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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One reasonable way of looking at the statutory language is that, by the Legislature’s use of different terms, a “cause of action” must mean something different than the “claim” for which there must be a probability of prevailing. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 518 [39 Cal.Rptr.3d 55] [use of different words in same section of the law as to the same subject indicates the words were meant to be understood differently].) Thus, while “cause of action” commonly refers to all the plaintiff has alleged in a count or as to a primary right, the “claim”—if it is to mean something else—must refer to the antecedent concept in subdivision (b)(1) pertaining more specifically to liability based on “act\s\ ... in furtherance of the person’s right of petition or free speech”—i.e., protected activity. (§ 425.16, subd. (b)(1), italics added.) Under this construction, when the statute requires the plaintiff to show a probability of prevailing on the “claim,” it would mean a probability of prevailing on the allegations that *1198specifically premise liability on the protected activity, not a probability of prevailing on some other aspect of what the plaintiff has pled as a cause of action.14

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