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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Section 425.16, subdivision (b)(1) provides that a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech” may be subject to a special motion to strike. (Italics added.) It is not entirely clear what the Legislature meant by “cause of action.” As defined under the primary right doctrine, a cause of action refers to a singular harm and consists of a primary right of the plaintiff, a corresponding primary duty of the defendant, and an act or acts that breach the duty and infringe the plaintiff’s right. (McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159-1160 [69 Cal.Rptr.2d 692] (McDowell); see Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860 [21 Cal.Rptr.2d 691, 855 P.2d 1263] [cause of action is based on the harm suffered, not the legal theory of liability alleged].) At least two cases have defined “cause of action” in section 425.16 using the primary right theory. (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 659 [123 Cal.Rptr.3d 301]; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162 [64 Cal.Rptr.3d 488] (Marlin).) A more colloquial meaning—and one that other courts have assumed without analysis in anti-SLAPP cases— refers to the allegations a plaintiff has grouped together under the heading of “cause of action,” usually according to a particular legal theory or remedy sought, and which is more accurately called a “count." (See Slater v. Blackwood (1975) 15 Cal.3d 791, 795-796 [126 Cal.Rptr. 225, 543 P.2d 593] [a way of asserting the cause of action, usually by legal theory, is a “count,” but “cause of action” and “count” are sometimes used interchangeably].) As we shall see post, “cause of action” may have a narrower definition, such that a “cause of action” arising from protected activity refers to the allegations purporting to base liability specifically on activity set *1182forth in section 425.16, subdivision (e). We need not decide this issue for purposes of the first prong of the anti-SLAPP analysis, however, since all of these definitions lead to essentially the same question: is the primary right, count, or assertion of liability based on the defendant’s protected activity? We will therefore use the term “cause of action” in our first-prong analysis in the sense of what Wallace and Owen alleged as their first and 13th causes of action, and reserve our more thorough consideration of the matter for the second-prong analysis.

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