CA HIGH COURT POISED TO RESOLVE HOTTEST ISSUE IN ANTI-SLAPP LAW - MIXED CAUSES OF ACTION ON PRONG TWO

   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High Court has granted review in one such case to resolve this conflict, Baral v. Schnitt (2015) 233 Cal.App.4th 1423, superseded by grant of review in Case No. S225090, 5/13/15.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.