Anti-SLAPP Can Be Used to Strike “Mixed Conduct” Claims [Baral v. Schnitt (2016) 1 Cal. 5th 376]


California’s Anti-SLAPP History

Like 28 other US states, California has enacted an anti-SLAPP statute in its Code of Civil Procedure. The statute states that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16.

The California Legislature enacted the anti-SLAPP statute in 1992 in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Code Civ. Proc. § 425.16. California’s anti-SLAPP statute allows many citizens to exercise their right to free speech without being chilled by individuals or entities that disagree with them.

Lack of Guidance for “Mixed” Claim Situations

Prior to August 2016, California court authority was split on how to interpret the anti-SLAPP statute for a “mixed caused of action,” or an action that “combines allegations of activity protected by the statute with allegations of unprotected activity.” Baral v. Schnitt, 1 Cal. 5th 376 (2016).

Some courts followed what is known as the “Mann” rule, in which an anti-SLAPP motion was allowed only when a plaintiff’s entire cause of action would be dismissed.

“Published appellate court cases have concluded that where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct” Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90, 103 (2004), disapproved of by Baral v. Schnitt, (2016) 1 Cal. 5th 376, 376.

Baral v. Schnitt – The Definitive Analysis of a “Mixed” Claim Anti-SLAPP Motion

In Baral v. Schnitt, the seminal case interpreting a mixed cause of action in anti-SLAPP cases, the court found that “an anti-SLAPP motion must be brought against a mixed cause of action in its entirety. It affirmed the denial of defendant’s motion because plaintiff established a probability of succeeding on claims based on allegations of activity not protected by section 425.16. This application of the anti-SLAPP statute unduly limits the relief contemplated by the Legislature.” Baral v. Schnitt, (2016) 1 Cal. 5th 376, 382.

Therefore, in such mixed claim causes of action, an activity that is not protected by the anti-SLAPP statute cannot merely provide the context in which a protected activity will be analyzed. The protected activity alone should analyzed to determine the validity of the claim.

“Thus, the ‘Mann rule’ encompasses the propositions that an anti-SLAPP motion may not be used to attack particular claims within a cause of action as framed by the plaintiff, and that the plaintiff can defeat the motion by showing a probability of prevailing on any part of the count, including allegations of activity that is not protected by section 425.16.” Baral v. Schnitt, (2016) 1 Cal. 5th 376, 385–86.

Contact an Anti-SLAPP Attorney in California

It is extremely important to know your rights when it comes to anti-SLAPP claims. A knowledgeable First Amendment attorney can help you understand the legal complexities of an anti-SLAPP motion, including public figure defamation suits brought without actual malice or relating to rhetorical hyperbole. Talkov Law’s skilled attorneys have been featured on news resources such as the Washington Examiner, the San Diego Union Tribune, and the Volokh Conspiracy for successfully contesting these frivolous claims. For a free, 15 minute consultation, contact Talkov Law online or by phone at (844) 4-TALKOV (825568).

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