Tag Archives: Civil Procedure

Baral v. Schnitt: The Roadmap For Anti-SLAPP Motions Has Dramatically Changed

Neil Bardack 
Neil Bardack
August 9, 2016

The California Supreme Court in Baral v. Schnitt, No. S225090 (filed 8/1/2016),  has clarified a “perplexing” conflict among several Districts of the Court of Appeal about the application of  Code of Civ. Proc. Section 425.16(b)(1) (the Anti-SLAPP statute) when applied to strike allegations in a mixed cause of action,  where it combines allegations of activity protected by the statute with allegations of unprotected activity.

Protected activity arises out of the defendant’s exercise of the constitutional rights of free speech or petition.  When pleadings assert a cause of action that implicates both those activities and unprotected activities, there was a disagreement in the appellate districts and even divisions as to whether the statute supported applying the Anti-SLAPP motion to the whole cause of action, which often resulted in the denial of the motion.  In essence, by artful pleading of intertwined allegations, a plaintiff could avoid dismissal of the cause of action and potential exposure to attorney’s fees in those courts that held that the motion lay only to strike an entire count as pleaded in the complaint, even where  protected activity was alleged.  This result thwarted the purpose of the statute. which is to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.

In Baral, the plaintiff pleaded in a single cause of action that Schnitt committed both libel and slander by knowingly providing false information about Baral’s possible misappropriation of company assets to an outside accounting firm hired to investigate the company owned by them; this was protected activity.  However, the plaintiff linked this assertion with allegations that, once discovered as false,  Schnitt refused to correct.  The false information was ultimately published, which was not protected activity and would not be reachable by Schnitt’s  Anti-SLAPP motion.  The trial court’s denial of the motion was upheld by the Court of Appeal, which found that the Anti-SLAPP statute applied only to entire causes of action as pleaded, or to the complaint as a whole, not to isolated allegations with causes of action.

The Supreme Court determined that this result unduly limited the relief contemplated by the Legislature in enacting the Anti-SLAPP statute.  It approached the resolution by starting with the definition of a “cause of action” as intended to be subject to the motion to strike.  The high court held that the Legislature intended to require a plaintiff to show a probability of prevailing on “the claim” arising from protected activity, and this result should not depend on the form of the pleading.  The purpose of the statute is to protect activity, and courts may rule on the plaintiff’s specific claim of protected activity.

To assist the litigants, the Supreme Court provided the following roadmap of the showings and findings required by under section 425.16(b):

At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.  When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.  The court, without resolving evidentiary conflicts must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.  Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.

Although there was much confusion in applying the Anti-SLAPP motion to allegations which were purposefully jumbled to avoid this special motion to strike, is the solution now cleared of the mud?

Planning To Demur? Review The New Rules For Meet And Confer

Candice Shih 
Candice Shih
January 28, 2016

California courts are tired of hearing your demurrers, and now the state has done something about it. Code of Civil Procedure Section 430.41, which went into effect on January 1, 2016, now requires a meet-and-confer process before a demurrer is filed.

The purpose of these requirements is to encourage parties to cooperate with each other to resolve their demurrer objections out of court. In other words, gone are the days of complaint, demurrer, sustain with leave to amend, complaint, demurrer, sustain with leave to amend, and so on.

Under the new rule, “the demurring party must meet and confer in person or by telephone with the party who filed the pleading” and identify with legal support the basis of the perceived deficiencies. The non-demurring party then must respond with legal support of why its pleading is legally sufficient.

The meet-and-confer must take place at least five days before the responsive pleading is due. If a live-time conference doesn’t take place in time, the demurring party can file a declaration saying it made a good faith effort to meet and confer and why it didn’t happen, and it will receive an automatic 30-day extension to respond.

Regardless of its meet-and-confer efforts, the demurring party must file a declaration with its demurrer saying that it met and conferred and was unable to resolve all of its objections or that the non-demurring party failed to meet and confer with it.

The Code specifically states, however, that any finding that the meet-and-confer process was insufficient “shall not be grounds to overrule or sustain a demurrer.” But any party dissatisfied with the meet-and-confer process might still want to bring its deficiencies to the court’s attention.

A few other notes on this new rule:

  • If you can demur to a portion of the complaint now, do it or accept that you won’t be able to do so if it continues to appear in an amended complaint.
  • If the court sustains a demurrer with leave to amend, it can now order a conference of the parties before an amended complaint is filed.
  • Are you a prisoner representing yourself or litigating an unlawful detainer? Then these rules don’t apply to you.
  • Generally, a complaint or cross-complaint shall not be amended more than three times in response to a demurrer.
  • Under the amended section 472, a party may now amend its pleading instead of opposing a demurrer if the parties so stipulate.