No Rams, No Chargers, But Maybe Intentional Interference

Rand Res., LLC v. City of Carson, No. S235735 (Cal. Feb. 4, 2019)

I gave this anti-SLAPP case short shrift when it was decided by the Court of Appeal, thinking that it was a pretty straightforward application of the rule that would soon be enunciated by the Supreme Court in Park, decided shortly thereafter. The Supreme Court granted review. In a unanimous opinion by Justice Cuellar, the Court parses the case a little more closely than I or the Court of Appeal did.

The case is about competition over who would serve as the agent of the City of Carson in an effort to lure an NFL team there. (The opinion dropped, somewhat ironically, the morning after the Rams lost the Super Bowl.) Firm #1 was the city’s original agent. It had an exclusive 2-year deal, which City had the option of reviewing. Firm #2 allegedly started communicating with the NFL on the City’s behalf before the exclusivity was over and later lobbied City against taking the option to renew Firm #1. Ultimately, City didn’t take the option and went with Firm #2. 

Firm #1 sued the City for breach of the exclusivity. It also alleged fraud in City’s hiding its relationship with Firm #2 and for allegedly falsely promising that it intended to take the option at the time the original Firm #1 deal was inked. Firm #1 also sued Firm #2 for tortiously interfering with its arrangement with the City. Both City and Firm #2 filed anti-SLAPP motions as to everything but the contract claim, which the trial court granted and the Court of Appeal reversed.

As to the claims against City, the Court holds that Park’s requirement the statements at issue must themselves form the elements of Plaintiffs’ claims was satisfied. The statements at issue did in fact form the basis of Firm #1’s fraud claim. 

But, the Court explains, that’s not enough. To meet the “arising-from” test under Code of Civil Procedure § 425.16(b) the statements also had to be “in connection with” either an issue before the City Council (for § 425.16(e)(2)) or an issue of public interest (for § 425.16(e)(4)). The requirement wasn’t satisfied for (e)(2) because the issue of City’s relationship with Firm #2 was not before the City Council when the statements were made. As to (e)(4), the issue of whether to build a football stadium was indisputably an issue of public interest in Carson. But the narrower issue of which firm would represent the City in negotiations was not, at least based on the record before the Court. The statements at issue—concealment of the City’s contacts with Firm #2—related only to the latter.

In addressing the public issue question, the Court makes some interesting observations about the public issue requirement. First, the relationship between the conduct or statements and the issue needs to be more than “fleeting or tangential” or “attenuated.” Second, stated at a high level of generalization, pretty much anything can appear to be related to some issue of public import. So courts addressing the public issue question need to look at the actual speech at hand, “rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern.” Third, the moving party bears the burden on the public issue, so if the connection between the speech and the issue is non-obvious, a moving party should come forward with evidence to bear that out. City did not do that here, which dooms its argument.

Moving on to the intentional interference claims against Firm #2, the Court finds that these claims were based on (1) Firm #2’s lobbying City not to take the option to extend Firm #1; and (2) Firm #2’s efforts to convince the NFL to bring a team to Carson. (This description is somewhat in tension with the way the Court of Appeal characterized the claims.) Because the exercise of the option was a matter before the City Counsel at the time the communications were made, those communications were matters protected under (e)(2). And because having an NFL team relocate  to Carson was an issue of public concern, those matters were protected under (e)(4). So the Court orders the case back to the trial court to assess the probability of prevailing on these claims.*

Reversed in part. 

*This seems a little off to me. Because the trial court granted the motion, it must have already found these claims to be lacking in merit. So it seems like the mandate should be for the Court of Appeal to look at whether there is an alternate basis for its reversal on an issue it did not reach. Otherwise, the trial court will just be a re-do and then everyone will have to undergo another round of interlocutory SLAPP appeals.