Planned Parenthood Federation of America, Inc. v. Center For Medical Progress

          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 ...