Emerson Maintenance Assn. v. Gorenberg CA4/3

INTRODUCTION

While the statute itself looks innocent enough, the Byzantine complexity of the application of Code of Civil Procedure section 425.161 (the anti-SLAPP statute) has vexed our profession throughout the three decades since its enactment. 2 This case requires us to address an issue that has contributed greatly to that vexation: When does a cause of action arise from constitutionally protected activity? Answering this question can become an involute process, particularly in cases in which a cause of action is supported by so-called “mixed” allegations; both protected and unprotected conduct. Out of which type of conduct does the cause of action arise? In Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), the California Supreme Court provided insight on how courts should answer this question: we should sift out allegations of unprotected activity and concentrate our attention on whether the allegations of protected activity can provide a basis for liability. (Id. at p. 393.) In so doing, the high court endorsed a particularized use of the anti-SLAPP motion more in the vein of a traditional motion to strike: “the Legislature’s choice of the term ‘motion to strike’ reflects the…