Prevailing Party, SLAPP: Affirming Trial Court’s Granting Of Anti-SLAPP Motion With Modification To Separate Non-Protected Activities Within Cause Of Action Did Not Result In Reversal Of Fees/Costs Award

SLAPPing Defendants Were Still Prevailing Parties On The Protected Activity Allegations And, Therefore, Still Entitled To Attorney Fees And Costs.

            In BLT Communications, LLC v. LaMarche, Case No. B302527 (2d Dist., Div. 1 October 30, 2020) (unpublished), former employer plaintiff sued two of its former employees asserting a number of allegations. Plaintiff’s 4^th cause of action was a “mixed cause of action” that combined allegations of protected and unprotected activity.  When the former employee defendants SLAPPed back, the trial court struck plaintiff’s 4^th cause of action in its entirety, and awarded defendants $8,737.50 of their requested $14,275 in fees and costs.

            Plaintiff appealed – arguing the trial court overreached in striking the entire cause of action rather than separating the protected and unprotected activity within the cause of action.  Citing the results reached by the California Supreme Court in Baral v. Schnitt, 1 Cal.5^th 376 (2016), the 2/1 DCA agreed.  Baral dealt with the same mixed cause of action issue, except that the trial court denied defendant’s anti-SLAPP motion because plaintiff was able to show a probability of prevailing on the cause of action based on the unprotected activity allegations.  “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation. It follows, then, that courts may rule on plaintiffs’ specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity.”  (Baral, supra, 1 Cal.5th at p. 393.)  The appellate panel applied the same reasoning here – affirming the granting of the anti-SLAPP motion with directions that a modified order striking only the allegations of protected activity be entered – with the determination that although plaintiff was unable to demonstrate a probability of prevailing on the protected activity claims within its 4^th cause of action, it was not required to make such a showing of merit as to the unprotected activity claims at that early stage. 

            As to the attorney fees and costs, the 2/1 DCA affirmed.  Defendants remained the prevailing parties on the SLAPP motion with the claims against their protected activity being stricken from plaintiff’s complaint.  Therefore, defendants remained entitled to recovery of their attorney’s fees and costs under Code of Civ. Proc. § 425.16(c)(1).