Friday, November 15, 2013

Angry Neighbor Can't SLAPP a Prior Version of a Complaint

JKC3H8 v. Colton, No. C071010 (D3 Nov. 13, 2013)

In an ugly dispute over the use of an unpaved road in Ripon, plaintiff’s first complaint made a bunch of allegations suggesting that its claims arose in part from the defendant having obtained a restraining order. But in an amendment, plaintiff took those allegations out. Then defendant filed a SLAPP motion, relying in part on the allegations in the original complaint to argue that the cause of action arose from protected activity. The trial court denied the motion on the merits. But the court of appeal held that the removal of the problematic allegations effectively rendered the motion moot since the complaint at issue did not arise from protected activity. The court explained that although a plaintiff can’t amend to avoid a SLAPP motion after it has been filed because it would permit a subterfuge of the purposes of the SLAPP statute, the same rationale does not apply when allegations are excised from a complaint by amendment before a SLAPP motion was even filed. So the motion was a nonstarter and the trial court should not have reached the merits.

Vacated as moot.

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