Monday, June 29, 2020
Just Call Them ‘Special Motions to Strike,’ Justice Butz Says; Opinion Affirms Denial of Motion By Law Firm, Sued for Alleged Complicity in Wrongful Collection Tactics Following Judgment
By a MetNews Staff Writer
The Third District Court of Appeal yesterday repudiated references to “anti-SLAPP” motions.
Its announcement that it won’t use the term anymore came in an unpublished opinion declaring that a law firm’s postjudgment collection efforts did not qualify as protected activity.
“Defendant Hunt & Henriques (law firm) appeals from the trial court’s order denying its special motion to strike,” Justice M. Kathleen Butz advised, adding in a footnote:
“We eschew use of an acronym often used to label this motion….The acronym grew out of the statute’s initial focus. However, with the blessing of the Legislature and the courts, this statute has been applied in contexts across the litigation spectrum, and the acronym is no longer accurate. The proceeding should simply be called what it is—a special motion to strike.”
“SLAPP” is an acronym for “strategic lawsuit against public participation.”
The special motion to strike is authorized by Code of Civil Procedure §425.16, which declares:
“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 Constitution or the California Constitution in connection with a public issue shall be 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.”
Yesterday’s opinion says that a motion does not lie under §425 where the defendant, a San Jose debt collection firm, was sued not in connection with litigation—which is protected activity—but based on allegations of wrongful acts in attempting to collect on a judgment.
The plaintiff is Marianne K. Lourick. A default judgment was obtained against her in 2012; she subsequently came to an agreement with the judgment creditor to pay a smaller sum—$6,200; she made payment by a cashier’s check; the payment was applied to the wrong account and she was told she still owed $6,200.
She sued for wrongful debt collection practices and Hunt & Henriques brought an anti-SLAPP motion.
“Section 425.16 protects all petitioning activity of a defendant, such as litigation,” Butz noted, adding that “[t]his includes any conduct in furtherance of the right to petition.”
But, she said, the protected conduct must be what triggered the lawsuit, and not merely “lurk in the background as the reason why the dispute between the parties arose.”
Argument Off Point
“[W[e do not understand why defendant law firm belabors the status of its 2012 conduct as protected activity. No one disputes this.”
What is in issue, the jurist explained, is the law firm’s conduct in 2015 and 2017 in connection with collection efforts.
Butz said the conduct described in the complaint “gives rise to a rational inference that defendant law firm was acting in concert with other entities associated with its principal to try to exact a double payment from Lourick on a debt already satisfied, which is the gist of the trial court’s ruling.”
No Rational Connection
“Such conduct, then, would not have any rational connection with the enforcement of a valid underlying judgment, a flag defendant law firm waves vigorously throughout its briefing. Instead, this conduct and the subsequent collection efforts would be independent conduct knowingly untethered to any unsatisfied judgment. As a result, it is not conduct within the protection of section 425.16.”
The case is Lourick v. Hunt & Henriques, C086203.
The anti-SLAPP statute was enacted in 1992.
Its name is derived from an article by two law professors, Penelope Canan and George W. Pring, titled “Comment, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions,” which appeared in the 1990/1991 issue of the California Western Law Review. Their writings on the subject appeared earlier in other publications, and the term “strategic lawsuit against public participation” was used in California opinions even before the statute was enacted.
What are now commonly referred to as “anti-SLAPP” motions were initially referred to as “SLAPP” motions.
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