In a published opinion issued on August 23, 2021, the California Court of Appeal recently confirmed that California’s Anti-SLAPP statute – C.C.P. s. 425.16 – applies to amended claims similar or the same to those previously stricken on a prior anti-SLAPP Motion. Finato v. Keith A. Fink & Associates (2021) 58 Cal.App.5th 136.
Law Offices of Olaf J. Muller successfully argued this appeal on behalf of Appellants and Defendants.
Prior to the California Supreme Court’s seminal 2016 opinion Baral v. Schnitt (2016) 1 Cal.5th 376, this was a non-issue because California courts did not recognize or permit plaintiffs filing SLAPP claims to amend them:
“Although the anti-SLAPP statute does not specifically state it, a plaintiff whose complaint is stricken by a successful anti-SLAPP motion cannot try again with an amended complaint. There is no such thing as granting an anti-SLAPP motion with leave to amend” (emphasis added). Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676–77 (citing Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 167; Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 629).
As California courts reasoned, to permit the re-filing of a SLAPP via amended pleading would create a “procedural quagmire [wherein] the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent…. This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits.” Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th1068, 1074 [internal citations omitted].
Since Baral, however, California courts are now required to carefully parse out allegations targeting protected activity from allegations not targeting protected activity and only analyze the former for purposes of an anti-SLAPP Motion:
“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” (emphasis added). Baral v. Schnitt (2016) 1 Cal.5th 376, 396; see also Baral at 384 (citing Taus v. Loftus(2007) 40 Cal.4th 683, 712).
Further per Baral, a court analyzing an ostensibly “mixed” claim is empowered to strike “distinct claims within pleaded counts…” so long as “[t]he targeted claim… amount[s] to a ‘cause of action’ in the sense that it is alleged to justify a remedy” (emphasis added). Id. at 392, 395.
Thus, if a plaintiff brings a count for Breach of Contract and alleges three (3) different breaches within the body of that single count – only one of which alleged breaches targets SLAPP-protected conduct – the trial court must only consider and analyze that single alleged breach of contract for purposes of an anti-SLAPP motion and “disregard[]” the rest. Baral at 396. As the Finato trial court explained, California courts are now required to use a “scalpel” to cut out the SLAPP-protected activities on which a plaintiff cannot show a probability of prevailing.
The problem presented since Baral is that courts necessarily will cut sections of a Complaint out but leave the rest intact, similar to a C.C.P. §§ 435, 436 motion to strike. Depending on how a Complaint is written and what sections are stricken, this may lead to pleading uncertainties, rendering a Complaint difficult to understand and respond to as a defendant.
In the underlying matter – Finato v. Keith A. Fink & Assoc. – the trial court and Court of Appeal both granted portions of Defendants’ anti-SLAPP Motion, striking wide swaths of Plaintiff’s Complaint. The trial court struck multiple counts from Plaintiff’s Complaint, and the Court of Appeal struck several additional sections within the remaining pleaded counts. In so doing, these courts effectively struck allegations containing the alleged causal nexus between Plaintiff’s claims against Defendants and Plaintiff’s claimed damages.
For this reason, the Finato Defendants filed near-identical Motion for Judgment on the Pleadings and Demurrer post-remand (granted by the trial court), arguing that what remained of Plaintiff’s Complaint was fatally flawed. The trial court agreed, holding that there was a “lack of clarity” in Plaintiff’s post-remand Complaint, dismissing Plaintiff’s remaining claims, and granting Plaintiff leave to amend them, “to resolve the uncertainty and arguable inconsistencies of Plaintiff’s allegations regarding when the acts occurred, when they were discovered, when Plaintiff suffered injury or damages from each act, and when Plaintiff and Defendants’ relationship officially ended.”
In the Finato plaintiff’s subsequently amended Complaint, the plaintiff re-alleged many of the same or similar allegations that had been stricken by the courts per the defendants’ first anti-SLAPP motion. For this reason, the defendants filed a new anti-SLAPP motion targeting these new allegations.
Despite acknowledging that at least one of the paragraphs in the amended complaint targeted SLAPP-protected conduct and was identical to prior allegations previously stricken, the trial court held that the appropriate mechanism for striking this amended claim was a regular motion to strike, not an anti-SLAPP motion. Defendants appealed.
The Court of Appeal has since agreed with Defendants on this latter point: “We agree with defendants that a new anti-SLAPP motion is an appropriate method to attack an amended complaint asserting allegations struck by an earlier anti-SLAPP motion.” Finato at 232.
Interestingly, the Court of Appeal based its ruling in part on the foregoing caselaw forbidding plaintiffs to amend their SLAPP claims. Per the Finato Court, its first opinion constituted the “law of the case” and “our striking of the allegations… in Finato I barred plaintiff from repleading the allegations in an amended complaint.” Finato at 233, 234 (citing and quoting from Dickinson, supra, 17 Cal.App.5th at 676; Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 171; Simmons, supra, 92 Cal.App.4th 1068, 1073).
The Court of Appeal further held that that the moving defendants could prevail on their second anti-SLAPP motion simply by showing that the amended claims were materially identical to those stricken on the first anti-SLAPP motion, without having to engage in a second detailed SLAPP analysis in their moving papers:
“Defendants dispute the trial court’s conclusion that their motion lacked the required analysis. We need not resolve that question, however, because assuming arguendo defendants did nothing more than establish the allegations in paragraph 139 were materially identical to allegations struck in Finato I, that was sufficient to prevail on their anti-SLAPP motion as to that paragraph.” Finato at 235.
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