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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To elaborate a bit further, a complaint may allege that protected activity gives rise to more than one “cause of action,” whether a cause of action is meant in its technical sense (an act that breaches a duty, thus infringing upon a primary right (see South Sutter, LLC v. LJ Sutter Partners, L.P., supra, 193 Cal.App.4th at p. 659; Marlin, supra, 154 Cal.App.4th at p. 162)) or in its colloquial sense (the count or legal theory the plaintiff has alleged). The second prong of the anti-SLAPP analysis tests whether the plaintiff has a probability of prevailing on the plaintiff’s “claim” that the protected activity, in itself, gives rise to liability under these causes of action. There may be a probability of prevailing as to one cause of action but not another, due to a difference in the elements of the legal theory or the defenses available. Thus the difference between “claim” and “cause of action.” If there is no probability of prevailing on a claim targeting protected activity, the cause of action is “subject to a special motion to strike” (§ 425.16, subd. (b)(1)), and that portion for which there is no probability of prevailing is stricken. (See post.)

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