SLAPPs and the Epistemology of Nothingness

Trapp v. Neimann, E054908 (D4d2 July 24, 2013)  

In a seemingly ordinary analysis on an anti-SLAPP motion, the court finds that all five causes of action in a complaint arise from litigation related activity and that they cannot succeed under the Civil Code § 47(b) litigation privilege. But a question is begged. Does a cause of action arise from protected activity when it arises from nothing at all?

After having his home foreclosed upon in a non-judicial foreclosure and being sued in a series of unlawful detainer actions, plaintiff sued the bank and its lawyers on a number of theories based on the foreclosure and the filing of the UD cases. The lawyers filed an anti-SLAPP motion, arguing that the causes of action arose from the protected activity of filing the UD cases, and that the plaintiff could not show merit, given that the lawyers’ conduct was privileged under Civil Code § 47(b), as protected litigation activity. The court granted the motion as to some causes of action, but denied as to the causes of action it found to arise from the foreclosure, relying on Garretson v. Post, 156 Cal. App. 4th 1508 (2007), which held that non-judicial foreclosures are not “protected activity” under Code of Civil Procedure § 425.16(e).

The court of appeal reversed, in part, holding that all of the causes of action should have been dismissed as SLAPPs.  The court—in a very brief analysis—rejected the plaintiffs’ Garretson argument, holding that even though several of the causes of action were based on the foreclosure, the plaintiffs admitted that the lawyers did not participate in the foreclosure, and thus “the only way to keep [the lawyers] in this action is through their representation of [the bank] in the UD actions.” Since a cause of action that partially arises from protected activity satisfies § 425.16(e). The court thus held that all of the causes of action arose from protected activity.

Moving quickly through the second prong of the anti-SLAPP analysis, the court found that because the allegations against the attorneys were based on their representation of the banks in the UD cases, their conduct was privileged under the litigation privilege in Civil Code § 47(b). Given the privilege, plaintiffs could not prevail, so the anti-SLAPP motions should have been granted in full.

Finally, the court addressed an issue regarding the timeliness of the anti-SLAPP motion, which, under § 425.16(f), “may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.” (emphasis added). There was some dispute over whether defendants were served more than sixty days before the motion was filed. But the court held it did not matter, because even if the motion was a day or two late, the trial court had the discretion to accept and decide the motion after the deadline.

Reversed in part.

I'm not sure about this one. The opinion was originally issued as a unpublished decision, but it was published at the request of one of the parties under Rule of Court 8.1105(c)(3). I’m all for more published opinions, but the analysis here seems a little rushed. In doing so, it glosses over an issue that is, at minimum, philosophically interesting, if not particularly momentous as a point of civil procedure.  

If, as the opinion suggests, four of the five causes of action arose entirely from the foreclosure and not the UD cases, it is unclear how naming the lawyers in those causes of action turned them into causes of action arising from protected activity. The real issue appears to have been that the causes of action addressing the foreclosure failed to allege that the attorneys did anything—they were just lumped in with “Defendants,” used generically to refer to both the attorneys and the banks. But were that the case, the issue was not that the causes of action arose from the attorneys’ protected activity, it was that, as to the attorneys, the causes of action arose from nothing at all. That is an entirely valid basis for a demurrer. But it seems questionable to me that a cause of action based on nothing can arise out of protected activity sufficient to bring the claim within the ambit of the anti-SLAPP remedy.  

That said, I could see it the other way too. Suppose a complaint’s only factual allegation about a particular defendant is a generally allegation in the body of the complaint that the defendant spoke a public meeting. Then, that defendant is named in a cause of action for conversion, which as is typical, incorporates all of the general allegations by reference, but makes no further allegations about the defendant. One could say that the conversion must arise out of the defendant’s speech, even if the speech logically has nothing to do with conversion, since the cause of action must arise from something and that’s all the plaintiff gave us to work with. That seems to be what the court saying here, at least implicitly.

So I suppose the question comes down to: Must every cause of action arise from something? I don't know. Maybe it's turtles all the way down . . . .