Saturday, September 14, 2013

Mann, I Sense a Split of Authority ...

Cho v. Chang, No. B239719 (D2d4 Sept. 6, 2013) 

The court of appeal adds to the body of contradictory case law addressing a long-simmering issue in the application of the anti-SLAPP statute: What happens when multiple fact theories are jammed into a single “cause of action,” when some of those theories are subject to a SLAPP motion when others are not. Compare Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4th 90 (2004) with City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012). The court here upholds the trial court’s ruling that struck only the part of a cause of action that arose from protected activity under Code of Civil Procedure § 425.16(e).

Chang sued Cho for sexual harassment and Cho cross-claimed for defamation and other torts, claiming injury from Chang’s defamatory statements (1) to her co-workers, (2) in an official complaint to the company, and (3) in her complaint to the Department of Fair Employment and Housing. The cross-complaint combined all three of these statements into a single cause of action. Chang filed a SLAPP motion, which the trial court granted denied as to (1) on the grounds that statements to co-worker are not “protected activity” but granted as to (2) and (3). Chang appealed.

On appeal, Chang argued that the court should have struck the entire cause of action. After noting the significant corpus of contradictory decisions on the point—including conflicting dicta in two Supreme Court cases—the court went back to what it called the “guiding principle” contained in one of the earliest of the so-called mixed cases: “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (quoting Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 29 (2001)). It reasoned that striking the whole cause of action—both the protected and unprotected theories—would be inconsistent with that purpose. On the other hand, said the court, striking only the theories that address protected activity would not defeat any of those purposes. It is also consistent with the historic purpose of a motion to strike, which is to reach pleading defects not subject to a demurrer. The court determined that the trial court’s ruling followed those purposes.


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