Recently, the California Supreme Court tackled a lingering question about California's anti-SLAPP statute in Baral v. Schnitt (Aug. 1, 2016, S225090) __ Cal.4th __; namely, how the special motion to strike applies to a "mixed cause of action" that combines both protected and unprotected activity. Previous cases, starting with Mann v. Quality Old Time Service, Inc.  (2004) 120 Cal.App.4th 90 ("Mann"), held that an anti-SLAPP motion must be brought against a mixed cause of action in its entirety as it was pled in the complaint. (Slip opn., p. 3.) In Baral, the Supreme Court disapproved the "Mann rule," holding that the anti-SLAPP statute only applies to protected claims. (Id. at p. 2.) This impacts anti-SLAPP procedure by allowing defendants to strike particular allegations that deal with protected activity even when those allegations combine with allegations of unprotected activity to form a mixed cause of action. (Id. at p. 16.)

The plaintiff sued the defendant for fraud and breaches of fiduciary duty, including causes of action for libel and slander based on the allegation that the defendant induced an audit of their company. (Slip opn., pp. 3-4.) The defendant filed an anti-SLAPP motion and the court struck the defamation counts, determining that the audit communications were protected by the litigation privilege. (Id. at p. 4.) In an amended complaint, the defendant pled causes of action for breach of fiduciary duty, constructive fraud, negligent misrepresentation, and a claim for declaratory relief. (Ibid.) This time, the court denied the defendant's anti-SLAPP motion. (Id. at p. 5.) The Court of Appeal affirmed, holding that anti-SLAPP relief was not available because while the allegations concerning the audit were protected, striking these allegations would not eliminate any of the four causes of action. (Ibid.)

The Supreme Court reversed. (Slip opn., p. 3.) The court held, "it is not the general rule that a plaintiff may defeat an anti-SLAPP motion by establishing a probability of prevailing on any part of a pleaded cause of action. Rather, the plaintiff must make the requisite showing as to each challenged claim that is based on allegations of protected activity." (Id. at p. 16.) The court held that "cause of action" as used in Code of Civil Procedure section 425.16, subdivision (b)(1) refers only to claims based on protected conduct. (Id. at p. 2.) The court reasoned that the Mann rule was inappropriate because it frustrated the purpose of the anti-SLAPP statute by allowing artful pleading to avoid its reach. (Id. at p. 17.) It further reasoned that the legislature's use of the phrase "motion to strike" indicated an intent to treat the anti-SLAPP motion like a conventional motion to strike, which allows the movant to attack distinct parts of each count alleged in the complaint regardless of how they are pled. (Id. at p. 19.)

In conclusion, the court outlined the two-step anti-SLAPP procedure. At the first stage, when the movant bears the burden of identifying all allegations of protected activity that support its claims of relief, any unprotected activity is disregarded. (Id. at p. 23.) Then, the burden shifts to the plaintiff to show probability of prevailing based on the remaining allegations. (Ibid.)

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