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

Timothy Kowal, Esq.
  •  
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 tkowal@tvalaw.com or (714) 641-1232.