A Claim Is a Claim Is a Claim

Miszkewycz v. County of Placer, No. C095426 (D3 Jan. 25, 2024)

As we discussed last summer, there’s a developing split of authority over what a defendant bringing an anti-SLAPP motion needs to do to raise an argument (perhaps in the alternative) that a “claim”—a distinct theory of liability— arises from protected liability, even if the whole case doesn’t. Some call that a Bonni argument, based on the Supreme Court case that laid out how it works, procedurally. Park v. Nazari said to make a Bonni argument, the moving party needs to identify “in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim.” My take was that Park essentially required the moving party to follow Rule of Court 3.1322, which demands that the notice of motion for a traditional motion to strike needs to identify, line by line and word by word, the precise material the movant wants stricken.

But now the Court of Appeal says it’s not necessary to follow Rule 3.1322. The Court notes that, although Bonni analogized an anti-SLAPP to a traditional motion to strike, nowhere did the Supreme Court suggest that the similarity required compliance with Rule 3.1322. Moreover, some of the the text of 3.1322, including references to the timing in which a motion to strike must be brought, clearly apply to a traditional motion to strike, not an anti-SLAPP. So Rule 3.1322 does not apply to anti-SLAPP motions. 

Here, the moving defendant’s brief explained that the complaint at issue presented two theories of liability and argued that one of them arose from protected activity. That’s all that defendant needed to do to make a Bonni argument. So the trial court erred.

The Court goes on, in an unpublished part of opinion to nonetheless affirm the denial of the motion on the merits.

Affirmed.

I think the court gets it right here. The antecedent of Rule 3.1322—old Rule 329—was enacted in 1984. It pre-dates the anti-SLAPP statute by a decade and a half. If the Legislature or the Judicial Council wanted Rule 3.1322 to apply to anti-SLAPP motions, they have had twenty years to say so.

That said, cases like this one say you can satisfy Bonni with an explanation of a “claim” in your brief, while others say you need to identify specific paragraphs or sentences, even if they don’t formally demand compliance with Rule 3.1322. Until the Supreme Court weighs in on this issue, we’re in an Auto Equity situation where there is no way to predict what rule a trial court will apply. That being the case, safest bet is to do both.