The plaintiff's strategic decision to "not discuss" prong two of the anti-SLAPP analysis in hopes of supplemental briefing later proved fatal in *Ramirez v. McCormack* (D2d8, Aug. 8, 2025, No. B340986) reh'g denied (Aug. 19, 2025). Courts expect parties to present complete arguments in their initial briefs—don’t rely on getting a second chance.
In a scenario familiar to attorneys, after Ramirez agreed in a prior lawsuit to accept a settlement, the attorney sent the payment to Ramirez’s attorney. As a result of a mailing-address mixup, Ramirez claimed she suffered $400,000 in damages. Ramirez, even with a capacious 100-page complaint, did not explain how. But she blamed attorney McCormack for that and for delaying other aspects of the settlement.
Reversing on prong one, the Court of Appeal held the attorney’s activity was protected. While other cases hold that a breach of a settlement is not necessarily protected, here the attorneys’ actions were part of the right of petition—directing process servers, communicating with counsel, negotiating settlement, drafting requests to dismiss, and advising clients on the timing of executing the settlement terms.
The key waiver lesson, however, is in prong two. In a bold move, Ramirez told the court “she ‘will not discuss’ [prong two]” and instead “requests leave to file supplemental briefing if [the court is] ‘inclined to move to the second prong.’”
While the appellate court certainly can ask for supplemental briefing, don’t count on it. Ramirez staked her entire prong two argument on the off chance the court would issue, in effect, an engraved invitation to do so. it didn’t work.
Takeaway: Plaintiffs opposing anti-SLAPP motions must show their claims have minimal merit. That includes on appeal. Even if the trial court didn't reach prong two, If you skip it on appeal it may be deemed forfeited.
