Two recent published decisions from the California Court of Appeal — Pechkis v. Trustees of the California State University, No. C103742, 2026 WL 809384 (Mar. 24, 2026), and Clapkin v. Levin, No. B340606, 2026 WL 733845 (Mar. 16, 2026) — serve as reminders that anti-SLAPP motions rise or fall on the precision of the moving party’s analysis. A defendant that seeks to strike a cause of action must show that the cause of action arises only from protected activity. If the cause of action could survive based on unprotected activity, the motion fails — and the court will not strike the protected allegations on its own.
Clapkin also surfaces a separate issue that practitioners should consider before appealing the denial of anti-SLAPP fees alongside the denial of the motion itself. Whether the denial of anti-SLAPP fees is immediately appealable remains unsettled in the Court of Appeal.
A cause of action based only “in part” on protected activity cannot be stricken
In Pechkis v. Trustees of the California State University, a physics professor at Chico State allegedly reported discrimination and harassment by the department chair. When Chico State failed to remedy the problem, the professor allegedly suffered various forms of retaliation. First, Chico State constructively discharged the professor by forcing her to accept a position at Cal Poly. Second, Chico State launched a Privacy Act investigation into blog posts that she had written and disclosed the investigation to Cal Poly, jeopardizing her new position. Finally, Chico State caused unnecessary delays in the transfer of her lab equipment to Cal Poly.
The professor sued the Trustees of the California State University, asserting claims for FEHA retaliation and “whistleblower retaliation” based on the alleged retaliatory conduct. In response, the Trustees filed an anti-SLAPP motion seeking to strike both causes of action on the ground that they were “based in part” on Chico State’s communications to Cal Poly about the investigation — communications made in connection with an official proceeding and therefore protected under Code of Civil Procedure section 425.16(e). The trial court denied the motion on the ground that the professor had established a probability of prevailing on the claim at the second step of the anti-SLAPP analysis.
The Court of Appeal affirmed, but only because the motion failed the first step of the anti-SLAPP analysis. The court held that constructive discharge and the initiation of an investigation were not necessarily protected activities and that the Trustees had presented no argument for why those activies should be protected here. And although the communications were protected, the court rejected the argument that the causes of action must be stricken because the professor’s claims were only “based in part” on those communications. Being based in part on protected speech is not enough.
Pechkis’s key takeaways for trial counsel
The unsuccessful motion filed in Pechkis gave the court an opportunity to provide a clear roadmap for a successful anti-SLAPP motion. To strike a cause of action in its entirety, the court instructed, the moving party must show that protected activity supplies the necessary elements of the claim. That requires identifying each element of the cause of action, explaining how allegations of protected activity supply those elements, and accounting for whether unprotected allegations also support liability. It is a mistake to assume that “one drop of protected conduct fatally poisons” a cause of action.
If you cannot make that showing, the motion should target specific protected allegations rather than the entire cause of action. The court will not identify those allegations for you. As the Pechkis court held, a court will “not independently perform surgery on [a] cause[] of action” where the “defendant has wholly failed to ‘propose where to make the incisions.’”
A cause of action does not arise from earlier litigation activity when the cause of action would exist without the earlier litigation
Clapkin v. Levin arose from a dispute between cousins over control of a family real estate corporation. After a probate court appointed the Clapkins as successor cotrustees, the Clapkins asked the Levins to register the trust’s shares in the names of the Clapkin children. Instead of complying, the Levins sued the Clapkins, and the Clapkins cross-complained, claiming that the Levins had repeatedly contended that the Clapkins are not the successor trustees.
The Levins filed an anti-SLAPP motion seeking to strike some of the Clapkins’ cross-complaints. The trial court denied the motion, and the Court of Appeal affirmed.
Although the parties had filed eight other lawsuits against each other, the Court of Appeal held that the Levins “did not show any of the Clapkins’ causes of action ar[o]se from litigation activity.” Instead, the causes of action arose from the Levins’ unprotected activity of refusing to register the shares in the names of the Clapkin children as successor cotrustees. The Court of Appeal also supplied a useful test: if the lawsuit would still exist without any prior litigation between the parties, it does not arise from the litigation process, and CCP section 425.16 does not apply.
Whether the denial of anti-SLAPP fees is immediately appealable remains unsettled in the Court of Appeal
The more noteworthy aspect of Clapkin involves the Clapkins’ cross-appeal. After the trial court denied the Levins’ anti-SLAPP motion, the Clapkins sought attorney’s fees under CCP section 425.16(c)(1), which authorizes fees for a plaintiff who prevails against an anti-SLAPP motion when the motion is “frivolous or is solely intended to cause unnecessary delay.” The trial court denied fees. The Clapkins appealed that denial as part of the same appeal.
The Court of Appeal dismissed the Clapkins’ cross-appeal for lack of jurisdiction. Although CCP section 425.16(i) makes orders granting or denying anti-SLAPP motions immediately appealable, the statute says nothing about fee orders. As the California Supreme Court held in Meinhardt v. City of Sunnyvale, an “appellate court generally lacks jurisdiction to decide an appeal from an order unless the order is one that is expressly made appealable by statute.” 16 Cal. 5th 643, 652 (2024). Accordingly, the Court of Appeal followed its earlier decision in Doe v. Luster, where it held that anti-SLAPP fees were not appealable with the anti-SLAPP motion. 145 Cal. App. 4th 139, 150 (2006).
But this was not the end of the analysis. Only last year, the Court of Appeal held in Gumarang v. Braemer on Raymond, LLC, that “it would be absurd to defer the issue of attorney fees until a future date” when reviewing the merits of an anti-SLAPP motion. 110 Cal. App. 5th 370, 387 (2025); see also Baharian-Mehr v. Smith, 189 Cal. App. 4th 265, 275 (2010). The Clapkin court declined to follow Gumarang and cases like it, explaining that “the statutory language does not support their conclusion.”
The California Supreme Court has not resolved the split of authority. Therefore, counsel should be aware that the Court of Appeal may dismiss an anti-SLAPP fee appeal for lack of jurisdiction, even when filed alongside the denial of the anti-SLAPP motion on the merits.
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