Pleading

Application of Anti-SLAPP Statute to Mixed Cause of Action – Disapproval of Mann Rule.

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Baral v. Schnitt (2016) 63 C.4th ____, ___ C.R.3d ___, 2016 WL 4074081, reexamined the rule stated in Mann v. Quality Old Time Service (2004) 120 C.A.4th 90, 15 C.R.3d 215, 5 Cal. Proc. (5th), Pleading, §1034, regarding how an anti-SLAPP motion under C.C.P. 425.16(b)(1) operates against a mixed cause of action, one that combines allegations of protected free speech or petitioning activity with allegations of unprotected activity. Based on the Mann rule, the Court of Appeal affirmed the denial of defendant business partner’s special motion to strike because plaintiff established a probability of prevailing on claims based on allegations of activity not protected by C.C.P. 425.16. The Court of Appeal held that the special motion to strike must be brought against a mixed cause of action in its entirety. Held, reversed; the Mann rule is disapproved.

(a) Meaning of “cause of action.” The difficulty in applying the anti-SLAPP statute to a mixed cause of action arises from the language of the statute. The term “cause of action” has various meanings. “It may refer to distinct claims for relief as pleaded in a complaint,” or it may “refer generally to a legal claim possessed by an injured person, without reference to any pleading.” Further, “the right of an injured party to seek legal relief may be analyzed in terms of the plaintiff’s ‘primary right,’ the defendant’s ‘primary duty,’ ‘and a breach of that duty entitling the plaintiff to a remedy.’ ” (2016 WL 4074081, p. 3, quoting 4 Cal. Proc. (5th), Pleading, §34.) Here, the Legislature used "cause of action" in a particular way, "targeting only claims that are based on the conduct protected by the statute.” C.C.P. 425.16 “is not concerned with how a complaint is framed, or how the primary right theory might define a cause of action. While an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity.” To avoid confusion in terminology, “we refer to the proper subject of a special motion to strike as a ‘claim.’ ” (2016 WL 4074081, p. 4.)

(b) Mann rule. The Mann rule applied where a cause of action referred both to protected and unprotected activity. If a plaintiff could show a probability of prevailing on any part of its claim, the cause of action was not without merit and was not subject to the anti-SLAPP procedure. (2016 WL 4074081, p. 5.) The Mann court thought that an anti-SLAPP motion must defeat an entire cause of action as it was pleaded in the complaint, and noted that a defendant had other options for challenging allegations within a count, like a motion to strike under C.C.P. 436. “The rule has received a mixed reception in the Courts of Appeal, reflecting the complex analytical challenges posed by the Mann court’s doctrinal innovation.” (2016 WL 4074081, p. 6.)

(c) Criticism of Mann rule. Although the Mann rule has been criticized, it has been followed or distinguished in the Courts of Appeal based on the decisions in Taus v. Loftus (2007) 40 C.4th 683, 54 C.R.3d 775, 151 P.3d 1185, and Oasis West Realty, LLC v. Goldman (2011) 51 C.4th 811, 124 C.R.3d 256, 250 P.3d 1115. However, these decisions did not involve mixed causes of action. (2016 WL 4074081, p. 6.) As the dissent pointed out in Colton v. Singletary (2012) 206 C.A.4th 751, 142 C.R.3d 74, “we were not asked in Taus to consider the propriety of striking particular allegations within the various causes of action pleaded in the complaint. . . . However, we would not have undertaken such an exhaustive analysis of alternate theories of liability, and their application to particular instances of alleged tortious behavior, if we thought the anti-SLAPP statute operates as described in Mann.” (2016 WL 4074081, p. 8.) And although Oasis quoted from Mann, Oasis “significantly omitted its reference to a mixed cause of action.” The quotation from Mann “must be understood as limited to the circumstances there presented.” Further, Oasis “did not mention Taus, and no holding in Taus is affected by anything we said in Oasis.” (2016 WL 4074081, p. 9.)

(d) Mann rule undermines anti-SLAPP statute. The Mann court’s reading of C.C.P. 425.16(b) “does not withstand scrutiny. Its 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.” (2016 WL 4074081, p. 10.) “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation. It follows, then, that courts may rule on plaintiffs’ specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity.” (2016 WL 4074081, p. 10.)

(e) Effect of terminology used by Legislature. As noted in Wallace v. McCubbin (2011) 196 C.A.4th 1169, 128 C.R.3d 205, and Cho v. Chang (2013) 219 C.A.4th 521, 161 C.R.3d 846, “the Legislature’s choice 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.” (2016 WL 4074081, p. 10.) Restricting “anti-SLAPP motions to indivisible ‘causes of action’ as determined by primary right theory would be inconsistent with the Legislature’s use of the term ‘special motion to strike.’ ” (2016 WL 4074081, p. 11.) Because a single cause of action defined in terms of the plaintiff’s primary right may include more than one instance of alleged wrongdoing and may be violated by both protected and unprotected activity, the primary right theory does nothing to solve the mixed cause of action problem. (2016 WL 4074081, p. 11.)

(f) Showings and findings required by statute. Under C.C.P. 425.16, identification of causes of action arising from protected activity usually occurs at the first step, where “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.” (2016 WL 4074081, p. 12.) To the extent they read Oasis as an endorsement of the Mann rule, Wallace v. McCubbin, supra, M.F. Farming, Co. v. Couch Distr. Co. (2012) 207 C.A.4th 180, 143 C.R.3d 160, and Burrill v. Nair (2013) 217 C.A.4th 357, 158 C.R.3d 332, are disapproved.

Cross-Reference:

Burden of proof under the anti-SLAPP statute where there is a mixed cause of action. See 5 Cal. Proc. (5th), Pleading, §1034.


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Last updated
Wednesday, August 17, 2016