Wednesday, September 7, 2016

A Course Correction on the Anti-SLAPP Journey

Baral v. Schnitt, No. S225090 (Cal. Aug. 1, 2016)

In first of several pending cases addressing the anti-SLAPP statute, the Supreme Court resolves a longstanding split about how to handle so-called “mixed” causes of action. That is, causes of action that implicate both protected and unprotected activity. I’ve discussed this split previously here and here, as well as in my original post on the Court of Appeal’s decision in this case. 
In a cogent analysis focusing on both the text and the practicalities of the issue, the Court ultimately adopts the current minority rule.

The basic question is: If a complaint’s essential allegations include non-incidental amounts of protected conduct that provide some basis for a claim, while at the same time including within the same cause of action other facts or theories that don’t address protected activity, how does that get handled under the anti-SLAPP analysis? If we assume that any claim that includes allegations regarding protected activity that go beyond merely incidental references meets the “arising from” test—a point that reasonably well-established in the case law—there are basically two options:*

1. So long as the claim is based, in some material part, on protected activity, it meets the “arises from” standard. But to defeat the motion, plaintiff needs only to show that there is some theory of liability within the claim that has both legal and factual merit, whether or not that theory includes the protected activity alleged. Granting the motion strikes the whole claim, but denying it lets the whole claim stand. This rule—generally called the Mann rule—is the current majority rule.

2. The “arising from” analysis is the same as 1, but answering that question “yes” means Plaintiff needs to specially show that there is merit to the part of the claim that arises from protected activity. And if that burden isn’t met, only the allegations of protected activity get struck. This is the minority rule.

In a unanimous opinion penned by Justice Corrigan, the high court adopts the minority rule. After surveying the state of the Court of Appeal cases regarding the split, the court notes that a significant source of confusion is an apparent conflict between dicta in its prior decisions in Taus v. Loftus, 40 Cal. 4th 683 (2007) and Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011). Neither case addressed the issue of how to handle mixed causes of action. But dicta and a close reading of the facts Taus suggest that the Court was employing the minority technique—closely parsing through counts as plead to see if the theories that arose from protected activity were legally and factually viable. The court never address the meta-question of whether or why this was the proper mode of analysis, but it is fair to say that it was inconsistent with the Mann rule. But then four years later in Oasis West, the Court actually quoted the key part of Mann, although the point was not key to the analysis. 

In neither case did the Court have “occasion to consider the Mann rule and its implications.” The references in the two cases largely resulted from the ways the parties framed the issues, and not through any effort by the court resolve the issue. But to the extent that Taus stated a rule Oasis West by no means meant to overturn it.

In any event, the Court finds that the Mann rule is inconsistent with both the text and the overall purpose of the anti-SLAPP statute. It hashes through a number of justifications for this result.

To be honest, the statutory text is not at all on the question. And it is on these arguments that the opinion has a bit of a conclusory feel to it. It parses the text without explaining it. As the court sees it, Code of Civil Procedure §425.16(b)(1) requires a moving plaintiff to establish a probability of prevailing “on the claim,” which grammatically seems to reach back to the definition of such claim as one “arising from any act of that person in furtherance of the person’s right of petition.” So it’s that claim—and not some other claim jammed into the same count—that plaintiff needs to show can prevail.

That’s a reasonable reading. But the same sentence in § 425.16 also says that “[a] cause of action . . . shall be subject” to the motion, which suggests that the motion can be addressed only to a whole cause of action (whatever that really means). There are certainly similar areas where California procedure law has read that kind of language to preclude any parsing within a cause of action. See § 437c(f). So despite the failure to really get down and dirty wrestling with the ambiguity, the text isn’t particularly clear either way. 

In any event, the more pragmatic arguments the Court relies on make good sense, and should carry the day even if the statute is horribly ambiguous.

Most practicallyand perhaps most importantlythe Mann rule rewards artful pleading, where multiple factual or legal theories are combined into a single “count” or “cause of action.”** By doing so, a clever plaintiff can launder frivolous protected allegations by combining them with viable unprotected ones, permitting its otherwise SLAPP-able claims to live to fight another day. That doesn’t square with the anti-SLAPP statute’s purpose in quickly disposing of claims that attack Defendants for engaging in protected activity.

It is also significant that the Legislature chose to call the motion a “special motion to strike,” not a special demurrer or a special motion to dismiss. As was long understood by the bar at the time the anti-SLAPP statute was passed, a conventional motion to strike is basically the only motion that is effective against a part of a pleading. See §§ 435(b)(1), 436. Since the Legislature presumably knew that when it named the new motion under §425.16, it likely intended to permit intra count parsing.

Finally, the Court rejects Respondent’s contention that “cause of action,” as used in § 425.16(b)(1) should be defined in reference to primary rights theory. Why? Because—as I have occasionally griped over the years—nobody really understands what a primary right is. The theory is, as the Court explains, “notoriously uncertain in application.”*** The Court quotes an earlier case, which explains that, “[t]he most salient characteristic of a primary right is that it is indivisible[.]” That, to me, has always seem like more of a consequence being a primary right than a definition of one. In any event, given the other justifications to reject Mann, there’s no reason to drop the bomb of primary rights theory into a procedure that’s intended to simply and quickly dispose of certain kinds of claims. Thus, instead of evoking a primary right, the statutes used of the phrase “cause of action” instead signifies a particular claim that arises from activity protected under § 425.16(e).

The Court rejects Mann and adopts the previous minority rule: Once a claim “arises from protected activity”—i.e., a non incidental basis of the claim falls within one of the categories in § 425.16(e)—the burden shifts to the plaintiffs. To meet that burden, the plaintiff must show that the part of the cause of action that drew the anti-SLAPP motion is both legally and factually sufficient to proceed. To do that, plaintiff needs to show (a) that the relevant allegations state a legit claim, and (b) a sufficient evidentiary showing to at least contest each element of the claim. And if plaintiff fails, only the part addressed to protected activity gets struck.

Court of Appeal reversed.

* Back in the olden days when I was a law clerk, we derisively called this practice “claim jamming.” (To my knowledge and based on a quick Google and Westlaw search, our term never caught on.) But it comes up in a number of contexts and is generally the result of excess formalism in applying rules only to whole “claims,” “counts,” “causes of action,” or whatever else the basic unit of pleading is colloquially called. For instance, the oft-cited rule that a general demurrer (or a Rule 12(b)(6) motion) lies only to a whole cause of action. Or § 437c(f), which generally requires a summary adjudication motion to dispose of whole “causes of action.” Since almost nobody really grasps (or wants to grapple with) what the basic unit of pleading should be, for courts that are so inclined, it’s a quick and easy way to dispose of a motion without reaching the merits. Plaintiffs know this and plead accordingly.

**Logically, there are actually three distinct aspects of a potential rule—(1) whether or not a mixed case “arises from protected activity”; (2) whether the second step is satisfied by showing a likelihood of success on any part of the claim, or only the protected part; and (3) whether failure to meet the standard results in striking all, or only part of the claim. Each has at least two possibilities. As those who speak binary might know, that means, mathematically speaking, there are actually no less than eight different options. But since some of them have been rejected in the case law and others simply make no logical sense, the cases have tended to cluster into these two options.

***If a unanimous opinion of the highest court tasked with resolving these issues says this kind of thing about a judicially created doctrine that does not implicate issues of constitutional law, isn’t it high time to ditch the doctrine? As an astute observer of the common law noted a long time ago:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

I can think of few more appropriate modern subjects of the great dissenter’s ire than California’s continued embrace of the primary rights doctrine. Perhaps it’s time to try and kill it off for good. If anyone knows of a good pro bono case to raise it in, email me.





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