No Second Shots to Plead Around CCP 425.16(b).

Mobile Med. Servs. for Physicians & Advance Practice Nurses, Inc. v. Rajaram, No. G050111 (D4d3 Oct. 13, 2015)

Plaintiff sued on a number of theories, all based on Defendant’s allegedly making some untrue or defamatory statements in the course of an investigation conducted by the California Nursing Board. Unsurprisingly, that drew a successful anti-SLAPP motion. But the trial court granted the motion with leave to amend, permitting plaintiff to re-allege a breach of contract action whose facts were disaggregated from the allegations about the statements to the Nursing Board. Plaintiff did so amend, withdrawing the Nursing Board statements, and the trial court denied a subsequent anti-SLAPP motion, finding that the amended complaint did not allege claims arising from protected activity.

That was a mistake. Long-settled anti-SLAPP precedent holds that once the trial court finds that a claim arises from protected activity, Plaintiff’s can’t get leave to plead around the protected activity to avoid an anti-SLAPP dismissal. If Plaintiff had a viable claim that didn’t implicate Defendant’s free speech rights, it was incumbent on it to plead the claim that way in the first instance.  

Reversed.