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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If a “cause of action” refers to the allegations based particularly on protected conduct, the statute’s directive that a cause of action is “subject to a special motion to strike” plainly provides for those specific allegations to be struck, without regard to any other allegations in the same count. (§ 425.16, subd. (b)(1).) But even if “cause of action” means what the plaintiff has alleged as a count, the statute does not state that a court only has the options of striking all of the cause of action or none of it. As of the enactment of section 425.16, it was well recognized that a “motion to strike” could result in the striking of “the whole or any part of a pleading. (§ 435, subd. (b)(1), italics added.) The motion to strike authorized by section 425.16 is “special,” because it does not depend on the requisites for a motion under section 435, but uses a different procedure when a defendant’s liability is based on activity set forth in section 425.16, subdivision (e). Putting this together, subdivision (b)(1) of section 425.16 may reasonably be read as follows: a cause of action arising from protected activity is subject to being struck, in whole or in part, to the extent it contains meritless assertions of liability based on protected activity. By striking the protected activity as a basis for liability, the legislative concerns expressed in the statute would be satisfied.

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