This week the California Supreme Court clarified that California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16, permits the movant to strike a portion of a so-called “mixed cause of action” that combines allegations of activity in furtherance of the movant’s right of petition or free speech with allegations of unprotected activity.  The case is Baral v. Schnitt (Case No. S225090).

In reaching its conclusion, the California Supreme Court resolved a conflict among California appellate courts, and reversed Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90, 106 (2004), which held:  “Where a cause of action refers to both protected and unprotected activity and a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure. . . . [O]nce a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.”  In sum, Mann permitted courts to deny an anti-SLAPP motion if a portion of the cause of action is based on activity that is not protected by the anti-SLAPP statute.

In reversing Mann, the California Supreme Court noted that the Mann decision incorrectly “permits artful pleading to evade the reach of the anti-SLAPP statute” if the pleader mixes allegations of protected and unprotected activity within a single cause of action.  Such an application of the anti-SLAPP statute “cannot reasonably turn on how the challenged pleading is organized.”  Accordingly, the term “cause of action,” as used in section 425.16(b)(1), “is not concerned with how the complaint is framed, or how the primary right theory might define a cause of action.”

The practical effect of this decision is that defendants may now move to strike distinct claims within a cause of action, even if the entire cause of action cannot be dismissed in its entirety.  The California Supreme Court concluded by clarifying the two-step process of the showings and findings required by the anti-SLAPP statute:  “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.  When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.  If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.  There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.  The court . . . must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.  If not, the claim is stricken.  Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.”  Based on the foregoing, an anti-SLAPP motion may operate like a conventional motion to strike, such that it may be used to strike parts of a cause of action that seek relief arising from activity protected by the statute.