Metropolitan News-Enterprise


Friday, August 20, 2021


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Affirmative Defense Cannot Be Stricken Under Anti-SLAPP Statute—C.A.

There’s No Exception, Opinion Says, Where Answer Seeks Setoff


By a MetNews Staff Writer


An anti-SLAPP motion may not be directed to an affirmative defense, Div. Three of the Fourth District Court of Appeal has held, adding that there is no exception where the defendant seeks a set off by way of an affirmative defense.

The reason why an affirmative defense may not be attacked under the anti-SLAPP statute, Code of Civil Procedure §425.16, Justice Richard D. Fybel said in Wednesday’s opinion, “appears on the face of the statute itself: Only a ‘cause of action’ asserted by a plaintiff, cross complainant, or petitioner may be the subject of an anti SLAPP motion.”

He continued:

“A cause of action seeks relief. An affirmative defense cannot seek relief and is not asserted by a plaintiff, a cross complainant, or a petitioner.”

Wording of Subdivision

Fybel pointed to a portion of subd. (h) of §425.16—saying that “[f]or purposes of this section, ‘complaint’ includes ‘cross-complaint’ and “petition”—and noted that it does not make reference to an “answer.”

The subdivision adds that “ ‘plaintiff’ includes ‘cross-complainant’ and ‘petitioner,’ and ‘defendant’ includes ‘cross-defendant’ and ‘respondent.’ ” The jurist drew attention to the absence of the words “a defendant, cross defendant, or respondent.”

An affirmative defense, he said, “can only defeat a plaintiff’s claim” and is not a vehicle for seeking affirmative relief, meaning that it is not a “cause of action.”

High Court Decision

 Explaining why there is no exception where a setoff is sought, Fybel cited the California Supreme Court’s Nov. 14, 2002 decision in Construction Protective Services, Inc. v. TIG Specialty Ins. Co. There, then-Justice Janet Rogers Brown said that a “setoff claim cannot result in affirmative relief,” and went on to specify that “a setoff claim may only be used defensively, being in nature a defensive pleading asserting that the claim constituted prior payment for the amount sought in the plaintiff’s complaint.”

Fybel declared:

“[S]etoff is an affirmative defense, not a cause of action….The right to a setoff is based on the equitable principle that when parties in litigation hold cross-demands for money, one demand should be applied against the other and the plaintiff may recover the balance due, if any….Relief by way of a setoff is limited to reducing or defeating a plaintiff’s claim; a defendant may not obtain affirmative relief against a plaintiff based on the affirmative defense of setoff.”

The opinion affirms an order by Orange Superior Court Judge Thomas A. Delaney denying an anti-SLAPP motion.

The case is Morris Cerullo World Evangelism v. Newport Harbor Offices, 2021 S.O.S. 4667.


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