first step analysis in California

2026(See § 425.16, subd. (b)(2) [in ruling on a special motion to strike under section 425.16, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based”]; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 [on the first step on the analysis under section 425.16 “courts must look beyond the pleadings to consider any party evidentiary submissions as well”].) But for Indus’s act of filing the complaint, there would be no basis for Khosrovyan, Norrenberg, and Demchak’s causes of action.

2026(See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 [on the first step of the analysis under section 425.16 “courts must look beyond the pleadings to consider any party evidentiary submissions as well”].) Moussazadeh relies on two cases where courts held statements were not sufficiently connected to litigation.

2025On appeal, defendants do not discuss Harvey’s first cause of action in their arguments on the first step of the anti-SLAPP analysis, and we do not discuss it further. 6 arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.” ’ (Ibid.)” (Bonni, supra, 11 Cal.5th at p. 1009.) In the first step of the analysis, courts determine “whether the plaintiff’s claims arise from protected activity.

2024“First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’” (Bonni, supra, 11 Cal.5th at p. 1009, quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) “Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.”’ If the 7 plaintiff cannot make this showing, the court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009.) At issue here is the first step of

2026(Baral, at p. 384.) 4 “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Ibid.) “[T]he moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); see also § 425.16, subd. (b)(1).) The first step of that test is dispositive of this appeal.

2025STANDARD OF REVIEW AND ANTI–SLAPP PRINCIPLES “We review de novo the grant or denial of an anti-SLAPP motion.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 .) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court 4 The attorney defendants joined in CREF3’s anti-SLAPP motion. 5 may strike a cause of action only if the cause of action [both] (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has no

2026(See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 [statement protected under section 425.16, 9 subdivision (e)(4) “when it involves ‘a topic of widespread, public interest’”], quoting Rivero v. American Federation of State, County, and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913, 919 .) Camper’s only challenge to the trial court’s first step analysis is his argument that the court should have applied the exception for commercial speech set forth in section 425.17.

2025STANDARD OF REVIEW AND ANTI–SLAPP PRINCIPLES “We review de novo the grant or denial of an anti-SLAPP motion.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 .) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court 4 The attorney defendants joined in CREF3’s anti-SLAPP motion. 5 may strike a cause of action only if the cause of action [both] (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has no

2025As relevant here, those categories include “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).) If the court finds that the defendant has met its burden with respect to the first step of the analysis, the court proceeds to the second step, which requires it to “determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) In maki

2024First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show that the claim has ‘at least “minimal merit” ’ [Citation.] If the plaintiff cannot make this showing, the court will strike the claim.” (Bonni, supra, 11 Cal.5th at pp. 1008-1009.) In the first step of the analysis, the defendant must “ ‘demonstrat[e] that the act underlying the plaintiff’s cause fits one of the categories

2025(Id. at p. 1062.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Ibid.) “[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060.) “[C]ourts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.) “That a cause of action arguably may have been triggere

2021And easily conclude that he did.”].) As to the first step of the analysis, “[a] claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park); accord, City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 .) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navelli

2025STANDARD OF REVIEW AND ANTI–SLAPP PRINCIPLES “We review de novo the grant or denial of an anti-SLAPP motion.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 .) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court 4 The attorney defendants joined in CREF3’s anti-SLAPP motion. 5 may strike a cause of action only if the cause of action [both] (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has no

2023It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” ( Baral, supra, at p. 384 .) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619 .) “A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16]’ [citation], and that the plaintiff’s claims in fact

2022It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral, at p. 384.) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619 .) “A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16] [citation], and that the plaintiff’s claims in fact arise from

2021It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral, at p. 384.) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure.” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619 .) “A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16] [citation], and that the plaintiff’s claims in fact arise from

2022(Flatley [v. Mauro (2006) 39 Cal.4th 299 ,] 322, fn.11, citing Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).)” (RGC Gaslamp, supra, 56 Cal.App.5th at p. 425.) Counseling others in anticipation of litigation or encouraging others to sue is considered protected prelitigation activity.

2015The first step is to determine whether the moving party has shown that the targeted cause of action arises from conduct protected by the statute. [Citation.] If the answer is yes, the court considers whether the plaintiff has established the requisite probability of success.” [Citation.]” (Old Republic Construction Program Group v. Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 866 .) For the first step of the analysis, protected conduct “includes communicative conduct such as the filing, funding, and prosecution of a civil action.” (Rusheen, supra, 37 Cal.4th at p. 1056 .) “This includes

2023A ruling that is correct must be upheld on appeal regardless of the reasoning articulated by the trial court.”].) 11 13 Cal.5th 1238 , 1249 (Geiser).)8 The “first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute.” (See Geiser, at p. 1253.) At the second step, we assess the “context from which the conduct underlying the lawsuit arises” to determine whether the activity “furthered public discussion of the public issues it implicated.” (See id. a

2023A ruling that is correct must be upheld on appeal regardless of the reasoning articulated by the trial court.”].) 11 13 Cal.5th 1238 , 1249 (Geiser).)8 The “first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute.” (See Geiser, at p. 1253.) At the second step, we assess the “context from which the conduct underlying the lawsuit arises” to determine whether the activity “furthered public discussion of the public issues it implicated.” (See id. a

2023(See In re Matthew M. (2023) 88 Cal.App.5th 1186 , 1194 [“where the issue on appeal turns on a failure of proof at trial, ‘the question for the reviewing court [becomes] “‘whether the evidence compels a finding in favor of the appellant as a matter of law’”’”]; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156 [same].) We review the court’s best-interest finding for abuse of discretion and may disturb the exercise of that discretion only in the rare case when the court has made an arbitrary or irrational determination.

2022(See Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [where the issue on appeal turns on a failure of proof at trial, “the question for a reviewing court [becomes] ‘“whether the evidence compels a finding in favor of the appellant as a matter of law”’”]; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156 [same].) We review the court’s best interest finding for abuse of discretion and may disturb the exercise of that discretion only in the rare case when the court has made an arbitrary or irrational determination.

2025If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 , 819-820 [cleaned up].) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ ” (Id. at p. 820.) 10 “A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to ha

2024(See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘ “Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief.” ’ ”].) 6 the claim.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 , 819-820.) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ ” (Id. at p. 820.) “A defendant satisfies the first step of the analysis by demonstrating that the ‘co

2023(Flatley v. Mauro (2006) 39 Cal.4th 299, 325 .) B.

2014(Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 .) 5 Silva’s Causes of Action Arose out of the Unlawful Detainer Action Defendants claim the present causes of action arose out of the earlier unlawful detainer action. “‘The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.’ [Citations.]” (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1479 .) Consequently, the first step in our analysis is to determine whether each of Silva’s causes of action arose out of the unlawful detainer action.

2025If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 , 819-820 [cleaned up].) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ ” (Id. at p. 820.) 10 “A defendant satisfies the first step of the analysis by demonstrating that the ‘conduct by which plaintiff claims to ha

2025(See Contreras v. Dowling, supra, 5 Cal.App.5th at pp. 410-411; Optional Capital, supra, 18 Cal.App.5th at pp. 114-115.) Thus, the trial court did not err in determining that Mayfield met his burden on the first step of the analysis. 8 III Probability of Success Because Mayfield met his threshold burden of showing that the challenged claims arose from protected activity, the burden shifted to Morgan to demonstrate a probability of success.

2023(Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 (Barry); see also Laker, supra, 32 Cal.App.5th at p. 760 .) In the first step, “the trial court determines whether the cause of action ‘arises from’ an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ ” (Laker, supra, 32 Cal.App.5th at p. 760 , quoting City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422 .) The first step of the analysis is not at issue.

2023As Vacation Rental correctly points out, the municipal defendants do not identify on appeal “the specific category in Section 425.16(e) on which [they] rel[y] to support [their] motion.” Because that is “[t]he only means” by which the municipal defendants can prevail at the first step of the analysis (Vasquez, supra, 1 Cal.5th at p. 422 ), the municipal defendants have failed to carry their burden on appeal of demonstrating that the trial court erred by concluding that Vacations Rental’s claims do not arise from protected activity.3 In any event, the claims at issue here do not arise from the

2026Applicable Law Section 654 provides in relevant part that “[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be 38 punished under more than one provision.” (§ 654, subd. (a).) “Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective

2023(Former § 654, subd. (a).) Operative July 1, 2021, Assembly Bill No. 518 (Reg. Sess. 2021−2022) amended section 654, removing that requirement and granting the trial court discretion to impose punishment under any of the applicable provisions. 6. acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Under the first step, we consider if the crimes were completed by a “ ‘single physical act,’ ” or by “a course of conduct.” (Ibid.) It is sufficient for this first step of the inquiry that the circumstances “involve, or arguably involve” multiple acts.

2020(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 , 734-735.) Hence, the first step of the analysis is satisfied, and we proceed to the second step.

2020(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 , 734-735.) Hence, the first step of the analysis is satisfied, and we proceed to the second step.

2017Consequently, we turn to the analysis of severability adopted by our Supreme Court. *493 The first step of that analysis is to look for any severability clauses in the enactment. ( California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231 , 270, 135 Cal.Rptr.3d 683 , 267 P.3d 580 ( Matosantos ).) ARB included severability clauses in the ADF regulations and the 2015 LCFS regulations.

2017Consequently, we turn to the analysis of severability adopted by our Supreme Court. *493 The first step of that analysis is to look for any severability clauses in the enactment. ( California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231 , 270, 135 Cal.Rptr.3d 683 , 267 P.3d 580 ( Matosantos ).) ARB included severability clauses in the ADF regulations and the 2015 LCFS regulations.

1999(People v. Duncan (1986) 42 Cal.3d 91 , 97 . . . ; People v. Leyba (1981) 29 Cal.3d 591 , 596-597 . . . .)” (People v. Price (1991) 1 Cal.4th 324, 409 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].) Mindful of these principles, we conclude the record is barren of any facts known to Officer Cochran at the time of appellant’s arrest which would support the requisite probable cause justifying appellant’s arrest for vehicle burglary or receiving stolen property.

1995(See People v. Leyba (1981) 29 Cal.3d 591, 596-597 [ 174 Cal. Rptr. 867 , 629 P.2d 961 ].) *839 a.

2023(Dunn, supra, at pp. 398, 405-410.) The court in Dunn disagreed with the Flores standard, concluding that “[a] reviewing court concluding beyond a reasonable doubt that the jury would have found the facts underlying a single circumstance in aggravation true beyond a reasonable doubt is insufficient to conclude that any error under section 1170, subdivision (b) was harmless.” (Dunn, supra, at pp. 405-406; see also Lopez, supra, 78 Cal.App.5th at pp. 38 465-468.) And the Dunn court disagreed with Lopez that the Chapman harmless error standard must be applied in the first step of analysis to dete

2023(Dunn, supra, at pp. 398, 405-410.) The court in Dunn disagreed with the Flores standard, concluding that “[a] reviewing court concluding beyond a reasonable doubt that the jury would have found the facts underlying a single circumstance in aggravation true beyond a reasonable doubt is insufficient to conclude that any error under section 1170, subdivision (b) was harmless.” (Dunn, supra, at pp. 405-406; see also Lopez, supra, 78 Cal.App.5th at pp. 38 465-468.) And the Dunn court disagreed with Lopez that the Chapman harmless error standard must be applied in the first step of analysis to dete

2023(Id. at pp. 1243, 1250-1251, 1253, 1256.) By parity of reason, the court’s first step analysis applies equally to the protests at Wedgewood’s office building. 17 did not apply and the trial court did not address the anti-SLAPP statute’s second step, “the more prudent course is to remand the matter to the trial court to determine in the first instance whether [the plaintiff] demonstrated a reasonable probability of prevailing on the merits of his causes of action[—i.e., to perform a second step analysis]. [Citations.]” (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510 , 1527-1528; Bo

2023(Id. at pp. 1243, 1250-1251, 1253, 1256.) By parity of reason, the court’s first step analysis applies equally to the protests at Wedgewood’s office building. 17 did not apply and the trial court did not address the anti-SLAPP statute’s second step, “the more prudent course is to remand the matter to the trial court to determine in the first instance whether [the plaintiff] demonstrated a reasonable probability of prevailing on the merits of his causes of action[—i.e., to perform a second step analysis]. [Citations.]” (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510 , 1527-1528; Bo

2026(Billauer, supra, 88 Cal.App.5th at p. 965.) “ ‘[C]laims with the requisite minimal merit may proceed.’ ” (Baral, at p. 385.) As with the first step analysis, each distinct claim is examined to determine whether the plaintiff has met the second-step burden.

2025STANDARD OF REVIEW AND ANTI–SLAPP PRINCIPLES “We review de novo the grant or denial of an anti-SLAPP motion.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 .) “The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court 4 The attorney defendants joined in CREF3’s anti-SLAPP motion. 5 may strike a cause of action only if the cause of action [both] (1) arises from an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has no