Court of Appeal Also Decides that Court Can Strike Portions of Claim Allegations in SLAPP Proceedings.
Cross-defendant in a defamation cross-claim partially won a SLAPP motion by which the lower court granted the motion by striking SLAPP-able allegations and denied the motion by allowing the unprotected theories to remain. The trial judge refused to award attorney’s fees to the winning SLAPP cross-defendant, prompting an appeal by cross-defendant.
The appellate court in Cho v. Chang, Case No. B239719 (2d Dist., Div. 4 Sept. 6, 2013) (partially published; fee discussion not published) affirmed the trial court’s rulings.
Although there is a division in intermediate appellate thinking in this area, the 2/4 panel sided with courts finding that it is appropriate for trial judges in SLAPP proceedings to strike claims or allegations that invoke protected activity but allowing those alleging nonprotected activity to remain. (Some appellate courts follow the view that a cause of action cannot be SLAPP-ed if any claim or allegation arises from protected activity.) “It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined into a single cause of action, some alleging protected activity and some not.” (Slip Opn., p. 11, published.)
The fee denial also was sustained. The reason? A mandatory fee award under the SLAPP statutes can be denied where the SLAPP motion accomplishes nothing of practical consequence. (Morrow v. Los Angeles Unified School Dist., 149 Cal.App.4th 1424, 1446 (2007).) That is what happened here: after striking the allegations involving protected activity, cross-complainant was still able to proceed with both of his defamation/emotional distress claims, with cross-defendant only striking allegations transparently protected by the litigation privilege. The lower court did not abuse its discretion in concluding “the ruling had produced nothing of consequence.”