Colton Conflicts with the Mann Rule in Prong Two Mixed Cause of Action SLAPP cases

On October 24, 2011, I drafted a detailed blog entitled "In defense of the The Mann Rule."  I recommend that readers review this article before reading the article that follows on prong two mixed cause of action SLAPP jurisprudence as this is a developing body of law that is now officially in conflict at least in some prong two mixed cause of action cases.   Recall the basic rule from Mann v. Quality Old Time Service (4th Dist./ Div. 1 2004) 120 Cal.app.4th 90, 106 - Plaintiff need only prove up any part of its claim in order to defeat a section 425.16 special motion to strike.   Plaintiff need not prove up all theories or allegations presented within a single cause of action and the court need not parse the cause of action into successful and unsuccessful claims.   If plaintiff can prove any part of the claim, whether the allegation is based on protected SLAPP or unprotected activity having nothing to do with SLAPP, the entire cause of action stands.  Then I discussed the 20-pages of dicta expounded by Justice Needham in Walllace v. McCubbin (2011) 196 Cal.App.4th 1169 where He criticized the Mann rule at length and offered a different approach to treatment of mixed causes on prong two.   This alternative approach recently became law with modifications on May 30, 2012 in City of Colton v. Singletary (4th Dist./Div. 2 2012) 2012 WL 1940648, which like Wallace is a lengthy exposition that has created conflicts of authority in at least three areas of anti-SLAPP jurisprudence including a conflict with the Mann rule in some mixed cause of action cases on prong two.    Although the opinion is nearly 30 westlaw pages, the facts are simple: The City essentially alleged two mixed causes of action based on the same factual allegations of misconduct.   The fourth cause of action was for unfair business practices under Bus. & Prof. Code section 17200 and the sixth cause of action sought injunctive relief.   There is also an element of illegality as a matter of law that was considered by the court but rejected because there was not a conclusive admission or irrefutable evidence of the illegal conduct and that a prior plea bargain in a criminal matter is neither an admission nor res judicata in a civil matter.  See fn 4.    The City and Singletary originally entered into the first agreement in 1992 whereby Singletary agreed to construct all the infrastructure in the City as part of a subdivision plan.   Subsequently, a new councilmember, Grimsby, was elected.  Singletary then bribed Grimsby with cash to secure a second 1999 contract with the City in which the City agreed to construct the infrastructure.   Singletary sued to have the City construct the infrastructure per the 1999 agreement and the City cross-complained for damages as a result of Singletary bribing the councilmember and not constructing the infrastructure per the 1992 agreement.   Singeltary filed an anti-SLAPP motion challenging the City's cross-complaint, which was granted as to the fourth and sixth causes of action only.   The fourth cause of action seeking an injunction: (1) requiring Singletary to construct the remaining infrastructure; (2) restitution for that part of the infrastructure already completed by the City; and (3) an injunction requiring Singeltary to "cease and desist" from seeking to profit from his own admitted bribery of Gimsby.   It was this third  allegation in the fourth cause of action that arose from protected activity as it was clearly based on Singletary's filing of the lawsuit to enforce the 1999 contract obtained by bribery.  The first two allegations had nothing to do with protected SLAPP activity.  Singeltary argued that the fourth and sixth causes of action were clearly based both on Singltary's bribes and on his current lawsuit - a mixed cause of action.   To the extent the claim is based on the lawsuit, it is protected by the anti-SLAPP statute as an oral or written statement made before and in connection with issues under review in a judicial proceeding under subds. (e)(1),(2) and the filing and maintenance of a lawsuit is also absolutely immune from civil liability under CC 47, subd. (b).   But the bribe and his failure to perform the 1992 contract are not protected acts, they are not barred by any privilege, and the causes of action clearly have merit to the extent based on these allegations.   Under the Mann rule, the entire cause of action would stand because plaintiff was able to prove up any  part of it.   But the Colton court rejected the Mann rule in this instance and essentially held that the court should split the cause of action and allow that portion of the claim based on nonprotected activity to go forward without inquiry into the merits on prong 2 (because this part of the cause of action would not have been subject to the SLAPP motion if it had been alleged on its own) and then strike only that portion of the claim arising from Singeltary's filing of his lawsuit to enforce his ill-gotten contract.  So under Colton, the court must split a mixed cause of action where plaintiff is able to establish a probability of prevailing as to at least one act or show that SLAPP does not apply to at least one act.   This approach has a number of complexities as discussed in my prior blog based mainly on the administrability problems that arise.  The fee issues create more complexities but can be resolved with existing anti-SLAPP fee principles expounded in the Mann II case - Mann v. Quality Old Time Service (2006) 139 Cal.App.4th 328.   Aside from the administrability problems created by this approach, as pointed out in Justice Richli's dissent, the Legislature does not authorize courts to rewrite pleadings or strike particular allegations.  Hence, he concludes this approach violates the plain language of the statute.   On the other hand, the Colton approach appears to comport with the intent of the Legislature, and the "broad" plain language construction of Code of Civil Procedure Section 425.16 by striking all claims and only those claims and parts thereof that arise from activity targeted by the statute and lack merit while allowing all other claims and parts thereof to survive the anti-SLAPP motion unscathed.   These "parts" of causes of action are really separate counts that, if proven, would be sufficient in themselves to support the cause of action.     See Wallace, supra, for an extensive discussion of the primary rights theory and the difference between a "claim", "cause of action"  a "count". 

Other conflicts created by Colton:

1. CCP 425.16(d) - Public Enforcement exception:  Colton disagreed and disapproved of the City of Long Beach v. Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302.   Colton rejected City of Long Beach's expansion of the public enforcement exmeption to claims by municipalities brought in the name of the municipality.  Subd (d) expressly applies only to those claims "brought in the name of the people of the State of California" by a public prosecutor.   As a result, the City of Colton's argument that its claims brought on behalf of the City of Colton and its citizens is not subject to the exemption from SLAPP.

2.  Conflict regarding appealability of SLAPP fee awards:  Colton is now the third case on this point to rejecting Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150.   Doe that SLAPP fee awards are not separately appealable orders and that only the judgment for attorney's fees awarded under section 425.16(c) is appealable.   Colton and the other more recent cases hold that orders granting SLAPP fee motions are separately appealable without a judgment because the fee award was made pursuant to CCP 425.16, which has an immediate appeal right.  

This is a conflict that should be resolved by the California Supreme Court eventhough Wallace acknowledged that the High Court expressly approved of the Mann rule in Oasis West Realty v. Goldman (2011) 51 Cal.4th 511.   The issue was presented in a different context and was not being challenged in that case.