Some Anti-SLAPP Formalism

Park v. Nazari, No. B320483 (D2d5 Jul. 25, 2023)

This is an anti-SLAPP case that arises in the context of a somewhat confusing collections action. So far as I can gather, Defendants owe Plaintiffs about $1 million from a prior action involving a dispute over the sale of truck stop. During the prior case, after the jury’s verdict but before judgment had been entered, Defendants’ attorney recorded $125k in liens against property owned by Defendants. This case seeks, among other things, to invalidate the liens. It also claims (and this is where I am confused) something about a sham foreclosure and that the Defendants interfered with efforts to address soil contamination and one of the properties and to obtain cleanup funding from an environmental regulator.

Defendants, filed an anti-SLAPP motion, arguing that the attorney liens were how they funded the prior litigation, and were thus protected litigation-connected activity under Code of Civil Procedure § 425.16(e)(2). Because the liens were the “gravamen” of the whole action, argued Defendants, the whole complaint should be stricken. But when, during argument, the trial court pointed out that parts of the case—like the environmental stuff and the foreclosure—had nothing to do with the liens, Defendants argued that the court could instead just strike parts of the complaint. The trial court declined to parse the motion more finely, reasoning that it had no obligation to save Defendants from their overbroad motion and denied the motion.

The Court of Appeal affirms. It reasons that because Defendants “moved to strike only the entire complaint, and did not identify in their motion individual claims or allegations that should be stricken even if the entire complaint were not, the trial court was permitted to deny the anti-SLAPP motion once it concluded—correctly—that the complaint presented at least one claim that did not arise from anti-SLAPP protected conduct.”

The Court of Appeal holds that “[i]f a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.” (emphasis mine). It purports to find this rule in Bonni’s, statement that “[i]f a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims.”

Affirmed.

The essential rule here, that if a moving party files an anti-SLAPP motion against a whole cause of action, a trial court can deny it without any Baral/Bonni-style claim by claim parsing, is somewhat of a stretch. After all, in Bonni itself, the defendant moved to strike a whole cause of action for retaliation. But the Supreme Court nonetheless picked apart the various retaliatory acts claim by claim. Justice Kruger’s discussion of parsing in Bonni is in the context of rejecting an anti-waiver basis for the “gravamen” rule that the Defendants mistakenly invoked here. And her discussion of the burden of identification does not really anticipate a requirement for the kind of line by line formalism suggested by the court here. I don’t have the Defendants’ superior court briefs, but their appellate brief—which somewhat bafflingly cites neither Bonni nor Baral—does make clear that the role of the liens in funding the prior litigation is the protected activity they are going after. That’s the kind of “identification” Bonni is taking about.

The court here, however, seems to be saying that if a party expects a Baral/Bonni analysis, even in the alternative, it needs to effectively follow Rule of Court 3.1322(a), which specifically requires that a notice of motion for a traditional (non-SLAPP) motion to strike recite each precise item of complaint text to which the motion is directed. As the Court here recognizes, that kind of rule is in tension with, and perhaps contrary to, Balla v. Hall, 59 Cal. App. 5th 652, 672 (2021), which applied a Baral analysis in a motion directed to a whole cause of action for defamation because the moving party’s brief “addressed individual publications and elements.” There the court observed that “Baral makes clear that not only can an anti-SLAPP motion attack portions of causes of action, but also that whether it does so turns on how the issues are framed—not simply the text of the notice of motion.” Id.

So there’s a likely split of authority. Although it’s perhaps on too narrow a procedural point to expect the Supreme Court to step in to resolve it anytime soon. 

In the meantime, anyone bringing an anti-SLAPP motion should take heed of this requirement. Even if the motion appears adequate to sink a whole cause of action or complaint, argue a Baral/Bonni analysis in the alternative and identify the various “claims” in the notice of motion.