Mine's Digging for Dirt on Enviromental Group Is Not Protected Activity

Renewable Resources Coalition, Inc. v. Pebble Mines Corp., BC456803 (D2d3 July 30, 2013)

Defendant allegedly obtained plaintiff's confidential documents by bribing plaintiff's former fiduciary to hand them over. Defendant then used  the documents against the plaintiff in an administrative proceeding and a “smear campaign.” Is that conduct protected under the anti-SLAPP statute? Looking to the gloss on the word "gravamen," in the anti-SLAPP case law, the Second District says no.  

In a contentious political dispute between a mining company and an environmental group, the defendant obtained some of the plaintiff’s confidential communications with a disgruntled campaign consultant by paying $50,000 for them, in violation of the consultant’s confidentiality agreement with the plaintiff. It then used the communications in a “smear campaign” as well as to initiate campaign finance charges against the plaintiff in an administrative proceeding in Alaska. After the charges were resolved in a manner largely favorable to the plaintiff, the plaintiff sued the defendant for tortious interference.

The defendant filed an anti-SLAPP motion arguing that the causes of action against it arose from protected activity because complaint alleged that the harm the plaintiff suffered included its expenses in defending the campaign finance proceedings. Defendant further argued that anything done to gather evidence in preparation for bringing that complaint should qualify as protected activity. In response, Plaintiff argued that the defendant’s bribing of its former consultant to obtain confidential information not protected activity, that the anti-SLAPP statute does not protect illegal activity in preparing for a lawsuit, and that breaches of the California Uniform Trade Secrets Act—which it was prepared to amend its complaint to add—were facially illegal activity unprotected by the anti-SLAPP statute.

The trial court granted the motion. Its order noted in particular that the plaintiff’s damages allegations, which were based on having to defend itself in the campaign finance proceedings, implicated activity protected under Code of Civil Procedure § 425.16(e). The trial court further assessed $30,000 in attorneys fees under § 425.16(c)(1). Plaintiff appealed.

The court of appeal focused its analysis on the first prong of the anti-SLAPP analysis:  Did the plaintiff’s causes of action arise from protected activity? It reiterated that the pertinent question looked to the “principal thrust or gravamen” of the claim, which, in the context of an anti-SLAPP motion, means the “allegedly wrongful and injury-producing conduct” upon on which liability is premised. The court held that the trial court erred by focusing on the damages allegations instead of the conduct upon which the causes of action were based.  Here, that conduct was the defendant’s act of buying the plaintiff’s confidential information from consultant and not from the defendant’s use that information in the campaign finance proceedings or its publicity campaign. Because the defendant’s “purchase of [plaintiff’s] confidential documents from [the consultant] does not amount to an exercise of the constitutionally protected rights of petition or free speech,” the first step of the anti-SLAPP analysis had not been satisfied. The trial court’s grant of the motion was thus in error.

Reversed and remanded.