Appellant Jessica Chang appeals from a trial court order that in part denied her special motion to strike. After Chang filed suit against respondent Howard Cho and codefendant Midway International, Inc. (Midway), for sexual harassment and related torts, Cho filed a cross-complaint against Chang, alleging defamation and intentional infliction of emotional distress. Chang filed a special motion to strike the cross-complaint as a "SLAPP" (strategic lawsuit against public participation) suit, pursuant to Code of Civil Procedure section 425.16.
Appellant Chang sued her former employer, Midway, and former coworker, respondent Cho, alleging claims of sexual harassment, unlawful retaliation, and sexual discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), as well as sexual assault and battery. The complaint is based on incidents at two holiday events for Midway employees. The first was on November 24, 2010 (November incident), in which Chang alleges Cho "repeatedly touched, groped, and fondled" her. The second was on December 30, 2010 (December incident) in which Chang alleges Cho again fondled and groped her, this time more aggressively than before. In his cross-complaint, Cho alleged that Chang's written statements were "libelous on their face. They expose Cho to hatred, contempt, and obloquy to asserting explicitly that Cho is a lecher, philanderer, lustful and one who commits adultery." He makes essentially the same allegation with respect to Chang's oral statements to coworkers.
In his opposition to the motion, Cho argued that Chang failed to make a prima facie case and that her verbal comments to coworkers were not protected activity. He submitted two declarations in support of his opposition, one from Tom Lee, another Midway employee, and the other his own.
Lee declared that on or about March 25, 2011, Chang told him that she had been groped and fondled by Cho. Referring to the December 2010 event, Lee declared that he was with Cho and Chang almost the entire evening and "[a]t no time did I see any physical contact between Howard Cho and Jessica Chang." Lee continued, stating that the week before Chang made the accusation about Cho groping her, she had complained about Cho being hard on her and strict, and that he (Lee) was aware that she was "not doing very well as a Sales Representative and was not able to adequately follow the company's procedures or meet her sales quota"; that the last few weeks she had been complaining about the team and the job; and that the day she told him that Cho had touched and fondled her inappropriately "was many months after the so called event and my impression was she was angry with him about other things." Lee concluded by stating that as soon as Chang told him she was making these accusations against Cho, he "called him [(Cho)] to tell him what she planned to do."
The cross-complaint alleges that Cho made an oral complaint to Midway management "on or about March 25, 2011," which was followed by an investigation of the charges by management.
According to the cross-complaint, Chang submitted a written complaint to Midway management on March 25 and 28, 2011. In a declaration she stated that her verbal incident report to management was made in the exercise of her rights to freedom of speech and to petition, and that her written report was made at the request of management.
The court found that although Chang's comments to coworkers were not protected activity, her other statements were, and, as to these, Cho failed to establish a prima facie case. The court also concluded that the litigation privilege (Civ. Code, § 47) did not apply to Chang's comments to coworkers. It granted Chang's anti-SLAPP motion as to the protected activity and denied it as to the unprotected activity. The court denied attorney fees, reasoning the partially successful motion "produced nothing of consequence." This appeal by Chang followed.
Appellate courts have wrestled with the application of the anti-SLAPP law where, as in this case, a single cause of action includes multiple claims, some protected by that law and some not. We do not attempt to canvass the large and growing number of cases on this issue. A thorough discussion of the issues and alternatives presented, with a reprise of earlier authority, may be found in many of them. (See, e.g., Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106 [15 Cal.Rptr.3d 215] [if plaintiff demonstrates probability of prevailing on any protected claim, entire cause of action survives motion to strike]; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1553-1554 [110 Cal.Rptr.3d 129] [entire cause of action properly stricken where any part is protected and not merely "incidental" to unprotected claim, and plaintiff shows requisite probability of success on protected claim]; id., at p. 1555 (dis. opn. of Needham, J.) [arguing this result is inconsistent with the statute, that Mann was incorrectly decided, and that the court should distinguish between "claim" and "cause of action"]; Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1199-1200 [128 Cal.Rptr.3d 205] [rejecting Mann, but concluding statute requires plaintiff to establish probability of prevailing on protected activity "and nothing else"]; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 772 [142 Cal.Rptr.3d 74] [court may parse mixed cause of action, granting motion to strike protected activity while allowing complaint to proceed as to unprotected activity]; id., at pp. 787, 789 (dis. opn. of Richli, J.) [disagreeing with this view]; Burrill v. Nair (2013) 217 Cal.App.4th 357, 378 [158 Cal.Rptr.3d 332], petn. for review pending [disagreeing with majority opinion in Singletary].)
We do not read the statement in Oasis so broadly. Instead, the guiding principle in applying the anti-SLAPP statute to a mixed cause of action case is that "a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one `cause of action.'" (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [106 Cal.Rptr.2d 906].) This statement has been repeatedly reiterated in later decisions on the issue. (See, e.g., Haight Ashbury Free Clinics, Inc., v. Happening Home Ventures, supra, 184 Cal.App.4th at p. 1551; Comstock v. Aber (2012) 212 Cal.App.4th 931, 946 [151 Cal.Rptr.3d 589].)
It would make little sense if the anti-SLAPP law could be defeated by a pleading, such as the one in this case, in which several claims are combined into a single cause of action, some alleging protected activity and some not. Striking the entire cause of action would plainly be inconsistent with the purposes of the statute. Striking the claims that invoke protected activity but allowing those alleging nonprotected activity to remain would defeat none of them. Doing so also is consonant with the historic effect of a motion to strike: "to reach certain kinds of defects in a pleading that are not subject to demurrer." (See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008, p. 420.)
That is what the trial court did in this case. Its ruling makes sense, and renders justice to both sides. We believe it was correct.
We affirm the judgment of the court. Each side shall bear its own costs on appeal.
Willhite, J., and Manella, J., concurred.