In Baral v. Schnitt, the California
Supreme Court addressed a question that has divided California
appellate courts for more than a decade: whether a special motion
to strike under California's anti-SLAPP statute (C.C.P. 425.16) can be granted with respect to
a "mixed cause of action" that combines allegations
concerning both protected conduct, i.e., the rights of petition and
free speech, and unprotected activity.
In Baral, defendant filed a special motion to strike
plaintiff's claims to the extent they were based on activity
protected by the anti-SLAPP statute. Both the trial court and the
Court of Appeal in Baral held that where a plaintiff can
show a probability of prevailing on any part of its claim,
the cause of action is not subject to the anti-SLAPP procedure.
Thus, the anti-SLAPP motion was denied solely by plaintiff's
showing a probability of prevailing on the allegations concerning
unprotected activity. Following a line of earlier decisions, the
Court of Appeal reasoned that: (1) anti-SLAPP protection expressly
pertains under section 425.16(b) to a "cause of action,"
(2) the purpose of the anti-SLAPP statute is to dispose of
meritless litigation, not to strike particular allegations, and (3)
the benefits of striking mere allegations do not justify the
significant effects of an anti-SLAPP motion, including a stay of
discovery and award of attorneys' fees if the moving party
The California Supreme Court reversed, finding that the
"refusal to permit anti-SLAPP motions to reach distinct claims
within pleaded counts undermines the central purpose of the
statute: screening out meritless claims that arise from protected
activity, before the defendant is required to undergo the expense
and intrusion of discovery." The Court observed that an
"arbitrary" result could occur based on how the plaintiff
chooses to plead its claims. If, for example, a complaint states
the same cause of action in two counts, one based on protected
activity and another on unprotected activity, the plaintiff would
be required to establish a probability of prevailing on the claim
arising from the protected speech or conduct in order to defeat an
anti-SLAPP motion with respect to that cause of action. If,
however, a complaint stated the same cause of action in one count,
combining allegations of protected and unprotected activity, the
same plaintiff would need to show only a probability of prevailing
on the claim arising from the unprotected activity. Application of
section 425.16, the Court found, "cannot reasonably turn on
how the challenged pleading is organized."
Examining the language of the statute, the Baral court observed that a
"cause of action . . . arising from any act
in furtherance of the person's right of petition or free
speech" is subject to an anti-SLAPP motion unless there is a
probability that plaintiff will prevail "on the
claim." By referring to "any act," the Court
found, the Legislature intended that particular alleged
acts giving rise to a claim for relief may be the object of an
anti-SLAPP motion. A plaintiff must therefore show a probability of
prevailing on the claim arising from the protected activity, not
another claim based on activity beyond the scope of the statute
that also happens to be included in the count as pleaded by the
The Baral court also found that the
Legislature's use of the term "motion to strike"
reflects the understanding that an anti-SLAPP motion, like a
conventional motion to strike, may be used to attack parts of a
count as pleaded. Motions to strike, the Court recognized, are
typically a way to challenge particular allegations within a
pleading, not necessarily to strike whole counts.
The Court concluded that where an anti-SLAPP motion is directed
to a mixed cause of action, the plaintiff must establish a
probability of prevailing on any claim for relief based on the
alleged protected activity. If the plaintiff cannot do so, the
claim and its corresponding allegations must be stricken.
The Seventh Circuit recently reviewed a district court's dismissal of an FCA claim against the City of Chicago, in which the relator alleged that the City's certifications of compliance with civil rights laws were false...
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