Trial court abused its discretion in striking evidence offered in anti-SLAPP reply brief

Tim Kowal December 16, 2020

If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it.

New evidence may not be submitted by an anti-SLAPP movant on reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) So the trial court struck three reply declarations submitted in support of an anti-SLAPP movant's reply brief.

But that rule only applies to "entirely new evidence." Where it is responsive to the opposition, such evidence is proper.

In RGC Gaslamp v. Ehmcke Sheet Metal Co. (D4d1 Oct. 23, 2020) No. D095615, plaintiff sued defendant for filing a mechanic's lien, and defendant filed an anti-SLAPP, arguing filing a mechanic's lien is protected conduct. Which it is. But the lien, it turns out, was improper.

The Fourth District, Division One, held filing a lien, even an improper lien, is still protected conduct. The Court would only find the lien not protected if it had been filed maliciously, as plaintiff contended.

But the contention of malice was rebutted by the evidence in reply. That evidence being submitted as true reply evidence, the trial court abused its discretion in excluding it.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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Trial court abused its discretion in striking evidence offered in anti-SLAPP reply brief

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"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"A judge is a law student who grades his own papers." — H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187