Emerson Maintenance Assn. v. Gorenberg CA4/3
While the statute itself looks innocent enough, the Byzantine complexity of the application of Code of Civil Procedure section 425.16 (the anti-SLAPP statute) has vexed our profession throughout the three decades since its enactment. 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.)
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