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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Assume that a plaintiff has alleged a cause of action (count) containing protected activity and unprotected activity. The defendant files a special motion to strike. In prong two, the plaintiff would try to show the merit of its claims based on protected activity. Unless the plaintiff is extremely confident that it can establish this merit at such an early point in the case, the plaintiff would also attempt to show a probability of prevailing based on the unprotected activity, not only to save the allegations of protected activity (under the Mann rule), but also to save the remainder of the cause of action from being stricken. If the plaintiff can make that showing, the plaintiff has saved the cause of action, albeit at additional effort and expense. But if the plaintiff cannot make that showing, the entire count—protected activity and unprotected—is stricken with prejudice, before the plaintiff has had the usual *1206opportunity to develop the case, and even though there is no stated authority in the statute or legislative history for testing the merit of claims based on unprotected activity.

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