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 prevails.
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 plaintiff.
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.