Planned Parenthood Federation of America, Inc.; Planned Parenthood: Shasta-Diablo, Inc., DBA Planned Parenthood Northern California; Planned Parenthood Mar Monte, Inc.; Planned Parenthood of the Pacific Southwest; Planned Parenthood Los Angeles; Planned Parenthood/Orange and San Bernardino Counties, Inc.; Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc.; Planned Parenthood Pasadena and San Gabriel Valley, Inc.; Planned Parenthood Center for Choice; Planned Parenthood of the Rocky Mountains; Planned Parenthood Gulf Coast, Plaintiffs-Appellees,
v.
Center for Medical Progress; Biomax Procurement Services, LLC; David Daleiden, AKA Robert Daoud Sarkis; Sandra Susan Merritt, AKA Susan Tennenbaum; Gerardo Adrian Lopez, Defendants-Appellants, and Troy Newman; Phillip S. Cronin; Albin Rhomberg, Defendants.
Argued
and Submitted November 17, 2017 San Francisco, California
Appeal
from the United States District Court No. 3:16-cv-00236-WHO
for the Northern District of California William Horsley
Orrick, District Judge, Presiding
Charles S. LiMandri (argued), Paul M. Jonna, Teresa L.
Mendoza, and Jeffrey M. Trissell, Freedom of Conscience
Defense Fund, Rancho Santa Fe, California; Horatio Mihet
(argued), Liberty Counsel, Orlando, Florida; Catherine W.
Short, Life Legal Defense Foundation, Ojai, California;
Thomas Breicha and Peter Breen, Thomas More Society, Chicago,
Illinois; Nicolaie Cocis, Law Office of Nic Cocis and
Associates, Murrieta, California; for Defendants-Appellants.
Amy L.
Bomse (argued), Stephanie Fine, Jee Young You, Sharon D.
Mayo, and Steven L. Mayer, Arnold & Porter Kaye Scholer
LLP, San Francisco, California; Beth H. Parker, Planned
Parenthood Affiliates of California, Sacramento, California;
Helene T. Krasnoff, Planned Parenthood Federation of America;
Paul W. Rodney, Arnold & Porter Kaye Scholer LLP, Denver,
Colorado; John Robinson, Arnold & Porter Kaye Scholer
LLP, Washington, D.C.; for Plaintiffs-Appellees.
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and Nancy Freudenthal, [*] Chief District Judge.
SUMMARY
[**]
Anti-SLAPP
Statute
The
panel affirmed the district court's denial of a motion to
dismiss claims under California's Strategic Lawsuit
Against Public Participation statute, Cal. Civ. Proc. Code
§ 425.16.
Planned
Parenthood and other plaintiffs alleged that the defendants
used fraudulent means to enter their conferences and gain
meetings with their staff for the purpose of creating false
and misleading videos that were disseminated on the internet.
To succeed on their anti-SLAPP motion, the defendants had to
show both that their claims arose from acts to further their
First Amendment speech rights and that the plaintiffs had
shown no probability of success on their claims. The panel
affirmed the district court's conclusion that the
defendants failed to meet the second element.
In
order to eliminate conflicts between California's
anti-SLAPP law's procedural provisions and the Federal
Rules of Civil Procedure, the panel held that anti-SLAPP
motions to strike are reviewed under different standards
depending on the motion's basis. If a defendant makes an
anti-SLAPP motion to strike founded on purely legal
arguments, then the analysis is made under Fed.R.Civ.P. 8 and
12 standards; if it is a factual challenge, then the motion
must be treated as though it were a motion for summary
judgment and discovery must be permitted.
The
panel held that the district court correctly applied a Rule
12(b)(6) standard to defendants' motion to strike
challenging the legal sufficiency of plaintiffs'
complaint, and did not err in declining to evaluate the
factual sufficiency of the complaint at the pleading stage.
Concurring,
Judge Gould, joined by Judge Murguia, acknowledged that the
court's precedent allows an interlocutory appeal of a
denial of an anti-SLAPP motion. Judge Gould wrote that this
interlocutory appeal procedure is incorrect, potentially
conflicts with federal procedural rules, and burdens the
federal courts with unneeded interlocutory appeals. Judge
Gould suggested that the court fix this error in its
precedent with a call of the case en banc.
The
panel addressed other issues in a contemporaneously-filed
memorandum disposition.
OPINION
GOULD,
Circuit Judge.
Plaintiffs[1] sued
Defendants[2] in the federal district court for the
Northern District of California alleging that Defendants had
used fraudulent means to enter their conferences and gain
meetings with their staff for the purpose of creating false
and misleading videos that were disseminated on the internet.
Defendants moved to dismiss Plaintiffs' claims under
Federal Rule of Civil Procedure 12(b)(6) and under
California's Strategic Lawsuit Against Public
Participation ("anti-SLAPP") statute. The district
court denied both motions, and Defendants appeal the denial
of the anti-SLAPP motion. We conclude that the district court
did not err by reviewing Defendants' motion using a Rule
12(b)(6) standard and did not err by denying Defendants'
anti-SLAPP motion.[3] We affirm.
I
In the
district court, Defendants the Center for Medical Progress
(CMP), BioMax Procument Services LLC (BioMax), Daleiden, and
Lopez moved to strike Plaintiffs' claims under California
Code of Civil Procedure § 425.16, commonly known as the
anti-SLAPP law. On their motion to dismiss for failure to
state a claim, Defendants argued that Plaintiffs had not
alleged enough factual content to state the necessary
elements for each of their named claims. On their motion
based on the anti-SLAPP law, Defendants argued that
Plaintiffs' lawsuit is an attempt to silence and punish
CMP and other Defendants for gathering information and
publishing their findings. Defendants argued that
Plaintiffs' state law claims arise out of their
undercover investigative journalism, which falls within the
scope of the ...