Gravamen theory in anti-SLAPP

The California anti-SLAPP statute (Code of Civil Procedure Section 425.16) has been a hotbed of litigation for years. And to no surprise. Not only have the courts continued to expand the reach of the statute, consistent with the statutory mandate that it be "construed broadly," but it remains a powerful litigation tool with its stay of discovery, recovery of attorney fees and costs, and immediate right to appeal. This may explain why the bench and bar alike react with great enthusiasm when additional guidance on Section 425.16 arrives in the form of a new court of appeal opinion or, better yet, a Supreme Court decision, particularly one that resolves a clear, long-standing conflict among district courts of appeal.

Baral v. Schnitt

One such decision was Baral v. Schnitt, 1 Cal. 5th 376 (2016). In Baral, the California Supreme Court resolved a conflict that had existed in the courts of appeal for years regarding whether an anti-SLAPP motion may be use to strike specific allegations of a complaint where one or more cause of action alleges both protected and unprotected activity -- so-called "mixed causes of action." "When causes of action contain allegations of both protected and unprotected activity, the moving defendant has the burden of proof of identifying all allegations of protected activity and the claims of relief supported by them. Those allegations alone can be stricken, unless they also support a distinct claim on which P has shown a probability of success on those claims."

The court explained that allowing anti-SLAPP motions to strike specific allegations of protected activity, "rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity," was consistent with both the language and intent of the statute.

Baral answered a long-standing question and seemed to resolve years of conflict. In doing so, the court expressly rejected the application of the "primary right theory" -- a primary right is indivisible and gives rise to a single cause of action -- to analyze whether challenged claims arose from that protected activity. The court found that the primary right theory is both "notoriously uncertain in application" and inconsistent with the anti-SLAPP statute which permits the striking of specific allegations, even within a single cause of action.

But the Supreme Court may have some unfinished business here. Indeed, yet another conflict between at least two appellate district courts may be looming on the proper analysis of mixed causes of action in the context of the anti-SLAPP statute.

Sheley v. Harrop

In March, the 3rd District Court of Appeal affirmed a trial court order denying cross-defendant's anti-SLAPP motion to strike, but modified that order, consistent with Baral, to strike only the allegations of protected activity within each cause of action. Sheley v. Harrop, 9 Cal. App. 5th 1147 (2017). Sheley involved shareholders' cross-allegations of misconduct, including breach of fiduciary duty and conversion, in the financial management of a corporation. The cross-complaint included factual allegations regarding the "instant litigation," including the "filing and maintaining" the "frivolous" complaint in "bad faith," in support of each cause of action.

After determining that the allegations related to the "instant litigation" were protected activity under the anti-SLAPP statute, the Sheley court properly proceeded to analyze whether challenged claims "arose from" that protected activity. Relying on Baral and its express rejection of the "primary right theory" for this purpose, the Sheley court refused to consider the "overall or gestalt 'primary thrust' or gravamen' of the complaint." Instead, the Sheley court focused on whether the allegations of protected activity were merely incidental or collateral to the challenged claims. The court found the allegations of protected activity were not merely incidental because they supported a claim for recovery. Therefore, the court concluded that the causes of action arose from cross-defendant's right of petition or free speech.

Okorie v. L.A. Unified School District

Last month, the 2nd District Court of Appeal expressly rejected the Sheley court's analysis and, instead, applied the principle thrust/gravamen analysis to determine whether a plaintiff's claim arises from protected activity in the context of an anti-SLAPP motion. Okorie v. Los Angeles Unified School District, 2017 DJDAR 7923.

In Okorie, a teacher sued the school district and his supervisors alleging discrimination, harassment and retaliation in 2013 as well as in 2014 when it reassigned him to home leave pending an investigation into allegations that he sexually abused a student. The school district filed an anti-SLAPP motion which sought to strike the entire complaint on the grounds that the "principal thrust" or "gravamen" of the complaint, including each of the eight causes of action, was based on protected activity in conjunction with an investigation into the molestation allegations. In opposition, plaintiff submitted a declaration not only denying the allegations of misconduct, but detailing the district's harassment alleged in his complaint, some of which predated the 2014 investigation.

The trial court agreed with the defendant's gravamen argument and, on that basis, granted the motion to strike the entire complaint. In affirming the trial court, the court of appeal criticized the Sheley court's general rejection of the principal thrust/gravamen analysis for three reasons: (1) Baral did not address, much less disapprove of the principle thrust/gravamen analysis when it rejected the primary right analysis as inapplicable to anti-SLAPP motions; (2) Baral permitted, but did not mandate, striking allegations of protected activity within a cause of action, particularly where, as in Okorie, the anti-SLAPP motion sought only to strike the entire complaint; and (3) Baral provided no guidance on how to proceed where the claims of protected and unprotected activity are largely indistinguishable, "even enmeshed one within another," and the motion seeks to strike the entire complaint, not specific allegations.

Within one year of the welcomed Baral decision, it appears that a conflict has arisen between district courts of appeal on the appropriate analysis involving mixed causes of action. After all, one district court expressly criticized the analysis of another district court for its express refusal to apply the gravamen theory. But is this an actual conflict?

On the on hand, it may not be. Both Sheley and Okorie are consistent with the high court's decision in Baral in that both acknowledge the need to prevent parties attempting to "frustrate the purpose of the SLAPP statute" by combining allegations of protected and unprotected activity within a single cause of action. They merely differ on the analysis available and perhaps the potential remedy. Plus, Okorie arguably presents a unique factual scenario for which it claims there is no guidance -- the claims of protected and unprotected activity are indistinguishable and the motion seeks to strike only the entire complaint.

On the other hand, the complaint in Okorie did contain allegations of unprotected activity, including legitimate adverse employment actions, which may support the opposing party's claims of discrimination, harassment and retaliation -- identifiable allegations which could have been stricken. This point was raised in the Okorie dissent which cited Park v. Board of Trustees, 2 Cal. 5th 1057 (2017), a decision in which the high court expressed concern over the potentially devastating impact of anti-SLAPP motions on discriminatory decisions made by public entities. What is more, in Baral, the court emphasized the importance of the moving party's initial burden of proof of identifying all allegations of protected activity. Okorie may be interpreted as having diluted that initial burden. Moving to strike an entire complaint under Section 425.16 without also seeking an alternative remedy of striking specific allegations of protected activity was a risky proposition after Baral. It seems even more risky after Sheley and, for that matter, after Okorie. Whether it is actually futile or a potentially acceptable strategy may depend on whether California's high court weighs into the debate over the application of the gravamen theory.