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.
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
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