The Logical Limits of an Element Based Anti-SLAPP Analysis

Spencer v. Mowat, No. B295738 (D2d5 Mar. 24, 2020)

Plaintiffs in this case allege that defendants are a gang of local surfers in the PV who have conspired in a campaign of intimidation and violence to prevent outsiders from surfing their break. Two defendants—alleged to have been members of the conspiracy but not to have personally committed any violent acts—brought an anti-SLAPP motion. It was denied.

On appeal, the court makes relatively short shrift of the argument that the claims arise from protected activity. In doing so, it focuses on the various violent acts committed by others in furtherance of the alleged conspiracy, which cases like 7 Stars regard as a proper focus of applying “arising from” to a conspiracy.

Affirmed.

At high level of generality, the analysis here makes some practical sense, for the same reason I thought 7 Stars was not a particularly hard case.

But 7 Stars was decided several months before the Supreme Court’s decision in Wilson. There, the court (in a discrimination case) held that if conduct that makes up any element of a multi-element tort satisfies the arising from test, then the first prong of the anti-SLAPP analysis is satisfied. That is the case, notwithstanding the fact that liability turns on the proof of other elements that are clearly not protected activity. Thus, in Wilson, the fact CNN had a colorable claim that it fired the plaintiff to enforce journalistic ethics against plagiarism was adequate to be “protected activity.” That was the case even though the crux of plaintiff’s claim—that he was fired because of his or her race—is not protected by the First Amendment.

In a conspiracy case, the existence and scope of the agreement is a key element of the claim. So following Wilson, to decide whether a conspiracy claim arises from protected activity, a court would need to look at whether the agreement itself is could be “other conduct in furtherance” under Code of Civil Procedure § 425.16(e)(4), notwithstanding the fact that roughing up Barneys from the Valley is obviously not constitutionally protected. 

And in doing that analysis, Wilson says a court needs to credit, to some significant degree, the moving Defendant’s evidence. So what if, in this case, Defendants put in evidence akin to CNN’s evidence in Wilson? Suppose defendants declared that they were an informal community organization concerned with the negative consequence of overuse of certain beaches, which Defendants believed merited a rule that beach access should be constrained to members of the local community? Taken at the same value the court gave the CNN’s evidence in Wilson, wouldn’t the agreement element of the conspiracy claim implicate the defendants’ freedom of association, and thus satisfy § 425.16(e)(4)? Notwithstanding that the overt act element of the claim entails stuff that is clearly outside of the First Amendment?

I've haven’t yet managed to come up with a fully-theorized answer to this that jives with Wilson. But it does illustrate how that there are a lot of unresolved questions left open by the formal element-based framework adopted by the Wilson court.

Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entm’t, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.

Seal Spiel

Overstock.com v. Goldman Sachs, No. A133487 (D1d1 Nov. 13, 2014)

This is a magnum opus on the handling of sealed files and a must-read for anyone who litigates complex business cases in state court. Sorry in advance for the overly detailed procedural setup—the last thing I want is for my posts to read like bench memos—but for once, the background is quite germane to understanding the ultimate ruling in the case.

Suit Against Developer for Alleged HOA Swinde Is Not a SLAPP

Talega Maintenance Corp. v. Standard Pac. Corp., No. G048282 (D4d3 Apr. 15, 2014)

The court considers an anti-SLAPP motion filed in a dispute between a homeowners’ association and a developer, and three of the developer’s employees who sat on the HOA board at the developer’s behest. When rain caused half a million dollars in damage to some trails on the development property, the employees—who controlled the board at the time—caused the HOA to take responsibility for their repair, even though legal responsibility allegedly remained firmly with the developer. When the HOA found out the true facts, it sued for fraud, constructive fraud, breach of fiduciary duty, and negligence. The developer filed a motion to strike under Code of Civil Procedure § 425.16, which the trial court denied.

The court holds that the non-fraud claims are not protected activity under the anti-SLAPP statute because they dealt primarily with decisions to expend the HOA’s funds. As spending decisions are not written or oral communications or otherwise communicative acts, they weren’t protected activity. The fraud claim was a closer call, as it involved allegedly false statements made at board meetings to the effect that the HOA was, in fact responsible for the trail repair. But homeowner’s association meetings are not “official proceedings,” or matters under consideration by a government body so they don’t fall within § 425.16(e)(1) or (e)(2). Nor do the statements fall within the broader categories of protected activity under § 425.16(e)(3)—statements in public fora—or (e)(4)—"other conduct in furtherance"—because the trail conditions, while clearly important to the private interests of the homeowners, did not rise to the level of public issues or issues of public interest concern. Absent that, they are not protected activity under § 425.16(e)(3) and (e)(4). Thus, no cause of action arose from protected activity. The anti-SLAPP motion was properly denied.

Affirmed.

Victory for the First Amendment, Just a Little Too Late

Steiner v. Superior Court, No. B235347 (D2d6 as modified, Nov. 26, 2013)

The plaintiffs’ lawyer in an asbestos case has some pages on her website trumpeting her multi-million victories in automobile brake exposure cases. The jury was instructed, per CACI 100, that they should not use the Internet to find out about the case or the attorneys. But the defendant was nonetheless concerned that jurors might Google the attorney and see these pages. So it asked the trial court to order her to take the pages down. The court agreed, and the plaintiffs sought a writ. Although the trial ended while the writ was pending, the court of appeal reached the issue under the public interest exception to the mootness doctrine. The court, applying the commercial speech standard set out in the Supreme Court’s Central Hudson decision, found that the trial court violated the lawyer’s first amendment rights by ordering a prior restraint. Since there were less restrictive methods to protect the interest in a fair trial—namely, instructing the jury under CACI 100—the restraint was unconstitutional. So if the case wasn’t moot, the writ would have been granted.

Writ denied as moot.