In increasing numbers, developers throughout the state are suing citizen groups -- and individual citizens -- who oppose their projects. But most of these so-called "SLAPP" lawsuits seem to be failing, and some have even backfired as citizens have countersued against the developers. In increasing numbers, developers throughout the state are suing citizen groups -- and individual citizens -- who oppose their projects. But most of these so-called "SLAPP" lawsuits seem to be failing, and some have even backfired as citizens have countersued against the developers. In late September, the Ninth U.S. Circuit Court of Appeals overturned a $600,000 sanction against two Thousand Oaks lawyers who represented a citizen group against the developer of a large subdivision. The sanction had been imposed by a federal judge in Los Angeles who said the homeowner lawsuit was frivolous. The term "SLAPP" -- for "Strategic Lawsuit Against Public Participation" -- was coined by two University of Denver professors who have examined hundreds of such cases around the country. SLAPP suits have been filed not only by developers, but also by other large companies which have been the subject of public criticism. The suits take all forms, but often they are libel or slander suits against citizen groups and individual citizens. Citizen advocates and their lawyers claim that such lawsuits deliberately seek to stifle public opposition to projects -- and abridge free speech rights in the process. "Any citizen has the right to contact any branch of government to try and encourage some public policy," says sociologist Penelope Canan, one of the University of Denver researchers. (Canan is a visiting professor this year at the University of California, Berkeley.) These citizen advocates argue that, for those hit with the SLAPP suit, the best defense is a good offense -- the filing of a countersuit against the developer or company. In the most controversial example of this so-called "SLAPP-back" technique, three Kern County farmers won $10.5 million in punitive damages and $3 million in compensatory damages in a malicious prosecution case with agribusiness giant J.G. Boswell Co. Previously, Boswell had sued the farmers for libel over a newspaper ad they published during the 1982 campaign over the Peripheral Canal proposal, which split the agricultural community. The case is on appeal. In a similar case, the president of a San Jose-area homeowner group won $260,000 in a malicious prosecution case against a developer who sued him for libel. The controversy revolved around campaign literature in a slow-growth campaign in Saratoga. The developer has appealed the decision, but another trial is about to begin -- one in which the homeowner group itself will allege malicious prosecution. Other prominent California SLAPP suits are pending in Stockton and Squaw Valley. In Stockton, a local alliance of farmers, slow-growthers, and environmentalists is fending off SLAPP-type suits from two developers simultaneously -- one seeking $25 million in damages, the other seeking $12 million. Citizen advocates even turned to the legislature this year in their attempt to fight SLAPP suits. At their request, Senate Judiciary Chair Bill Lockyer introduced SB 2313, which would have made it more difficult for SLAPP suits to be filed. In essence, the bill would have created a "pleading hurdle" in SLAPP suits, requiring plaintiffs in free speech cases to provide "a substantial probability of success" before proceeding with the suit. The bill passed both houses of the legislature easily, but was vetoed by Gov. George Deukmejian, who said citizens already have protection against frivolous lawsuits. The Thousand Oaks case was not a SLAPP suit strictly speaking, but it did involve SLAPP tactics within the context of a lawsuit by homeowners against a developer. The dispute arose after the Lang Ranch Co. and the City of Thousand Oaks reached a legal settlement exempting Lang Ranch's proposed subdivision from city growth-control laws. The Westlake North Property Owners Association then filed an environmental lawsuit. At the request of the Lang Ranch Co., U.S. District Court Judge Dickran Tevrizian Jr. sanctioned both the group and its lawyers, saying the lawsuit was brought in bad faith because the previous suit had been settled. Tevrizian set the sanction at about $700,000. The homeowner group settled the case for $123,000, but the lawyers appealed the sanction for the remaining $600,000. (CP&DR, February 1990.) A three-judge panel of the Ninth Circuit overturned the sanction, saying that the homeowner had put a good-faith argument in front of the court after all. Lang Ranch has asked for a rehearing on the case, arguing, among other things, that the homeowners should have been bound by the legal settlement between the company and the city. But Canan, the University of Denver sociologist, says such legal arguments have not worked in the past. "I can understand that property owners believe they have the green light," she said, "but that doesn't mean all citizens can never have an opinion on a contract that has just been made." The SLAPP suit from Saratoga has already created a thicket of litigation, as well as an important appellate court ruling. The case began a decade ago during the campaign on a slow-growth initiative, Measure A. Three homeowner associations began circulating brochures attacking the Parnas Corp., a development company actively opposing Measure A, and claiming that Parnas had created a conflict-of-interest relationship with a former mayor of Fremont. Parnas sued all three homeowner associations and their individual presidents alleging the brochure libeled the company. The suits were dismissed, but one group and its president countersued, alleging malicious prosecution. Fremont lawyer Steve Bernard, who filed the original libel suit, settled the countersuit with both the West Valley Taxpayers and Environment Association and president Victor Monia for a total of about $100,000. But Parnas continued to resist. Last year, a Santa Clara County jury awarded Monia $260,000 in damages, later reduced by a judge to $210,000 because of the settlement with Bernard. Parnas has appealed the judgment. Meanwhile, a trial in the countersuit brought by the West Valley association is set to begin. That case was separated from the case against Monia by Santa Clara County Judge Thomas Hastings. Hastings said that Parnas had probable cause to bring a libel suit against the taxpayers association because of the brochure, but not against Monia, whose name did not appear anywhere in the brochure. The taxpayers association appealed, and earlier this year received favorable ruling from the Sixth District Court of Appeal in San Jose. The court agreed with the taxpayers association that the lawsuit raised a triable question, that is, whether Parnas really believed that the brochure contained false statements. (West Valley Taxpayers and Environment Association v. Parnas Group, 222 Cal.App.3d 627.) The taxpayers association has argued that Parnas knew the statements were true and therefore the libel suit was filed in bad faith. At least three other prominent SLAPP-type suits are still pending in California. They include the following: Ž In Stockton, a local citizen organization and the Grupe Corp. have been wrangling for several months over whether the citizen group violated an agreement not to oppose a Grupe project. The Land Utilization Alliance, a citizen group, had agreed not to oppose Grupe's proposal to build a 4,000-unit residential project in north Stockton. The project included expensive homes that would face the Calaveras River, and Grupe proposed closing the river's levee to bike riders and other public users. Prior to any litigation, the Land Utilization Alliance agreed not to oppose the project on most issues. But the agreement specifically permitted the organization to challenge Grupe on the public access issue. Grupe agreed to contribute $300,000 to environmental trust funds. Subsequently, the Land Utilization Alliance did sue Grupe over the public access issue. Grupe then countersued for $25 million, saying the agreement had been violated because the Alliance's lawsuit contained challenges under the California Environmental Quality Act. Grupe says the CEQA challenges were prohibited by the agreement; the Alliance claims the CEQA challenges were part of the public access issue. The two sides are reportedly close to an agreement in which no money would change hands. Ž Meanwhile, the Land Utilization Alliance has been hit with a libel and slander suit by Stockton developer John T. Verner. The Alliance has protested Verner's proposal to finance the expansion of a sewer plant in the Manteca area in order to accommodate a development proposal. The lawsuit named three individual Alliance leaders, including one who was also sued by Grupe. Ž In Squaw Valley, Perini Land and Development Co. has sued daredevil skier Rick Sylvester and others who spoke out against Perini's proposed resort project in Squaw Valley. As with Grupe, Perini claims that Sylvester and others violated an agreement not to oppose the project in exchange for other concessions, such as improved water quality. The case is expected to go to trial soon