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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Therefore, Mann not only permits the plaintiff to shield meritless claims of protected activity, it permits the defendant to force the court to test (and strike) claims of unprotected activity under the banner of a statute that does not even purport to protect such activity. Allowing a defendant to do this, with the hopes of getting rid of the entire count rather than just the claims targeting protected activity, would turn the statute’s “special motion to strike” (§ 425.16, subd. (b)(1)) into a “broad-brushed” premature summary adjudication motion. (Compare § 425.16, subd. (f) [anti-SLAPP motion may be filed within 60 days of service of complaint or by court order] with § 437c, subd. (a) [summary judgment motion may be filed after 60 days from opponent’s general appearance or by court order, upon 28 days’ notice].) In our view, that is not sound public policy. Nor does it seem wise to force trial judges to wade through the evidentiary submissions and legal arguments to rule on such a motion, whether their additional effort would be minimal (as in the matter before us) or substantial (as in a situation where the bulk of allegations are based on unprotected activity (see, e.g., Haight Ashbury, supra, 184 Cal.App.4th at pp. 1544-1545, 1552)), without clear indication from the statute or the Legislature that such effort is required.

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