“Courts use a two-step process for determining whether an action or a claim is a SLAPP suit subject to a special motion to strike. Plaintiff’s claim must (1) arise out of defendant’s protected speech or petitioning; and (2) lack even minimal merit. Commonly, the court first determines whether plaintiff’s claims arise out of protected activity—i.e., whether the claim against defendant is predicated on defendant’s exercise of a constitutional right of free speech or petition. It is defendant’s burden to show the claim arises out of protected activity. If that burden is not met, the motion will be denied. If defendant meets the first prong burden, the burden shifts to plaintiff to show the probability that plaintiff will succeed on the merits of the claim. In other words, even if the conduct for which defendant is being sued implicates defendant’s free speech or petition rights, the lawsuit may proceed if plaintiff makes a prima facie showing that the claim has merit.”
[California Practice Guide: Civil Procedure Before Trial [certain citations omitted]]
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