Zacks & Freedman Obtains Reversal of Project Opponent’s Meritless Anti-SLAPP Motion

On April 14, 2023, Zacks & Freedman, PC claimed a victory on behalf of their client in the Court of Appeal, First District, obtaining a reversal of a project opponent’s successful anti-SLAPP motion and related six-figure attorneys’ fee award in the trial court.

The Law: Anti-SLAPP law, short for “strategic lawsuits against public participation” provides a remedy against lawsuits intended to chill the exercise of one’s First Amendment rights. If legal claims are made against a person on the basis of their protected speech or petitioning activity, that person may file an Anti-SLAPP motion, asking a court to strike the lawsuit. However, anti-SLAPP law only protects one from being liable for their protected speech; it does not cover situations where no liability attaches—such as in cases where the petitioning activity simply precedes the act challenged in court but does not make up the basis of that claim.

The Case: Zacks & Freedman, PC sued the City of San Francisco for its denial of ZF’s client’s multifamily project, and named as a “real party in interest” the project opponent who obtained that San Francisco determination. In turn, the project opponent filed an Anti-SLAPP motion, arguing that the lawsuit violated his First Amendment rights because it was filed as a result of his petitioning activity. San Francisco joined that motion. The trial court agreed with the project opponent, struck the lawsuit as to him, and awarded the project opponent a fee award enhanced by a multiplier. On appeal, ZF argued that while Anti-SLAPP law protects one from liability as a result of their protected speech, it does not apply where the protected speech does not form the gravamen of the legal claim at issue. ZF further argued that the resulting policy of upholding such a determination would be to chill the exercise of the public’s right to seek judicial review of local governments’ decisions, which would be contrary to the letter of Anti-SLAPP law.

The Decision: On April 14, 2023, in a published opinion, the Court of Appeal agreed with ZF, reversing the lower court’s order and fee award. In doing so, the Court of Appeal reasoned “that [the project opponent’s] administrative appeal preceded or even triggered the events leading to the petition’s causes of action against the Board did not mean that the petition arose from [the project opponent’s] protected conduct within the contemplation of the anti-SLAPP law.”

The decision is a welcome application of anti-SLAPP law as it pertains to a “real party in interest” to a lawsuit, who often must be joined given their interest in the subject matter of the proceeding (often involving property rights), but who otherwise is not required to participate in the litigation. The policy behind protecting a real party’s interest in a proceeding is so strong that failure to name them can result in dismissal of a meritorious case against the government. ZF shareholder Emily Brough argued the matter. Of the decision, Brough said: “We’re extremely pleased with the Court of Appeal’s ruling. Upholding the trial court’s order in this case would have put project sponsors wishing to challenge local government decisions in an impossible predicament at the outset of the lawsuit: their failure to join a real party in interest could mean dismissal of the lawsuit, while joining that party could mean facing sanctions for a SLAPP. Placing citizens aggrieved by wrongful acts of local government into such a dilemma would chill the right to judicial review of agency decisions, a situation which anti-SLAPP case law expressly prohibits.”

Zacks & Freedman, PC is a law firm dedicated to advocating for the rights of property owners. With experience and knowledge in rent control issues, zoning, permitting, transactional disputes and other real estate matters, Zacks & Freedman, PC has successfully advocated its clients’ positions before local administrative tribunals and at all levels of the State and Federal courts, including the U.S. Supreme Court. For more information, call (415) 956-8100 or visit www.zfplaw.com.

Click here to read the Court’s decision.