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" ... The upshot of this is that the movant has the option of filing these pleadings or preliminary motions first, before the Special Motion is filed. While the very purpose of a Special Motion is to allow the movant to attempt to dramatically reduce the amount of time and effort spent defending the case, there may be instances where it is strategically or tactically important for the movant to file these other pleadings or preliminary motions first, followed by the Special Motion. As the Comment to § 3 notes: "Unlike a defense under Fed. R. Civ. P. 12(b), the motion need not be filed prior to other pleadings in the case, and a party should not be estopped from filing a motion by taking any other actions in the case." ... "
" ... This issue was just resolved in the Ninth Circuit (which includes California) by an important case (Corbello v. Valli, which dealt with the Jersey Boys play) that held that if the author of a work presents the work as factual, they are estopped from later arguing otherwise to make a copyright claim that someone used fictional elements from the work in a film. The court basically told the author, “You made your bed, go lie in it.” This approach limits the author of a purportedly factual work to a copyright claim that someone copied the “expression” of the work, such as the storyline, which is a much tougher case to make and will almost always fail unless the Underlying Factual Work has a unique approach (such as a reverse timeline) that is copied in the film. It will be almost impossible to make this claim if both the Underlying Factual Work and the film simply follow a linear timeline. ... "