second part test in California

2026(FilmOn, supra, 7 Cal.5th at p. 149 .) “‘First, we ask what “public issue or . . . issue of public interest” the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.’ [Citation.] The second part of this test ‘address[es] the specific nature of [the defendant’s] speech and its relationship to the matters of public interest.’” (Bernstein, supra, 43 Cal.App.5th at p. 23.) We recognize racial discrimination in emp

2023(FilmOn, supra, 7 Cal.5th at p. 149.) “First we ask what ‘public issue or … issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Id. at pp. 149–150.) The second part of this test “address[es] the specific 16 nature of [the defendant’s] speech and its relationship to the matters of public interest.” (Id. at p. 152.) Under FilmOn’s standard, “ ‘it is not enough that the statement

2019This inquiry "turns on the nature of the force used." ( Aguilar , supra , 16 Cal.4th at p. 1035 , 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ) Objects that can "be grasped while throwing a punch, like rolls of coins, batteries, [ ] bicycle footrests," (or car keys), may "be deemed instruments of [aggravated] assault" only if there is "sufficient proof" the object was actually used "in a manner likely to produce death or great bodily injury." ( In re David V. (2010) 48 Cal.4th 23 , 30 & fn. 5, 104 Cal.Rptr.3d 471 , 223 P.3d 603 , quoting Aguilar , at p. 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 , italic

2019This inquiry "turns on the nature of the force used." ( Aguilar , supra , 16 Cal.4th at p. 1035 , 68 Cal.Rptr.2d 655 , 945 P.2d 1204 ) Objects that can "be grasped while throwing a punch, like rolls of coins, batteries, [ ] bicycle footrests," (or car keys), may "be deemed instruments of [aggravated] assault" only if there is "sufficient proof" the object was actually used "in a manner likely to produce death or great bodily injury." ( In re David V. (2010) 48 Cal.4th 23 , 30 & fn. 5, 104 Cal.Rptr.3d 471 , 223 P.3d 603 , quoting Aguilar , at p. 1029, 68 Cal.Rptr.2d 655 , 945 P.2d 1204 , italic

2021(Cf. Eubanks, supra, 14 Cal.4th at p. 598 [trial court’s reasoning “directed solely at the first portion of the two-part test”].) The trial court stated in its ruling that, “I don’t believe there’s evidence before the Court currently that shows that Mr. Schumb has or likely 9 would not receive fair treatment during all portions of the proceedings.” We therefore consider whether the trial court abused its discretion in so finding.

2012A conflict exists, for the purposes of Penal Code section 1424, “ ‘whenever the circumstances of a case evidence a reasonable possibility that the [district attorney]’s office may not exercise its discretionary function in an evenhanded manner.’ ” (People v. Eubanks, supra, 14 Cal.4th at p. 592 .) As discussed above, however, the second part of the test requires that the conflict be so grave as to render it unlikely that the defendant will receive fair treatment.

2015(Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Where a “defendant has not satisfied the second part of the test, we need not consider whether trial counsel’s performance was deficient.” (People v. Price (1991) 1 Cal.4th 324, 440 ; Strickland, supra, at p. 697 .) “[A]n involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible in a criminal proceeding.” (People v. Neal 12 (2003) 31 Cal.4th 63, 67 (Neal).) Such a statement is inadmissible for all purposes.

2015(Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Where a “defendant has not satisfied the second part of the test, we need not consider whether trial counsel’s performance was deficient.” (People v. Price (1991) 1 Cal.4th 324, 440 ; Strickland, supra, at p. 697 .) “[A]n involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible in a criminal proceeding.” (People v. Neal 12 (2003) 31 Cal.4th 63, 67 (Neal).) Such a statement is inadmissible for all purposes.

2025(See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier) [describing two-step process].) Only the first part is relevant in this appeal.6 6 As to the second part of the test, the trial court determined Yazdi did not provide any admissible evidence showing a probability of prevailing on his claim.

2025(See Rusheen, supra, 6 “In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity.” (Rusheen, supra, 37 Cal.4th at p. 1056 ; see also Navellier, supra, 29 Cal.4th at p. 89 [“a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability . . . is based’ ”].) The appropriate focus of that inquiry is on “the defendant’s activity that gives rise to his . . . asserted liability.” (Navellier, at p. 92.) The California Su

2023But even assuming for the sake of argument only that this satisfies the first part of the test, i.e., “a ‘reasonable possibility’ of less than impartial treatment” due to hostility between counsel (Haraguchi, supra, 43 Cal.4th at p. 713 ), the court made no finding with respect to the second part of the test, i.e., a likelihood that defendant would be treated unfairly during the criminal proceedings.

2016Thus, “[i]f ... a conflict exists, the court must further determine whether the conflict is ‘ “ ‘so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.’ ” ’ [Citation.]” (Haraguchi, supra, 43 Cal.4th at p. 713.) The potential for unfair treatment must be “ ‘real, not merely apparent,’ ” and likely result in unfairness.

2004We explained, “In assessing whether a statute imposes punishment, we inquire (1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the Legislature’s intent.” (Rivera, at p. 709.) “ ‘The first part of the test (“intent”) looks solely to the declared purpose of the legislature as well as the structure and design of the statute. [Citations.] The second part of the test (“effects”) requires the party challenging the statute to prov

1998(Russell v. Gregoire (9th Cir. 1997) 124 F.3d 1079 , 1086-1087, citing United States v. Ursery (1996) 518 U.S. 267, 288-289 [ 116 S.Ct. 2135, 2147-2148 , 135 L.Ed.2d 549, 568 ] and Kansas v. Hendricks (1997) 521 U.S. 346, 360-361 [ 117 S.Ct. 2072, 2081-2082 , 138 L.Ed.2d 501, 514-515 ].) 1 “The first part of the test (‘intent’) looks solely to the declared purpose of the legislature as well as the structure and design of the statute. [Citations.] The second part of the test (‘effects’) requires the party challenging the statute to provide ‘the clearest proof’ that the statutory scheme is so pu

2026(See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that the allegation that the statements were false “should be considered in the second part of the analysis; whether there is a probability plaintiffs will prevail.

2025(See Dolan, supra, 512 U.S. at p. 388 [the second part of the analysis asks whether the degree of the exaction demanded by the government’s permit condition “bears the required relationship to the projected impact of [the] proposed development”]; Koontz, supra, 570 U.S. at pp. 605-606 [explaining that under the Dolan standard, the government may condition approval of a building permit on the dedication of property to the public so long as there is a “rough proportionality” between the property demanded and the social costs (i.e., public impacts) of the landowner’s proposal]; Sheetz, supra, 601

2024(Id. at p. 152.) “[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks), italics added.) C.

2023(Persolve, supra, 218 Cal.App.4th at p. 1275 , citing Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 340 (Komarova).) Komarova held that claims brought directly under the California Act are exempted from the litigation privilege because the alternative would render the California Act “ ‘significantly inoperable.’ ” (Komarova, at p. 340.) But Komarova also held that the privilege barred a related emotional distress claim against the debt collector, as this was “the very sort of derivative suit the privilege is meant to preclude.” (Id. at p. 343.) Focusing on the first

2023(Horton v. California, supra, 496 U.S. 128, 130 [ 110 S.Ct. 2301, 2304 ].)” ( Bradford, supra, 15 Cal.4th at pp. 1293–1294.) We begin with the second part of the doctrine first.

2023(Horton v. California, supra, 496 U.S. 128, 130 [ 110 S.Ct. 2301, 2304 ].)” ( Bradford, supra, 15 Cal.4th at pp. 1293–1294.) We begin with the second part of the doctrine first.

2022Second, the search must be related in scope to the purpose justifying the search—the protection of the officer.” (People v. Watson (1970) 12 Cal.App.3d 130, 134 ; see also Ybarra v. Illinois (1979) 444 U.S. 85, 93-94 [“Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ ”]; Terry, supra, 392 U.S. at p. 33 (conc. opn. of Harlan, J. [“the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime”].) Though the pat-down search in this case may have met the second part of the test, it failed the first part and

2022Second, the search must be related in scope to the purpose justifying the search—the protection of the officer.” (People v. Watson (1970) 12 Cal.App.3d 130, 134 ; see also Ybarra v. Illinois (1979) 444 U.S. 85, 93-94 [“Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ ”]; Terry, supra, 392 U.S. at p. 33 (conc. opn. of Harlan, J. [“the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime”].) Though the pat-down search in this case may have met the second part of the test, it failed the first part and

2022Second, the search must be related in scope to the purpose justifying the search—the protection of the officer.” (People v. Watson (1970) 12 Cal.App.3d 130, 134 ; see also Ybarra v. Illinois (1979) 444 U.S. 85, 93-94 [“Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ ”]; Terry, supra, 392 U.S. at p. 33 (conc. opn. of Harlan, J. [“the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime”].) Though the pat-down search in this case may have met the second part of the test, it failed the first part and