Anti-Slapp Coverage Is Close, But Not the Same, as Civil Code § 47

RGC Gaslamp v. Ehmcke Sheet Metal Co., No. D095615 (D4d1 Oct. 23, 2020)

As a step generally predicate to litigation, the recording of a mechanic’s lien constitutes “protected activity” under the anti-SLAPP statute. See Code Civ. Proc. § 425.16(e)(1), (2). As the Court of Appeal here explains, that’s the case even if the recording was somehow defective under the mechanic’s lien statutes. Nor, in meeting its initial burden, does the party seeking anti-SLAPP relief need to show that the lien, in actuality, relates to litigation that is contemplated in good faith and under serious consideration. That, no doubt, is a requirement for the protection of pre-litigiation communications under the litigation privilege in Civil Code § 47(b). But that’s an anti-SLAPP step 2 issue about the merits, not an issue over whether a claim “arises from protected activity” under step 1.

The Court of Appeal also finds that it was an abuse of discretion to strike evidence that the moving defendant submitted on reply. This wasn’t some brand new evidence that could have been included with the motion. It was, instead, supplemental to that offered in the opening papers, offered in order to rebut a specific argument raised in the opposition. Despite the common exhortations against reply evidence, that’s ok.

Affirmed.