On an Anti-SLAPP motion attacking a “mixed” claim alleging both protected and unprotected conduct, the allegations of protected conduct are viewed separately, and if not merely incidental, are stricken unless the plaintiff shows a probability of succeeding on the claim based on those allegations alone. Following Baral v. Schnitt (2016) 1 Cal.5th 376, this decision holds that when an Anti-SLAPP motion is brought against a “mixed” claim that alleges both protected and unprotected conduct, the court should first determine if the protected conduct allegations are “merely incidental” providing “context” but not the substance of a claim. If so, the Anti-SLAPP motion should be denied. If, however, the court determines that the claim is based in part on protected conduct, it should determine whether the plaintiff has shown a reasonable probability of success on the claim, relying solely on the allegations of protected conduct and disregarding the allegations of unprotected conduct. If not, the court should grant the Anti-SLAPP motion to strike the allegations of protected conduct, leaving the rest of the claim intact and unaffected by the Anti-SLAPP motion. Here, defendant’s cross-complaint alleged breach of fiduciary duty and conversion of corporate assets by the majority shareholders, basing those claims in part on the majority shareholders having used corporate funds to finance the supposedly frivolous lawsuit against defendant. Funding a lawsuit is protected conduct. Defendant failed to show a probability of success on those allegations since she did not show the lawsuit against her was frivolous. So those allegations were stricken, leaving the remainder of the complaint unaffected.
California Court of Appeal, Third District (Murray, J.); March 20, 2017; 2017 WL 1068832