On August 1 the California Supreme Court finally resolved a split of authority among California’s appellate courts over operation of the anti-SLAPP statute, Code of Civil Procedure section 425.16, in the mixed cause of action context. For over a decade, the appellate courts have disagreed as to how a plaintiff can satisfy the reasonable probability of success requirement when claims alleging both protected and unprotected activity are included within a single cause of action. Some appellate courts concluded that as long as the plaintiff demonstrated a reasonable probability of success on any part of the claim, including just the allegations of unprotected activity, the SLAPP motion had to be denied. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.) Others concluded that the plaintiff must focus upon and respond to the claims of protected activity, and failure to demonstrate a reasonable probability of success as to those claims meant the SLAPP motion should be granted and those specific claims stricken. (See Wallace v. McCubbin (2011) 196 Cal.App.4th 1169.) In Baral v. Schnitt_ 2016 Cal. LEXIS 6383, a unanimous Court emphatically sided with Wallace and rejected Mann.
As is frequently the case, Baral involved a complaint alleging protected and unprotected activity under the same cause of action. When the defendant moved to strike the claims of protected activity, the plaintiff demonstrated a reasonable probability of success on the allegations of unprotected activity and the trial court denied the SLAPP motion. The Court of Appeal affirmed, holding that under Mann, if the plaintiff demonstrates a reasonable probability of success on “any part of its claim,” then the SLAPP motion is denied because the cause of action is not frivolous.
The Supreme Court minced no words in overruling Mann. “Mann’s reading of section 425.16(b) does not withstand scrutiny.” “[Mann’s] refusal to permit anti-SLAPP motions to reach distinct claims within pleaded counts undermines the central purpose of the statute: screening out meritless claims … .” Mann’s construction of the anti-SLAPP statute “reward[s] artful pleading by ignoring such [protected activity] claims if they are mixed with assertions of unprotected activity.”
So at long last, all of the courts in California should be on the same page going forward dealing with SLAPP motions and the mixed cause of action. As the high court emphasized, “when relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” And if the defendant succeeds on the first prong of the anti-SLAPP statute, demonstrating claims targeting protected activity, then the burden shifts to the plaintiff to demonstrate that “each challenged claim based on protected activity is legally sufficient and factually substantiated.” “If not, the claim is stricken.”