CopyCited 49 times | Published | Supreme Court of Georgia | Nov 28, 2006 | 281 Ga. 439, 2006 Fulton County D. Rep. 3572
...When she failed to comply with its demand for a retraction and apology, GCSS brought suit for tortious interference with business relationship and libel per se. GCSS submitted the verifications required by Georgia's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. OCGA §
9-11-11.1(b)....
...The Court of Appeals reversed, holding that "[t]he anti-SLAPP statute does not encompass all statements that touch upon matters of public concern. Rather, by its terms, the statute's application is limited to" those statements which come within the definition found in OCGA §
9-11-11.1(c)....
...Georgia Community Support & Solutions v. Berryhill, supra at 192(1),
620 S.E.2d 178. This Court granted certiorari to consider *280 that issue. Because the Court of Appeals properly construed the anti-SLAPP statute, we affirm. The verification requirement of OCGA §
9-11-11.1(b) applies to any claim asserted against a person or entity arising from an act "which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances ....
...[Cits.] Thus, for example, where a general term is *281 followed by the word `including,' which is itself followed by specific terms, the intent may be one of limitation. [Cits.]" State Public Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 283(III) (Iowa 2001). In the definition set forth in OCGA §
9-11-11.1(c), the language "act in furtherance of the right of free speech or the right to petition government for a redress of grievances ....
...It was, however, totally necessary to specify those acts if the legislature intended thereby to place some reasonable limitation on the scope of the anti-SLAPP statute. Furthermore, the General Assembly could have added, but did not add, catchall language at the end of OCGA §
9-11-11.1(c), as in the comparable California and Louisiana anti-SLAPP statutes....
...he statements in question. Thereafter, the Court of Appeals considered the alternative possibility that merely seeking to initiate official proceedings by making certain statements was sufficient to bring those statements within the language of OCGA §
9-11-11.1(c)....
...ing in her statements can be construed as a request for any official investigation or proceeding. Georgia Community Support & Solutions v. Berryhill, supra. Consistent with the Court of Appeals' opinion, we recognize that, for the provisions of OCGA §
9-11-11.1 to be activated, the necessary statement is not required to constitute a petition for redress of grievances, but may instead relate to an official proceeding instigated by someone else and constitute an act in furtherance of the right of free speech. *282 Ms. Berryhill did not perform any act which could reasonably be construed as a statement or petition within the definition of OCGA §
9-11-11.1(c), as properly interpreted....
...Judgment affirmed. All the Justices concur, except SEARS, C.J., HUNSTEIN, P.J., and Benham, J., who dissent. BENHAM, Justice, dissenting. Because I believe the decision of the Court of Appeals in this case improperly limits the scope of acts protected by OCGA §
9-11-11.1, I must respectfully dissent to the majority's affirmance of that decision....
...which are made in the context of or in pursuit of official proceedings. To explain the restrictions it placed on the protections of the Anti-SLAPP statute, the Court of Appeals made two key holdings in the decision under review. First, it held OCGA §
9-11-11.1 "defines" the acts to which the Anti-SLAPP statute applies as any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or...
...which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern. . . ." OCGA §
9-11-11.1(b)....
...Georgia Alliance of Community Hospitals, Inc.,
262 Ga. App. 353(1),
585 S.E.2d 700 (2003), where it noted that an act in furtherance of the rights of free speech or petition "`includes' (and is thus not limited to)" the specific communications listed in OCGA §
9-11-11.1(c)....
...ti-SLAPP statute, "to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances." OCGA §
9-11-11.1(a)....
...o government for the redress of grievances. That the statute does *284 not contain such a requirement may be seen from the fact that it twice joins the phrases "right of free speech" and "right to petition government" with the disjunctive "or." OCGA §
9-11-11.1(b) & (c)....
CopyCited 33 times | Published | Supreme Court of Georgia | Jun 24, 2019 | 306 Ga. 252
Boggs, Justice.
**252This case presents the first opportunity for this Court to consider the effects of the General Assembly's wholesale revision in 2016 of the anti-SLAPP statute, OCGA §
9-11-11.1, which now substantially mirrors California Code of Civil Procedure § 425.16....
...and one of its attorneys for violations of OCGA §
31-7-3.2 (j), deceptive trade practices, and false advertising after the defendants ran full-page advertisements in local newspapers targeting patients of nursing homes owned by the plaintiffs. The defendants filed a Motion to Dismiss or to Strike Pursuant to OCGA §§
9-11-11.1 and
9-11-12 (b) (6), arguing among other things that OCGA §
31-7-3.2 (j), which was enacted in 2015, violates the First Amendment....
...The motion was filed the day before a previously scheduled injunction hearing, but the trial court considered the defendants' motion and denied it. The defendants appealed to the Court of Appeals, which properly transferred the case to this Court.
We conclude that the defendants met their burden under OCGA §
9-11-11.1 to show that the plaintiffs' claims are ones arising from acts that could reasonably be construed as acts in furtherance of the defendants' right of free speech under the United States Constitution in connection with an issue of public interest or concern, thereby triggering the application of OCGA §
9-11-11.1....
..., 2017, when the court would hold a consolidated hearing on the plaintiffs' requests for preliminary and permanent injunctive relief.
On the day before the injunction hearing, the defendants filed a Motion to Dismiss or to Strike Pursuant to OCGA §§
9-11-11.1 and
9-11-12 (b) (6), attaching as exhibits printouts from the Medicare.gov website concerning the surveys that the defendants cited in their ads....
...se of constitutional rights of petition and free speech by tying up their target's resources and driving up the costs of litigation. To combat this practice, in 1996, the General Assembly added an anti-SLAPP provision to the Civil Practice Act, OCGA §
9-11-11.1. See Ga. L. 1996, p. 260, § 1 (codified as amended at OCGA §
9-11-11.1 ). In 2016, the General Assembly revised OCGA §
9-11-11.1 to substantially track California's anti-SLAPP procedure as set out in California Code of Civil Procedure § 425.16....
...For the most part, these cases have construed provisions of the anti-SLAPP statute that the 2016 amendment removed, see, e.g., Atlanta Humane Society v. Harkins ,
278 Ga. 451, 452-454,
603 S.E.2d 289 (2004) (construing verification provisions of former OCGA §
9-11-11.1 (b) ), or they have interpreted language in the anti-SLAPP statute the meaning of which the 2016 amendment substantially changed, see, e.g., Berryhill v. Georgia Community Support & Solutions, Inc. ,
281 Ga. 439, 439-443,
638 S.E.2d 278 (2006) (interpreting language in former OCGA §
9-11-11.1 (b) retained in current anti-SLAPP statute, but based on the two-part definition provided in former OCGA §
9-11-11.1 (c), which has now been expanded into a four-part definition); Denton ,
275 Ga. at 4-7,
561 S.E.2d 431 (same). See also Neff v. McGee ,
346 Ga. App. 522, 524 n.2,
816 S.E.2d 486 (2018) (noting that the 2016 amendment to OCGA §
9-11-11.1 expanded the scope of the **258anti-SLAPP statute); Rosser v. Clyatt ,
348 Ga. App. 40, 42,
821 S.E.2d 140 (2018) (same). Moreover, the 2016 amendment fundamentally altered the mechanics of the anti-SLAPP procedure. Thus, our precedents construing the pre-amendment version of OCGA §
9-11-11.1 are of limited utility in interpreting the revised anti-SLAPP statute.
The California Supreme Court, by contrast, has developed a considerable body of case law interpreting the text of California Code of Civil Procedure § 425.16, which, as explained below, is very similar to the text of Georgia's revised anti-SLAPP statute. Thus, in interpreting our new OCGA §
9-11-11.1, we may look to California case law interpreting § 425.16 for guidance, especially decisions - such as the ones cited in this opinion - that employ the same kind of statutory analysis that we generally use....
...589, 598-600,
774 S.E.2d 688 (2015) (looking to decisions in other jurisdictions with similar apportionment statutes in interpreting Georgia's apportionment statute, including California, Colorado, Florida, Kansas, Michigan, New Hampshire, and Wyoming).8
(a) Georgia's Newly Revised Anti-SLAPP Statute
OCGA §
9-11-11.1 (a) declares that "it is in the public interest to encourage participation *125by the citizens of Georgia in matters of public significance and public interest through the exercise of their constitutional rights of petition and freedom of speech," and that "the valid exercise of the constitutional rights of petition and freedom of speech should not be chilled through abuse of the judicial process." Subsection (a) also provides that OCGA §
9-11-11.1 "shall be construed broadly" to accomplish these declarations. Accord Cal. Code Civ. Proc. § 425.16 (a) (same). The rest of OCGA §
9-11-11.1 concerns anti-SLAPP motions to strike a claim or to dismiss a complaint, which are usually, but not necessarily, filed by defendants against plaintiffs, as is the case here. Thus, the "moving party" is usually the defendant, and the "nonmoving party" is usually the plaintiff.
Subsection (b), which is now divided into three paragraphs, substantially changes the procedural mechanism from former **259OCGA §
9-11-11.1 for challenging SLAPPs at the outset of litigation.9 The first paragraph provides:
A claim for relief against a person or entity arising from any act of such person or entity which could reasonably be construed as an act in furtherance...
...n connection with an issue of public interest or concern shall be subject to a motion to strike unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim.
OCGA §
9-11-11.1 (b) (1)....
...The second paragraph provides, "In making the determination as provided for in paragraph (1) of this subsection, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ..." OCGA §
9-11-11.1 (b) (2).10 Accord Cal....
...ble in evidence in any later stage of the case or in any subsequent proceeding, and that such a determination does not affect the burden or degree of proof otherwise applicable in any later stage of the case or in any subsequent proceeding. See OCGA §
9-11-11.1 (b) (3). Accord Cal. Code Civ. Proc. § 425.16 (b) (3) (similar). A new subsection, OCGA §
9-11-11.1 (b.1), requires the trial court to award "attorney's fees and expenses of litigation related to the action" to a moving party (usually, the defendant) who prevails on an anti-SLAPP motion, and to award "attorney's fees and expenses of li...
...lic forum in connection with an issue of public interest or concern; or
(4) Any other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.
OCGA §
9-11-11.1 (c) (1) - (4)....
...The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.
OCGA §
9-11-11.1 (d)....
...Proc. § 425.16 (f), (g) (similar).11 But in a significant departure from prior practice, the 2016 revision added a new subsection (e), which authorizes an immediate appeal as of right from "[a]n order granting or denying" an anti-SLAPP motion. OCGA §
9-11-11.1 (e).12 See Grogan v. City of Dawsonville ,
305 Ga. 79, 83-84,
823 S.E.2d 763 (2019). Accord Cal. Code Civ. Proc. § 425.16 (i). The remaining subsections of OCGA §
9-11-11.1 are not relevant to this appeal.13
(b) Georgia's New Anti-SLAPP Procedure
The text of OCGA §
9-11-11.1 (b) (1) makes clear that the analysis of an anti-SLAPP
*127motion involves two steps.14 First, the court must **262decide whether the party filing the anti-SLAPP motion (usually, the defendant) has made a threshold showing that the challenged claim is one "arising from" protected activity. OCGA §
9-11-11.1 (b) (1)....
..., 124 Cal.Rptr.2d 530, 52 P.3d at 709 (emphasis in original). A defendant meets its burden by demonstrating that the act underlying the challenged claim "could reasonably be construed as" fitting within one of the categories spelled out in subsection (c). OCGA §
9-11-11.1 (b) (1). See OCGA §
9-11-11.1 (c) (1) - (4) ; Navellier , 124 Cal.Rptr.2d 530, 52 P.3d at 708.
If a court concludes that this threshold showing has been made, it must proceed to the second step of the analysis and decide whether the plaintiff "has established that there is a probability that the [plaintiff] will prevail on the claim." OCGA §
9-11-11.1 (b) (1)....
...As explained above, the first step of the anti-SLAPP analysis is to decide whether the party or parties filing the anti-SLAPP motion - here, the defendants - made a threshold showing that the plaintiffs' claims are ones "arising from" protected activity. OCGA §
9-11-11.1 (b) (1)....
...owing that the plaintiffs' claims are ones arising from protected activity by demonstrating that the acts underlying the claims "could reasonably be construed as" fitting within at least one of the four categories spelled out in subsection (c). OCGA §
9-11-11.1 (b) (1). See Navellier , 124 Cal.Rptr.2d 530, 52 P.3d at 709.
OCGA §
9-11-11.1 (c) (4) refers to "[a]ny other conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern." The plaintiffs' claims that the defendants vio...
...vision of California's anti-SLAPP statute). Thus, running the ads could reasonably be construed as an act in furtherance of the defendants' constitutional right of free speech in connection with a public issue or an issue of public concern, see OCGA §
9-11-11.1 (c) (4), and the **264defendants therefore met their burden of making a threshold showing that the plaintiffs' claims are ones arising from protected activity.15
4....
...es opposing the anti-SLAPP motion - here, the plaintiffs - have established that there is a probability that they will prevail on their claims that the defendants violated OCGA §
31-7-3.2 (j), the UDTPA, and the false advertising statutes. See OCGA §
9-11-11.1 (b) (1)....
...See City of Montebello , 205 Cal.Rptr.3d 499, 376 P.3d at 631.
As noted above, the trial court concluded that the plaintiffs met their burden at the second step of the anti-SLAPP analysis and therefore denied the defendants' anti-SLAPP motion. The court quoted the relevant part of OCGA §
9-11-11.1 (b) (1) and then explained its reasoning only as follows:
Here, Plaintiffs have demonstrated a probability of prevailing on their claim[s]....
...It is not entirely clear what the court meant by this passage, and a review of the transcript *129of the hearing on the anti-SLAPP motion does not add clarity.
What is clear, however, is that the trial court did not properly apply the required step two analysis under OCGA §
9-11-11.1 with respect to the plaintiffs' claims....
...Any advertisement shall include the name, physical location and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement. ...").
Also attached were the verifications required by a version of OCGA §
9-11-11.1 that was no longer in effect. See former OCGA §
9-11-11.1 (b) (2015).
See Ga....
...Both terms were coined by professors at the University of Denver. See Penelope Canan & George W. Pring, "Studying Strategic Lawsuits against Public Participation: Mixing Quantitative and Qualitative Approaches," 22 Law & Soc'y Rev. 385 (1988).
OCGA §
9-11-11.1 and § 425.16 are not identical in every respect, however, and where the language of the two statutes differs in substance, the California case law may not be instructive.
Former OCGA §
9-11-11.1 (b) provided that for any claim asserted against a person or entity arising from an act that could reasonably be construed as an act in furtherance of constitutional rights of free speech or petition, both the party asserting the claim a...
...crease in the cost of litigation. The court was required to strike any claim not verified as required by the statute unless the party asserting the claim verified it within ten days after the omission was called to the party's attention. Former OCGA §
9-11-11.1 (b) provided that if a claim was verified in violation of the statute, "the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim" and an order to pay the other party or parties their reasonable expenses incurred from the filing of the pleading, including attorney fees.
The second paragraph of OCGA §
9-11-11.1 (b) further provides that if there is a claim that the nonmoving party is a public figure plaintiff, then the nonmoving party is entitled to discovery on the sole issue of actual malice if actual malice is relevant to the court's determination under the first paragraph....
...words "until a final decision on the motion."
The General Assembly amended the Appellate Practice Act at the same time to reflect this change. See OCGA §
5-6-34 (a) (13) (authorizing appeals from "[a]ll judgments or orders entered pursuant to Code Section
9-11-11.1"). Accord Cal. Code Civ. Proc. § 904.1 (a) (13) (similar).
Subsection (f) contains the same language as former OCGA §
9-11-11.1 (e) : "Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule." OCGA §
9-11-11.1 (f)....
...This language does not appear in the California anti-SLAPP statute. Subsection (g), which is new, provides, "This Code section shall not apply to any action brought by the Attorney General or a prosecuting attorney, or a city attorney acting as a prosecutor, to enforce laws aimed at public protection." OCGA §
9-11-11.1 (g). Accord Cal. Code Civ. Proc. § 425.16 (d) (similar). Finally, subsection (h) of the revised statute, which largely retains the language of former OCGA §
9-11-11.1 (f), provides: "Attorney's fees and expenses of litigation under this Code section shall be requested by motion at any time during the course of the action but not later than 45 days after the final disposition, including but not limited to dismissal by the plaintiff, of the action." The only changes are the addition of the words "of litigation" after the word "expenses" and substitution of the word "shall" for the word "may" in the phrase "shall be requested." The language of OCGA §
9-11-11.1 (h) does not appear in California's anti-SLAPP statute.
As noted above, in performing this analysis, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." OCGA §
9-11-11.1 (b) (2).
Given our conclusion that the defendants met their burden to make a threshold showing that the acts underlying the plaintiffs' claims could reasonably be construed as fitting within the category described in OCGA §
9-11-11.1 (c) (4), we need not address whether the defendants' running of the ads could reasonably be construed as fitting within any of the other categories spelled out in the anti-SLAPP statute. See OCGA §
9-11-11.1 (c) (1) - (3).
CopyCited 32 times | Published | Supreme Court of Georgia | Oct 19, 2021 | 312 Ga. 647
...unty, had
charged an indigent criminal defendant a fee for his public defense
services. The ACLU moved to strike the defamation lawsuit
pursuant to Georgia’s anti-Strategic Lawsuits Against Public
Participation (“anti-SLAPP”) statute, OCGA §
9-11-11.1.1 Zeh then
filed two motions requesting discovery....
...the nonmoving party is a public figure plaintiff, then the
nonmoving party shall be entitled to discovery on the sole
issue of actual malice whenever actual malice is relevant
to the court’s determination under paragraph (1) of this
subsection.
OCGA §
9-11-11.1 (b).3
3 Other subsections of OCGA §
9-11-11.1 that are pertinent to the issues
presented in this case are as follows:
(a) The General Assembly of Georgia finds and declares that
it is in the public interest to encourage participation by the citizens
of Georgi...
...252, 261 (830 SE2d
119) (2019). First, the court must decide whether the party filing the
anti-SLAPP motion (here, the ACLU) “has made a threshold
showing that the challenged claim is one ‘arising from’ protected
activity.” Id. at 262 (quoting OCGA §
9-11-11.1 (b) (1))....
...ied
discovery or other hearings or motions be conducted
notwithstanding this subsection.
5
is a probability that the (plaintiff) will prevail on the claim.’” Wilkes,
306 Ga. at 262 (quoting OCGA §
9-11-11.1 (b) (1)).
The parties do not dispute that under the first part of this test,
Zeh’s defamation claim arises from protected activity. See Wilkes,
306 Ga. at 262 (explaining that a challenged claim arises from
protected activity when it could reasonably be construed as fitting
within one of the categories set forth in OCGA §
9-11-11.1 (c))....
...at 263, viewing the
pleadings and affidavits submitted by the parties in the light most
favorable to the plaintiff (as the non-moving party). See, e.g., RCO
Legal, P.S., Inc. v. Johnson,
347 Ga. App. 661, 661-662 (820 SE2d
491) (2018). See also OCGA §
9-11-11.1 (b) (2) (stating that in
determining whether a plaintiff’s claim is subject to a motion to
strike, “the court shall consider the pleadings and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based”)....
...ages
are inferred. See OCGA §
51-5-4 (b); Cottrell,
299 Ga. at 522-523.
29
In late September 2018, the Brunswick News filed a motion to
strike Zeh’s complaint under the anti-SLAPP statute, see OCGA §
9-11-11.1, contending that the statements in its article were
conditionally privileged under OCGA §§
51-5-5 and
51-5-7 and that
Zeh was a public official for the purpose of applying the New York
Times standard.16 In early October, the ACLU f...
...’s right of petition or free
speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an issue
of public interest or concern, as defined in subsection (c) of Code
Section
9-11-11.1;
(5) Fair and honest reports of the proceedings of legislative
or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made, on the circumstances...
...r of
constitutional law. The ACLU also filed an anti-SLAPP motion to
strike the complaint, contending that Zeh failed to establish under
the second part of the anti-SLAPP test a probability that he would
prevail on his defamation claim. See OCGA §
9-11-11.1 (b) (1)....
...32
discovery, arguing that to the extent the trial court found that he
was a public figure, the parties should conduct discovery on the issue
of whether the ACLU published the blog post statements with actual
malice. See OCGA §
9-11-11.1 (b) (2).
On October 24, 2018, the trial court heard oral arguments on
the motions to strike....
...Zeh argued that he was not a public figure because he
represented Cox as a private lawyer. In November 2018, Zeh filed
another motion to conduct discovery by deposing Cox and Hamilton
as well as the author and editors of the blog post, arguing that he
had shown good cause under OCGA §
9-11-11.1 (d) because the
memories of those individuals “[were] fading while the [c]ourt t[ook]
the [d]efendants’ motions to [strike] under advisement.” On May 15,
2019, the trial court issued orders granting the Brunswick News’s
motion to strike but summarily denying the ACLU’s motion....
... 4. Based on the current record, Zeh has not shown actual
malice.
We turn next to whether Zeh has established that there is a
probability that he will prevail on his defamation claim under the
second part of the anti-SLAPP test. See OCGA §
9-11-11.1 (b) (1);
Wilkes, 306 Ga....
...motion to strike, Zeh filed a motion for discovery, arguing that to the
extent the trial court found that he was a “public figure,” the parties
should conduct discovery on the issue of whether the ACLU
published the blog post statements with actual malice. See OCGA §
9-11-11.1 (b) (2) (“[I]f there exists a claim that the nonmoving party
is a public figure plaintiff, then the nonmoving party shall be
entitled to discovery on the sole issue of actual malice whenever
actual malice is relevant to the court’s determination under
paragraph (1) of this subsection.”)....
...on as well as the
author and editors of the blog post, arguing that he had shown good
cause because the memories of those individuals “[were] fading
while the [c]ourt t[ook] the [d]efendants’ motions to [strike] under
advisement.” See OCGA §
9-11-11.1 (d) (“The court, on noticed
motion and for good cause shown, may order that specified discovery
or other hearings or motions be conducted notwithstanding this
subsection [generally staying discovery until a final decision on a
motion to strike].”)....
...All the
Justices concur, except McMillian and Colvin, JJ., disqualified.
26 We note that while the trial court has discretion under OCGA § 9-11-
11.1 (d) to determine whether Zeh has shown “good cause” for discovery and, if
so, what discovery should then be “specified,” under OCGA §
9-11-11.1 (b) (2),
a plaintiff who the anti-SLAPP movant claims is a “public figure plaintiff” is
entitled to discovery on the “sole issue of actual malice.” In this Court, the
ACLU argues that it has alleged only that Zeh is a “public official,” not a “public
figure,” so OCGA §
9-11-11.1 (b) (2) does not apply in this case....
...any event, we did not grant certiorari in this case to decide this question, so we
leave it to the trial court to decide in the first instance on remand whether the
ACLU claims that Zeh is a “public figure plaintiff” as that term is used in
OCGA §
9-11-11.1 (b) (2).
63
Decided October 19, 2021.
Certiorari to the Court of Appeals of Georgia — 355 Ga....
CopyCited 32 times | Published | Supreme Court of Georgia | Sep 27, 2004 | 278 Ga. 451
...Appellants brought these defamation actions in the Superior Court of Cobb County against Harkins and in the Superior Court of Gwinnett County against Mills (Appellees), but failed to verify the complaints pursuant to the anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. OCGA §
9-11-11.1(b)....
...The Cobb County court also denied a second motion to dismiss which was based on the substantive contention that Appellants unlawfully initiated the suit in response to Harkins' exercise of her right to free speech. The Gwinnett County court held that any claim by Mills "that OCGA §
9-11-11.1 grants to [her] substantive rights, rather than mere procedural guarantees, which this Court must determine in a preliminary manner prior to this case proceeding to trial is without merit....
...aims against Mills were moot. Atlanta Humane Society v. Mills, supra at 598,
591 S.E.2d 423. This Court granted certiorari and consolidated the cases, in order to review the Court of Appeals' analysis of the anti-SLAPP statute. We conclude that OCGA §
9-11-11.1(b) authorizes the dismissal of a claim if it is falsely verified....
...e plaintiff's claim and for some combination of costs, legal fees and damages to be awarded to the defendant for the plaintiff's initiation of groundless litigation." (Emphasis supplied.) PLI, Sack on Defamation, § 10.11.2 (2003). As stated in OCGA §
9-11-11.1(a), the purposes of Georgia's anti-SLAPP statute are to encourage citizen participation in matters of public significance through the exercise of the right of free speech and the right to petition the government for redress of grievances, and to prevent their valid exercise from being chilled through abuse of the judicial process. To accomplish these purposes, "[t]he crucial statutory provision is OCGA §
9-11-11.1(b)....
...510, 515(1)(c),
556 S.E.2d 547 (2001). However, "verification does not end the matter" because the trial "court can ultimately reject the verification...." Denton v. Browns Mill Development Co., supra at 7,
561 S.E.2d 431. The fourth and last sentence of OCGA §
9-11-11.1(b), which permits dismissal, applies "[i]f a claim is verified in violation of this Code section....
...d something by the inclusion of the last sentence and, therefore, we must construe it so as not to render it meaningless. Chatman v. Findley,
274 Ga. 54, 55,
548 S.E.2d 5 (2001). An important difference between the third and fourth sentences of OCGA §
9-11-11.1(b) is in the specified sanctions....
...Motions to dismiss, on the other hand, often are resolved through the use of affidavits or other evidence or are converted into motions for summary judgment. OCGA §§
9-11-12 (b, d),
9-11-43(b). See also Metzler v. Rowell,
248 Ga.App. 596, 600(3),
547 S.E.2d 311 (2001). Subsection (d) of OCGA §
9-11-11.1, which provides for a stay of discovery upon the filing of a motion pursuant to subsection (b), also allows a motion for specified discovery. Metzler v. Rowell, supra. The sole possible reason for even limited discovery during a verification dispute is to obtain evidence for use in resolving a motion to dismiss pursuant to OCGA §
9-11-11.1(b)....
...ve much more serious conduct by the SLAPP claimant and significantly higher litigation expenses than would the straightforward procedural determination in the third sentence. Therefore, the only reasonable construction of the fourth sentence of OCGA §
9-11-11.1(b) is that the trial court may dismiss the claim if it makes a substantive, evidentiary determination that such claim is falsely verified....
...prisals for Reporting Employer Misconduct, 38 Ga. L.Rev. 769, 785(II)(B) (2004). Accordingly, the Court of Appeals correctly held that a claim may be dismissed based on the substantive protection of the anti-SLAPP statute: The plain language of OCGA §
9-11-11.1(b) authorizes dismissal of a claim [in the absence of a reasonable belief that it is] "well grounded in fact," [and] "warranted by ......
...Instead, the Court of Appeals held that dismissal was required as a matter of law because the undisputed facts of record showed that Appellees' statements were clearly acts in furtherance of their right of free speech in connection with an issue of public concern as defined by OCGA §
9-11-11.1(c) and existing case law. Harkins v. Atlanta Humane Society, supra at 360(2),
590 S.E.2d 737; Atlanta Humane Society v. Mills, supra. "Nothing in [OCGA §
9-11-11.1] shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule." OCGA §
9-11-11.1(e)....
...om an act by that person "which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances... in connection with an issue of public interest or concern...." OCGA §
9-11-11.1(b). Subsection (c) defines such an act to include a statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body. These provisions do not make any substantive change in the law. OCGA §
9-11-11.1(e); Denton v....
...argument" for the modification of existing law, (b) "that the claim is not interposed for any improper purpose," or (c) "that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section
51-5-7." OCGA §
9-11-11.1(b). The legislation which added OCGA §
9-11-11.1 to the Civil Practice Act made only one substantive change in the law, which was the enactment of OCGA §
51-5-7(4). That addition to the statute on privileged communications created a new privilege for statements as defined in OCGA §
9-11-11.1(c), so long as they are "made in good faith....
..."In every case of privileged communications, if the privilege is used *294 merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action." (Emphasis supplied.) OCGA §
51-5-9. The interlocking provisions of OCGA §§
9-11-11.1(b), (c) and
51-5-7(4) confirm that merely meeting the description of a claim which comes within the purview of the anti-SLAPP statute does not require dismissal....
...Before the trial court is authorized to dismiss the claim, it must further determine that the statements were made in good faith, or that the claim is interposed for an improper purpose or without a reasonable belief that it is well grounded in fact and is warranted by good-faith reliance on existing substantive law. OCGA §
9-11-11.1(b). See also OCGA §
9-11-11.1(e); Browns Mill Development Co....
...v. Denton,
247 Ga.App. 232, 236(1)(c),
543 S.E.2d 65 (2000), aff'd, Denton v. Browns Mill Development Co., supra. The Court of Appeals failed to consider this essential step in anti-SLAPP analysis and to look beyond the threshold definitions in OCGA §
9-11-11.1(b), (c)....
...ellees' statements were acts in furtherance of their right of free speech in connection with an issue of public concern, it did not review evidence relevant to, or otherwise explicitly or implicitly make, the remaining determination mandated by OCGA §
9-11-11.1(b)....
...Judgments affirmed in part and reversed in part and cases remanded with direction. All the Justices concur, except FLETCHER, C.J., and SEARS, P. J., who concur in part and dissent in part. FLETCHER, Chief Justice, concurring in part and dissenting in part. I concur with the interpretation of OCGA §
9-11-11.1, Georgia's anti-SLAPP statute, in Division 1 of the majority opinion....
CopyCited 26 times | Published | Supreme Court of Georgia | Mar 27, 2002 | 275 Ga. 2
...Wayne Phears, Norcross, amici curiae. HINES, Justice. We granted certiorari in Browns Mill Dev. Co. v. Denton,
247 Ga.App. 232,
543 S.E.2d 65 (2000), to determine whether the Court of Appeals was correct that trespass is a tort that falls outside the ambit of OCGA §
9-11-11.1, Georgia's anti-SLAPP (Strategic Litigation Against Public Participation) statute. Finding that trespass, as alleged here, is not covered by OCGA §
9-11-11.1, we affirm....
...ruthful. Browns Mill and Peach State then filed a complaint asserting causes of action for trespass, libel, slander, and intentional interference with business operations. Denton notified counsel for Browns Mill and Peach State that he believed OCGA §
9-11-11.1 applied, and noted that the plaintiffs had not complied with that statute by filing the required verification. Plaintiffs' counsel, however, declined to provide verification under OCGA §
9-11-11.1....
...Denton moved to dismiss the complaint, which the trial court did. Browns Mill and Peach State appealed, and the Court of Appeals affirmed the trial court in part and reversed it in part. The Court of Appeals concluded, based on the verification requirement of OCGA §
9-11-11.1, that the trial court properly dismissed the slander, libel, and intentional interference with business relations claims. However, the Court of Appeals reversed the trial court's dismissal of the trespass claim, concluding that trespass was not expressly brought within the ambit of OCGA §
9-11-11.1, and therefore, construing the statute strictly, [1] a trespass was not an act to which *433 the procedural protections of OCGA §
9-11-11.1 extended. The crucial statutory provision is OCGA §
9-11-11.1(b): For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress...
...The statute, obviously, does not give blanket protection against suits filed against one acting in the public arena, but requires that the plaintiff make the stated verification. Thus, the statute does not sanction conduct that is otherwise tortious, but merely provides a measure of procedural protection. Under OCGA §
9-11-11.1(d), discovery and pending motions are stayed while the court addresses any motion filed under OCGA §
9-11-11.1(b). Additionally, OCGA §
9-11-11.1(e) states that "[n]othing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule." Denton asserts that the phrase "any claim" in the first sentence of OCGA §
9-11-11.1(b) necessarily includes the trespass claim and extends the procedural protection to that claim as well....
...e speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern...." (Emphasis supplied.) OCGA §
9-11-11.1(b)....
...executive, or judicial body, or any other official proceeding authorized by law. All acts included in the statute's amplification of the phrase "act in furtherance ..." are acts of communication. Further, the purpose of the statute is stated in OCGA §
9-11-11.1(a): The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances....
...ight of free speech; the tort of trespass is completed before any act of communication occurs. Denton argues that the entire complaint was brought with the purpose to harass, and therefore all causes of action in the complaint should fall under OCGA §
9-11-11.1. However, the procedural protections of the statute extend to "any claim ... which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government...." OCGA §
9-11-11.1(b)....
...See OCGA §
9-11-18. And those causes of action that are not based on an act in furtherance of the rights of free speech or petition do not fall under the statute, are not afforded the procedural protections of the statute, and do not need to be verified under OCGA §
9-11-11.1(b). Denton also argues that imposing the requirement of verification under OCGA §
9-11-11.1(b) for all claims in the complaint would not offend the rights of the plaintiffs as the suit may proceed after verification. However, we note that verification does not end the matter; progress of the case is stayed while any verification dispute is pending and the court can ultimately reject the verification, to the plaintiffs' expense. See OCGA §
9-11-11.1(b) & (d)....
...the statute, in fact, requires such verification. It is not this Court's role to impose a requirement beyond that found in the statute. Finally, Denton contends that in holding that a trespass claim such as this is not *435 within the scope of OCGA §
9-11-11.1, this Court invites developers to file false claims of trespass against those who oppose them in the public arena....
...See OCGA §§
9-15-14 (attorney fees for frivolous actions) and
51-7-80 et seq. (abusive litigation). Further, just as plaintiffs could falsely file trespass claims, defendants could falsely claim that their actions were within the compass of OCGA §
9-11-11.1. The Court of Appeals correctly determined that the trespass alleged here did not fall within the ambit of OCGA §
9-11-11.1. Judgment affirmed. All the Justices concur, except FLETCHER, C.J., SEARS, P.J., and HUNSTEIN, J., who dissent. FLETCHER, Chief Justice, dissenting. Because the anti-SLAPP statute, OCGA §
9-11-11.1, requires verification for "any claim" "arising from an act" that "could reasonably be construed as an act in furtherance of the right of free speech or the right to petition the government for a redress of grievances," it covers all act...
...statute's passage. [2] Obviously, the statute includes acts which have been held to be in furtherance of free speech, such as peacefully protesting on public property. See, e.g., Hirsh v. City of Atlanta,
261 Ga. 22,
401 S.E.2d 530 (1991). [3] OCGA §
9-11-11.1(b) (emphasis supplied). [4] Webster's Third Int'l Dictionary, 924 (1961). [5] OCGA §
51-5-7. [6] OCGA §
9-11-11.1(c) (emphasis supplied)....
CopyCited 9 times | Published | Supreme Court of Georgia | Oct 6, 2020 | 310 Ga. 279
...279
FINAL COPY
S19G1265. GEER v. PHOEBE PUTNEY HEALTH SYSTEM, INC.
BETHEL, Justice.
In Geer v. Phoebe Putney Health System,
350 Ga. App. 127, 128
(828 SE2d 108) (2019), the Court of Appeals held that Georgia’s anti-
SLAPP statute, OCGA §
9-11-11.1, could not be invoked to strike a
counterclaim for attorney fees brought under OCGA §
50-18-73 (b)
in response to a suit to enforce a request under Georgia’s Open
Records Act....
...be determined on the basis of the record as a whole which
is made in the proceeding for which fees and other
expenses are sought.
In response, Geer filed a motion to strike Phoebe Putney’s
counterclaim for attorney fees under Georgia’s anti-SLAPP statute,
OCGA §
9-11-11.1, asserting that the counterclaim was nothing
more than an effort to chill his rights to petition the government and
to free speech....
...cie
showing that the anti-SLAPP statute applied to the counterclaim.
The trial court did not consider the merits of Phoebe Putney’s claim
for attorney fees.
Geer appealed the trial court’s order to the Court of Appeals
pursuant to OCGA §
9-11-11.1 (e)....
...App. 204, 207 (809 SE2d 542) (2018). Those statutes,
including Georgia’s, give a person or entity who believes they have
been subjected to a SLAPP an avenue for ending the suit quickly,
summarily, and at minimal expense.
Codified at OCGA §
9-11-11.1, Georgia’s anti-SLAPP statute
was, according to the General Assembly, enacted to
....
...freedom of speech. The General Assembly of Georgia
further finds and declares that the valid exercise of the
constitutional rights of petition and freedom of speech
should not be chilled through abuse of the judicial process.
...
OCGA §
9-11-11.1 (a)....
...entity’s right of petition or free speech under the
8
Constitution of the United States or the Constitution of
the State of Georgia in connection with an issue of public
interest or concern[.]
OCGA §
9-11-11.1 (b) (1). OCGA §
9-11-11.1 (c) further defines the
coverage of the anti-SLAPP statute....
...arising from speech and petition of government. EarthResources,
281 Ga. at 400 (4).
As we discussed in Wilkes, the anti-SLAPP statute sets forth a
procedure for challenging alleged SLAPPs at the outset of litigation.
See
306 Ga. at 259 (2) (a). The first paragraph of OCGA §
9-11-11.1
(b) provides that any claim covered by the statute “shall be subject
to a motion to strike unless the court determines that the nonmoving
party has established that there is a probability that the nonmoving
party will prevail on the claim.” OCGA §
9-11-11.1 (b) (1)....
...The second
paragraph provides: “In making the determination as provided for
in paragraph (1) of this subsection, the court shall consider the
pleadings and supporting and opposing affidavits stating the facts
upon which the liability or defense is based[.]” OCGA §
9-11-11.1 (b)
(2).
The anti-SLAPP statute provides for prompt resolution of a
10
motion to strike. Under OCGA §
9-11-11.1 (d),
[a]ll discovery and any pending hearings or motions in the
action shall be stayed upon the filing of a motion to
dismiss or a motion to strike made pursuant to subsection
(b) of this Code section until a final d...
...the claim
against which the motion is brought is subject to the anti-SLAPP
statute. If it is not, the trial court’s analysis ends. However, if the
claim is subject to the anti-SLAPP statute, the court proceeds to
analyze the motion under OCGA §
9-11-11.1 (b) (1)....
... the defendant’s protected free speech or petitioning
activity. A defendant meets its burden by demonstrating
that the act underlying the challenged claim could
reasonably be construed as fitting within one of the
categories spelled out in [OCGA §
9-11-11.1 (c)]....
...To come under the protection of the statute, Geer
asserts that his suit against Phoebe Putney to enforce his records
12
request is both a petition in a judicial proceeding and conduct in
furtherance of his right to free speech, as those terms are used in
OCGA §
9-11-11.1 (c), such that his conduct should be deemed an
“act in furtherance of [his] right of petition or free speech under the
Constitution of the United States or the Constitution of the State of
Georgia in connection with an issue of public concern” under OCGA
§
9-11-11.1 (c)....
...as a counterclaim rather
than making the request after the merits of his Open Records Act
claim has been litigated, the trial court erred by not considering
Phoebe Putney’s claim for attorney fees under the two-prong
analysis outlined in OCGA §
9-11-11.1 (b) (1) that we discussed at
length in Wilkes....
...13
claim for fees was brought as a counterclaim near the outset of the
litigation, the trial court cannot defer a decision on his motion to
strike until the resolution of the underlying litigation because,
absent emergency circumstances, OCGA §
9-11-11.1 (d) requires the
trial court to hear a motion to strike within 30 days.
But Geer’s arguments miss the key aspect of a claim for
attorney fees brought under OCGA §
50-18-73 (b) that distinguishes
it from other types of claims...
...As noted above, with regard to such a
claim, the anti-SLAPP statute requires the court to “consider the
14
pleadings and supporting or opposing affidavits stating the facts
upon which the liability or defense is based[.]” OCGA §
9-11-11.1 (b)
(2). The parties are ordinarily permitted to conduct discovery under
the anti-SLAPP statute only to the extent the nonmoving party is a
public figure and wishes to pursue discovery relating to the issue of
actual malice. See OCGA §
9-11-11.1 (b) (2), (d).
In contrast, the text of OCGA §
50-18-73 (b) makes clear that
the merits of a claim for attorney fees brought under the Open
Records Act cannot be reached without an evaluation of the merits
of the underlying dispute over the plaintiff’s claim for records....
...s case, absent that record and a
resolution of the merits of Geer’s underlying Open Records Act
claim, Phoebe Putney would have no ability to establish that there
is a probability that it will prevail on its claim for fees, as required
by OCGA §
9-11-11.1 (b) (1), and it will have no such ability until
Geer’s claim under the Open Records Act is resolved.
The parties are before this Court largely because Phoebe
Putney styled its request for attorney fees in this case as a
counte...
...20
request for attorney fees under OCGA §
50-18-73 (b) is not subject
to a motion to strike under the anti-SLAPP statute. The trial court
was thus not required to analyze Geer’s motion to strike under the
two-prong test set forth in OCGA §
9-11-11.1 (b) (1)....
CopyCited 3 times | Published | Supreme Court of Georgia | Feb 18, 2025 | 321 Ga. 1
...facilities, made defamatory statements suggesting that Oskouei
performed “illegal” surgeries, among other things. Matthews moved
to strike the defamation lawsuit pursuant to Georgia’s anti-
Strategic Lawsuits Against Public Participation (“anti-SLAPP”)
statute, OCGA §
9-11-11.1, which allows a trial court to strike
certain claims based on a person’s right of petition or free speech
when there is no “probability that the nonmoving party will prevail
on the claim.” OCGA §
9-11-11.1 (b) (1)....
...required
Matthews to make a threshold showing that the challenged claim is
one “arising from” protected activity; if so, Oskouei would then be
required to establish that there was “a probability that [he] will
prevail on the claim.” OCGA §
9-11-11.1 (b) (1).1 Matthews
contended, among other things, that Oskouei could not establish a
probability that he would prevail on his defamation claims because
the allegedly defamatory statements were conditionally privileged.
1 OCGA §
9-11-11.1 (b) (1) says:
A claim for relief against a person or entity arising from any
act of such person or entity which could reasonably be construed
as an act in furtherance of the person’s or entity’s right of petiti...
...In November 2022, the trial court issued an order denying
Matthews’s anti-SLAPP motion to strike. The court concluded under
the first part of the anti-SLAPP analysis that Matthews had
established that Oskouei’s defamation claims arose from protected
activity under OCGA §
9-11-11.1 (c) (2).2 And under the second part
of the analysis, the court determined that Oskouei had established
a probability of prevailing on his defamation claims. As pertinent to
the issue of whether the allegedly defamatory statements were
conditionally privileged, the trial court noted that the cease and
desist order said that Oskouei could appeal the Department’s
2 OCGA §
9-11-11.1 (c) (2) says that “the term ‘act in furtherance of the
person’s or entity’s right of petition or free speech under the Constitution of
the United States or the Constitution of the State of Georgia in connection with
an issue of public interest or concern,’” as it is used in OCGA §
9-11-11.1 (b),
includes “[a]ny written or oral statement or writing or petition made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law.”...
...of this case: what a plaintiff must establish to defeat a showing of
conditional privilege under OCGA §
51-5-9.
(a) The Analysis of an Anti-SLAPP Motion to Strike
As discussed above, the analysis of an anti-SLAPP motion to
strike involves two steps. See OCGA §
9-11-11.1 (b) (1)....
...plaintiff has established that there is a probability that [he] will
prevail on the claim.” Id. (citation and punctuation omitted).4
With respect to the first step, the trial court concluded here
that Oskouei’s defamation claims arose from protected activity
under OCGA §
9-11-11.1 (c) (2), and as noted above, that conclusion
is not at issue in this appeal....
...In this regard, the merits of the plaintiff’s claim
are evaluated using a summary-judgment-like procedure at an
early stage of the litigation.
Id. (citation and punctuation omitted).
14
reasonably be construed as fitting within one of the categories set
forth in OCGA §
9-11-11.1 (c))....
...f petition or free
speech under the Constitution of the United States or the
Constitution of the State of Georgia in connection with an
issue of public interest or concern, as defined in subsection
(c) of Code Section
9-11-11.1;
(5) Fair and honest reports of the proceedings of
legislative or judicial bodies;
(6) Fair and honest reports of court proceedings;
(7) Comments of counsel, fairly made,...
...even though all public figures are not public officials[,]” that
question was not posed on certiorari and leaving it “to the trial court
to decide in the first instance on remand whether the ACLU claims
that Zeh is a ‘public figure plaintiff’ as that term is used in OCGA §
9-11-11.1 (b) (2)” (punctuation omitted)).
30 Even without specific direction by the Court, the parties could revisit
this issue on remand, and the lower courts would not be precluded by law of
the case because neither this Court nor the Court of Appeals has explicitly
ruled on this threshold question....
CopyPublished | Supreme Court of Georgia | Jun 24, 2019
...et al. v. LTC
CONSULTING, L.P. et al.
BOGGS, Justice.
This case presents the first opportunity for this Court to
consider the effects of the General Assembly’s wholesale revision in
2016 of the anti-SLAPP statute, OCGA §
9-11-11.1, which now
substantially mirrors California Code of Civil Procedure § 425.16.
We vacate the trial court’s denial of the defendants’ anti-SLAPP
motion at issue in this case, and we remand the case with direction
to reconsider the motion under the proper standards.
LTC Consulting, L.P....
...and one of its attorneys for violations of
OCGA §
31-7-3.2 (j), deceptive trade practices, and false advertising
after the defendants ran full-page advertisements in local
newspapers targeting patients of nursing homes owned by the
plaintiffs. The defendants filed a Motion to Dismiss or to Strike
Pursuant to OCGA §§
9-11-11.1 and
9-11-12 (b) (6), arguing among
other things that OCGA §
31-7-3.2 (j), which was enacted in 2015,
violates the First Amendment....
...The motion
was filed the day before a previously scheduled injunction hearing,
but the trial court considered the defendants’ motion and denied it.
The defendants appealed to the Court of Appeals, which properly
transferred the case to this Court.
We conclude that the defendants met their burden under
OCGA §
9-11-11.1 to show that the plaintiffs’ claims are ones arising
from acts that could reasonably be construed as acts in furtherance
of the defendants’ right of free speech under the United States
Constitution in connection with an issue of public interest or
concern, thereby triggering the application of OCGA §
9-11-11.1....
...e same time,
Powder Springs’ owner filed a motion for an ex parte temporary
restraining order (“TRO”).
5 Also attached were the verifications required by a version of OCGA § 9-
11-11.1 that was no longer in effect. See former OCGA §
9-11-11.1 (b).
On the morning of October 20, 2017, the trial court granted the
TRO....
...en
the court would hold a consolidated hearing on the plaintiffs’
requests for preliminary and permanent injunctive relief.
On the day before the injunction hearing, the defendants filed
a Motion to Dismiss or to Strike Pursuant to OCGA §§
9-11-11.1 and
9-11-12 (b) (6), attaching as exhibits printouts from the
Medicare.gov website concerning the surveys that the defendants
cited in their ads....
...constitutional rights of petition and free speech by tying up their
target’s resources and driving up the costs of litigation. To combat
this practice, in 1996, the General Assembly added an anti-SLAPP
provision to the Civil Practice Act, OCGA §
9-11-11.1. See Ga. L.
1996, p. 260, § 1 (codified as amended at OCGA §
9-11-11.1). In 2016,
the General Assembly revised OCGA §
9-11-11.1 to substantially
track California’s anti-SLAPP procedure as set out in California
Code of Civil Procedure § 425.16....
...For the most part, these cases have construed provisions of
the anti-SLAPP statute that the 2016 amendment removed, see,
e.g., Atlanta Humane Society v. Harkins,
278 Ga. 451, 452-454 (603
SE2d 289) (2004) (construing verification provisions of former
OCGA §
9-11-11.1 (b)), or they have interpreted language in the anti-
SLAPP statute the meaning of which the 2016 amendment
substantially changed, see, e.g., Berryhill v. Ga. Community Support
& Solutions, Inc.,
281 Ga. 439, 439-443 (638 SE2d 278) (2006)
(interpreting language in former OCGA §
9-11-11.1 (b) retained in
the current anti-SLAPP statute, but based on the two-part definition
provided in former OCGA §
9-11-11.1 (c), which has now been
expanded into a four-part definition); Denton,
275 Ga. at 4-7 (same).
See also Neff v. McGee,
346 Ga. App. 522, 524 n.2 (816 SE2d 486)
(2018) (noting that the 2016 amendment to OCGA §
9-11-11.1
expanded the scope of the anti-SLAPP statute); Rosser v. Clyatt,
348
Ga. App. 40, 42 (821 SE2d 140) (2018) (same). Moreover, the 2016
amendment fundamentally altered the mechanics of the anti-
SLAPP procedure. Thus, our precedents construing the pre-
amendment version of OCGA §
9-11-11.1 are of limited utility in
interpreting the revised anti-SLAPP statute.
The California Supreme Court, by contrast, has developed a
considerable body of case law interpreting the text of California
Code of Civil Procedure § 425.16, which, as explained below, is very
similar to the text of Georgia’s revised anti-SLAPP statute. Thus, in
interpreting our new OCGA §
9-11-11.1, we may look to California
case law interpreting § 425.16 for guidance, especially decisions —
such as the ones cited in this opinion — that employ the same kind
of statutory analysis that we generally use....
...ns with similar
apportionment statutes in interpreting Georgia’s apportionment
statute, including California, Colorado, Florida, Kansas, Michigan,
New Hampshire, and Wyoming).8
(a) Georgia’s Newly Revised Anti-SLAPP Statute
OCGA §
9-11-11.1 (a) declares that “it is in the public interest
to encourage participation by the citizens of Georgia in matters of
public significance and public interest through the exercise of their
constitutional rights of petition and freedom of speech,” and that
“the valid exercise of the constitutional rights of petition and
freedom of speech should not be chilled through abuse of the judicial
process.” Subsection (a) also provides that OCGA §
9-11-11.1 “shall
be construed broadly” to accomplish these declarations. Accord Cal.
Code Civ. Proc. § 425.16 (a) (same). The rest of OCGA §
9-11-11.1
concerns anti-SLAPP motions to strike a claim or to dismiss a
complaint, which are usually, but not necessarily, filed by
defendants against plaintiffs, as is the case here. Thus, the “moving
party” is usually the defendant, and the “nonmoving party” is
8 OCGA §
9-11-11.1 and California Code of Civil Procedure § 425.16 are
not identical in every respect, however, and where the language of the two
statutes differs in substance, the California case law may not be instructive.
usually the plaintiff.
Subsection (b), which is now divided into three paragraphs,
substantially changes the procedural mechanism from former
OCGA §
9-11-11.1 for challenging SLAPPs at the outset of
litigation.9 The first paragraph provides:
A claim for relief against a person or entity arising from
any act of such person or entity which could reasonably
be construed as an act in furtherance of the person’s or
entity’s right of petition or free speech under the
9 Former OCGA §
9-11-11.1 (b) provided that for any claim asserted
against a person or entity arising from an act that could reasonably be
construed as an act in furtherance of constitutional rights of free speech or
petition, both the party asserting the claim a...
...unnecessary delay or needless increase in the cost of litigation. The court was
required to strike any claim not verified as required by the statute unless the
party asserting the claim verified it within ten days after the omission was
called to the party’s attention. Former OCGA §
9-11-11.1 (b) provided that if a
claim was verified in violation of the statute, “the court, upon motion or upon
its own initiative, shall impose upon the persons who signed the verification, a
represented party, or both an appropriate sanction...
...e of public
interest or concern shall be subject to a motion to strike
unless the court determines that the nonmoving party has
established that there is a probability that the nonmoving
party will prevail on the claim.
OCGA §
9-11-11.1 (b) (1)....
...The second paragraph provides: “In making the
determination as provided for in paragraph (1) of this subsection,
the court shall consider the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based. . . .” OCGA §
9-11-11.1 (b) (2).10 Accord Cal....
...§
425.16 (b) (2) (similar).
The third paragraph of subsection (b) addresses later
proceedings in the same case and in any subsequent case. It provides
that a determination that the nonmoving party (usually, the
plaintiff) would prevail on a claim or the fact that such a
10 The second paragraph of OCGA §
9-11-11.1 (b) further provides that if
there is a claim that the nonmoving party is a public figure plaintiff, then the
nonmoving party is entitled to discovery on the sole issue of actual malice if
actual malice is relevant to the court’s determination under the first
paragraph....
...in evidence in any later
stage of the case or in any subsequent proceeding, and that such a
determination does not affect the burden or degree of proof
otherwise applicable in any later stage of the case or in any
subsequent proceeding. See OCGA §
9-11-11.1 (b) (3). Accord Cal.
Code Civ. Proc. § 425.16 (b) (3) (similar). A new subsection, OCGA
§
9-11-11.1 (b.1), requires the trial court to award “attorney’s fees
and expenses of litigation related to the action” to a moving party
(usually, the defendant) who prevails on an anti-SLAPP motion, and
to award “attorney’s fees and e...
...interest or concern; or
(4) Any other conduct in furtherance of the
exercise of the constitutional right of petition or free
speech in connection with a public issue or an issue
of public concern.
OCGA §
9-11-11.1 (c) (1)-(4)....
... service unless the emergency matters before the court
require a later hearing. The court, on noticed motion and
for good cause shown, may order that specified discovery
or other hearings or motions be conducted
notwithstanding this subsection.
OCGA §
9-11-11.1 (d)....
...§ 425.16 (f), (g)
(similar).11 But in a significant departure from prior practice, the
2016 revision added a new subsection (e), which authorizes an
immediate appeal as of right from “[a]n order granting or denying”
an anti-SLAPP motion. OCGA §
9-11-11.1 (e).12 See Grogan v. City
of Dawsonville,
305 Ga. 79, 83-84 (823 SE2d 763) (2019). Accord Cal.
Code Civ. Proc. § 425.16 (i) (similar). The remaining subsections of
OCGA §
9-11-11.1 are not relevant to this appeal.13
11 The only change to this subsection from the pre-2016 version is the
addition at the end of the first sentence of the words “until a final decision on
the motion.”
12 The General...
...See OCGA §
5-6-34 (a) (13) (authorizing
appeals from “[a]ll judgments or orders entered pursuant to Code Section 9-11-
11.1”). Accord Cal. Code Civ. Proc. § 904.1 (a) (13) (similar).
13 Subsection (f) contains the same language as former OCGA §
9-11-11.1
(e): “Nothing in this Code section shall affect or preclude the right of any party
to any recovery otherwise authorized by common law, statute, law, or rule.”
OCGA §
9-11-11.1 (f)....
...This language does not appear in California’s anti-
SLAPP statute. Subsection (g), which is new, provides: “This Code section shall
not apply to any action brought by the Attorney General or a prosecuting
(b) Georgia’s New Anti-SLAPP Procedure
The text of OCGA §
9-11-11.1 (b) (1) makes clear that the
analysis of an anti-SLAPP motion involves two steps.14 First, the
court must decide whether the party filing the anti-SLAPP motion
(usually, the defendant) has made a threshold showing that the
challenged claim is one “arising from” protected activity....
...by
protected activity.” Id. at 708-709 (quoting City of Cotati v.
Cashman, 52 P3d 695, 701 (Cal. 2002)). “[T]he critical consideration
attorney, or a city attorney acting as a prosecutor, to enforce laws aimed at
public protection.” OCGA §
9-11-11.1 (g). Accord Cal. Code Civ. Proc. § 425.16
(d) (similar). Finally, subsection (h) of the revised statute, which largely retains
the language of former OCGA §
9-11-11.1 (f), provides: “Attorney’s fees and
expenses of litigation under this Code section shall be requested by motion at
any time during the course of the action but not later than 45 days after the
final disposition, including but not lim...
...laintiff, of the
action.” The only changes are the addition of the words “of litigation” after the
word “expenses” and substitution of the word “shall” for the word “may” in the
phrase “shall be requested.” The language of OCGA §
9-11-11.1 (h) does not
appear in California’s anti-SLAPP statute.
14 As noted above, in performing this analysis, “the court shall consider
the pleadings and supporting and opposing affidavits stating the facts upon
which the liability or defense is based. . . .” OCGA §
9-11-11.1 (b) (2).
is whether the cause of action is based on the defendant’s protected
free speech or petitioning activity.” Id. at 709 (emphasis in original).
A defendant meets its burden by demonstrating that the act
underlying the challenged claim “could reasonably be construed as”
fitting within one of the categories spelled out in subsection (c).
OCGA §
9-11-11.1 (b) (1). See OCGA §
9-11-11.1 (c) (1)-(4); Navellier,
52 P3d at 708.
If a court concludes that this threshold showing has been made,
it must proceed to the second step of the analysis and decide whether
the plaintiff “has established that there is a probability that the
[plaintiff] will prevail on the claim.” OCGA §
9-11-11.1 (b) (1)....
...As explained above, the first step of the anti-SLAPP analysis
is to decide whether the party or parties filing the anti-SLAPP
motion — here, the defendants — made a threshold showing that
the plaintiffs’ claims are ones “arising from” protected activity.
OCGA §
9-11-11.1 (b) (1)....
...that the plaintiffs’ claims are ones arising from protected activity by
demonstrating that the acts underlying the claims “could reasonably
be construed as” fitting within at least one of the four categories
spelled out in subsection (c). OCGA §
9-11-11.1 (b) (1). See Navellier,
52 P3d at 709.
OCGA §
9-11-11.1 (c) (4) refers to “[a]ny other conduct in
furtherance of the exercise of the constitutional right of petition or
free speech in connection with a public issue or an issue of public
concern.” The plaintiffs’ claims that the defen...
...2019) (discussing analogous
catchall provision of California’s anti-SLAPP statute). Thus,
running the ads could reasonably be construed as an act in
furtherance of the defendants’ constitutional right of free speech in
connection with a public issue or an issue of public concern, see
OCGA §
9-11-11.1 (c) (4), and the defendants therefore met their
burden of making a threshold showing that the plaintiffs’ claims are
ones arising from protected activity.15
15 Given our conclusion that the defendants met their burden to make...
...ng the anti-
SLAPP motion — here, the plaintiffs — have established that there
is a probability that they will prevail on their claims that the
defendants violated OCGA §
31-7-3.2 (j), the UDTPA, and the false
advertising statutes. See OCGA §
9-11-11.1 (b) (1)....
...plaintiffs’ showing as a matter of law. See City of Montebello, 376
P3d at 631.
As noted above, the trial court concluded that the plaintiffs met
could reasonably be construed as fitting within any of the other categories
spelled out in the anti-SLAPP statute. See OCGA §
9-11-11.1 (c) (1)-(3).
their burden at the second step of the anti-SLAPP analysis and
therefore denied the defendants’ anti-SLAPP motion. The court
quoted the relevant part of OCGA §
9-11-11.1 (b) (1) and then
explained its reasoning only as follows:
Here, Plaintiffs have demonstrated a probability of
prevailing on their claim[s]....
...It is not entirely clear what the court meant by this passage, and a
review of the transcript of the hearing on the anti-SLAPP motion
does not add clarity.
What is clear, however, is that the trial court did not properly
apply the required step two analysis under OCGA §
9-11-11.1 with
respect to the plaintiffs’ claims....
