Metropolitan News-Enterprise


Friday, August 27, 2004


Page 1


Rule That Hearings on Anti-SLAPP Motions Must Be Held Within 30 Days Clarified by Court of Appeal


By KENNETH OFGANG, Staff Writer/Appellate Courts


An anti-SLAPP motion not heard within 30 days of being served must be denied unless the moving defendant affirmatively shows that it could not get a hearing within that time, the Third District Court of Appeal ruled yesterday.

The court affirmed the denial of a motion by the American Civil Rights Coalition, Inc. and Ward Connerly to throw out a suit by the Fair Political Practices Commission. The FPPC claims that more than $1.5 million in donations to last year’s unsuccessful campaign to enact Proposition 54, an initiative that would have banned most collection of racial data by state and local government, were funneled through the ACRC in order to avoid the state’s disclosure laws.

The ACRC, founded and headed by Proposition 54 author and campaign head Connerly, claims that it is a legitimate nonprofit organization that may contribute to campaigns without disclosing its donors, just like other groups. The FPPC claims the argument is bogus because the ACRC had raised less than $1,000 and performed no substantive function before becoming a conduit for donations to the “Yes on 54” campaign.

The FPPC tried to obtain a preliminary injunction prior to last year’s election, but a Sacramento Superior Court judge ruled that the commission did not establish a likelihood of prevailing and that the potential threat to the First Amendment rights of the ACRC and its donors militated against a preliminary injunction.

The commission filed its complaint last Sept. 3. The ACRC, represented by the Sacramento firm of Bell, McAndrews & Hiltachk, filed an anti-SLAPP motion on Oct. 15 and noticed it for hearing on Nov. 21.

The commission opposed the motion both on substantive grounds and under Code of Civil Procedure Sec. 425.16(f). The statute requires that an anti-SLAPP motion be heard within 30 days of service “unless the docket conditions of the court require a later hearing.”

The defense replied with a declaration by an employee of the law firm, who swore that she was told the court was “scheduling dates beyond” the 30-day window and that she asked for “the earliest available date, consistent with Charles H. Bell, Jr.’s out-of-office schedule calendar” before being given the Nov. 21 setting.

Judge Thomas H. Cecil ruled that the declaration was insufficient to establish that the motion could not have been heard within the 30-day window and denied it without reaching the merits. Justice George Nicholson, writing for the Court of Appeal, agreed.

Nicholson noted that the defendants could have obtained a hearing within the 30-day period either by requesting one in an ex parte application, or by waiting until 21 to 30 days before the hearing to serve the motion.

The 30-day period, and the “docket conditions” exception, must be strictly construed because the bringing of an anti-SLAPP motion stays discovery, the justice explained, rejecting the defense contention that the declaration established that the court could not hear the motion within the required time.

The declarant, he noted, said the court was setting hearings beyond 30 days, but did not say it was refusing to set hearings within 30 days. If the clerk’s response was ambiguous, Nicholson said, it was defense counsel’s obligation to clear up the ambiguity.

Besides, the justice wrote, the reference to Bell’s calendar suggests that Nov. 21 was not the earliest date that the court would allow, but merely the earliest date that was convenient for both Bell and the court.

Nicholson also cited Cecil’s comment at the hearing that “it is a fairly common practice” in Sacramento Superior Court for attorneys to telephone and ask the court to alter a hearing date set by the clerk in order to comply with a mandatory deadline.

“Such an attempt, if it is itself made in a timely manner but still denied, would also establish, beyond dispute, that the condition of the court’s docket was the reason for the failure to hear the anti-SLAPP motion within 30 days after service,” the justice wrote. “A trial court has a duty to hear a timely motion in a manner consistent with the rights of the parties and the requirements of the statute.”

The case is Fair Political Practices Commission v. American Civil Rights Coalition, Inc., C045570.


Copyright 2004, Metropolitan News Company