in only the third definitional category of the anti-SLAPP statute, which has led some courts to conclude that the statute protects any statement made before or in *1135 connection with an official proceeding even if the statement does not concern a public issue. (E.g., Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650 [ 49 Cal.Rptr.2d 620 ].) We have rejected this interpretation of the anti-SLAPP statute as contrary to the express declaration of legislative intent and general statutory provision protecting a person’s exercise of constitutional rights of petition and free speech in connection with a public issue. (Code Civ. Proc., § 425.16, subds. (a), (b); Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. [, supra,] 50 Cal.App.4th 1633,1639 . . . ; Zhao v. Wong[, supra,] 48 Cal.App.4th 1114, 1127 . . . .) I agree with the majority that ‘the anti-SLAPP statute was not intended to immunize every statement made before or in connection with an official proceeding, but was instead intended to protect statements on a public issue made in an official proceeding and statements made in connection with a public issue under consideration or review in an official proceeding. (Linsco/ Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1127 .)’ [Citation.]”
Ill
The majority emphasize that in 1997 the Legislature amended section 425.16, to provide that the statute “shall be broádly construed.” (§ 425.16, subd. (a), as amended by Stats. 1997, ch. 271, § 1.) The majority concede the 1997 amendment “effect[ed] no substantive changes to the anti-SLAPP scheme . . . .” (Maj. opn., ante, at p. 1119.) I remain unconvinced the legislative intent behind the statute, as originally enacted or as amended in 1997, was to expand the categories of litigation qualifying as SLAPP suits in as broad and open-ended a manner as does the majority’s rationale and holding in this case.
The 1997 amendment added a single sentence (italicized below) to the end of subdivision (a) of section 425.16, which currently reads: “The Legislature finds and declares that there has 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. The Legislature finds and declares 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, this section shall be construed broadly.” (Italics added.)
Obviously, the opening phrase of the single sentence added by the 1997 amendment—“To this end . . .”—reflects the Legislature’s intent that the remedial provisions of the anti-SLAPP legislation be “broadly construed” *1136 within the context of the restricted scope of the statement of legislative purpose contained in subdivision (a). (See also Zhao v. Wong, supra, 48 Cal.App.4th at p. 1129 .) If the Legislature had instead desired to overrule those decisions of the Courts of Appeal that have construed section 425.16, subdivision (e)(1) and (2), as requiring demonstration of involvement of a public issue, it could have easily done so in precise and explicit terms. To my mind, the majority’s analysis and holding serve neither the letter nor spirit of the 1997 amendment. Not only does the rule set down in this case fail to “construe[] broadly” the statute’s remedial provisions consistent with the ends described in the carefully drawn statement of legislative purpose found in section 425.16, subdivision (a), it literally reads that statement of legislative purpose right out of the statutory scheme by recognizing sweeping new categories of litigation, bearing no resemblance to the abusive litigation practices described in that subdivision, that will henceforth automatically qualify as SLAPP suits under subdivision (e)(1) and (2).
Finally, the majority’s expansive reading of section 425.16, subdivision (e)(1) and (2), may have legal consequences well beyond the statute’s declared purpose, as the anti-SLAPP legislation thusly interpreted stands to supplant Civil Code section 47, subdivision (b)’s absolute litigation privilege for communications made in any legislative, judicial, or other official proceeding authorized by law. (See Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1639 ; Zhao v. Wong, supra, 48 Cal.App.4th at pp. 1129-1130.) From a practical standpoint, why, under the majority’s rationale, would a defendant move, at his own expense, to dismiss an unmeritorious lawsuit based on Civil Code section 47, subdivision (b)’s otherwise applicable litigation privilege for statements made in official proceedings, when, under the majority’s expansive interpretation of the anti-SLAPP legislation, he could instead move to specially strike the suit as a retaliatory SLAPP suit and thereby immediately cut off discovery in the litigation and recover his attorney fees if dismissal is ultimately ordered?
The majority suggest it would be “anomalous” for “direct petition activity” that is “not focused on an inherently ‘public’ issue” to be absolutely privileged under the litigation privilege of Civil Code section 47, subdivision (b), and yet not be otherwise “entitled to the procedural protections of the anti-SLAPP law.” (Maj. opn., ante, at p. 1121.) Under the majority’s rationale, the scope of the anti-SLAPP legislation is seemingly coextensive with, if not broader than, the litigation privilege embodied in Civil Code section 47, subdivision (b). Could that have been the intent of the Legislature in enacting remedial legislation specifically designed and intended to target the abusive practice of SLAPP suits?
The majority suggest in conclusion that, “If we today mistake the Legislature’s intention, the Legislature may easily amend the statute.” (Maj. opn., *1137 ante, at p. 1123.) Of course the converse is true as well—were we to construe section 425.16, subdivision (e)(1) and (2), as requiring demonstration of the involvement of a public issue in the legislative, executive, judicial or “official” proceedings covered under those clauses of subdivision (e), then if the Legislature disagreed with that construction, it could amend those clauses to more clearly and explicitly convey that no such separate showing is required. I would rather this court risk reversal by the Legislature in construing the provisions of subdivision (e)(1) and (2) consistently with the concisely drafted statement of statutory purpose found in subdivision (a), than to interpret those two clauses so broadly as to virtually nullify the very purpose and spirit of the anti-SLAPP legislation by holding that every lawsuit based on any actionable word uttered or written in connection with any legislative, executive, judicial, or other “official” proceeding in the state of California will henceforth, as a matter of law, be deemed a retaliatory SLAPP suit.
I would hold, consistent with the unanimous determination of the Court of Appeal below, that the Legislature intended involvement of a public issue or issue of public interest be demonstrated under subdivision (e)(1) and (2) of section 425.16.
Brown, J., concurred.
As the court in Zhao v. Wong (1996) 48 Cal.App.4th 1114 [ 55 Cal.Rptr.2d 909 ] explained: “The legislative history provides further clarity to the statement of legislative purpose. [Fn. omitted.] Without exception, the documents in the chaptered bill file all refer to ‘the empirical research of the two University of Denver professors,’ in effect incorporating the scholarship of Canan and Pring into the legislative history. [Fn. omitted.] In addition, the report prepared by the Senate Committee on the Judiciary describes five examples of SLAPP suits .... [1] The Legislature’s concerns, as revealed by the legislative history, invariably involved activities violating the right of petition. The research of Canan and Pring is in fact based on an operational definition of SLAPP suits as implicating ‘behavior protected by the Petition Clause.’ [Fn. omitted.] Pring describes SLAPP suits as ‘counter-attackfs] against petition-clause-protected activity. [Fn. omitted.] Three of the five examples of SLAPP suits cited by the Senate Committee on the Judiciary involved expressive activity protected by both the right of petition and the right of freedom of speech. The other two examples cited by the Senate Committee on the Judiciary involve retaliation against lawsuits, i.e., judicial petitions. [Citation.]” (48 Cal.App.4th at pp. 1123-1124.)
"ECHO does not rely upon phrase [3], which is expressly limited to the use of a public forum in connection with an issue of public interest.
“Subdivision (a) of section 425.16 provides: ‘The Legislature finds and declares that there has 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. The Legislature finds and declares 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.’

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9622375. Public record. Not legal advice.