A Jurisdiction-less SLAPP Is Still a SLAPP

Barry v. State Bar, No. S214056 (Cal. Jan. 5, 2017)

The Court of Appeal decided this anti-SLAPP case back in the summer of 2013. It was one of the very first cases I blogged about. The court held that a trial court didn’t have the power to grant an anti-SLAPP motion and award attorneys’ fees when the case was entirely lacking in subject matter jurisdiction.

But in a short unanimous opinion by Justice Kruger, the Supreme Court goes the other way. The court holds that under a court’s jurisdiction to assess its own jurisdiction, it has the power to resolve an anti-SLAPP motion where the lack of potential success is grounded in that very lack of jurisdiction. 

Although an anti-SLAPP motion can potentially reach the underlying substantive merits of a claim—problematic for a court without subject matter jurisdiction—when the lack of potential success is grounded in an absence of jurisdiction, there’s no such overreach. So the Court of Appeal’s analogy to cases holding that a pending anti-SLAPP appeal divests the trial court of jurisdiction to resolve issues connected to the appeal was off base, even if some of the language in those cases was directed to jurisdictional concerns. Moreover, to hold otherwise would invite a new form of SLAPPs—meritless cases brought without jurisdiction—that would undermine the core purpose of Code of Civil Procedure § 425.16.

That all being the case, courts also have the ancillary authority to award fees pursuant to the jurisdictional determination, just as they can decide the collateral issue of a cost award under § 1032 in connection with a jurisdictional dismissal.

Court of Appeal reversed.