Is A Mixed Cause Of Action Subject to Strike Under Section 425.16?

WARNING: This post contains an advanced concept that may only be of interest to California defamation lawyers and other people who deal with anti-SLAPP motions on a regular basis.

OK. With that disclaimer in mind, what in the heck is a "mixed cause of action?"

A "mixed cause of action" means that the underlying allegations of a given claim contain both protected and unprotected conduct under the so-called anti-SLAPP statute.

This is important because a mixed cause of action is subject to the anti-SLAPP statute " . . . if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity." Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287.

Huh? That’s what I said to myself when I first read the above quote, so here’s how I keep it straight in my head:

1. Does the claim for defamation contain at least one allegation of conduct that is potentially protected?

2. Is the potentially protected conduct central or merely incidental to the unprotected conduct? If it is merely incidental, then the claim for defamation is not subject to section 425.16.

The reason for this rule is to prevent plaintiffs from "immunizing" a cause of action from the anti-SLAPP statute, by including extraneous allegations containing non-protected activity.

The rule seems to accomplish its purpose.


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