This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this Article will introduce and evaluate the methods that courts have used in order to determine whether the defendant-SLAPPee is the prevailing defendant for attorney's fees in voluntary dismissal cases. Then the Article will examine the flaws created by section 425.16's reliance on section 128.5's standard for determining bad-faith SLAPP defendants. From looking at both the good and the bad sides of SLAPP suit defendants, this Article will uncover the complexities in the forest of SLAPP litigation in California, where legitimate petitioning rights can often be sabotaged by both sides of the bar. Hopefully, these examinations will help shore up the gaps that have allowed the metaphorical wicked wolves lurking behind the guises of lawsuits to come back time after time, and ultimately make them go away with their tails tucked between their legs.
Jeremiah A. Ho, I'll Huff and Puff - But Then You'll Blow My Case Away: Dealing with Dismissed and Bad-Faith Defendants Under California's Anti-SLAPP Statute, 30 Whitter L. Rev. 533 (2009).