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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In the second prong of the anti-SLAPP analysis, the court must determine whether the plaintiff has shown, by admissible evidence, a probability of prevailing on the claim. (§ 425.16, subd. (b).) The trial court in this case did not decide this issue, because it ruled against McCubbin and Merck in prong one. In such circumstances, we may remand the matter to the trial court to conduct the second-prong analysis. (See, e.g., Birkner, supra, 156 Cal.App.4th at p. 286.) On the other hand, we have discretion to decide the issue ourselves, since it is subject to independent review. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616 [129 Cal.Rptr.2d 546] [deciding prong-two issue despite trial court’s failure to reach it].)

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