Plaintiff brought a federal civil rights claim under 42 U.S.C. § 1983 and a petition for writ of administrative mandate against former employee for giving false testimony before the Labor Commissioner.
That doesn’t really make any damn sense, for any number of reasons. (Plaintiff also sued the Commissioner, who got out on demurrer.) But it does provide a basis for an anti-SLAPP motion. Because giving testimony, true or false, in an administrative proceeding is most certainly protected activity under Code of Civil Procedure § 425.16(e)(1).
The question, however, is whether the anti-SLAPP statute can apply to a purely federal law claim. As with most issues that implicate the Erie doctrine, it’s confusing.
The Ninth Circuit has held that, as a matter of California law, the anti-SLAPP statute creates a substantive immunity from suit. Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). But not without controversy. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (Kozinski, J., concurring) (calling for en banc review of Batzel); Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835 (9th Cir. 2018) (Gould, J., concurring) (same). Thus, an anti-SLAPP motion can be brought in federal courts, at least to the extent the procedures in § 425.16 don’t conflict with on-point federal rules of civil procedure. Cf. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that the discovery stay in § 425.16(g) conflicts with Fed. R. Civ. P. 56(d)’s right to obtain targeted discovery to oppose summary judgment). But the motion can only apply to California state law claims. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims[.]”).
a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,
Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)
a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,
Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)
On the other hand, California state courts—including the Supreme Court—view the anti-SLAPP remedy as “a procedural device for screening out meritless claims[.]” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 737 (2003).* As such, a federal-law cause of action filed in state court can be attacked with an anti-SLAPP motion unless there’s some federal law reason such as obstacle preemption that requires it not to apply.
And as the court here explains, nothing in the anti-SLAPP regime stands as a obstacle to litigating meritorious § 1983 claims in California state court. In particular, the court holds that the discovery stay in § 425.16(g)—which can be lifted on good cause—and the attorney fee-award provisions in §425.16(c) do not unduly burden a plaintiff’s ability so litigate a §1983 claim.
Moving onto the anti-SLAPP analysis, as I said, “arising from” is basically self-evident. And so far as the minimal merit prong goes, both § 1983 and mandamus apply to state actors. Being a witness in a Labor Commission proceeding does not make you the government.
Affirmed.
*The Ninth Circuit case that found the anti-SLAPP statute created a “substantive immunity” was decided in 2003 and relied almost entirely on legislative history to make that determination. See Batzel, 333 F.3d at 1025. But it did, at least implicitly, seem to recognize that whether the statute crated a procedural or substantive rule was a question of, or at least significantly informed by, California state law.
If we accept that premise, it’s hard to understand why the anyone should view Batzel as good law of the circuit, absent a disapproval en banc. The California Supreme Court has literally described the anti-SLAPP scheme as “procedural” no fewer than five times since Batzel was decided. See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637, 645 (2018); Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006); Flatley v. Mauro, 39 Cal. 4th 299, 312 (2006); Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280 (2006); Kibler v. N. Inyo Cty. Local Hosp. Dist., 39 Cal. 4th 192, 202 (2006); Jarrow, 31 Cal. 4th at 737. And many other cases implicitly recognize the procedural nature of the motion, even if they don’t say so quite so explicitly. See, e.g., Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 883 (2019).
So there’s no need to go en banc. Since the California Supreme Court binds everyone on questions of California law, this is a pure Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc) situation, where the panel decision can be deemed so undermined by controlling, higher, precedent, that it doesn’t need to be followed, even in the absence of an explicit reversal en banc or by the U.S Supreme Court.
FWIW, now that we’ve fully grocked out on law of the circuit, the second verse of this 32 year-old SoCal classic does really feel kind of right for the time.
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