Section 425

Citation: Section 425
Parent Document: Wallace v. McCubbin, 196 Cal. App. 4th 1169 (2011)
Jurisdiction: California (state)
Effective Date: 2011-06-27
Original Source: https://www.courtlistener.com/opinion/5810370/wallace-v-mccubbin/ ↗

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Wallace and Owen’s arguments to the contrary are unpersuasive. They contend that the wrongful eviction cause of action does not arise from the three-day notice and unlawful detainer litigation, because those acts are merely incidental to their claim. For purposes of anti-SLAPP analysis, however, an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability. (Haight Ashbury, supra, 184 Cal.App.4th at p. 1550; see Episcopal Church Cases (2009) 45 Cal.4th 467, 477-478 [87 Cal.Rptr.3d 275, 198 P.3d 66] [allegation that “lurk[s] in the background” to explain why a lift between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1628 [90 Cal.Rptr.3d 669] [allegations about a law firm’s protected communications for purposes of showing the firm had a conflict of interest]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414-417 [9 Cal.Rptr.3d 242] [defendant’s advertising activity was merely incidental to plaintiff’s causes of action for personal injury, where liability for those claims was based not on the advertising but on the product’s failure to conform to defendant’s warranties and statements].) It makes no sense for Wallace and Owen to argue that their cause of action for defendants’ attempt to evict them wrongfully is not based on defendants’ alleged attempt to evict them.

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