Wallace

Lois McCubbin and Joshua Merck appeal, from an order denying their special motion to strike two causes of action from respondents’ *1175 complaint under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) 1 They contend that the acts on which the causes of action are based constitute activity protected by the statute, and the court erred in ruling that those acts were merely incidental to the causes of action. We agree, confirming that the first prong of analysis under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action as respondents urge. McCubbin and Merck further contend that respondents did not demonstrate a probability of prevailing on the merits based on the alleged protected activity. Harmonizing and applying recent precedent, we agree on this point as well and conclude that the motion to strike should have been granted.

I. FACTS AND PROCEDURAL HISTORY

We begin with the facts, as alleged by respondents in their complaint.

A. Background

Victor Wu is the owner of a four-unit apartment building at 369-375 7th Avenue in San Francisco. The building is…

I concur in the disposition and judgment.

I agree with the majority to the extent my colleagues hold that the first and 13th causes of action alleged in plaintiffs’ complaint arise, at least in part, from protected activity and that the first prong of the anti-SLAPP statute (Code Civ. Proc., § 425.16) 1 has been satisfied. I also agree plaintiffs failed to carry their burden of demonstrating it was probable they would prevail on either cause of action and, accordingly, the trial court should have granted defendants’ motion to strike.

However, I respectfully disagree with my colleagues’ criticism of the rule articulated in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 [ 15 Cal.Rptr.3d 215 ] (Mann), and decline to join their offer of an alternative to what I view as the long-established prong-two analysis expressed by Mann and more recently by our Supreme Court in Oasis West Realty v. Goldman (2011) 51 Cal.4th 811 [ 124 Cal.Rptr.3d 256 , 250 P.3d 1115 ] (Oasis). My colleagues posit that “the question arises whether the plaintiff can satisfy this [prong two] burden by showing it could prevail based on any of the allegations underlying the cause of action, or…