SLAPP Ex Nihilo? No.

Med. Marijuana, Inc. v. ProjectCBD.com, No. D068523 (D4d1 as modified Dec. 16, 2016)

This case fronts a question that I wrote about three years ago in connection with a post on 2013’s Trapp v. Neimann: When a complaint fails to allege any conduct at all by a particular defendant, does that defendant have a valid anti-SLAPP motion if the fleshed-out counts against other defendants arise from protected activity? Those were the facts of Trapp, but the court didn’t address the issue. It did, however, find the first prong of the SLAPP analysis was met in an unsatisfyingly truncated analysis, of which I was kind of doubtful.

But this case hits the nail on the head. Two counts of a five-count complaint in a dispute between purveyors of medical marijuana allege libel and false light against a particular defendant. The trial court denied an anti-SLAPP motion because it thought plaintiffs showed a probability of prevailing. But on appeal, the court requested supplemental briefing after noticing that there were not actually any allegations in the complaint that this particular defendant did, said, or published anything to give rise to the libel or false light counts. So the court asks the same question I di: If these counts arise from nothing, how can they arise from protected activity?

The court here says they can’t. A SLAPP is a claim that “arises from”—i.e., is based on—particular statements or conduct by a particular defendant. The statute instructs the court to look to the pleadings to related evidence to make that determination. See § 425.16(b)(2). So if that defendant isn’t alleged to have made any statements or committed any acts, there’s nothing from which a claim can “arise” under § 425.16(b). So while the claim is certainly subject to a demurrer, it can’t be a SLAPP.

No mention of tension with Trapp though.

Affirmed. 

**Update: The Court modified its opinion on rehearing to note that there was a general allegation that, in lumping these defendants in with others, alleged that they made statements. But (1) as to the implicated counts, specific statements were alleged against other defendants and not these ones, (2) these defendants were specifically alleged to have made specific statements with respect to other counts not addressed in the anti-SLAPP motion, and (3) Plaintiff’s counsel basically conceded during oral argument that these defendants didn’t make any relevant statement. The court thus reiterates the reasonableness of its reading of the complaint: As far as this count and these defendants goes, the claim arises from nothing. So the rest of the opinion stands.

Still no mention of Trapp.