Court of Appeal Revokes City's Anti-SLAPP Protection in Case Where Plaintiff Claimed First Amendment Protections

The California Court of Appeal, Sixth Appellate District, recently reversed a trial court judgment entered in favor of the City of Morgan Hill pursuant to California's anti - SLAPP statute (Code of Civil Procedure section 425.16.) SLAPP is an acronym for "strategic lawsuit against public participation," and the anti-SLAPP statute is designed to allow a defendant to gain early dismissal of a lawsuit that a court determines is designed to chill the exercise of First Amend ment rights.

In the case, Tichinin v. City of Morgan Hill, the Morgan Hill City Council adopted a resolution that condemned a local attorney for hiring a private investigator to conduct surveillance of the City Manager and then denying that he had done so. In response to the resolution, the plaintiff filed an action against the City, alleging a violation of his constitutional rights. From the beginning, the case garnered media attention, involving as it did rumors of an affair between city employees and private surveillance of public officials.

In reversing the trial court's judgment in favor the City under the anti-SLAPP statute, the Court of Appeal acknowledged that the plaintiff's lawsuit was based on acts by the City that qualify for protection under the anti-SLAPP statute. However, the Court also concluded that the plaintiff had made a prima facie showing that he himself was engaged in conduct protected by the First Amendment, that the City took an adverse action in response to his conduct with the intent to retaliate against him, and that the City's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct.

Read the Court's opinion here and check out the San Francisco Chronicle's summary of the interesting circumstances of the case here.