Calling Mr. Wilson...

Golden Gate Land Holdings LLC v. Direct Action Everywhere, A163315 (D1d1 July 13, 2022)

As they sometimes do, some animal rights Protesters created a ruckus at a horse racing Track in Berkeley. They successfully prevented a day’s worth of races. Track sued Protesters and the Organization of which they are members for trespass and interference with contract. Organization was sued on a nebulous alter ego/agent/conspiracy theory. Organization brought an anti-SLAPP motion, arguing that because it did was not alleged to have participated in the disturbance as an organization, the claims could only arise from its First Amendment protected petitioning activity. The trial court denied it.

The Court of Appeal rejects the Organization’s claim that the claims arise from petitioning. Relying on the analysis from Park, it looks to the elements of the claims. And here, the conduct that makes up those elements are the trespass on to the Track’s property. Of course, the Track would also need to plead and prove some degree of authorization/ratification/direction/etc. to put the Organization on the hook vicariously. 

But, relying on Spenser v. Mowat, Simmons v. Bauer Media Group, and Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation,  the Court finds that the claims cannot arise from that additional vicarious-liability-creating element. And indeed, the complaint doesn’t actually allege any facts that would make up that element, and the Organization submitted a declaration denying involvement. But the Court notes it is reviewing an anti-SLAPP motion, not a demurrer or summary judgment, which might properly apply. And since the trespass from which the claims arise is clearly not protected, the motion was correctly denied.

Affirmed.

Two things here. The first is a little nitpicky. The Court swats down the trespass as obviously not protected. But because that activity has what appears to be a speech or petitioning based motivation, the court needs to ask if it is “other conduct in furtherance” under § 425.16(e)(4) using the test in Wilson. That test essentially (in my words) asks if the conduct would plausibly be First-Amendment protected. Which it wouldn’t be. 

The second issue is more complicated. As I discussed in my post on Spenser, the acts that create vicarious liability could be quintessential protected activity. After all, a conspiracy is just an agreement, and much of political activism is agreeing with like-minded people in an effort to achieve a political goal. So the idea that a claim categorically cannot arise from the “conduct that allegedly established the vicarious liability” is overbroad. 

It is also inconsistent with the holding in Wilson that protected conduct is adequate to satisfy the arising from test if it “supplies one or more elements of a plaintiff’s claims.” One would be hard pressed to argue that an agreement is not an element if a civil conspiracy claim or that control is not an element in a claim grounded in agency.

Indeed, the Court seems to leave a little window open for that when it distinguishes Contreras v. Dowling, a case where an attorney was sued on a theory of vicarious liability. But the act that established vicarious liability in Contreras was the attorney’s act of communicating on behalf of a client, which is fundamentally communicative. And, unmentioned here, in Ratcliff v. Roman Catholic Archbishop of L.A., after a summary reversal by the Supreme Court, the 2/5 recently found that vicarious-liability-creating conduct did not implicate the anti-SLAPP statute. Unlike its pre-reversal opinion, it did not come to that result because legally, a claim can’t arise from that element. Instead, the Court of Appeal held that, under the facts of that case the liability-causing conduct was not actually proteced activity. Any protected activity alleged was incidental to the claim.

So if a case can arise from conduct creating vicarious liability, provided that such conduct is sufficiently communicative, the question remains: is that the case here? As the Court notes, the track didn’t plead anything in this regard—it just listed a series of conclusory theories of vicarious liability. But Wilson says in examining what a claim arises from, we also need to consider evidence submitted by the moving defendant. Here, the pleading is silent and the only evidence appears to be an uncontradicted declaration that the Organization engaged in regular old First Amendment advocacy stuff and did not command or solicit the trespass. If that’s the case, then, per Wilson, the Organization has made a prima facie case that the claim arises from protected activity. 

Would not be surprised to see a review petition out of this one.