In deciding a special motion to strike made under California’s anti-SLAPP law, the first step is for the court to determine whether the defendant has met its burden of establishing that the challenged claims “aris[e] from” protected activity in which the defendant has engaged. In conducting this analysis, the court must carefully distinguish between activities that form the basis for a claim—and those that merely lead to the liability-creating activity or provide evidentiary support. Only when the former arise from protected activity is the anti-SLAPP statute put in play. In other words, the alleged injury-producing act forming the basis for the claim must itself consist of protected activity. If it does not, the claim is not covered, regardless of whether other material in the complaint, such as background evidence or context, does.

In a recent case from the California Court of Appeal, the defendant prevailed on an anti-SLAPP motion directed against a breach of fiduciary duty claim that alleged he diverted funds from an LLC in order to pay his litigation expenses. The trial court agreed with defendant that funding litigation constitutes protected petitioning activity. Held: Reversed. The plaintiff’s cause of action depended not on the purpose of the diversion of funds; stripped of this evidentiary allegation, it would still stand. The injury-causing mechanism was the diversion of funds itself—not their subsequent use—and said diversion is not protected activity.