The California Supreme Court is reviewing the mixed cause of action conundrum in Baral v. Schnitt (2015) 233 Cal.App.4th 1423. According to the Court’s docket, the issue is whether the SLAPP statute, Code of Civil Procedure section 425.16, “authorize[s] a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute.” (See, e.g., Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 [in a mixed cause of action, if plaintiff demonstrates a probability of prevailing on “any part of its claim,” then the entire cause of action is left intact and the SLAPP motion is denied]; Cho v. Chang (2013) 219 Cal.App.4th 521 [within a mixed cause of action, a trial court may strike the allegations arising from protected activity, while allowing only the meritorious claims to proceed].)

In Baral, plaintiff’s breach of fiduciary duty cause of action included claims that defendant prevented plaintiff from participating in a pre-litigation audit of the company’s books. Defendant’s SLAPP motion sought to strike the allegations related to the audit on the grounds that the litigation privilege precluded such claims and argued that under the SLAPP statute, the trial court could excise parts of a cause of action. The trial court denied the motion, comparing the relief requested to an ordinary motion to strike and concluding that a SLAPP motion is not a similar procedure.

The Court of Appeal affirmed, holding that since plaintiff demonstrated a reasonable probability of prevailing with respect to the claims that did not involve protected activity, the SLAPP motion had to be denied in its entirety. Baral disagreed with Cho and other decisions striking the claims of protected activity from an otherwise meritorious cause of action. Baral joined cases holding that when it comes to the SLAPP statute, a cause of action stands or falls, it is not subject to amputation of its parts.

What will the Supreme Court decide? For a cogent analysis, see Justice Henry Needham’s majority opinion in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. As Wallace observes, allowing meritless claims based on protected activity to remain because the same cause of action is adorned with meritorious claims arising out of nonprotected activity defeats the purpose of the SLAPP statute. According to Wallace, the Mann approach is problematic because it enables a plaintiff to succeed in demonstrating a reasonable probability of prevailing on the merits without even addressing the allegations of protected activity. So long as any meritorious claim is found within the cause of action, the defendant whose SLAPP motion is denied is saddled with defending the allegations based on protected activity until such time as those claims can be summarily adjudicated. Yet, it was the inadequacy of the summary judgment mechanism for preventing the chilling of protected activity that led to the SLAPP statute’s enactment in the first place. For the contrary view that when any merit is found, the cause of action is not a SLAPP, see the concurrence in Wallace. The merits were fully briefed as of November, so stay tuned for high court resolution of yet another SLAPP conundrum.