Wilson Day Has Arrived.

Wilson v. Cable News Network, Inc., No. S239686 (Cal. Jul. 24, 2019)

Yesterday was a big day for California Civil Procedure, with the California Supreme Court handing down two decisions of procedural significance. I’ll address the second tomorrow.

But the first was the Court’s long-awaited anti-SLAPP decision in Wilson v. CNN. Wilson addresses the scope and meaning of Code of Civil Procedure § 425.16(e)(4)’s “other conduct in furtherance” element as applied to an employment discrimination claim. If you follow this kind of thing, you should read the whole opinion, which has tons of interesting anti-SLAPP discussion.

I have spent a lot of time thinking and writing about this (e)(4) issue over the past decade and a half, so sorry for the long post. Overall, Wilson is a good opinion with a generally correct result. I’m not sure I agree with every step of the Court’s analysis, but it’s navigating a very complicated space and nothing in its reasoning isn’t generally defensible under the text of 425.16 and the Court’s prior decisions. (Except for maybe footnote 7 . . . .) Anyway, I wanted to get this out quickly, so these are initial thoughts. If I had more time, I would have made it shorter.

The Ground Rules on John Doe SLAPPs

John Doe 2 v. Superior Court, No. B269087 (D2d3 Aug. 2, 2016)
The anti-SLAPP statute provides for an automatic stay of discovery. See Code Civ. Proc. § 425.16(g). The court has discretion to permit limited discovery on showing of good cause, but orders doing so are few and far between. In particular, when a defamation case is met with an anti-SLAPP motion, prior cases have established that, before it can get relief from the discovery stay, plaintiff needs to make a prima facie showing that the statement was provably false, defamatory in meaning, and unprivileged.

Defendant Doe here used an anonymous Gmail account to send emails to a party with whom Plaintiff was enmeshed in a business dispute. Plaintiff sued anonymously, alleging that the Doe’s emails were defamatory. Plaintiff subpoenaed Doe’s account-holder information from Google. When Doe got notice of that, he appeared and filed an anti-SLAPP motion, which put the kybosh on any discovery. But Plaintiff moved to lift the stay under § 425.16(g) and the trial court agreed. But Doe took a writ, which the court here grants.

As noted, to get discovery over Doe’s identity, Plaintiff needed to affirmatively show that the statements were false, capable of defamatory meaning, and unprivileged. It didn’t meet that burden here. Nor did the court buy Plaintiff’s back-up argument—that it needed to discover who Defendant was to know if he might have been a party to an arbitration agreement. Whatever interest Plaintiff had in some theoretical right to compel arbitration didn’t overcome the protections that § 425.16(g) gives to the right to free and anonymous expression.

Writ granted.