Must an anti-SLAPP defendant submit declarations in order to satisfy their prong one burden?

The Second District Court of Appeals recently issued a significant opinion in Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.4th 924.

In Bel Air, the plaintiff brought claims for (1) intentional interference with contractual relations; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; and (4) conversion (against one defendant only). Relevant to this post, the plaintiff alleged that defendants, former employees of plaintiff, encouraged other employees to quit and sue the company. While the defendants explicitly denied the allegation, they nonetheless claimed protection under the anti-SLAPP statute. In opposition, Plaintiff argued that defendants were required to support their anti-SLAPP motion with evidence in order to meet their prong one burden.  The defendants, on the other hand, argued that the Court could only consider the pleadings in determining whether the claims arose from protected activity. The Court rejected both interpretations, and instead concluded that “when the complaint itself alleges protected activity, a moving party may rely on the plaintiff’s allegations alone in arguing that the plaintiff’s claims arise from an act “in furtherance of the person’s right of petition or free speech.” Specifically, the Court went on, “While section 425.16 requires a court to consider both the ‘pleadings’ and the ‘supporting and opposing affidavits stating the facts upon which the liability or defense is based’ (§ 425.16, subd. (b)(2)), it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims. Otherwise, a defendant who disputes the plaintiff’s allegations . . . might be precluded from bringing an anti-SLAPP motion. That would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 384, 205 Cal.Rptr.3d 475, 376 P.3d 604 (Baral) [the anti-SLAPP statute ‘provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity’].)’”

This decision is particularly important in the context of anonymous speech on the Internet.  Prior to this case, it was unclear whether an anonymous speaker could deny that she published an alleged defamatory statement and at the same time claim anti-SLAPP protection, without revealing her identity.  After all, plaintiffs would argue, how can the defendant claim that her negative review or tweet is protected speech when she denies that she published it?  Indeed, Plaintiffs would often assert that the disclosure of the anonymous defendant’s identity was necessary in order to determine whether she could satisfy the prong one burden under the anti-SLAPP statute. Now, however, at least in the Second District, we have some level of clarity on the issue.  And while the Bel Air case did not involve defamation or anonymous speech, it seems that the Court’s reasoning would apply with equal force in the anonymous speech context.

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