For over a decade now,the various districts and divisions of California Courts of Appeal have articulated conflicting approaches as to how to treat anti-SLAPP motions where the plaintiff is able to prove up a part of its claim or where part of its claim arises from unprotected activity - i.e. the proverbial "mixed cause of action" prong two case. One approach holds that that where the plaintiff can prove up any part of its claim the entire cause of action stands but if plaintiff cannot substantiate any part of the claim, the entire claim gets stricken, even if it is based in part on unprotected activity. On prong one, the law is well settled. Where the cause of action arises at least in part from protected activity, prong one is satisfied, and the burden shifts to plaintiff to show a probability of prevailing on the merits of the claim on prong two. Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. The second approach holds that a mixed cause of action on prong two will be split into two causes of action - one cause of action based on unprotected activity, or one that plaintiff can substantiate with admissible evidence, will be allowed to remain unscathed by the anti-SLAPP motion. While only that part of the claim that is based on protected activity and which plaintiff cannot substantiate will be segregated into a separate cause of action and stricken under the anti-SLAPP statute, CCP section 425.16. A substantial number of cases have weighed in on this raging conflict among various California Courts of Appeal. Finally, on May 13, 2015, our High Court has granted review in one such case to resolve this conflict, Baral v. Schnitt (2015) 233 Cal.App.4th 1423, superseded by grant of review in Case No. S225090, 5/13/15.
Under Mann I, the court held that if the plaintiff can prove up "ANY PART OF ITS CLAIM, the plaintiff has established that its cause of action has some merit and THE ENTIRE CAUSE OF ACTION STANDS. The court need not engage in the time consuming task of determining whether a plaintiff can substantiate all theories presented within a single cause of action. ... " Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 106. The recently published decision int Baral v. Schnitt (2/5/2015; B253620) 233 Cal.App.4th 1423 jumped head first into the ever-mounting controversy among the various courts of appeal as to whether to apply the Mann rule or the City of Colton v. Singletary/Cho v. Chang rule to mixed causes of action on prong two and sided with Mann. On May 13, 2015 our High Court finally granted the petition for review filed in Baral v. Schnitt, supra and is now poised to resolve the conflict.
The author asserts that the latter rule set forth in the City of Colton and Cho v. Chang, infra, cases is the better approach to mixed causes of action on prong two because it honors the broad plain language of the statute by precisely targeting protected activity without being overbroad or underinclusive in the activity it targets. The Boral case sided with Mann by relying exclusively on the "cause of action" language in subdivision (b)(1) of section 425.16. But that language appears only at the beginning of the first independent clause of that subdivision, which exclusively deals with prong one. Prong two does not begin until the dependent clause "...unless... the plaintiff has established that there is a probability that the plaintiff will prevail on the `claim'". A claim can be divided into separate counts as articulated in Justice Needham's dicta in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, at 1195 et seq., which was adopted in the City of Colton v. Singletary (2012) 206 Cal.App.4th 751 majority opinion and later by Cho v. Chang (2013) 219 Cal.App.4th 521, which held that in mixed causes of action on prong two, the court will split the cause of action into two and strike the protected activity unless can plaintiff can prove it up and allow any allegations of unprotected activity to proceed unencumbered by the anti-SLAPP statute regardless of proof. The Legislature never intended to ensnare unprotected activity within the ambit of the anti-SLAPP statute. So why should unprotected acts be stricken just because they happen to be mixed with protected activity. The problem with the Mann rule is that it is both overbroad and underinclusive in that it allows the court to strike unprotected activity that the Legislature never intended to sweep into the clutches of the anti-SLAPP statute and it permits the court allow litigation privilege and other First Amendment activity to survive to chill another day if the plaintiff can stuff the "claim" with at least one other unprotected act it can prove up. Any suggestion by Wallace or Baral that this High Court already approved of the Mann rule, in Oasis, in a true mixed cause of action is misguided as this Court has repeatedly held that its cases do not stand for propositions not decided. Oasis West Realty v. Goldman (2011) 51 Cal.4th 811 approved of the Mann rule in a case that was not a mixed cause of action case because all of the activity upon which the claim was based met prong one. See Werdegar, J. concurring opinion. On the other hand, our High Court has time and time again expressed a preference for bright-line, easily administrable rules in the anti-SLAPP context, which is the virtue of the Mann rule - simplicity and ease of application. Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119-1123. While these conflicts present an incredibly complex debate with courts and attorneys on different sides of this issue, the California Supreme Court has now finally agreed to resolve the hottest controversy that has been percolating for over a decade in California anti-SLAPP jurisprudence.
James J. Moneer, Esq.
Friday, May 15, 2015
Monday, March 9, 2015
Minnesota anti-SLAPP statute amended to include reports to police and other government agencies
According to a Twin Cities news outlet, a man named Keith Mueller is pushing to change a state law to protect someone from being sued for calling the cops. The Minnesota anti-SLAPP statute's current language protecting public participation is too vague and needs to include reporting apparent unlawful conduct to police, he contends. The judiciary has struggled to determine if calling police constitutes public participation under Minnesota law. Here, in California of course, police reports and any attempts to report suspected wrongdoing to any government agency are considered acts in furtherance of public participation under CCP 425.16(e)(1),(2), (4). A bill was heard in the Minnesota Legislature that would add language clarifying public participation to include calling police, speaking out about development, communicating with lawmakers, peaceful demonstrations and filing complaints with the government about safety, sexual harassment, civil rights or equal employment. The motion is to be heard March 10 in the Mueller case.
Minnesota statute 554, known as the state's anti-SLAPP statute, defines public participation as "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action." This is the statute Mueller seeks to strengthen because of confusion over what constitutes public participation. This should make explicit what was implicit all along.
Minnesota statute 554, known as the state's anti-SLAPP statute, defines public participation as "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action." This is the statute Mueller seeks to strengthen because of confusion over what constitutes public participation. This should make explicit what was implicit all along.
Thursday, January 8, 2015
Yelp defeats San Diego BK attorney's SLAPP motion under commercial speech exemption - Yelp v. McMillan (12/11/2014 SDSC)
In August 2013, Yelp sued McMillan for breach of contract, intentional interference with contract, unfair competition, and false advertising. Yelp believes that McMillan orchestrated fake reviews on the Yelp page for his bankruptcy law practice - an accusation McMillian denies. McMillan filed an anti-SLAPP motion in response to Yelp's suit. But McMillan's SLAPP motion appeared doomed to fail under the commercial speech exemption from SLAPP set forth in CCP 425.17(c). All of McMillan's statements that Yelp's suit alleged causes harm were statements of fact about McMillan's own services as a bankruptcy attorney designed to secure commercial transactions for his services and were published to actual or potential customers through Yelp's website. A recent ruling by Judge Joan M. Lewis confirmed this analysis denying the SLAPP motion under the commercial speech exemption of CCP 425.17(c). There will likely be an ensuing appeal but, in my opinion, it is not likely to succeed for the reasons set forth above. This appears to be a classic textbook example of a complaint alleging harm based on defendant's commercial speech activity as defined in CCP 425.17(c). Simpson-Strong-Tie v. Gore (2010) 49 Cal.4th 12.
Of more fundamental importance are the so-called extortion suits that have been filed against Yelp for burying or even deleting positive reviews unless the business buys advertising from Yelp. The Ninth Circuit has dismissed two such suits against Yelp over the past year holding that Yelp has the right to run its website as it sees fit - including the right to refuse to remove false entries, the right to bury positive reviews and bring negative ones to the top through its use of "filtered reviews" and in Levitt v. Yelp, the Ninth Circuit recently even went so far as to hold that Yelp could delete positive review/entries on its site.
What is a poor business owner to do in these cases of legalized "extortion" One Ninth Circuit Justice stated that Yelp's threat to bury or delete positive reviews is "hard bargaining" at best. But what about the unequal bargaining power between the small business and giant Yelp where the Yelp ratings are often the lifeblood of a small business. I think in some circumstances this kind of hard bargaining can rise to the level of unconscionability - both procedural and substantive. It would appear to be a contract of adhesion (procedural) and substantively so one-sided and oppressive as to shock the court's conscience in extreme cases. After all that business earned those positive reviews and that part of the Levitt holding that allows Yelp to altogether delete a positive review may sweep too far. Time will tell as this body of law develops along with the anti-SLAPP and other cyber laws.
Of more fundamental importance are the so-called extortion suits that have been filed against Yelp for burying or even deleting positive reviews unless the business buys advertising from Yelp. The Ninth Circuit has dismissed two such suits against Yelp over the past year holding that Yelp has the right to run its website as it sees fit - including the right to refuse to remove false entries, the right to bury positive reviews and bring negative ones to the top through its use of "filtered reviews" and in Levitt v. Yelp, the Ninth Circuit recently even went so far as to hold that Yelp could delete positive review/entries on its site.
What is a poor business owner to do in these cases of legalized "extortion" One Ninth Circuit Justice stated that Yelp's threat to bury or delete positive reviews is "hard bargaining" at best. But what about the unequal bargaining power between the small business and giant Yelp where the Yelp ratings are often the lifeblood of a small business. I think in some circumstances this kind of hard bargaining can rise to the level of unconscionability - both procedural and substantive. It would appear to be a contract of adhesion (procedural) and substantively so one-sided and oppressive as to shock the court's conscience in extreme cases. After all that business earned those positive reviews and that part of the Levitt holding that allows Yelp to altogether delete a positive review may sweep too far. Time will tell as this body of law develops along with the anti-SLAPP and other cyber laws.
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