second prong test in California

2021(See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 740-741 (Jarrow Formulas) [concluding that malicious prosecution is not exempt from anti- SLAPP scrutiny and explaining that “every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute”].) Although a malicious prosecution claim meets the requirement of the first prong because it constitutes activity protected by section 425.16 (see Baral, supra, 1 Cal.5th at p. 384 ; Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735, 740-7

2021(See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 740-741 (Jarrow Formulas) [concluding that malicious prosecution is not exempt from anti- SLAPP scrutiny and explaining that “every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute”].) Although a malicious prosecution claim meets the requirement of the first prong because it constitutes activity protected by section 425.16 (see Baral, supra, 1 Cal.5th at p. 384 ; Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735, 740-7

2025The second prong analysis required under section 425.16 requires the plaintiff to “establish[ ] that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) To establish this probability, “the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the

2022Watkins met her threshold burden of showing that the cross-claims for slander of title and intentional infliction of emotional distress arise from acts in furtherance of her right of petition or free speech under the first prong of the anti-SLAPP statute. (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88 .) We therefore turn to the second prong of the analysis required under section 425.16—whether D’Orio has sustained her burden of demonstrating a probability of prevailing on her cross- claims. (§ 425.16, subd. (b)(1); Navellier, at p. 88.) C.

2024The parties have briefed the issue on appeal and, as a matter of judicial efficiency, we will decide it in the first instance. “[T]he necessity and financial burden requirement ‘ “really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.” ’ [Citation.] The ‘necessity’ of private enforcement ‘ “ ‘ “looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is 18 necessary.” ’ [Citations.]” ’ [Citation.] .

2021Applicable Law “[T]he necessity and financial burden requirement ‘“really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.”’ [Citation.] The ‘necessity’ of private enforcement ‘“‘“looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.”’ [Citations.]”’ [Citation.] . . . [¶] The second prong of the inquiry addresses the ‘financial burden of private enforcement.’ In determining the finan

2021(California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036-1037 .) Our focus is not on the form of the plaintiff’s causes of action, but rather on “the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 .) Once the moving party has satisfied this initial step, the burden shifts to the opposing party to demonstrate the “probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); accord, Equilon, supra, 29 Cal.

2021(California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036-1037 .) Our focus is not on the form of the plaintiff’s causes of action, but rather on “the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 .) Once the moving party has satisfied this initial step, the burden shifts to the opposing party to demonstrate the “probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); accord, Equilon, supra, 29 Cal.

2016(In re Autumn H., supra, 27 Cal.App.4th at p. 575 .) In determining whether the relationship between parent and child is beneficial, we look to such factors as “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction 12 between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467 , fn. omitted.) The court’s conclusion that mother did not satisfy the second prong of the exception “turns on a failure of proof at trial, [such that] the question for a r

2014(In re Bailey J., supra, 189 Cal.App.4th at p. 1314 .) The court’s conclusion (whether express or implied) that Mother did not satisfy the second prong of the exception “turns on a failure of proof at trial, [such that] the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]” (In re I.W., supra, 180 Cal.App.4th at p. 1528.) As noted, to establish the second prong of the beneficial parental relationship exception, the parent must show “that ‘severing the natural parent-child relationship would deprive the child

2021(Baral v. Schnitt (2016) 1 Cal.5th 376, 396 .) If so, the burden shifts to the plaintiff to establish in the second prong of the analysis that any such claims are legally sufficient in “a summary-judgment-like procedure.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278, 291 .) Any claims and/or allegations as to which the plaintiff fails to make a prima facie showing should be stricken.

2020(Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral); Navellier v. Sletten (2002) 29 Cal.4th 82, 89 .) If so, the burden shifts to the plaintiff to establish in the second prong of the analysis that any such claims are legally sufficient in “a summary-judgment-like procedure.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278, 291 ; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 .) Any claims and/or allegations as to which the plaintiff fails to make a prima facie showing should be stricken.

2015Agents Assn. v. Payne, supra, 16 Cal.3d at p. 657 .) This question of necessity is the second prong of the analysis under Government Code section 11342.2, which provides that implementing regulations must be “reasonably necessary to effectuate the purpose of the statute.” When a regulation is challenged on this basis, “our inquiry is confined to whether the rule is arbitrary, capricious, or without rational basis.” (Western States, supra, 57 Cal.4th at p. 415 , citing Yamaha, supra, 19 Cal.4th at p. 11 & fn. 4.) *1305 PaintCare does not argue that the CalRecycle regulations are not “reasonably

2010This is a question particularly suited for the judiciary as the final arbiter of the law, and does not invade the technical expertise of the agency.” 0Communities, supra, 103 Cal.App.4th at pp. 108-109, fns. omitted.) “By contrast, the second prong of this standard, reasonable necessity, generally does implicate the agency’s expertise . . . .” (Id. at p. 109; see Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11 [ 78 Cal.Rptr.2d 1 , 960 P.2d 1031 ] (Yamaha).) “In deciding whether the regulation conflicts with its legislative mandate, the court does not defer to the a

2025The second prong analysis required under section 425.16 requires the plaintiff to “establish[ ] that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) To establish this probability, “the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the

2025The second prong analysis required under section 425.16 requires the plaintiff to “establish[ ] that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) To establish this probability, “the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the

2023We see no merit to these arguments. 11 To establish the second prong of the test for constitutionally inadequate representation, a defendant must demonstrate that “there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Samayoa, supra, 15 Cal.4th at p. 845 ; see Strickland v. Washington, supra, 466 U.S. at p. 694 .) The People get this test backwards when they contend, “it is reasonably probable the trial court would have denied diversion.” Rather, we must determine whether there is a reasonable probability the

2013The court explained, “in order to satisfy the ‘prejudice’ requirement” that is the second prong of the test for granting relief for the ineffective assistance of counsel, stated by the high court in Strickland v. Washington (1984) 466 U.S. 668 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ], “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart, at p. 59.) But as the court later explained in Roe v. Flores-Ortega (2000) 528 U.S. 470 [ 145 L.Ed.2d 985 , 120 S.Ct. 1029 ], t

2021Given the materials before it, this court notes that the fact that there may be a legal wrong asserted by Defendants (or by Plaintiffs) does not move the matter out of anti-SLAPP consideration. [(Birkner v. Lam (2007) 156 Cal.App.4th 275 .)]” As to the second prong of the analysis, the trial court found “that, unfortunately for Plaintiffs, the Defendants are correct in their assertion that all Plaintiffs have done in their response is to argue ‘in stream of conscience fashion’ that somehow there could be facts 6 which might support their position.

2016By considering the merits of whether the defendant‘s acts were unlawful—i.e., whether they were discriminatory, harassing, or retaliatory—the court ―confuse[d] the threshold question of whether the SLAPP statute applies with the question whether [the plaintiff] has established a probability of success on the merits.‖ (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 , fn. omitted; see also Navellier, supra, 29 Cal.4th at p. 94 ; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 ; Hunter, supra, 221 Cal.App.4th at pp. 1522-1523; Tuszynska v. Cunningham (2011) 199 Cal.A

2022“When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary evidence, which, if accepted, would negate the defense.” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434 ; see also Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 715 .) As the California Supreme Court noted in addressing the litigation

2013“When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary evidence, which, if accepted, would negate the defense. [Citations.]” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434 , fn. omitted; see also Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 715 .) The declarations submitted by respondents

2021(Pearson v. Callahan (2009) 555 U.S. 223, 236 [overruling Saucier’s mandate that the prongs be addressed in order].) Thus, after observing that the second prong inquiry “turns on the ‘objective legal reasonableness of the [officer’s] action, assessed in light of the legal rules that were clearly established at the time it was taken,’ ” the high court in Pearson determined that qualified immunity applied in the case before it because the officers reasonably believed, based on federal authorities at the time, that their conduct complied with the law.

2015(Camreta v. Greene (2011) 563 U.S. _ [ 179 L.Ed.2d 1118 , 131 S.Ct. 2020, 2032 ]; Pearson v. Callahan (2009) 555 U.S. 223, 236 [ 172 L.Ed.2d 565 , 129 S.Ct. 808 ].) Here, the specific conduct at issue is Hill’s decision to hold plaintiffs for questioning well beyond the end of the physical search of the premises.

2015The trial court concluded defendants had met their burden under the first prong of the section 425.16 analysis by showing that all of the Smiths’ claims arose from “protected activity.” (See, e.g., ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 [reports to government agency seeking initiation of investigation fall with § 425.16, subd. (e)].) It then determined the Smiths could not satisfy the second prong of the analysis, because they had not established a probability of prevailing on their claims.

2013(Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 ; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006 [comments made on electronic media occurs in a public forum].) Further, the Law Firm’s statements to LiMandri during mediation were made in connection with a matter pending before a court. (§ 425.16, subd. (e)(2).) We move to the second prong of the analysis, in which LiMandri bears the burden of showing that his claims have “‘minimal merit.’” ( Flatley, supra, 39 Cal.4th at pp. 319-320.) LiMandri argues that he is likely to prevail because defendants contracted to forego the

2013Co. (2001) 92 Cal.App.4th 1068, 1073 [ 112 Cal.Rptr.2d 397 ].) “ ‘[Although by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” . . . , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended t

2013Co. (2001) 92 Cal.App.4th 1068, 1073 [ 112 Cal.Rptr.2d 397 ].) “ ‘[Although by its terms [Code of Civil Procedure] section 425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff has established that there is a probability that the plaintiff will prevail on the claim” . . . , past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended t

2024It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.) “When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has

2022(Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 769 (Laker); see also id. at p. 770 [defendants in arguing anti-SLAPP motion should be granted, met their burden of establishing that defamation claim was barred by litigation privilege].) Nonetheless, in addressing the second prong of an anti-SLAPP motion, “a plaintiff must show that any asserted defenses are inapplicable as a matter of law or make a prima facie showing of facts that, if accepted, would negate such defenses. [Citation.]” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269 , 288 (Weeden); see also N

2024It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.) “When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has

2023(Baral v. Schnitt (2016) 1 Cal.5th 376 , 381–382, 396 (Baral).) If the moving party meets its burden, then under the second prong of the inquiry, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.

2025“Some courts state a defendant bears the burden of proof on an affirmative defense. [Citations.] Others state the burden ultimately remains on the plaintiff to demonstrate [the] defense is ‘ “ ‘not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses.’ ” ’ ” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434, fn. 7 .) In either event, when “evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court . . . generally should cons

2024It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.) “When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has

2022“When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary evidence, which, if accepted, would negate the defense.” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434 ; see also Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 715 .) As the California Supreme Court noted in addressing the litigation

2016Proc., § 425.16, subd. (b)(1).) Moreover, as to the cases that do arise from such acts, the fact that the cause of action is ―subject‖ to an anti-SLAPP motion does not mean that it will be stricken; it merely means that the court will then engage in the second prong analysis to evaluate whether it protected speech or petition activity was illegal as a matter of law.‖ (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 .) This exception does not apply here. 6 has the minimal merit necessary to proceed.

2026If the moving party satisfies the first prong, as it has here, the burden shifts to the nonmoving party to show its claims have at least “minimal merit.” (Park, supra, 2 Cal.5th at p. 1061 .) The nonmoving party must demonstrate a probability of success (Olson v. Doe (2022) 12 Cal.5th 669, 678 ), and it “ ‘must be made upon competent admissible evidence.’ [Citations.]” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 .) This second step has been described as a “ ‘summary-judgment-like procedure.’ ” (Id. at p. 945.) “[T]he court may consider affidavits, decl

2021Prong Two—Probability of D&R’s Success In determining whether a plaintiff meets its responsive burden under the second prong of the test under the anti-SLAPP statute, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); see Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 [in an anti-SLAPP appeal, “we may consider affidavits concerning the facts upon which liability is based”].) In doing so, “ ‘[t]he court does not 7 D&R’s brief on appeal has

2018Although we could remand the matter to the trial court to conduct the second prong analysis for this particular claim, we are free in this de novo review to consider the showings made on the second prong of the test, Golden Eagle's ability on this record to demonstrate its probability of prevailing. ( Schwarzburd , supra , 225 Cal.App.4th 1345 , 1355, 170 Cal.Rptr.3d 899 .) During the trial court proceedings, the parties had the opportunity to create a record adequate on the standing issue.

2018Although we could remand the matter to the trial court to conduct the second prong analysis for this particular claim, we are free in this de novo review to consider the showings made on the second prong of the test, Golden Eagle's ability on this record to demonstrate its probability of prevailing. ( Schwarzburd , supra , 225 Cal.App.4th 1345 , 1355, 170 Cal.Rptr.3d 899 .) During the trial court proceedings, the parties had the opportunity to create a record adequate on the standing issue.

2020(Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1581 .) As at step one, “we again consider the pleadings and the supporting and opposing 12 declarations stating the facts on which the claims are based.” (Ibid.) The “plaintiff must satisfy the second prong of the test and ‘establish evidentiary support for [the] claim.’ ” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 775 (Navellier II).) The trial court concluded that Hills’s claims failed on two grounds.

2019(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 15, 19 ; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768 .) The parties agree the current lawsuit arises out of protected activity, and we are concerned here with only the second prong of the analysis.

2013Co. [(2001)] 92 Cal.App.4th [1068,] 1073 [‘a SLAPP motion, like a summary judgment motion . . . requires an evidentiary showing’]; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655 , disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. [(2002)] 29 Cal.4th [53,] 68, fn. 5 [claims must be supported ‘by admissible evidence’].) That defendant raised legal issues in his motion did not relieve plaintiffs of their burden of presenting a sufficient ‘showing of facts to sustain a favorable judgment’ (Wilson v. Parker, Covert & Chidester, supra, at p. 821), and a

2003Co., supra, 92 Cal.App.4th at p. 1073 [“a SLAPP motion, like a summary judgment motion . . . requires an evidentiary showing”]; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655 [ 49 Cal.Rptr.2d 620 ], disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5 [claims must be supported “by admissible evidence”].) That defendant raised legal issues in his motion did not relieve plaintiffs of their burden of presenting a sufficient “showing of facts to sustain a favorable judgment” (Wilson v. Parker, Covert & Chidester, supra,