June 12, 2015

Inclusionary housing, sentencing enhancement opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases argued on the April calendar.

California Building Industry Association v. City of San Jose raises the question:  What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that require set asides or in-lieu fees as a condition of approving a development permit?  (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670.)

In People v. Le, the court will address whether Penal Code section 1170.1, subdivision (f), as interpreted by People v. Rodriguez (2009) 47 Cal.4th 501, precludes a trial court from imposing both a firearm use enhancement under Penal Code section 12022.5, subdivision (a), and a gang enhancement under Penal Code section 186.22, subdivision (b)(1)(B), when the offense is a serious felony as a matter of law.
The court also asked for supplemental briefing concerning whether the People adequately met their pleading burden by generically pleading the Penal Code section 186.22 enhancement under subdivision (b)(1) without greater specificity as to whether the People sought enhancement under subdivision (b)(1)(A), (b)(1)(B), or (b)(1)(C) of that section, and whether, in light of such generic pleading, the People should be estopped from relying or permitted to rely at sentencing on subdivision (b)(1)(B) of section 186.22.  (Pen. Code, § 1170.1, subd. (e); People v. Mancebo (2002) 27 Cal.4th 735.)

The opinions can be viewed Monday starting at 10:00 a.m.


June 8, 2015

5-justice per curiam opinion affirms death penalty; Batson/Wheeler issue continues as a point of disagreement

The Supreme Court today affirms the death penalty in People v. Scott.  We had been watching Scott as a possible indicator of change at the Supreme Court, especially because the court had asked for post-argument briefing concerning race-based peremptory challenges of prospective jurors, an issue of some contention between Justice Goodwin Liu and the other justices since before Justices Mariano-Florentino Cuéllar and Leondra Kruger joined the court in January.  Scott shows that there remains disagreement on the court about how judges should handle defense claims of discriminatory peremptory challenges (known as Batson/Wheeler claims), but the division is of no consequence in this particular appeal.

A five-justice majority opinion in Scott rejects the African American defendant’s Batson/Wheeler claims of racial discrimination in the prosecutor’s dismissal of two of three African American prospective jurors, concluding that the dismissals did not raise any inference of discrimination.  (In the process, the court also disapproves portions of three of its prior opinions.)  Justice Liu, joined by Justice Kruger, writes separately, agreeing the Batson/Wheeler claim fails in this case, but contending that, instead of evaluating whether there was an inference of discrimination, the court should be examining the propriety of the prosecutor’s stated explanation for his peremptory challenges in light of all the evidence.  Here’s the apparent point of disagreement:  when a prosecutor states racially neutral reasons for peremptory challenges — when he or she doesn’t have to state reasons at all — should the reasons be examined to determine if they’re pretextual.

Justice Liu says the court should not determine whether there was a discriminatory purpose behind the strikes “based on ‘needless and imperfect speculation’ ” about the prosecutor’s reasons when there were ” ‘actual answers’ to that question” by the prosecutor.  He concludes the majority’s “approach cannot be reconciled with the Batson framework and risks weakening the constitutional prohibition on racial discrimination in jury selection,” and also that it “puts this court at odds with the majority of state high courts and federal circuit courts that have considered the issue.”  The majority, on the other hand, concludes that its “analytical model rests within the discretion granted us” by U.S. Supreme Court precedent.

One unusual aspect of the court’s opinion is that it is the court’s opinion.  That is, the author is “The Court,” not any particular justice.  From very quick Westlaw research, it looks like the last time the court issued a per curiam opinion in a death penalty case, or, for that matter, in any case other than one involving attorney discipline or bar admissions, was a dozen years ago in People v. Snow (2003) 30 Cal.4th 43.  Why a per curiam opinion in Scott?  We don’t know, but we can offer pure speculation:  it’s possible the case was worked up in large part in the chambers of one of the recently retired justices (Justices Joyce Kennard or Marvin Baxter) and none of the five-justice majority felt comfortable claiming authorship even though they all agreed with the opinion’s result and reasoning.

June 5, 2015

Batson/Wheeler death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Scott, an automatic death penalty appeal in which the court requested post-oral argument supplemental briefing on Batson/Wheeler jury selection issues.

We’ve identified Scott as a case that might show a shift in the way the court handles death penalty cases.  John Roemer’s lead article in today’s Daily Journal (“Racial bias in jury selection to get another state Supreme Court test”) [subscription] makes the same point.  Roemer writes that “[r]acial bias in jury selection has gotten heightened scrutiny at the state Supreme Court since Justice Goodwin H. Liu called out his colleagues on the topic in 2013.”  That’s a reference to Justice Liu’s separate opinions in a trio of death penalty cases two summers ago.

Scott was argued on the court’s January calendar, but the post-argument request for briefing delayed submission of the case by two months.

The Scott opinion can be viewed Monday starting at 10:00 a.m.

June 5, 2015

New principal attorney to the Chief Justice appointed

Carin Fujisaki has been appointed as the principal attorney to Chief Justice Tani Cantil-Sakauye.  The position is a prestigious one, primarily assisting the Chief Justice with her role as leader of California’s judicial branch, one of the Chief Justice’s two more-than-full-time jobs.  Fujisaki said she looks forward to providing the Chief Justice with counsel “on administrative and policy issues, and to serv[ing] as the Supreme Court’s liaison to bodies such as the State Bar of California, the State Bar Court, and the Commission on Judicial Performance.”

Fujisaki has worked at the Supreme Court for 25 years, including more than 20 years as one of now-retired Justice Marvin Baxter’s staff attorneys.  She replaces Beth Jay, who retired over two years ago, but later returned to serve on a part-time basis.

June 4, 2015

Undocumented lawyer is now documented

Seventeen months ago, the Supreme Court — with the Legislature’s blessingadmitted Sergio Garcia to the bar even though he was an undocumented immigrant and even though the “court’s granting of a law license to undocumented immigrants would not override or otherwise affect the federal limitations upon the employment of undocumented immigrants” (In re Garcia (2014) 58 Cal.4th 440, 463).  Well, Garcia is undocumented no longer.  He got his green card today.

Coincidentally, a New York intermediate appellate court yesterday approved a law license for another undocumented immigrant, although one who had been granted relief under the Deferred Action for Childhood Arrivals program.

June 2, 2015

Ninth Circuit affirms overturning of Supreme Court approved death penalty

Speaking of Supreme Court death penalty jurisprudence . . . the Ninth Circuit today affirms a district court decision that partially granted a habeas corpus petition, overturning a death sentence the California Supreme Court had affirmed over 20 years ago in People v. Pensinger (1991) 52 Cal.3d 1210.  Today, in Pensinger v. Chappell, the Ninth Circuit finds prejudicial error in the trial court’s failure to sua sponte give the jury a particular instruction about kidnap-murder special circumstance.

June 2, 2015

No conference held the week of June 1, 2015

The Court is holding no conference this week because it is hearing oral argument in Los Angeles. Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

June 2, 2015

“Liu’s role debated in capital case reversals”

John Roemer reports in today’s Daily Journal [subscription] that since Justice Goodwin Liu’s lone, long concurring and dissenting opinion a year ago in People v. Jackson (2014) 58 Cal.4th 724, 774, the court has reversed death sentences four times and, with two additional appointees of Governor Jerry Brown, “appears to take much more seriously its role in scrutinizing capital appeals.”

In Jackson, a 6-1 court found to be harmless the trial court’s error in requiring the defendant to wear a stun belt during trial.  Justice Liu concluded that the court’s holding was a sign of a systemic problem:  “the dubious reasoning in today’s decision is not an isolated lapse in our harmless error jurisprudence.”

The court has recently decided two civil cases regarding causation.  (Here and here.)  Whether there is a causative link between Justice Liu’s separate opinion in Jackson and the four subsequent death penalty reversals — all unanimous decisions (see here, here, and here) — is debatable.

As we’ve said, a better indicator of a shift in the court’s handling of automatic death penalty appeals might be in how the court deals with Batson/Wheeler issues in People v. Scott, a case in which the court asked for post-argument briefing.  Another bellwether, especially on the issue of harmless error, could be the court’s opinion after rehearing in People v. Grimes.

The court should file its opinion in Scott on Thursday or next Monday.  Grimes is awaiting re-argument.

June 1, 2015

Department of Mental Health not liable for murder by parolee; death penalty affirmed

The Supreme Court today holds a murder victim’s sister could not sue the Department of Mental Health for failing to petition under the Sexually Violent Predators Act for the commitment of the murderer before his parole from prison.  In State Department of State Hospitals et al. v. Superior Court, the court concluded that, although the lawsuit’s allegations established the Department violated a mandatory statutory duty in the way it conducted its evaluation of the murderer, any wrongdoing by the Department was not the proximate cause of the death.  The court affirms the Second District, Division Three, Court of Appeal.

All seven justices agreed with the result, but there was a division regarding the reasoning.  The majority opinion — written by Justice Carol Corrigan and concurred in by Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Mariano-Florentino Cuéllar — found that, in addition to a weak showing of “but for” causation, “policy considerations bearing on the question of proximate cause are also a considerable obstacle to plaintiff’s claim.”  A concurring opinion by Justice Kathryn Werdegar, signed by Justices Goodwin Liu and Leondra Kruger, criticizes the majority’s reliance on policy considerations, stating that “[t]he majority cites no public policy stating the outcome of a discretionary decision may not form part of the chain of events a tort complaint hypothesizes as what would have happened but for the defendant‘s breach of duty.”

In a second opinion filed today — in People v. Charles — the court unanimously affirms a death penalty judgment.  The decision, authored by Justice Werdegar, rejects claims, among others, that there shouldn’t have been a fourth penalty phase trial, that the trial court erroneously admitted a jailhouse letter written by the defendant, and that there was prosecutorial misconduct.

May 29, 2015

Third party crime liability, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases involving murders.  One is a death penalty appeal; the other concerns possible civil liability for a murder committed by another.

State Department of State Hospitals et al. v. Superior Court, which is the last of the March calendar cases, raises these questions:  (1) Did the state comply with the requirement of the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) that it conduct a “full evaluation” of an inmate potentially qualifying as a “sexually violent predator” prior to the inmate’s release?  (2) Did the Court of Appeal err in finding that, as a matter of law, plaintiff could not establish that defendants’ actions were a proximate cause of her injuries?

People v. Charles, which was argued on the April calendar, is an automatic appeal from a January 1999 judgment of death.

Both opinions can be viewed Monday starting at 10:00 a.m.

May 28, 2015

Three unanimous opinions, including Justice Cuéllar’s first, and a death penalty reversal

The Supreme Court filed three unanimous opinions today, including one reversing a death penalty and another by Justice Mariano-Florentino Cuéllar, the first written by either of the court’s two newest justices.

The death penalty case is People v. Trujeque.  In an opinion written by Justice Ming Chin, the court holds, among other things, that a prior second degree murder conviction supporting a special-circumstance finding violated the double jeopardy clause of the federal and state constitutions and that the prosecution should not have been allowed to refile another murder charge which supported a different special-circumstance finding.

Justice Cuéllar’s maiden opinion is in People v. Ford.  Not deciding the statutory interpretation question whether a court retains jurisdiction to modify a criminal restitution award after a defendant’s probationary term has expired, the court holds that the defendant was estopped to challenge the modification because he had consented to the court’s continued jurisdiction.  The opinion affirms the First District, Division Three, Court of Appeal.

The crime victim in Ford asked under Marsy’s Law to participate in the Supreme Court oral argument, but the court allowed her only to submit a letter.  The court’s opinion doesn’t mention this, although it does summarize the victim’s testimony below.

Justice Cuéllar’s first opinion comes less than five months after he joined the court.  We also now know that Justice Cuéllar will not be joining Justice Goodwin Liu in eschewing footnotes in his opinions.

The third opinion, in South Coast Framing, Inc. v. W.C.A.B., is authored by Justice Carol Corrigan.  The court reinstates an award of workers’ compensation death benefits, finding sufficient evidence of a causal link between the worker’s industrial injury and his death.  The Fourth District, Division One, Court of Appeal, had found a lack of substantial evidence to support causation, but the Supreme Court reversed, concluding that the Court of Appeal’s “analysis fails to honor the difference between tort law principles and the application of the workers’ compensation scheme.”  The Supreme Court also criticized a practice guide — Dobrin, California Workers’ Compensation Law and Practice — on which the Court of Appeal had relied in imposing an improperly high causation standard.



May 27, 2015

No conference held the week of May 25, 2015

The Court is holding no conference this week because it is hearing oral argument in San Francisco. Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.

May 27, 2015

Last “transition” rehearing petition denied with no votes from the new justices [UPDATED]

The Supreme Court this afternoon denied rehearing in Berkeley Hillside Preservation v. City of Berkeley.  The denial of a rehearing petition is usually the most mundane of events; the outcome of such a petition is traditionally as suspenseful as a Turkmenistan election.  But, when a petition to rehear a case with a non-unanimous opinion is ruled on by newly appointed justices who have replaced justices who were in the majority, things can get interesting.  We’ve been calling those petitions “transition” rehearing petitions.

There were five transition rehearing petitions this year.  One was granted — in People v. Grimes — when new Justices Mariano-Florentino Cuéllar and Leondra Kruger voted with dissenting Justices Kathryn Werdegar and Goodwin Liu.  Two others were just barely denied (here and here) — in Johnson v. California Department of Justice and People v. Johnson; in both, Cuéllar joined dissenters Werdegar and Liu in wanting rehearing, but Kruger did not.  In Berkeley Hillside, as in People v. Mosley (here), only Werdegar and Liu, but neither Cuéllar nor Kruger, voted for rehearing.

The Berkeley Hillside petition might have been a closer call than it appears, however.  The court normally rules on rehearing petitions at its regular Wednesday conferences.  Last Wednesday was the court’s last conference before expiration of the court’s time to rule this Friday (there was no conference today because the court is hearing arguments this week), but, at that conference, the court ruled on the People v. Johnson petition, but not on the one in Berkeley Hillside.  The wait until almost the last minute on Berkeley Hillside and not ruling at a regular conference could be a sign of some uncertainty on how to rule, including possible discussions about whether to modify the court’s opinion.

Now that the transition rehearing petitions have all been decided, it will probably be quite some time before anyone is holding his or her breath waiting for a ruling on a Supreme Court rehearing petition.

[Update:  After this post was published, the court’s website was updated to show that the court did in fact modify its opinion.  The modification will likely soon be available here.]

May 27, 2015

Workers’ compensation, criminal restitution/Marsy’s Law, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file three opinions:

(1)  People v. Ford , which was argued on the April calendar, is of interest not only for the issues presented, but because the crime victim in the case asked to speak at the Supreme Court oral argument.  The court decided that the victim’s rights under Marsy’s Law are complied with by having her address the court in writing, which she did, submitting a letter several days before the argument.  The court’s opinion might include a discussion why a crime victim can’t participate in an appellate oral argument, but can file a written statement.

Ford raises the issue whether the trial court had jurisdiction to award restitution to the victim although defendant’s probationary term had expired nine days earlier.  The court also specifically asked counsel to address at the argument these questions:  (1) Is the trial court’s order of May 17, 2012, an appealable order?  (See Pen. Code, § 1237; cf. Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050.)  (2) If not, is the order subject to discretionary writ review?  (3) If the order is not appealable but is reviewable by a discretionary writ, may and should this court treat the purported appeal as a writ?  (See Olson v. Cory (1983) 35 Cal.3d 390, 401.)  (4) Should defendant be estopped from challenging the jurisdiction of the trial court to award restitution after his probation had expired?

(2)  South Coast Framing, Inc. v. W.C.A.B. raises this question:  Does a claim for workers’ compensation death benefits have a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a “material factor” contributing to the employee’s death, or does the standard require only that the industrial injury be a “contributing cause”?

(3)  People v. Trujeque is an automatic appeal from a November 1999 judgment of death.

South Coast Framing and Trujeque were both on the court’s March calendar.

Looking ahead, the court will likely file its opinion in State Department of State Hospitals et al. v. Superior Court this coming Monday, which is the last day of the 90-day filing period for the last of the March calendar cases.

The Ford, South Coast Framing, and Trujeque opinions can be viewed tomorrow starting at 10:00 a.m.

May 24, 2015

Summary of May 20, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 20, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Gerard v. Orange Coast Memorial Medical Center, S225205—Review Granted—May 20, 2015

The questions presented are: (1) whether the health care industry meal period waiver provision in section 11(D) of the Industrial Wage Commission (IWC) Order No. 5-2001 is invalid under Labor Code section 512, subdivision (a) (section 512); and (2) whether the decision of the Court of Appeal partially invalidating the Wage Order should be applied retroactively?

Plaintiff health care workers allege they signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period. Despite section 512’s requirement of two meal periods for shifts longer than 12 hours, the IWC order authorizes employees in the health care industry to waive one of those meal periods on shifts longer than eight hours. The trial court granted summary judgment to the defendant and denied plaintiffs’ motion for class certification, ruling there was no disputed issue of material fact as to plaintiffs’ cause of action for meal period violations because plaintiffs were provided meal periods as required by law.

The Court of Appeal, Fourth District, Division Three, held in a published decision, Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285, that the IWC order was invalid to the extent it authorized waivers of second meal breaks on shifts exceeding 12 hours. It found that everything in the legislative history evidences the intent to prohibit the IWC from amending its wage orders in ways that conflict with section 512’s meal period requirements, including the proviso that second meal periods may be waived only if the employee works less than 12 hours. Additionally, the Court of Appeal held that, with the exception of plaintiffs’ premium wage claims based on Labor Code section 226.7, the retroactive application of its decision partially invalidating section 11(D) must be litigated on remand because there is no compelling reason of fairness or public policy that warrants an exception to the general rule of retroactivity.

Review Denied (with dissenting justices)




May 22, 2015

Bait-and-switch petitions at SCOTUS, too?

We’ve written about bait-and-switch petitions for review in the California Supreme Court — petitions that get the court’s attention with a juicy, review-worthy issue, but then are followed by merits briefing that argues for reversing the Court of Appeal on a different and much less important ground.  Apparently, it happens at the U.S. Supreme Court also.

This week, the Court decided City and County of San Francisco v. Sheehan.  It had Bait and switchgranted certiorari on two questions presented by San Francisco, including, first, whether the Americans with Disabilities Act “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  San Francisco changed course, however, after the case was accepted, basing its argument on another ground.  Worse yet, according to the Court’s opinion, it was a ground that was “never hinted at” in the Court of Appeals and that “effectively concedes” San Francisco would lose on the first question it had presented.

But San Francisco got away with its strategy.  The Court dismissed the first question as improvidently granted and, opting not to “further punish” San Francisco by dumping the whole case, went on to decide the second question in San Francisco’s favor.

Justice Scalia, joined by Justice Kagan, wrote separately, stating that he “would not reward such bait-and-switch tactics.”  Doing so, he said, would “encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.”  Scalia concluded that dismissing review of the entire case was necessary “to avoid being snookered, and to deter future snookering.”

May 20, 2015

Another rehearing petition fails by one vote

In People v. Johnson, a 5-2 Supreme Court affirmed a conviction for, and special circumstances finding of, carjacking when the victim was killed during a home invasion robbery.  Justices Kathryn Werdegar and Goodwin Liu dissented.  Today, the court denied rehearing, but new Justice Mariano-Florentino Cuéllar joined the dissenters in voting to grant.  The rehearing petition failed because the other newest justice — Leondra Kruger — did not want the case reheard.  That’s exactly the same way that rehearing was denied last month in Johnson v. California Department of Justice, the case concerning the constitutionality of distinctions the Legislature made in the Sex Offender Registration Act.

There is still one more “court-in-transition” rehearing petition pending, in Berkeley Hillside Preservation v. City of Berkeley.  A ruling on that petition was expected today, the last regular weekly conference before the court’s time to rule expires, but the docket has yet to reflect a decision.

May 18, 2015

Trial court erred in not advising defendant of effect of stipulating to a prior conviction. Supreme Court addresses argument not raised in the Court of Appeal.

In People v. Cross, a unanimous Supreme Court today holds that a trial court should have warned a defendant that stipulating to a prior conviction exposed him to a longer prison term.  The court’s opinion, authored by Justice Goodwin Liu, reverses the Third District Court of Appeal.  It also disapproves a 1995 decision of the First District, Division Four, Court of Appeal, but gives props to a 1985 Fifth District Court of Appeal opinion.

Of interest to Supreme Court practitioners generally is that the court addressed an argument when it wasn’t required to do so.  The Attorney General argued that the glass-housedefendant could not complain about the absence of a trial court warning because he didn’t object at trial.  But, the Attorney General was throwing stones in a glass house, because she herself hadn’t raised in the Court of Appeal defendant’s possible trial court waiver.  The Supreme Court cited rule 8.500(c)(1) (“As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal”) — which doesn’t directly apply because the Attorney General isn’t the petitioner in this case — but then said it would exercise its discretion to address the argument because “it presents a ‘pure question[ ] of law, not turning upon disputed facts.’ ”  The court then rejected the argument.


May 18, 2015

6-1 Supreme Court finds no substantial evidence of juvenile’s competency to stand trial

The Supreme Court today concluded 6-1 that there was insufficient evidence to support a juvenile court’s finding that a 16-year-old was competent to stand trial for brandishing a deadly weapon and for vandalism.  The court found that the juvenile court improperly rejected an expert’s testimony that the juvenile was incompetent.  Also in the case — In re R. V. — the court held that, in a minor’s case, the minor has the burden of rebutting a presumption of competency and that, on appeal, a juvenile court’s determination in a competency proceeding is reviewed deferentially under the substantial evidence test, not de novo.

The court’s opinion, by Chief Justice Tani Cantil-Sakauye, reverses the Fourth District, Division Three, Court of Appeal.  It also disapproves an opinion of the Second District, Division Seven, Court of Appeal, because it — like the Court of Appeal in this case — applied too deferential a substantial evidence test.  Justice Ming Chin dissents, but only on the application of the law to the facts of this particular case; he finds the evidence is sufficient to support the juvenile court’s competency determination.



May 15, 2015

Summary of May 13, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 13, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Baral v. Schnitt, S225090—Review Granted—May 13, 2015

The question presented is whether a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) authorizes a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute?

Plaintiff and defendant owned a company, IQ BackOffice LLC (IQ), with others. Plaintiff’s original complaint contained 18 causes of action alleging the defendant engaged in fraud and multiple breaches of fiduciary duty, including seizing control and secretly negotiating the sale of IQ to his advantage. The trial court applied existing authority (see, e.g., Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90) to hold the anti-SLAPP statute does not authorize a court to excise allegations concerning protected petitioning conduct subject to the anti-SLAPP statute from a “mixed” cause of action that also contains meritorious allegations not within the purview of the statute. On that basis, the trial court denied the anti-SLAPP motion, ruling: “[The] Anti-SLAPP motion still applies to causes of action or to an entire complaint, not allegations. Cases cited state that if a cause of action contains portions that are subject to anti-SLAPP and portions that are not, the defendant can move to strike those portions that are subject, i.e. the cause of action would be considered to contain two ‘counts’; one count subject and one count not. No case allows striking allegations per se under [section] 425.16; that is within the province of a regular motion to strike.”

The Court of Appeal, Second District, Division One, affirmed in a published decision, Baral v. Schnitt (2015) 233 Cal.App.4th 1423. It held the policy behind the anti-SLAPP statute is aimed at protecting petitions for redress and free speech rights against unmeritorious claims. But the court noted there are countervailing procedural rules intended to give the parties their day in court and promote efficient pretrial and trial proceedings. The court held the balance tipped in favor of allowing “mixed causes of action containing potentially meritorious claims to proceed unencumbered by the special procedures of the anti-SLAPP statute.”

Review Denied (with dissenting justices)