On August 1, 2016 the California Supreme Court issued an opinion on anti-SLAPP law that will likely prove to be the most impactful decision of this decade.
The Supreme Court used the issues presented by the case of Baral v. Schnitt to finally clear up a split of authority that has existed since at least 2004, namely, what to do with mixed causes of action.
The history of the Courts’ struggles with mixed causes of action.
The question was first squarely addressed in Mann v. Quality Old Time Service, Inc. (Mann). The complaint in Mann included causes of action for defamation and trade libel. Some of the factual allegations supporting those counts involved protected activity, and some did not. The Mann court declared:
“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. [¶] Stated differently, the anti-SLAPP procedure may not be used like a motion to strike under section 436, eliminating those parts of a cause of action that a plaintiff cannot substantiate. Rather, once 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. Thus, a court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it has determined have merit.”
Thus, the Mann court concluded that an anti-SLAPP motion must defeat an entire cause of action as it is pleaded in the complaint. It noted that a defendant has other options for challenging allegations within a count. “For example, a defendant can file a motion to strike a particular claim under section 436 concurrently with its anti-SLAPP motion, or it can move for summary adjudication of any distinct claim within a cause of action.” The court concluded that the defamation count before it survived the special motion to strike because, the plaintiff showed a probability of prevailing based solely on its allegations of unprotected activity.
What came to be called “the Mann rule” encompassed the propositions that an anti-SLAPP motion may not be used to attack particular claims within a cause of action as framed by the plaintiff, and that the plaintiff can defeat the motion by showing a probability of prevailing on any part of the count, including allegations of activity that is not protected by section 425.16.
The error of this reasoning seemed self-evident to me, but I felt like I was screaming into the wind as I saw trial court’s following this ill-conceived analysis. But I was not alone, and even those Courts of Appeal which adopted the approach, expressed reservations. In the 2010 case of Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (Haight Ashbury), one justice wrote separately, taking strong exception to the Mann rule.
The following year, the author of that separate opinion in Haight Ashbury gained a majority and criticized Mann at length, in the case Wallace v. McCubbin. The Wallace majority made clear its view that a plaintiff responding to an anti-SLAPP motion “must show the probability of prevailing on alleged claims of protected activity, and only those claims.” However, it ultimately followed the Mann rule, after reviewing two other decisions from the Supreme Court: Taus v. Loftus (2007) and Oasis West Realty v. Goldman (2011). Neither of these cases dealt with mixed claims specifically, but both included discussions on whether an anti-SLAPP motion may challenge particular allegations within causes of action as framed in the complaint.
Then in 2013 came the Court of Appeal decision of Cho v. Chang (Cho), which appeared to clarify the issues better than the Supreme Court’s efforts. In that case, the Court of Appeal stated that “a]ppellate courts have wrestled with the application of the anti-SLAPP law” when allegations of protected and unprotected activity are combined. After surveying the divergent case law, the court pointed out that neither Taus nor Oasis involved a mixed cause of action. It declined to read Oasis as broadly endorsing the Mann rule. “Instead, the guiding principle in applying the anti-SLAPP statute to a mixed cause of action case is that `a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.”
“It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined into a single cause of action, with some claims alleging protected activity and some not. Striking the entire cause of action would plainly be inconsistent with the purposes of the statute. Striking the claims that invoke protected activity but allowing those alleging nonprotected activity to remain would defeat none of them. Doing so also is consonant with the historic effect of a motion to strike: `to reach certain kinds of defects in a pleading that are not subject to demurrer.’ That is what the trial court did in this case. Its ruling makes sense, and renders justice to both sides.”
The Supreme Court agreed with the reasoning of the Cho and Wallace courts, and finally disapproved the Mann rule. The Court concluded that the Legislature’s choice of the term “motion to strike” reflected an understanding that an anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded.
The new rule for dealing with mixed causes of action.
Then, (hopefully) to avoid any further confusion, the Supreme Court offered instruction on how the analysis should proceed on a mixed cause of action:
“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, without resolving evidentiary conflicts, 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.”
Ding dong, King Mann is gone. Parties and their attorneys may now reach into a mixed cause of action, and remove those allegations that concern protected activities. This is crucially important, since it prevents a scenario where protected activities remain in the allegations, and taint the ultimate verdict. It is too much to expect for jurors to know which of the conduct is privileged and which is not.