Two recently published California anti-SLAPP decisions reflect that courts are responding to the California Supreme Court’s decision in Baral v. Schnitt, 1 Cal.5th 376 (2016), by scrutinizing the allegations at issue in anti-SLAPP motions quite closely, often resulting in the elimination, at most, of only a few allegations or causes of action. As a result, while anti-SLAPP motions continue to proliferate, the statutory goal of “weeding out” meritless claims at an early stage, is increasingly becoming a parsing process, as courts seek to determine precisely which allegations, if any, provide the basis for a claim for relief arising from protected activity.
This trend towards closer scrutiny is evident from anti-SLAPP motions that seek to strike entire causes of action, as in Turnbull v. Lucerne Valley Unified School District, 2018 DJDAR 5690 (June 13), as well as motions that attack only specific allegations, as in Newport Harbor Offices & Marina, 2018 DJDAR 4313 (May 9). In both instances, in evaluating whether the moving defendants satisfied their threshold burden of proving that the challenged allegations arise from constitutionally protected activity subject to C.C.P. Section 425.16, subd. (b), these courts have focused on the plaintiffs’ allegations (and the parties’ declarations) in excruciating detail.
In Turnbull, the plaintiff alleged that the defendant school board and its representatives retaliated against her, resulting in the loss of her job. She alleged that the retaliation occurred, in part, by causing a medical off-work note from her doctor to be published on social media and, in part, by pressuring her to resign. Defendants’ anti-SLAPP motion sought to strike all of plaintiff’s causes of action. The trial court denied it, and the Court of Appeal affirmed, concluding that defendants failed to satisfy their first-prong burden of proving that any of the causes of action arose from protected activity.
To arrive at that result, the appellate court effectively dissected each of the challenged causes of action to discern whether the specific alleged conduct at issue unmistakably involved allegations of protected activity, either as a statement made in a public forum (Section 425.16, subd. (e)(3)), or as an act pertaining to an issue of public interest. (Section 425.16, subd. (e)(4)). The court consistently found that the allegations (and supporting declarations) were ambiguous as it related to critical facts, for example, whether the medical note was disclosed in a public board meeting or disclosed in detail on social media. Similarly, in evaluating plaintiff’s causes of action alleging she was improperly pressured to resign, the court made repeated findings that the complaint was simply too vague, and the evidence too unclear, to connect the alleged wrongful pressure as occurring in a public forum, as required to satisfy the first prong requirements of the statute. Ultimately, because this first prong burden of showing protected activity was the defendants’ burden, the Court of Appeal affirmed the denial of the motion in its entirety.
Newport Harbor makes a similar point in the context of an anti-SLAPP motion to strike that attacked only specific allegations within the plaintiff’s causes of action. This motion followed the path broadly opened up by Baral‘s ruling that a motion may properly seek to strike only specific allegations of protected activity that constitute a “claim for relief” within a cause of action.
The allegations sought to be stricken in Newport Harbor involved a veritable whirlwind of both protected and unprotected activities including, among its many pleaded controversies, a sublease, a ground lease, numerous notices to terminate the leases, and multiple unlawful detainer and other court proceedings. The trial court had denied the anti-SLAPP motion in its entirety, having concluded that the “gravamen” of the complaint involved only disputes over the parties’ underlying lease obligations and not protected activity by the defendants.
The Court of Appeal, however, fully acknowledged the change in approach required by Baral: ”We need not address whether to use the gravamen test because we understand Baral as directing us to strike just the allegations of protected activity and the ‘claims’ arising from them.” As a result, in making its first-prong determination, the appellate court reviewed the challenged allegations literally on a paragraph-by-paragraph basis. It ignored the causes of action framed by the allegations at issue and considered only whether each challenged allegation arose out of protected litigation activity or instead was based on the parties’ unprotected lease disputes.
The Court of Appeal applied the second prong “minimal merit” test only to those claims for relief it found were based on protected activity. Concluding that plaintiff’s evidence did not establish the minimal merit of any of those claims, it struck those claims and the paragraphs on which they were based. As a result, what survived the motion to strike was only those portions of the plaintiff’s causes of action that contained allegations of unprotected activity.
Turnbull and Newport Harbor confirm that the days of basing an anti-SLAPP motion on a “gravamen” test or on conclusory assertions of protected activity are behind us. Defendants moving to strike should anticipate close scrutiny and an insistence on clarity, as it relates to both the challenged allegations and the evidence relating to them.
Susan Allison is a partner and trial lawyer at Jeffer Mangels Butler & Mitchell in Los Angeles. She handles complex litigation matters including anti-SLAPP motions and appeals, intellectual property and entertainment litigation, defendants’ professional malpractice, class action defense and health care litigation. Contact Allison at SAllison@jmbm.com.