ANTI-SLAPP – DUAL FILING OF DEMURRER AND ANTI-SLAPP MAY ALLOW AMENDMENT OF COMPLAINT

Disagreement exists among appellate courts on whether the bar to amending a complaint takes effect immediately after a defendant files an anti-SLAPP motion or only when the court indicates the motion has merit. (Compare Mobile Medical Services, etc. v. Rajaram, supra, 241 Cal.App.4th at p. 171 and Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 881, with Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280, 1294).  In a recent case, a court of appeal upheld a trial court’s discretion to consider judicial economy and efficiency when deciding this issue. In Oakland Bulk and Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, the City filed a demurrer and an anti-SLAPP motion. The trial court granted the City’s demurrer, allowed amendment, and deemed the City’s anti-SLAPP motion premature. The City appealed. The appellate court affirmed, stating that the trial court’s decision promoted judicial economy. Although a plaintiff cannot undermine anti-SLAPP policies or dodge a ruling on the anti-SLAPP motion, the court noted that the City’s dual filing of a demurrer and anti-SLAPP motion created the issue.

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