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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We must indeed be mindful of the burdensome nature of the procedure mandated by section 425.16. To demonstrate a probability of prevailing, the plaintiff must produce admissible evidence, from which a trier of fact could find in the plaintiff’s favor, as to every element the plaintiff needs to prove at trial and at least one element of any applicable affirmative defense. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [12 Cal.Rptr.3d 786] [requiring admissible evidence].) And the plaintiff must usually do so within about two months after filing the complaint and without conducting any discovery whatsoever except by court order—after yet further motion practice. (§425.16, subds. (f), (g).) It is one thing to impose this burden on the plaintiff for claims that actually target the activity protected under section 425.16, subdivision (e). It is quite another thing to impose this burden on the plaintiff for claims that have nothing to do with that protected activity, under threat of permanently eradicating those claims even if sufficient evidentiary support could eventually be collected in the normal course of litigation. What is more, since a plaintiff cannot effectively amend a complaint after an anti-SLAPP motion has been filed, a plaintiff cannot avoid the draconian result of the Mann rule by voluntarily deleting the allegations of protected activity from its complaint. (See Salma, supra, 161 Cal.App.4th at pp. 1293-1294; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054-1056 [18 Cal.Rptr.3d 882].)

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