Today California’s First District Court of Appeal held that a plaintiff can escape the anti-SLAPP statute with an unsupported allegation of vicarious liability for an illegal act.
This case arises out of an advocacy organization, Direct Action Everywhere, gathering petition signatures to shut down Golden Gate Fields, a particularly deadly horse racing track in the San Francisco Bay Area. The organization obtained more than 38,000 signatures asking the local government to close the track due to the inordinate number of horses killed there every year.
After four people stormed the track and locked down to it, the tracked sued them for their civil disobedience. Fine.
But it also sued Direct Action Everywhere. The only facts they pleaded against the organization are that it engages in political advocacy, it gathered petition signatures to shut down the track, it held public protests, and it cheered on the civil disobedience on social media. The track also made, on information and belief, a boilerplate allegation that each defendant is the agent, co-venturer, conspirator, employee, and representative of each other defendant.
Because each of the actual facts alleged against the organization involved protected activity (advocacy, protesting, petition-gathering), my office argued the statute should apply. The claims either arise out of speech or they arise out of nothing.
But the Court of Appeal held that it could ignore all the facts involving protected conduct and look only to the cause of action (trespass), which couldn’t involve protected activity. And it was enough that the plaintiff pleaded a boilerplate allegation of vicarious liability to defeat an anti-SLAPP motion. That the plaintiff didn’t plead any facts to show the vicarious liability is an issue that can only be resolved on a demurrer or motion for summary judgment—not an anti-SLAPP motion, the court held.
To imagine the kind of havoc this approach could wreak, imagine a Black Lives Matter march down that 100 people attend. The local newspaper has a reporter there. Someone throws a rock through a shop window. The shop owner then sued all 100 people, BLM the organization, and the newspaper. The plaintiff details everything each person did — they marched, they organized, they reported. And the plaintiff has a boilerplate allegation of a bunch of different vicarious liability theories, pleaded on information and belief and unsupported by any facts.
Now imagine any of the defendants (other than the rock thrower) files an anti-SLAPP motion arguing “I’m being sued for marching/organizing/reporting.” This decision would have it that they don’t get an anti-SLAPP remedy. They’re alleged to be vicariously liable for the illegal action and therefor the claims can never arise from protected speech.
It a dangerous decision.