Second District Approves Use of Anti-SLAPP Motion to Pare Causes of Action

Division Four of the Second District Court of Appeal issued a significant opinion affecting anti-SLAPP motions last Friday. The Metropolitan News Enterprise reports:

A trial court, in ruling on an anti-SLAPP motion, may excise portions of a cause of action, while leaving others undisturbed, the Court of Appeal for this district ruled Friday

Presiding Justice Norman L. Epstein wrote in support of the opinion:

[T]he guiding principle in applying the anti-SLAPP statute to a mixed cause of action case is that “a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’ ” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) This statement has been repeatedly reiterated in later decisions on the issue. (See, e.g., Haight Ashbury Free Clinics, Inc., v. Happening Home Ventures, supra, 184 Cal.App.4th at p. 1551; Comstock v. Aber (2012) 212 Cal.App.4th 931, 946.)

It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined into a single cause of action, some alleging protected activity and some not. Striking the entire cause of action would plainly be inconsistent with the purposes of the statute. Striking the claims that invoke protected activity but allowing those alleging nonprotected activity to remain, would defeat none of them. Doing so also is consonant with the historic office of a motion to strike: “to reach certain kinds of defects in a pleading that are not subject to demurrer.” (See 5 Witkin, Cal. Procedure (5th ed.2008), Pleading, § 1008, p. 420.)

That is what the trial court did in this case. Its ruling makes sense, and renders justice to both sides. We believe it was correct.

You can read the decision in Cho v. Chang (Cal. Ct. App., Sept. 6, 2013, B239719) 2013 WL 4774136, here.

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