first prong test in California

2016(Id. at pp. 89-90; accord, City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79-80 .) Finally, a standard treatise states that, in ruling on the first prong of the anti-SLAPP analysis, “the court considers the pleadings, declarations and matters that may be judicially noticed. [Citations.]” (1 Weil & Brown, 20 Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 7:992, p. 7(11)-55.) Thus, we conclude that the trial court erred by ruling that it was not required to consider the declarations in ruling on the first prong of the analysis. 2.

2014(Ibid.) 5 On appeal, “we review the trial court’s decision de novo, engaging in the same two-step process to determine, as a matter of law, whether the defendant met its initial burden of showing the action is a SLAPP, and if so, whether the plaintiff met its evidentiary burden on the second step.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257 , 266–267.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of

2025Defense counsel was not ineffective in deciding not to challenge the sufficiency of the foundation the prosecution laid or raise a constitutional challenge to the admission of the evidence To prevail on an ineffective assistance of counsel claim, a defendant must show: “(1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s short

2023A. Reason for not Seeking Diversion for Alcoholism To establish the first prong of the test for constitutionally inadequate representation, a defendant must demonstrate counsel’s representation “fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Samayoa (1997) 15 Cal.4th 795, 845 ; see Strickland v. Washington (1984) 466 U.S. 668, 687-688 [ 80 L.Ed.2d 674, 693 ].) “The defendant may establish the first prong of an 10 ineffectiveness claim by showing there could be no satisfactory explanation for counsel’s act or omission.” (People v. Peyton (200

2025(See Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 493 [“We do not consider the veracity of [the plaintiffs’] allegations in determining whether their claims arise from protected speech or petitioning activity”]; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [it is irrelevant that the defendant might prevail on the merits of the claims where the defendant cannot meet the first prong of the analysis]; City of Cos

2023John’s argument, however, pertains to the merits of Thomas’s claim, an issue we do not consider at the first stage of the anti-SLAPP analysis.13 (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 [arguments regarding absence of attorney-client relationship improperly conflated first and second prongs of anti-SLAPP test; “ ‘sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from prote

2024(Baral v. Schnitt, supra, 1 Cal.5th at pp. 384, 396; Olson v. Doe (2022) 12 Cal.5th 669 , 678–679.) CAB’s Actions Arise from Petitioning Activity The first prong of our analysis focuses on “the defendant’s activity that gives rise to his or her asserted liability” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 ) and “whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Id. at p. 89.) An act in furtherance of a person’s First Amendment rights includes any written or oral statement or writing made in a judicial proceeding, or “any other conduct

2023Thus, the instant suit is based on alleged conduct of defendant that is not protected activity.” (Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 (Applied Business Software).) Although we agree that the filing of a complaint in breach of a general release is a writing made in connection with an issue under review by a judicial body and therefore satisfies the first prong of the analysis (see Navellier, supra, 29 Cal.4th at pp. 88–89; see also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408-1409 ), and that the process of negotiating a settle

2025(See Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 493 [“We do not consider the veracity of [the plaintiffs’] allegations in determining whether their claims arise from protected speech or petitioning activity”]; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [it is irrelevant that the defendant might prevail on the merits of the claims where the defendant cannot meet the first prong of the analysis]; City of Cos

2022(See Sprengel v. Zbylut (2015) 241 Cal.App.4th 140 , 155–157 (Sprengel) [“arguments regarding the absence of an attorney-client relationship with Sprengel improperly conflate the first and second prongs of the Section 425.16 test”].) “‘The sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from protected speech or petitioning activity. [Citation.] In making this determination, ‘[w]e do not consider the veracity of [the plaintiff’s] allegations’ [citation] nor do we consider ‘[m]erits based arguments.’ (Freeman[ v. Schack (2007) 154 Cal.App.4th 719 ,] 733 [(

2015(See Briggs v. Eden 4 Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 [written statement made before judicial proceeding, or in connection with an issue under consideration or review by judicial body, protected as act in furtherance of person’s constitutional right of petition or free speech in connection with a public issue under section 425.16, subdivision (e)(1)- (2) and requires no separate showing statement concerned issue of public significance].) Because Shokohi does not challenge the trial court’s determination under the first prong of the analysis, we turn to the second pr

2015Proc., § 425.16, subd. (e)(1)-(2); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 [no “‘issue of public interest’” limitation].) If, under the first prong of the analysis, a court determines that a cause of action arises from protected activity, then the burden shifts to the plaintiff to establish a probability of prevailing.

2022(Id. at p. 332, fn. 16 [conclusion that the communications constituted criminal extortion as a matter of law was “based on the specific and extreme circumstances of this case”]; see Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1188 , disapproved on other grounds in Baral, supra, 1 Cal.5th at p. 396, fn. 11 [Flatley exception “exists only where ‘the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence’”].) Here the City unequivocally denies From The Earth’s allegations regarding bribery; given the disputed contentions, we cannot resolve wi

2016As Wallace explained, “the first prong of analysis under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action.” (Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1175 .) In Wallace, the plaintiffs argued that their causes of action arose from unlawful discriminatory efforts to oust them from their apartment, rather than from the protected activities of, inter alia, an unlawful detainer action and service of a three-day notice.

2015(Episcopal Church Cases, supra, 45 Cal.4th at p. 477 ; Flatley v. Mauro, supra, 39 Cal.4th at p. 314 ; Equilon, supra, 29 Cal.4th at p. 67 .) 9 The first prong analysis depends upon conduct enumerated in section 425.16, subdivision (e).

2015(Episcopal Church Cases, supra, 45 Cal.4th at p. 477 ; Flatley v. Mauro, supra, 39 Cal.4th at p. 314 ; Equilon, supra, 29 Cal.4th at p. 67 .) 9 The first prong analysis depends upon conduct enumerated in section 425.16, subdivision (e).

2026(Park, at pp. 1062–1063; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 .) If the defendant carries its burden at the first prong of the analysis, the plaintiff must then demonstrate the claims have minimal merit.

2023John’s argument, however, pertains to the merits of Thomas’s claim, an issue we do not consider at the first stage of the anti-SLAPP analysis.13 (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 [arguments regarding absence of attorney-client relationship improperly conflated first and second prongs of anti-SLAPP test; “ ‘sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from prote

2021These cases address the issue of the first prong of the test, not the second prong. 14 (See Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [litigation privilege and anti-SLAPP statute “are not substantively the same”].) We therefore conclude that the claims involving the License Board complaint lack minimal merit.

2016If the court finds that a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on his claim. ( Ibid. ) Our inquiry regarding the first prong of the analysis concerns the principal thrust or gravamen of the cause of action-the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. ( Talega Maintenance Corp., at p. 728, 170 Cal.Rptr.3d 453 .) We independently review the trial court's determination of each step of the analysis. ( Flatley v. Mauro (2006) 39 Cal.4th 299 , 325-326, 46 Cal.Rptr.3d 606 , 139

2025(See Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 493 [“We do not consider the veracity of [the plaintiffs’] allegations in determining whether their claims arise from protected speech or petitioning activity”]; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [it is irrelevant that the defendant might prevail on the merits of the claims where the defendant cannot meet the first prong of the analysis]; City of Cos

2015“The sole inquiry” under the first prong of the test is whether the plaintiff’s claims arise from protected speech or petitioning activity. ( Castleman, supra, 216 Cal.App.4th at p. 490.) In making this determination, “[w]e do not consider the veracity of [the plaintiff’s] allegations” (id. at p. 493) nor do we consider “[m]erits based arguments” ( Freeman, supra, 154 Cal.App.4th at p. 733 [“[m]erits based arguments have no place in our threshold analysis of whether plaintiffs’ causes of action arise from protected activity”]; see Coretronic, supra, 192 Cal.App.4th at p. 1388 “[arguments about

2025DISCUSSION “We review de novo the grant or denial of an anti-SLAPP motion. [Citation.] We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 .) “To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the 4 Lo states they made a series of recordings of the noise generated by

2022(See Park, supra, 2 Cal.5th at p. 1068 [although discrimination complaint alleged university’s comments and statements during grievance proceeding and tenure process, complaint arose from decision to deny tenure, not communications leading to it]; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 354 [“fact that a complaint alleges that a public entity’s action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the m

2023John’s argument, however, pertains to the merits of Thomas’s claim, an issue we do not consider at the first stage of the anti-SLAPP analysis.13 (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 [arguments regarding absence of attorney-client relationship improperly conflated first and second prongs of anti-SLAPP test; “ ‘sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from prote

2022(See Sprengel v. Zbylut (2015) 241 Cal.App.4th 140 , 155–157 (Sprengel) [“arguments regarding the absence of an attorney-client relationship with Sprengel improperly conflate the first and second prongs of the Section 425.16 test”].) “‘The sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from protected speech or petitioning activity. [Citation.] In making this determination, ‘[w]e do not consider the veracity of [the plaintiff’s] allegations’ [citation] nor do we consider ‘[m]erits based arguments.’ (Freeman[ v. Schack (2007) 154 Cal.App.4th 719 ,] 733 [(

2011(Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [ 64 Cal.Rptr.3d 867 ] (Freeman) [it is irrelevant that defendant might prevail on the merits of the claims where defendant cannot meet the first prong of the analysis]; Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [ 67 Cal.Rptr.3d 190 ] [affirmative defenses, such as the litigation privilege, are not relevant to the first-prong inquiry].) The motion must be denied if the required prima facie showing is not made by the moving defendant.

2011(Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [ 64 Cal.Rptr.3d 867 ] (Freeman) [it is irrelevant that defendant might prevail on the merits of the claims where defendant cannot meet the first prong of the analysis]; Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [ 67 Cal.Rptr.3d 190 ] [affirmative defenses, such as the litigation privilege, are not relevant to the first-prong inquiry].) The motion must be denied if the required prima facie showing is not made by the moving defendant.

2015(In re C.B. (2010) 190 Cal.App.4th 102, 122 .) The “beneficial relationship” exception applies when termination would be detrimental to the child because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Assuming Mother’s visitation and video calls satisfied the first prong of the exception, the question is whether Minors “would benefit from continuing the relationship.” (Ibid.) To establish this, Mother was required to demonstrate the relationship “promotes the well-being

2015(In re C.B. (2010) 190 Cal.App.4th 102, 122 .) The “beneficial relationship” exception applies when termination would be detrimental to the child because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Assuming Mother’s visitation and video calls satisfied the first prong of the exception, the question is whether Minors “would benefit from continuing the relationship.” (Ibid.) To establish this, Mother was required to demonstrate the relationship “promotes the well-being

2025(See Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Castleman v. Sagaser, supra, 216 Cal.App.4th at p. 493 [“We do not consider the veracity of [the plaintiffs’] allegations in determining whether their claims arise from protected speech or petitioning activity”]; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [it is irrelevant that the defendant might prevail on the merits of the claims where the defendant cannot meet the first prong of the analysis]; City of Cos

2021(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 ; Navel[l]ier v. Sletten (2002) 29 Cal.4th 82, 89, 93 ; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 .) Further, [LaPierre] has not presented any argument as to her probability of prevailing on her claims, which is another basis upon which the Court finds she cannot meet her burden. [LaPierre’s] opposition only addresses the first prong of the analysis - whether the alleged activity is protected.” LaPierre timely filed a notice of appeal from the trial court’s order granting the anti-SLAPP motion in part.5 DISCUSSION I Th

2023Thus, the instant suit is based on alleged conduct of defendant that is not protected activity.” (Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 (Applied Business Software).) Although we agree that the filing of a complaint in breach of a general release is a writing made in connection with an issue under review by a judicial body and therefore satisfies the first prong of the analysis (see Navellier, supra, 29 Cal.4th at pp. 88–89; see also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408-1409 ), and that the process of negotiating a settle

2023(Applied Business Software, supra, 164 Cal.App.4th at p. 1118 .) Here, a settlement arose out of multifarious and protracted proceedings which attempted to resolve the disputes among the various parties by providing for the exchange of money in return for “clear title” to real property.

2024(Baral v. Schnitt, supra, 1 Cal.5th at pp. 384, 396; Olson v. Doe (2022) 12 Cal.5th 669 , 678–679.) CAB’s Actions Arise from Petitioning Activity The first prong of our analysis focuses on “the defendant’s activity that gives rise to his or her asserted liability” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 ) and “whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Id. at p. 89.) An act in furtherance of a person’s First Amendment rights includes any written or oral statement or writing made in a judicial proceeding, or “any other conduct

2022(Id. at p. 332, fn. 16 [conclusion that the communications constituted criminal extortion as a matter of law was “based on the specific and extreme circumstances of this case”]; see Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1188 , disapproved on other grounds in Baral, supra, 1 Cal.5th at p. 396, fn. 11 [Flatley exception “exists only where ‘the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence’”].) Here the City unequivocally denies From The Earth’s allegations regarding bribery; given the disputed contentions, we cannot resolve wi

2025Sufficient Evidence Supports the Lying-In-Wait Special Circumstance Finding “[A] defendant who is found guilty of murder in the first degree” is subject to LWOP if he “intentionally killed the victim by means of lying in wait.” (§ 190.2, subd. (a)(15).) The “ ‘lying-in-wait special circumstance requires “ ‘ “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) . . . a surprise attack on an unsuspecting victim from a position of advantage . . . .” ’ ” ’ ” (People v.

2021In addition, even if Galvez could meet the first prong of the test for ineffective assistance of counsel, he cannot meet his burden to show he “suffered prejudice to a reasonable probability.” (People v. Johnson (2016) 62 Cal.4th 600, 653 .) The record demonstrates that the trial court was aware of its discretion to strike the five-year enhancement, should it have seen fit to do so.

2014(Ibid.) 5 On appeal, “we review the trial court’s decision de novo, engaging in the same two-step process to determine, as a matter of law, whether the defendant met its initial burden of showing the action is a SLAPP, and if so, whether the plaintiff met its evidentiary burden on the second step.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257 , 266–267.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of

2013(Ibid.) On appeal, ―we review the trial court‘s decision de novo, engaging in the same two-step process to determine, as a matter of law, whether the defendant met its initial burden of showing the action is a SLAPP, and if so, whether the plaintiff met its evidentiary burden on the second step.‖ (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257 , 266–267.) ―[T]he statutory phrase ‗cause of action . . . arising from‘ means simply that the defendant‘s act underlying the plaintiff‘s cause of action must itself have been an act in furtherance of the right of petition or free speech.‖ (City of C

2015(See Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 491 [ 83 Cal.Rptr.2d 111 ] [under subd. (b)(10), the “only requirement” is that the predicate action “occurred” before the disposition hearing at which bypass is ordered].) 5 Moreover, even were we to hold that finality was required in this case — or was simply preferable when analyzing T.G.’s best interests — we disagree with mother’s characterization of the order terminating reunification services as nonfinal at the time of T.G.’s November 2014 dispositional hearing.

2005Although not directly on point, Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483 [ 83 Cal.Rptr.2d 777 ], provides useful analysis.

2015(See, e.g., In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 .) We need not decide the matter, however, as we conclude there is substantial evidence to support the court's determination mother and father failed to satisfy the first prong of the exception.

2015In In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315 (Bailey J.), the appellate court applied the substantial evidence test to the factual determination of the existence of a beneficial relationship, and applied the abuse of discretion standard to the “‘quintessentially’” discretionary decision of “the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption.” (See also In re K.P. (2012) 203 Cal.App.4th 614, 622 [“We find the Bailey J. approach persuasive and apply it

2011As we have already indicated, Government Code section 11342.2 states that “no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” Thus, when a petition seeks to invalidate a regulation adopted pursuant to a delegation of legislative power, “ ‘ “the judicial function is limited to determining whether the regulation (1) is ‘within the scope of the authority conferred’ [citation] and (2) is ‘reasonably necessary to effectuate the purpose of the statute (Yamaha Corp. of America v. State

2009Standard of Review The standard of review governing a challenge to the validity of administrative regulations is found in Government Code section 11342.2, which states: “Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless [1] consistent and not in conflict with the statute and [2] reasonably necessary to effectuate the purpose of the statute.” (See Communities for a Better Environment v. California