Trial courts are not required to take on the moving party’s burden of identifying specific claims or allegations susceptible to a special motion to strike under California’s anti-SLAPP law. When defendants file an anti-SLAPP motion that seeks to strike the entire complaint but does not identify specific claims or allegations that should be stricken even if the entire complaint is not, the trial court can properly deny the motion so long as it concludes that the complaint presents at least one claim that did not arise from anti-SLAPP protected activity.
California’s anti-SLAPP law (i.e. Code of Civil Procedure § 425.16) is intended to provide a (supposedly) quick and inexpensive defense to protect rights of free speech and petition for all Californians. A defendant may file an anti-SLAPP motion within 60 days after service of the complaint, and the court will hear the motion within 30 days unless the docket does not allow. Cal. Civ. Proc. Code § 425.16(f). Discovery is usually stayed upon filing of the motion until the court enters an order ruling on the motion. Cal. Civ. Proc. Code § 425.16(g).
As the California Supreme Court explained in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, “[l]itigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least minimal merit.’ If the plaintiff cannot make this showing, the court will strike the claim.” Id. at 1009 (internal citations omitted).
A recent decision, Park v. Nazari (Cal. Ct. App., July 25, 2023, No. B320483) 2023 WL 4729968, makes it clear that defendants, as moving parties for a special motion to strike the entire complaint, have the burden to identify all allegations of protected activity and the claims for relief supported by them. Once the trial court concludes—correctly—that the complaint presents at least one claim that does not arise from anti-SLAPP protected activity, the court may deny the entire anti-SLAPP motion.
In Park, after obtaining a judgment against the defendants Kelly and Shariar Nazaris in a prior case, plaintiffs filed a second action against the Nazaris, their attorney, and others for fraudulent transfer, quiet title, and declaratory relief. Plaintiffs alleged that the Nazaris’ attorney fraudulently recorded liens against certain property and transferred the rights to the liens to a third party, who acted as a strawman on behalf of the Nazaris. Id. at *2. Plaintiffs’ complaint sought to set aside the transfers or, at a minimum, obtain a determination that their title to the property and liens were superior to the liens obtained by the Nazaris’ attorney and the third party. Id.
The trial court had previously granted the attorney’s anti-SLAPP motion, determining that plaintiffs’ claims against the attorney arose from protected activity because they were “based on the payment [he] received from his clients in exchange for legal services performed in another action. Broadly construed, the anti-SLAPP statute encompasses this activity because such payment is made in connection with a judicial proceeding.” Id. The trial court additionally concluded that plaintiffs had not satisfied their burden of demonstrating a probability of success on the merits because the evidence indicated the disputed transfers were not fraudulent, the fraudulent transfer claims were barred by the litigation privilege in any case, and the judgment in the prior action “did not affect title to, or possession of the properties at issue.” Id.
The Nazaris filed their anti-SLAPP motion a few weeks after the trial court had granted the attorney’s anti-SLAPP motion. They argued that all of plaintiffs’ claims arose from protected activity under Section 425.16(e)(2). They also raised many of the same arguments in the attorney’s motion and contended that order was “entitled to collateral estoppel effect.”
Although the Nazaris’ motion sought to strike the entire complaint, at the hearing, the Nazaris suggested that the trial court could strike some of plaintiffs’ claims even if it did not strike the entire complaint. Id. at *3. The trial court observed the Nazaris “didn’t ask for that” in the motion and, when the Nazaris’ counsel suggested they “[did not] have to ask for that,” the trial court responded “I’m supposed to guess what you want? You made a motion that asks specifically that the entire complaint be dismissed…. It is only at this moment that you’re now asking, ‘oh, no, no, if you’re not going to throw out the complaint, throw out certain causes of action.’ You did not seek that relief.” Id.
As such, the trial court declined the Nazaris’ belated request to strike a more limited set of allegations and explained that although “a court may grant a motion to strike individual allegations of protected activity within a complaint or cause of action,” no authority requires such an analysis “where the movant has taken the position that the entire complaint arises from protected activity and requests that the entire complaint be stricken.” Id. at *3.
The appellate court affirmed the trial court’s decision, noting that the moving party bears the burden “to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.” Id. (citing Bonni, 11 Cal.at 5th at 1009). As the appellate court pointed out:
Because the Nazaris 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.
Further, because the Nazaris’ anti-SLAPP motion did not raise the same issue as their attorney’s prior motion, the Nazaris’ issue preclusion argument did not stand. The appellate court did not even have to decide whether a prior order in the same litigation might have preclusive effect. Id. at *6.
Practice Tips
While anti-SLAPP motions can be powerful tools in litigation, the moving party must be careful to specify the relief sought, including asking the court to strike specific allegations or causes of action even if the entire complaint is not stricken. In drafting and arguing such motions, practitioners should specify all allegations and parts of the complaint they are challenging under the anti-SLAPP law. As the Park court stated, it had no “freestanding obligation … to cure defects in an overbroad motion.”
For further questions or comments on the content of this post, please email Matt Cave at [email protected] or Sara Borjigin at [email protected].
