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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By contrast, under the Mann rule—permitting the plaintiff to show a probability of prevailing based on ««protected activity—the plaintiff could circumvent this laudatory purpose and insulate his or her baseless attacks on a defendant’s exercise of free speech and petition, merely by also alleging some unprotected activity for which there is some probability of success, and inserting it into the same count. Indeed, all the plaintiff would have to do would be to show some modicum of merit to the claims based on ««protected activity, and the trial court would never even have to look at the merit of the claims targeting protected activity. That seems to be an odd way of protecting the activity the statute calls us to protect.18 As the court in Peregrine Funding observed in another context: “Where, as here, a cause of action alleges the plaintiff was damaged by specific acts of the defendant that constitute *1203protected activity under the statute, it defeats the letter and spirit of section 425.16 to hold it inapplicable because the liability element of the plaintiff’s claim may be proven without reference to the protected activity.” (Peregrine Funding, supra, 133 Cal.App.4th at p. 674.)

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