In Safe Credit Union v. Diaz, No. C092158, 2021 Cal. App. Unpub. LEXIS 5435, at *7 (Aug. 23, 2021), the Court of Appeal held in an unpublished decision that an anti-SLAPP motion by a credit union was not proper to challenge an NOI class action filed in response to a debt collection action.
For complaints and cross-complaints alleging mixed causes of action arising from both protected and unprotected activity, “[a]t the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt, supra, 1 Cal.5th at p. 396, italics added.) “The scope of the term ’cause of action’ in section 425.16(b)(1) is evident from its statutory context. When the Legislature declared that a ’cause of action’ arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief. The targeted claim must amount to a ’cause of action’ in the sense that it is alleged to justify a remedy. By referring to a ’cause of action against a person arising from any act of that person in furtherance of’ the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§ 425.16(b)(1), italics added.) . . . Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity.” (Baral v. Schnitt, supra, 1 Cal. 5th at p. 395.) SAFE contends the trial court should have reached the second stage of the analysis because the Litigation Claims, which were multiple allegations throughout the cross-complaint in which Diaz mentioned or alluded to the lawsuit SAFE filed against her, arose from protected activity. We disagree. An allegation is not stricken simply because it involves protected activity. A special motion to strike under section 425.16 is utilized to strike distinctive claims for relief arising out of protected activity, and the allegations of protected activity supporting those claims. (Baral v. Schnitt, supra, 1 Cal.5th at pp. 393-395.) At the trial court, and again on appeal, SAFE does not identify claims for relief supported by the Litigation Claims beyond simply pointing to Diaz’s allusion to the protected activity. This is not sufficient to meet its burden. “Typically, a pleaded cause of action states a legal ground for recovery supported by specific allegations of conduct by the defendant on which the plaintiff relies to establish a right to relief. If the supporting allegations include conduct furthering the defendant’s exercise of the constitutional rights of free speech or petition, the pleaded cause of action ‘aris[es] from’ protected activity, at least in part, and is subject to [*10] the special motion to strike authorized by section 425.16(b)(1).” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 381-382.) But, “[a]ssertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16.” (Id. at p. 394.) Thus, “[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Ibid.) Indeed, as our Supreme Court’s recent decision in Bonni demonstrates the anti-SLAPP analysis begins with consideration of the elements of each claim, the actions alleged to establish those elements, and whether those actions are protected. (Bonni v. St.Joseph Health System (2021) 11 Cal.5th 995.) SAFE did not engage in this consideration, which it was required to do to meet its burden. (Id. at p. 1010, citing Baralv. Schnitt, supra, 1 Cal.5th at p. 396.) Nowhere in the trial court, nor on appeal, does SAFE identify the elements of Diaz’s claims for recovery and how the actions alleged in her cross-complaint establish those elements. SAFE has consistently listed several paragraphs from Diaz’s cross-complaint and asserted those paragraphs “and each cause of action to the extent based on them” must be stricken because they involve protected activity. Accordingly, SAFE has failed to carry its burden at the first step of our analysis to identify claims for recovery, not just allegations, arising out of protected activity.