Wallace v. McCubbin (196 Cal. App. 4th 1169, 2011)

Opinion

NEEDHAM, J.

Lois McCubbin and Joshua Merck appeal, from an order denying their special motion to strike two causes of action from respondents’ complaint under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) They contend that the acts on which the causes of action are based constitute activity protected by the statute, and the court erred in ruling that those acts were merely incidental to the causes of action. We agree, confirming that 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 as respondents urge. McCubbin and Merck further contend that respondents did not demonstrate a probability of prevailing on the merits based on the alleged protected activity. Harmonizing and applying recent precedent, we agree on this point as well and conclude that the motion to strike should have been granted.

I. FACTS AND PROCEDURAL HISTORY

We begin with the facts, as alleged by respondents in their complaint.

A. Background

Victor Wu is the owner of a four-unit apartment building at 369-375 7th Avenue in San Francisco. The building is managed by Victor Wu and his brother, Lawrence Wu. The property is allegedly subject to provisions of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance).

Appellants and respondents were tenants in the building, living in apartments across the hall from each other. Appellants McCubbin and Merck occupied 373 7th Avenue. Respondents Cheryl Wallace and John Owen moved into 375 7th Avenue in January 2004.

Around the time Wallace and Owen signed their lease in late 2003, Wallace obtained a dog named Nemo “under the prescription of her psychiatrist.” Nemo is a “mixed breed dog certified trained by the San Francisco SPCA.”

In January 2005 (or 2004), Wallace’s psychiatrist informed landlord Victor Wu and the building manager, Campbell Peters, that Wallace was disabled and required a service dog, and that a landlord must allow a tenant to keep a service dog even if pets are otherwise prohibited.

In the first half of 2006, “Defendants and each of them”—allegedly including Victor Wu, Lawrence Wu, and also tenants McCubbin and Merck— threatened to evict two other tenants in the building for having dogs. They also demanded a third tenant remove a dog, after which the dog disappeared without its owner knowing the dog’s whereabouts.

In March 2006, Wallace complained to Merck and McCubbin about Merck’s smoking on the enclosed balcony that was shared by the two apartments. Later that month and the next month, Merck telephoned the Wus weekly to complain about Nemo’s purportedly aggressive behavior. In mid-2006, McCubbin and Merck started an argument with Wallace about Nemo being “overly friendly” and “noisy.”

The complaint alleged on information and belief that in the first half of 2007 McCubbin and Merck continued their “campaign of complaining falsely about Nemo’s behavior” to Victor Wu. Lawrence Wu threatened Wallace and Owen that “Defendants” would eventually have Nemo removed.

Around June 2007, Wallace complained to the San Francisco Human Rights Commission about “Defendants’” threats to remove Nemo. After an investigation, the commission’s fair housing and public accommodations compliance officer warned Victor Wu that, due to the nature of Wallace’s disability, she required the accommodation of a “service/comfort” dog. The compliance officer informed “Defendants” that he found Nemo to be “ ‘docile, friendly and well socialized.’ ”

Around September 2007, Victor Wu and “another man” “forcefully interrogated” Wallace as to the nature of her disability and her need for a service dog. Victor Wu told Wallace that her service dog designation was invalid and that she and Owen would be evicted if they did not get rid of Nemo. In the same month, Wallace’s psychiatrist wrote a letter to San Francisco Animal Care and Control (Animal Control) asserting that Wallace required a service animal for health reasons. Victor Wu telephoned the psychiatrist in October 2007 and claimed there was no basis for prescribing a service dog for Wallace; the psychiatrist replied that Wallace was disabled.

In October 2007, McCubbin informed Lawrence Wu in writing that Wallace and Owen were advertising for a new subtenant. Wallace and Owen’s lease states that three adults may reside at the premises, and from the inception of the lease they had had three persons—themselves and a subtenant—occupying the apartment. Later in October, Victor Wu and an “assistant” intimidated the new subtenant, Reno Ybarra, into removing his belongings from the apartment and canceling his sublease.

Also in October 2007, McCubbin and Merck filed a complaint with Animal Control, reporting that Nemo, “incorrectly referred to as an X-large Great Dane,” was a “vicious and dangerous” dog. In late October 2007, Animal Control notified Wallace that there would be a hearing to determine whether Nemo should be killed. Wallace and Owen believe that Nemo has never damaged the apartment unit, growled, barked at, bitten, or attacked anyone.

In November 2007, Wallace complained to the San Francisco Human Rights Commission about McCubbin and Merck. On November 14, 2007, the San Francisco Human Rights Commission fair housing and public accommodations compliance officer wrote to McCubbin and Merck, stating that he had spoken with Victor Wu concerning the complaint and the Animal Control hearing, and that Nemo was not an “ ‘X-Large Great Dane’ ” or vicious and dangerous, but was “ ‘in fact a laid back docile if not lazy dog’ ” who “ ‘likes getting petted.’ ” The officer stated that he was “appalled by this egregious mischaracterization of this harmless dog,” he intended to appear at the hearing to testify on Nemo’s behalf, he was “greatly disturbed that anyone would go so far as to deny or obstruct Ms. Wallace’s right as a disabled person to have a service dog as a reasonable accommodation,” and the law “very clearly affirms Ms. Wallace’s right to have Nemo.”

In December 2007, a veterinarian examined Nemo and concluded that he did not appear to be aggressive, vicious, or dominant. Animal Control also found that Nemo was not vicious or dangerous.

In February 2008, Wallace sent a letter to Victor Wu stating her intention to replace the previous subtenant (Ybarra) with another individual, noting to “Defendants” that the lease expressly prohibits unreasonable refusal of a new subtenant. Victor Wu denied the request and threatened legal action if Wallace and Owen sublet the apartment. Wallace wrote another letter to Victor Wu, reminding him that the lease permitted three adult residents. She also provided information concerning the prospective subtenant. Lawrence Wu warned Wallace and Owen in writing that subletting would result in legal action.

In March 2008, Victor Wu served Wallace and Owen with a three-day notice to quit the premises. The eviction notice stated that eviction would be sought on the ground that having a third adult reside in the apartment breached the lease.

Wallace and Owen did not comply with the three-day notice. Victor Wu filed a complaint for unlawful detainer on April 2, 2008, alleging that subletting to the prospective sublessee would violate the lease agreement because the lease explicitly states the apartment would be used as a residence with no more than two adults.

At the unlawful detainer trial, Victor Wu allegedly admitted that he had lied to the presiding judge during discovery hearings regarding the location of his former property manager, Campbell Peters, and that he had assisted Peters in evading service and refusing to appear for a deposition. At trial, Wallace and Owen allegedly produced “expert testimony and documentation demonstrating that the lease signed by Plaintiffs and Defendant’s agent Campbell Peters in December 2003 allowed three occupants because Mr. Peters had changed the occupants from two to three.” During jury selection, Victor Wu dismissed the unlawful detainer action.

B. Complaint

The allegations summarized ante were contained in a verified complaint that Wallace and Owen filed in May 2009 against Victor Wu, Lawrence Wu, McCubbin, and Merck. Paragraph 51 of the complaint further alleges: “The foregoing conduct was part of a systematic campaign of harassment and intimidation against disabled tenants with limited means, designed to force Plaintiffs from their home of four years. Plaintiffs are informed and believe and on that basis allege that Defendants engaged in such conduct to discriminate against Plaintiffs on the basis of their [sic] disabilities because of the special protections such persons are afforded by the San Francisco Rent Ordinance and other state and federal laws. Plaintiffs are informed and believe that Defendants[’] eviction proceeding on the lease occupancy restriction was a pretext and retaliation for Defendants^] discriminatory intent to remove Plaintiffs from the premises for having a prescribed service dog.”

The complaint asserts claims for wrongful eviction, breach of the covenant of quiet enjoyment, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, unfair business practices, housing discrimination under California’s FEHA (the California Fair Employment and Housing Act) (Gov. Code, § 12955 et seq.), housing discrimination under California’s Unruh Civil Rights Act (Civ. Code, § 51 et seq.), unlawful competition, violation of privacy, trespass, violation of Civil Code section 1954 (pertaining to a landlord’s entrance into a dwelling unit), and retaliatory eviction (Civ. Code, § 1942.5 et seq.). At issue here are counts one and 13, for wrongful eviction and retaliatory eviction.

Count one is styled “FIRST CAUSE OF ACTION [¶] (Wrongful Eviction, Violation of Rent Ordinance).” It incorporates the allegations summarized ante. The count alleges that the “Defendants’ ” dominant motive for attempting to recover possession of the premises was not a permissible ground under the Rent Ordinance, and as a proximate result of “Defendants’ wrongful acts alleged herein,” Wallace suffered hospitalization and treatment and both she and Owen suffered inconvenience, annoyance, and emotional distress. In addition to trebled damages under the Rent Ordinance, Wallace and Owen seek punitive damages on the ground that “Defendants’ conduct was malicious and oppressive.”

Count 13 is entitled, “THIRTEENTH CAUSE OF ACTION [f] (Retaliatory Eviction—Civil Code § 1942.5 et seq.).” It also incorporates all of the allegations of wrongdoing summarized ante. Specifically, it alleges that when “Defendants took the actions alleged in paragraphs 1 through 51,” their purpose was to retaliate against Wallace and Owen for exercising their rights within 180 days of their complaint to governmental agencies and otherwise exercising their rights under law. As a proximate result of “Defendants’ wrongful acts alleged herein,” Wallace suffered hospitalization and treatment and both Wallace and Owen suffered inconvenience, annoyance, and emotional distress.

C. McCubbin and Merck’s Anti-SLAPP Motion to Strike

In August 2009, McCubbin and Merck filed a special motion to strike under the anti-SLAPP statute. (§ 425.16.) They argued that the first and 13th causes of action arose from conduct the statute protects. Specifically, they contended, the “gravamen of [the] claim” was that all defendants served a bogus notice of termination of the tenancy (the three-day notice) and instigated a frivolous and malicious unlawful detainer action, both of which constituted protected activity. Furthermore, they argued, Wallace and Owen could not prevail on these causes of action, because McCubbin and Merck were not the ones who prosecuted the unlawful detainer action, the alleged wrongful conduct was protected by the litigation privilege, and no liability could arise under a conspiracy theory.

Wallace and Owen opposed the motion to strike. They claimed that the gravamen of the action was one for disability discrimination and did not attack any act of defendants in filing or prosecuting the unlawful detainer action itself. As to the merits, Wallace and Owen argued that they had a probability of proving McCubbin and Merck were the Wus’ agents in the prosecution of the unlawful detainer action and the causes of action were not barred by the litigation privilege.

Wallace and Owen offered declarations in opposition to the motion to strike. In her declaration, Wallace affirmed certain allegations of the complaint and attached a number of documents referenced in the complaint. Also attached was the declaration of Aaron Gonzalez, who supported some of the allegations of the complaint and purported to set forth the history of dogs and tenants at the building during the time he was a tenant. Declarations predating this case were submitted from a number of persons declaring Nemo to be friendly.

D. Denial of Motion to Strike

The trial court denied the motion to strike. The court explained: “Defendants [McCubbin and Merck] have not carried their initial burden to prove that the gravamen of Plaintiffs’ Complaint is based upon protected conduct as that term is defined in Section 426.16 [sic]. The gravamen of the Plaintiffs’ Complaint is not that the Defendants filed a lawsuit or sent notices or threatened even to send a notice, but that the Defendants engaged in a pattern of disability discrimination designed to drive the Plaintiffs from their home, and that therefore the allegations of what would otherwise be protected conduct are incidental to the thrust of the Plaintiffs’ Complaint. And while they are pleaded, they are pleaded as evidentiary support for the course of conduct which went on before and was in full blossom before the potentially protected conduct occurred.”

This appeal followed.

II. DISCUSSION

McCubbin and Merck contend that the first and 13th causes of action arose from activity protected by the anti-SLAPP statute and that Wallace and Owen did not show a probability of prevailing on the merits. We begin with a brief description of the anti-SLAPP statute and then proceed with our analysis.

A. Code of Civil Procedure Section 425.16

Section 425.16 authorizes a defendant to file a special motion to strike when a cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. It establishes a procedure by which the frial court evaluates the merits of the plaintiff’s claim using a summary-judgment-like procedure at an early stage of the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 [46 Cal.Rptr.3d 606, 139 P.3d 2] (Flatley); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [25 Cal.Rptr.3d 298, 106 P.3d 958].) The purpose is to curb the chilling effect that certain litigation may have on the valid exercise of free speech and petition rights, and the statute is to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)

“In its motion, the defendant must make a threshold showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity, as specified in the statute. (§ 425.16, subds. (b), (e).) The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon).) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c).) We review an order granting or denying a motion to strike under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at p. 325.)” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547 [110 Cal.Rptr.3d 129] (Haight Ashbury); see Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 998 [85 Cal.Rptr.3d 880].)

B. First Prong: McCubbin and Merck’s Burden to Show Protected Activity

The first prong of the anti-SLAPP analysis required McCubbin and Merck to make a threshold showing that Wallace and Owen’s first and 13th causes of action arose from acts “in furtherance of [their] right[s] of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)

By statutory definition, an “ ‘act in furtherance of a person’s right of petition or free speech ... in connection with a public issue’ includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . . , (2) 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, (3) any written or oral statement or writing made in ... a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)

1. First Cause of Action: Wrongful Eviction

In their first purported cause of action, Wallace and Owen alleged that defendants’ attempts to recover possession of their apartment violated the Rent Ordinance, because their dominant motive was not one of the permissible grounds listed in the Rent Ordinance. Section 37.9 of the Rent Ordinance provides that “[a] landlord shall not endeavor to recover possession of a rental unit unless” the landlord’s dominant motive pertains to at least one of the occurrences specified in the ordinance. (Rent Ord., § 37.9, subds. (a)-(c).)

According to the complaint, the acts by which defendants attempted to recover possession of the apartment were, or at least included, Victor Wu’s service of the three-day notice to quit and his filing of the unlawful detainer action. Indeed, this is the wrongdoing alleged in the complaint that is most obviously related to a wrongful eviction claim.

The unlawful detainer action clearly falls within the scope of free speech or petitioning activity protected by the anti-SLAPP statute. “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 [67 Cal.Rptr.3d 190] (Birkner).) Furthermore, a notice of eviction or termination of a tenancy is protected activity where, as here, it is a legal prerequisite for bringing the unlawful detainer action. (Id. at pp. 281-282; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479-1481 [74 Cal.Rptr.3d 1] (Feldman) [service of a three-day notice to quit, filing of an unlawful detainer action, and threats by the landlord’s agent in connection with the dispute constituted protected activity under § 425.16, subd. (e)].) Wallace and Owen’s first cause of action is based on protected activity.

Wallace and Owen’s arguments to the contrary are unpersuasive. They contend that the wrongful eviction cause of action does not arise from the three-day notice and unlawful detainer litigation, because those acts are merely incidental to their claim. For purposes of anti-SLAPP analysis, however, an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability. (Haight Ashbury, supra, 184 Cal.App.4th at p. 1550; see Episcopal Church Cases (2009) 45 Cal.4th 467, 477-478 [87 Cal.Rptr.3d 275, 198 P.3d 66] [allegation that “lurk[s] in the background” to explain why a lift between the parties arose]; United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1628 [90 Cal.Rptr.3d 669] [allegations about a law firm’s protected communications for purposes of showing the firm had a conflict of interest]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414-417 [9 Cal.Rptr.3d 242] [defendant’s advertising activity was merely incidental to plaintiff’s causes of action for personal injury, where liability for those claims was based not on the advertising but on the product’s failure to conform to defendant’s warranties and statements].) It makes no sense for Wallace and Owen to argue that their cause of action for defendants’ attempt to evict them wrongfully is not based on defendants’ alleged attempt to evict them.

Wallace and Owen also argue that McCubbin and Merck lack standing to assert their anti-SLAPP motion as to the first cause of action, based on the filing of the unlawful detainer proceedings. They contend that, because McCubbin and Merck did not personally file the unlawful detainer complaint, and it is not expressly alleged that they exhorted Victor Wu to file it, the filing was not in furtherance of McCubbin and Merck’s rights of free speech and petition. Wallace and Owen did not make this standing argument in the trial court, and the argument is meritless given their allegations in this case.

As mentioned, the acts alleged in the complaint that could most likely constitute endeavoring to recover possession of a rental unit under section 37.9 of the Rent Ordinance are the filing of the three-day notice and prosecution of the unlawful detainer action. Wallace and Owen do not explain how the acts attributed directly and specifically to McCubbin and Merck (complaining to the landlord, complaining to Animal Control, etc.) could constitute endeavoring to recover possession of a rental unit within the meaning of the Rent Ordinance. Since Wallace and Owen nonetheless seek to hold McCubbin and Merck liable for wrongful eviction, their wrongful eviction cause of action must be based on the three-day notice and the unlawful detainer litigation, whether the complaint is construed to allege that McCubbin and Merck actually performed the acts, participated in them, or are otherwise responsible for them. Indeed, it is alleged extensively in the complaint that all “Defendants [(including McCubbin and Merck)] took the actions alleged in paragraphs 1 through 51” and “each and every of the Defendants herein were responsible in some manner for the acts, omissions, and occurrences herein alleged.” (Italics added.) Whether McCubbin and Merck performed the acts themselves or merely assisted, exhorted, or motivated the Wus to perform them, McCubbin and Merck may assert their rights under the anti-SLAPP statute. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 16-18 [43 Cal.Rptr.2d 350] [defendant may claim protection under the anti-SLAPP statute, even though he only supported another person who actually performed the protected activity].)

McCubbin and Merck met their initial burden of showing that Wallace and Owen’s wrongful eviction cause of action arose from activity protected under the anti-SLAPP statute.

2. Thirteenth Cause of Action: Retaliatory Eviction (Civ. Code, § 1942.5)

Wallace and Owen allege that all defendants violated Civil Code section 1942.5 by retaliating against Wallace and Owen “for exercising their rights within 180 days of [their] complaint to a governmental agencies [sic] and otherwise exercising their rights under law.” It is not clear from this allegation whether Wallace and Owen seek recovery under subdivision (a) of Civil Code section 1942.5, subdivision (c) of the statute, or both. Reference to the “180 days” period suggests subdivision (a); reference to “exercising their rights under law” may suggest subdivision (c), and it is this subdivision they reference in their respondents’ brief.

Subdivision (a) of Civil Code section 1942.5 precludes a lessor from recovering possession of a dwelling, causing the lessee to quit involuntarily, increasing rent, or decreasing services within 180 days of certain complaints or actions the tenant takes in regard to the tenantability of the dwelling, if the lessor’s actions are retaliatory. We do not see how subdivision (a) can apply in this case, however, since there is no allegation that Wallace or Owen ever complained about the tenantability of the dwelling.

Subdivision (c) of Civil Code section 1942.5 provides: “It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law. . . .”

The 13th cause of action does not specify what acts purportedly violated either subdivision of Civil Code section 1942.5. Instead, it asserts that “Defendants took the actions alleged in paragraphs 1 through 51,” without distinguishing between the acts of the Wus and the acts of McCubbin and Merck. As mentioned, the complaint asserts that each defendant is liable for the acts of the other.

The “actions alleged in paragraphs 1 through 51,” either by McCubbin and Merck or by Victor or Lawrence Wu as part of defendants’ “campaign,” include the following. In 2006 and 2007: McCubbin and Merck complained to the Wus about Nemo’s purported aggressive behavior; McCubbin and Merck started an argument with Wallace about Nemo being overly friendly and noisy; and Lawrence Wu threatened Wallace and Owen that “Defendants” would eventually have Nemo removed. Within 180 days of Wallace’s June 2007 complaint to the San Francisco Human Rights Commission about “Defendants’” threats to remove Nemo: Victor Wu interrogated Wallace as to Wallace’s need for a service dog and warned that Wallace and Owen would be evicted if they did not get rid of Nemo; McCubbin informed Lawrence Wu that Wallace and Owen were advertising for a new subtenant; Victor Wu intimidated the new subtenant; and McCubbin and Merck filed a complaint with Animal Control about Nemo. Within 180 days after Wallace’s November 2007 complaint to the San Francisco Human Rights Commission about McCubbin and Merck: Victor Wu denied Wallace’s request for a subtenant, Lawrence Wu stated that subletting would result in legal action, and Victor Wu served a three-day notice to quit and filed the unlawful detainer action.

In sum, Wallace and Owen base their 13th cause of action on the following categories of acts: (1) McCubbin and Merck’s complaints to Wallace and Owen; (2) McCubbin and Merck’s complaints to the Wus; (3) the Wus’ threat to evict Wallace and Owen unless Nemo was removed; (4) McCubbin and Merck’s complaint to Animal Control; (5) Victor Wu’s treatment of Wallace and Owen’s subtenant and refusal of their request to have a third adult reside in the apartment; and (6) the three-day notice to quit and ensuing unlawful detainer action.

Some of these acts clearly constitute protected activity under the antiSLAPP statute. As we have explained ante, service of the three:day notice and the filing of the unlawful detainer action comprise petitioning activity under section 425.16, subdivision (e). (Birkner, supra, 156 Cal.App.4th at pp. 281-283; Feldman, supra, 160 Cal.App.4th at pp. 1479-1480.)

McCubbin and Merck’s complaint to Animal Control also falls within section 425.16, subdivision (e). Reports to governmental agencies intended to prompt an investigation constitute activity in furtherance of the right of free speech or petition. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511-1512 [65 Cal.Rptr.3d 641] [anti-SLAPP statute protects reports of child abuse to investigative authorities].)

Wallace and Owen argue that McCubbin and Merck’s complaint to Animal Control is not before this court. They contend their cause of action arises not from the complaint to Animal Control but from the “unstated independent dominant motive preceding that complaint: [t]o force Plaintiffs to leave the property with their companion dog.” (Original italics.) But causes of action do not arise from motives; they arise from acts. The act, in the context of Wallace and Owen’s allegations, was the complaint to Animal Control.

Other acts on which Wallace and Owen based their 13th cause of action might not constitute protected petitioning activity under the anti-SLAPP statute. For example, Victor Wu’s threat to evict Wallace and Owen unless they got rid of Nemo might constitute a threat to evict or to cause them to involuntarily terminate their tenancy under Civil Code section 1942.5, but it would not be protected under subdivision (e) of Code of Civil Procedure section 425.16, because it was not made in connection with any judicial or administrative proceeding: the ensuing unlawful detainer action was not based on Nemo, but on an impermissible subtenant. As to McCubbin and Merck’s complaints to Wallace and Owen about Nemo, and the Wus’ refusal to permit a new subtenant, McCubbin and Merck make no argument that those acts constitute protected activity. We also question whether McCubbin and Merck’s complaints to the Wus about Nemo would be covered by the anti-SLAPP statute, since they were not made in connection with any judicial or administrative proceeding and probably do not constitute statements in connection with a public issue or an issue of true public interest (a matter we need not and do not decide here). The point is that, because the 13th cause of action is based on some acts other than the report to Animal Control, three-day notice, and unlawful detainer proceedings, it is based on both protected activity and unprotected activity.

Where a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 “ ‘ “unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” ’ ” (Haight Ashbury, supra, 184 Cal.App.4th at p. 1551; see Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672-673 [35 Cal.Rptr.3d 31] (Peregrine Funding) [first prong of anti-SLAPP analysis met where the allegations of loss resulting from protected activity were not merely incidental or collateral to unprotected activity].)

The protected conduct alleged in Wallace and Owen’s 13th cause of action is not merely incidental to the alleged unprotected conduct. The three-day notice and unlawful detainer are two of the acts on which liability is premised, and those acts are certainly not collateral to a cause of action that seeks relief for causing a lessee to quit involuntarily or bringing an action to recover possession. McCubbin and Merck satisfied the first prong of the anti-SLAPP analysis as to the 13th cause of action. (Haight Ashbury, supra, 184 Cal.App.4th atp. 1551, fn. 7 [“where the defendant shows that the gravamen of a cause of action is based on nonincidental protected activity as well as nonprotected activity, it has satisfied the first prong of the [anti-]SLAPP analysis”]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287 [74 Cal.Rptr.3d 873] (Salma) [mixed causes of action are subject to a special motion to strike under § 425.16 if “at least one of the underlying acts is protected conduct. . .”].)

3. Respondents’ Illegality Argument Is Meritless

We turn next to Wallace and Owen’s arguments that are relevant to both the first and 13th causes of action. As to both of these causes of action, Wallace and Owen contend that the underlying acts are not protected by the anti-SLAPP statute because the acts were shown to be illegal as a matter of law. Their argument is unavailing.

In the first placé, Wallace and Owen did not raise this argument in the trial court. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287 [46 Cal.Rptr.3d 638, 139 P.3d 30] [plaintiff must provide notice to defendant and the trial court about the particular statute defendant is alleged to have violated as a matter of law].) They fail to demonstrate why they should be able to argue the matter now.

Moreover, the fact that a defendant’s conduct was alleged to be illegal, or that there was some evidence to support a finding of illegality, does not preclude protection under the anti-SLAPP law. (Birkner, supra, 156 Cal.App.4th at pp. 278-279, 285 [landlord’s termination notice did not fall outside the scope of the anti-SLAPP statute merely because it allegedly violated the Rent Ord.]; see G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612-616 [110 Cal.Rptr.3d 559] [attorney’s filing of a credit report in connection with a postdissolution motion, in violation of Cal. rules of court, was protected activity]; Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-481 [99 Cal.Rptr.3d 394] [lodging a will, pursuing probate proceedings, and defending in litigation matters constituted protected activity, even though the acts violated child support evasion statutes].) An exception exists only where “the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence . . . .” (Flatley, supra, 39 Cal.4th at pp. 316, 320 [defendant’s conduct was criminal extortion as a matter of law]; see Hutton v. Hafif (2007) 150 Cal.App.4th 527, 541 [59 Cal.Rptr.3d 109]; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365 [102 Cal.Rptr.2d 864], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) Here, however, McCubbin and Merck do not admit any illegality; nor does the evidence conclusively establish that they committed conduct that was illegal as a matter of law: Wallace and Owen do not prove that McCubbin and Merck willfully assisted the Wus in violating the Rent Ordinance (Rent Ord., § 37.9, subd. (e)), their actions were retaliatory (Civ. Code, § 1942.5), or they could be liable for the Wus’ acts. (See discussion of prong two, post.)

4. Respondents’ Gestalt Characterization of Their Causes of Action Is Incorrect

Lastly, we address Wallace and Owen’s primary argument: that their first and 13th causes of action, and their complaint as a whole, are not really about the three-day notice or the unlawful detainer action at all, but about “discrimination.” In the nomenclature of the anti-SLAPP statute, they contend the first and 13th causes of action arise generally from unlawful discriminatory efforts to oust them from the premises, rather than from the termination notice, unlawful detainer, or any other particular act in itself. As we shall see, respondents’ contention is inconsistent with the allegations of their complaint; it is also based on a misconception of the anti-SLAPP statute and case law.

a. Wallace and Owen did not allege discriminatory acts

As a threshold matter, Wallace and Owen’s argument that the court should look to the discriminatory gestalt of their allegations rings hollow in light of what they actually pled in connection with their first and 13th causes of action. Although they alleged generally in paragraph 51 that defendants acted as part of a campaign against the disabled and intended to discriminate on the basis of Wallace’s disabilities, their more specific allegations asserted that defendants had threatened to evict other tenants in the building for having dogs as well. Given this allegation, it is difficult to see how the gravamen of the first or 13th causes of action could be discrimination against the disabled; to the contrary, the causes of action are based on acts of evicting or attempting to evict Wallace and Owen, not discriminating against them.

Conceivably, Wallace and Owen are contending that they are victims of discrimination because, in treating them the same as other tenants, Victor Wu did not accomodate Wallace’s disability. Or they might be pursuing a tenuous theory that they were victims of discrimination because Victor Wu tried to evict them on a ground that was different than the one he employed against other tenants: he attempted to get rid of Wallace and Owen (and Nemo) for having an illegal subtenant, since Wallace’s disability and need for a service dog precluded evicting them on the ground of having an impermissible pet. This rather odd theory would ultimately run into serious problems, of course, since Rent Ordinance section 37.9 and Civil Code section 1942.5 prohibit certain acts, not discrimination per se. Nonetheless, we proceed to the merits of their gestalt argument.

b. Respondents’ “gestalt” approach is wrong

One need look no further than the language of the anti-SLAPP statute to conclude that Wallace and Owen’s gestalt theory is incorrect. According to subdivision (b)(1) of section 425.16: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech” is subject to a motion to strike. (Italics added.) From this language, it is clear that we must look at the nature of the specific “act” that allegedly gives rise to the cause of action, not the gestalt or gist of the allegations generally. (See also McDowell, supra, 59 Cal.App.4th at p. 1159 [“cause of action,” as classically defined under the primary right doctrine, consists of a wrongful act that breaches the defendant’s duty and infringes the plaintiffs right].)

Indeed, our Supreme Court has made clear that the statutory language focuses on acts: “In short, the 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. [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695], first & third italics added.) We are admonished to examine the act underlying the cause of action, not the gist of the cause of action.

Furthermore, while it is often said that the first prong of the anti-SLAPP analysis calls us to ascertain the “gravamen” of the cause of action, for anti-SLAPP purposes this gravamen is defined by the acts on which liability is based, not some philosophical thrust or legal essence of the cause of action. (Haight Ashbury, supra, 184 Cal.App.4th at pp. 1550-1551; see Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248-1249 [63 Cal.Rptr.3d 398, 163 P.3d 89] (Action Apartment) [gravamen of a cause of action based on a rent ordinance precluding a landlord from maliciously bringing an action to recover possession is the act of filing a legal action]; see also Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1535 [49 Cal.Rptr.3d 60] [“ ‘The gravamen ... of a cause of action is determined by the primary right alleged to have been violated, not by the remedy sought.’ ”]; McDowell, supra, 59 Cal.App.4th at p. 1159 [same].)

We note as well that Wallace and Owen’s gestalt approach would result in an elusive, subjective, and unpredictable exercise that would likely lead to inconsistent decisions. As the Fifth Circuit Court of Appeals observed in a different but similar context: “The gestalt approach adopted by the district court might cause a number of significant problems. First, a court’s determination of the ‘essence’ of the plaintiff’s claims is likely to be highly metaphysical . . . .” (King v. Otasco, Inc. (5th Cir. 1988) 861 F.2d 438, 441 [trial court erred in applying statute of limitations to the essential nature of the plaintiff’s claims, rather than each individual claim].) Focusing on the acts on which liability is based, by contrast, is clearer, simpler, and more predictable.

Finally, Wallace and Owen’s gestalt theory would permit crafty plaintiffs to skirt the intended protections of the anti-SLAPP statute, by characterizing their attack on protected activity in broad terms such as “discrimination.” (See Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [106 Cal.Rptr.2d 906] [“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’ ”].) Wallace and Owen’s gestalt approach is simply untenable.

c. Respondents’ cases are inapposite

Wallace and Owen do not cite any case holding that a court should look at the gestalt of a cause of action in order to determine whether the anti-SLAPP statute applies. Instead, they rely primarily on Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 [65 Cal.Rptr.3d 469] (DFEH), apparently because it held that the gravamen of a complaint was for disability discrimination—the outcome Wallace and Owen urge here. (Id. at p. 1281.) The pleading in DFEH, however, was vastly different than the causes of action that are the subject of the anti-SLAPP motion before us.

In DFEH, a landlord decided to remove its apartment building from the rental market, providing notice pursuant to the municipal code and the Ellis Act (Gov. Code, § 7060 et seq.). (DFEH, supra, 154 Cal.App.4th at pp. 1275-1277.) One of the tenants responded that she was disabled and requested an extension of the deadline to vacate the premises, as permitted by statute, but failed to substantiate her disability to the landlord’s satisfaction. (Id. at pp. 1277-1279.) After an unlawful detainer action, the tenant was evicted. (Id. at p. 1280.) The Department of Fair Employment and Housing (DFEH) then sued the landlord for disability discrimination, alleging causes of action for “(1) discrimination in connection with housing accommodation under Government Code section 12955, subdivision (a), the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.); (2) denial of civil rights under Government Code section 12955, subdivision (d), the Unruh Civil Rights Act (Civ. Code, §51), and Civil Code section 51.2 et seq.; and (3) denial of civil rights under Government Code section 12948 and Civil Code section 54.1, subdivision (d) for disability discrimination.” (DFEH, at p. 1280.) The DFEH did not assert a cause of action for wrongful eviction or retaliation. (Ibid.) The trial court denied the landlord’s antiSLAPP motion to strike the damages portion of the complaint. (Id. at pp. 1280-1281.)

The appellate court in DFEH concluded that the DFEH’s lawsuit did not challenge any particular act the landlord took with respect to its filings in the removal process or its unlawful detainer actions, but for the landlord’s alleged acts in failing to make a reasonable accommodation for the tenant’s disability. (DFEH, supra, 154 Cal.App.4th at p. 1285.) The court explained: “This suit is instead based on DFEH’s claims [the landlord] discriminated against [the tenant] by failing to accept the fact of, and accommodate, her disability by granting her an extension of her tenancy to one year.” (Id. at p. 1287.)

DFEH is clearly distinguishable from the matter at hand. DFEH did not involve a cause of action for wrongful eviction under Rent Ordinance section 37.9, which addresses actual or attempted eviction. Nor was it based on the antiretaliation statute, Civil Code section 1942.5, which bars retaliatory acts of increasing rent, decreasing services, causing the tenant to quit, or bringing an action to recover possession. Instead, the causes of action in DFEH were brought under antidiscrimination statutes specifically targeting acts of discrimination. While causes of action for discrimination might arise from acts of discrimination (which the landlords in DFEH did not claim were protected), Wallace and Owen’s causes of action for wrongful eviction and retaliatory eviction arise from acts of actual or threatened eviction—here including the acts of serving a three-day notice and prosecution of the ensuing unlawful detainer case—which do constitute protected activity. Indeed, McCubbin and Merck’s anti-SLAPP motion was directed only to the first and 13th causes of action, for wrongful eviction and retaliation respectively, and not to Wallace and Owen’s causes of action for discrimination.

Much closer to the matter at hand is Birkner, supra, 156 Cal.App.4th 275. There, the landlord served a 60-day notice to terminate a tenancy pursuant to the Rent Ordinance’s provision for owner-relative move-ins, seeking possession of the apartment so his mother could live there. (Birkner, at p. 279.) Under the Rent Ordinance, a landlord could usually terminate a tenancy so that a relative could occupy the premises as his or her principal residence, unless the landlord received notice that a tenant in the unit was disabled or over the age of 60 and had lived there for a specified number of years. (Birkner, at pp. 278-279.) The tenants notified the landlord that they fell within this protection, but the landlord refused to rescind the termination notice. Furthermore, evidence indicated that the landlord would have proceeded with an unlawful detainer action if his mother had not died. (Id. at p. 280.) The tenant sued for “wrongful eviction-violation of a rent ordinance,” negligence, breach of the covenant of quiet enjoyment, and intentional infliction of emotional distress. (Id. at p. 278.) The trial court denied the landlord’s anti-SLAPP motion, concluding the causes of action were not based upon protected activity. (Ibid)

The appellate court reversed. Recognizing that the act of terminating a tenancy is not, in itself, protected activity, the court in Birkner mled that the service of a termination notice and refusal to rescind it are protected activities in furtherance of the constitutional rights of free speech or petition if the termination notice is the legal prerequisite for bringing an unlawful detainer action. (Birkner, supra, 156 Cal.App.4th at pp. 281-282.) As applied here, the service of the three-day notice was the legal prerequisite for bringing the unlawful detainer action, and both the three-day notice and the unlawful detainer constitute protected activity.

Also on point is Feldman, supra, 160 Cal.App.4th 1467. In Feldman, a property owner served tenants with a three-day notice to quit, alleging they were unapproved subtenants, and then filed an unlawful detainer action. (Id. at p. 1475.) The subtenants filed a cross-complaint for wrongful eviction, retaliatory eviction, and numerous other causes of action, claiming among other things that the property owner’s agent had made numerous threats before any litigation was actually filed. (Id. at pp. 1474-1475.) The property owner filed an anti-SLAPP motion to strike the cross-complaint, on the ground it arose out of protected activity and the alleged wrongdoing was protected by the litigation privilege (Civ. Code, § 47, subd. (b)). (Feldman, supra, at pp. 1475-1476.)

The Court of Appeal in Feldman held that the causes of action arose from the alleged threats by the property owner’s agent, the service of the notice to quit, and the filing of the unlawful detainer action. (Feldman, supra, 160 Cal.App.4th at p. 1479.) The filing of the unlawful detainer and the service of the notice to quit constituted protected activity under section 425.16, subdivision (e). (Feldman, at pp. 1479-1480.) The court also held that threats by the property owner’s agent were also within the scope of the anti-SLAPP statute, as communications in connection with an ongoing dispute and in anticipation of litigation. (Feldman, at p. 1481.) The court concluded: “These activities [(filing of the unlawful detainer, service of the three-day notice, and the agent’s statements)] are not merely cited as evidence of wrongdoing or activities ‘triggering’ the filing of an action that arises out of some other independent activity. These are the challenged activities and the bases for [causes of action including wrongful eviction and retaliatory eviction].” (Id. at p. 1483.)

Akin to Birkner and Feldman, and unlike DFEH and the other cases on which Wallace and Owen rely, a three-day notice and an unlawful detainer action were the bases of Wallace and Owen’s first and 13th causes of action. These alleged acts did not merely precede or trigger the lawsuit by Wallace and Owen; nor were these acts alleged solely as evidence of other wrongdoing that was the actual basis of the lawsuit. (See Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 953-955 [99 Cal.Rptr.3d 609] [distinguishing Marlin and Clark from Birkner and Feldman].) For purposes of the anti-SLAPP statute, the first and 13th causes of action arose from protected activity.

McCubbin and Merck met their threshold burden of establishing that the first and 13th causes of action arise from protected activity. We therefore turn to the second prong of the anti-SLAPP analysis.

C. Second Prong: Wallace and Owen’s Burden to Show Probability of Prevailing

In the second prong of the anti-SLAPP analysis, the court must determine whether the plaintiff has shown, by admissible evidence, a probability of prevailing on the claim. (§ 425.16, subd. (b).) The trial court in this case did not decide this issue, because it ruled against McCubbin and Merck in prong one. In such circumstances, we may remand the matter to the trial court to conduct the second-prong analysis. (See, e.g., Birkner, supra, 156 Cal.App.4th at p. 286.) On the other hand, we have discretion to decide the issue ourselves, since it is subject to independent review. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616 [129 Cal.Rptr.2d 546] [deciding prong-two issue despite trial court’s failure to reach it].)

Because the parties have different views as to how prong two should be approached, we conclude it would be more efficient for us to resolve the matter in this opinion. We do so by first considering how a plaintiff might demonstrate a probability of prevailing on a claim, and then determining whether Wallace and Owen met that standard in this case.

1. Determining the Probability of Prevailing

When the defendant has made a threshold showing that the plaintiff’s cause of action arises from the defendant’s free speech or petitioning activity, the burden shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) Where the cause of action is based on allegations of unprotected activity as well as allegations of protected activity—as with the first and 13th causes of action here, according to Wallace and Owen—the question arises whether the plaintiff can satisfy this burden by showing it could prevail based on any of the allegations underlying the cause of action, or whether the plaintiff must show it could prevail based on the allegations of protected activity alone.

The issue was addressed several years ago in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 [15 Cal.Rptr.3d 215] (Mann). The court ruled that, if a cause of action is based on both protected and unprotected activity, the plaintiff must show in the second prong of the anti-SLAPP analysis only that it has a probability of prevailing on “any part of its claim,” whether it be by showing some merit to the allegations of protected activity or some merit to the allegations of unprotected activity. (Mann, 120 Cal.App.4th at pp. 100, 106, some italics omitted.)

In Haight Ashbury, the concurring and dissenting opinion asserted that the rule in Mann was unwise, largely because it would allow plaintiffs to end-run the anti-SLAPP statute and insulate their meritless attacks on protected activity by merely joining them with nonfnvolous allegations of unprotected activity. The majority in Haight Ashbury, however, determined that the issue should be left to “a future case where it is squarely presented for decision.” (Haight Ashbury, supra, 184 Cal.App.4th at p. 1555.) That “future case” is here, as Wallace and Owen’s first and 13th causes of action are based on protected and unprotected activity.

We therefore reexamine what a plaintiff must do to show a probability of prevailing on “the claim” (§ 425.16, subd. (b)(1)), where the plaintiff has based liability on both protected and unprotected activity. We do so by analyzing the statutory language, legislative history, public policy, Mann, and two California Supreme Court cases—Taus v. Loftus (2007) 40 Cal.4th 683 [54 Cal.Rptr.3d 775, 151 P.3d 1185] (Taus) and Oasis West Realty v. Goldman (2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256, 250 P.3d 1115] (Oasis).

Oasis cited Mann with approval, albeit in a case that apparently did not involve a mixed cause of action. Taus, which also did not deal with a mixed cause of action, would seem to lead to a result different than the one reached in Oasis. To evaluate the applicability of Taus and Oasis to the matter at hand, therefore, we find it best to begin at the beginning, examining the language of the statute itself.

a. Statutory Language

Questions of statutory interpretation must start with the statutory language, according each word a commonsense meaning in light of both the language used and the evident purpose of the statute. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 775 [72 Cal.Rptr.2d 624, 952 P.2d 641] (Hughes); Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812, 821 [43 Cal.Rptr.3d 235] (Mahon).) If the statutory language is unambiguous, there is no need for judicial construction. (Hughes, at p. 775; Mahon, at p. 821.) If the language is susceptible to more than one reasonable meaning, we turn to standard rules of statutory construction and consider other indicia of legislative intent, including the statutory scheme, legislative history and purpose, and public policy. (Mahon, at p. 821.)

Subdivision (b)(1) of section 425.16 provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Italics added.)

Thus, while indicating that a “cause of action” targeting protected activity may be struck, the statute allows the plaintiff to avoid that consequence by showing a probability of prevailing on “the claim.” (§425.16, subd. (b)(1), italics added.) To figure out what the plaintiff must do to establish a probability of prevailing on the “claim,” we therefore must decide what “claim” means: is it the same as “cause of action,” or different? And if it is the same, what does “cause of action” mean? We see three alternative reasonable readings of the statute in this regard.

One reasonable way of looking at the statutory language is that, by the Legislature’s use of different terms, a “cause of action” must mean something different than the “claim” for which there must be a probability of prevailing. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 518 [39 Cal.Rptr.3d 55] [use of different words in same section of the law as to the same subject indicates the words were meant to be understood differently].) Thus, while “cause of action” commonly refers to all the plaintiff has alleged in a count or as to a primary right, the “claim”—if it is to mean something else—must refer to the antecedent concept in subdivision (b)(1) pertaining more specifically to liability based on “act\s\ ... in furtherance of the person’s right of petition or free speech”—i.e., protected activity. (§ 425.16, subd. (b)(1), italics added.) Under this construction, when the statute requires the plaintiff to show a probability of prevailing on the “claim,” it would mean a probability of prevailing on the allegations that specifically premise liability on the protected activity, not a probability of prevailing on some other aspect of what the plaintiff has pled as a cause of action.

A second reasonable reading of the statute would lead to the same result. Section 425.16, subdivision (b)(1) might reasonably be read such that “cause of action” and “claim” mean the same thing, with both terms referring to a plaintiff’s assertion of liability based on activity protected by the statute. In other words, a “cause of action” arising from protected activity does not mean a count that includes protected activity, but the specific charging allegations that are based exclusively on protected activity. “[T]he claim” refers back to this same concept. Given these definitions, the statute would effectively provide: allegations of liability arising from protected activity are subject to a motion to strike unless the plaintiff shows a probability of prevailing on those allegations of protected activity. Under this interpretation as well, the plaintiff would have to show some modicum of merit to its assertion of liability that targets protected activity.

A third reading of the statute would again conclude that “cause of action” and “claim” refer to the same thing, but this time in the sense that “the claim” refers back to the subdivision’s reference to a “cause of action” as a count (everything the plaintiff alleged in what it termed, e.g., its “thirteenth cause of action”). In effect, the subdivision would provide that a cause of action (count) arising from protected activity is subject to a motion to strike unless the plaintiff shows a probability of prevailing on the cause of action (count) arising from protected activity.

Under this construction, a cause of action arising entirely from protected activity would be subject to a motion to strike unless the plaintiff showed a probability of prevailing on the cause of action arising entirely from protected activity. In the case of a mixed cause of action, a cause of action arising in part from protected activity would be subject to a motion to strike unless the plaintiff showed a probability of prevailing on the cause of action arising in part from protected activity. This, however, merely begs the question: how does the plaintiff show a probability of prevailing on the cause of action arising in part from protected activity—with the part that targets protected activity, or the part that does not?

If we look no further than the words in subdivision (b)(1) of section 425.16, we might venture that the Legislature, by its silence on this point, was content to allow a plaintiff to establish a probability of prevailing based on protected or unprotected activity. We would quickly find, however, that other provisions of the same statute, as well as the purpose apparent from the face of the statute as a whole, suggest the contrary.

Taken as a whole, it is plain from the words in section 425.16 that its purpose is to scrutinize a plaintiff’s attempt to base liability on the activity identified in subdivision (e) of section 425.16. To protect activity identified in subdivision (e), it would be reasonable to have the court examine whether the plaintiff’s attack on that activity has any inkling of merit. By contrast, it would be unreasonable to purport to protect the activity in subdivision (e) by looking at the merit of activity not mentioned in subdivision (e). The logical inference, then, is that a plaintiff basing liability on both protected activity and unprotected activity should have to establish a probability of prevailing as to his or her attack on the activity the statute was designed to protect— protected activity—nothing more than that, and nothing less.

Adopting any of these three alternatives as the plain meaning of section 425.16, subdivision (b)(1) would compel a plaintiff to demonstrate a probability of prevailing on his attempt to base liability on protected activity. The fact that there are three alternatives may suggest subdivision (b)(1) is ambiguous, but the ambiguity is of no moment since all three alternatives point to the same conclusion—any ambi