Monday, May 22, 2017

Now a Scalpel, No Longer Just a Hammer.

Shelley v. Harrop, No. C07747 (D3 Mar. 20, 2017) 

This is an appeal of the denial of an anti-SLAPP motion. The motion comes out of a cross complaint alleging three causes of action based, in part, on the cross-defendants maintenance of a frivolous lawsuit, in waste of corporate assets. These causes of action, however, also mix in allegations about other corporate mismanagement like excessive compensation, self-dealing etc.—stuff that’s clearly not addressed under the anti-SLAPP protection. The trial court denied the motion, based on the idea that there were sufficient unprotected assertions to proceed on each claim.

Following the Supreme Court’s recent ruling in Baral v. Schnitt, an anti-SLAPP motion can be used with more precision than that. So long as the protected activity allegations aren’t merely incidental, courts need to look at the portions of claims that do, in fact address protected activity, determine whether there’s a likelihood of prevailing specifically as to the protected activity, and if not, to strike those particular allegations from the complaint, leaving the rest intact. So here, the trial court should have stuck the parts of the causes of action that were addressed to the filing and maintenance of an allegedly meritless litigation, an undisputed form of protected activity.

Reversed in part.

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