The opinion of the court was delivered by: Fogel, District Judge.
ORDER DENYING COUNTERDEFENDANTS' SPECIAL MOTION TO STRIKE;
DENYING AS MOOT COUNTERDEFENDANTS' MOTION TO STRIKE THE
DECLARATION OF PATRICK FEVERY; AND DENYING COUNTERCLAIMANTS'
REQUEST FOR ATTORNEYS' FEES
On June 14, 1999, the Court heard Globetrotter's special motion to
strike the counterclaims of Elan and Rainbow,*fn1 Globetrotter's related
motion to strike the declaration of Patrick Fevery and countermotions by
Elan and Rainbow seeking attorneys' fees in connection with the special
motion to strike.*fn2 Each of these motions is denied for the reasons
set forth herein.
The factual background of this action has been set forth in detail in
the Court's prior orders and need not be repeated here. The procedural
facts relevant to the present motions are as follows. On March 2, 1999,
the Court issued an order granting in part and denying in part
Globetrotter's motions to dismiss which had been brought with respect to
counterclaims and affirmative defenses asserted by Elan and Rainbow. Elan
filed its first amended answer, counterclaim and additional party
complaint on March 17, 1999. Rainbow filed its second amended
counterclaim on March 11, 1999 and its first amended answer on March 22,
1999. Globetrotter now brings a special motion to strike the
counterclaims of Elan and Rainbow pursuant to California Code of Civil
Procedure § 425.16 and in addition seeks to strike the declaration of
Patrick Fevery submitted in opposition to that motion. Elan and Rainbow
bring countermotions seeking attorneys' fees. Alternatively, to the
extent the Court is inclined to grant the special motion to strike, Elan
and Rainbow request that the Court delay its ruling and permit them to
take limited discovery.
Section 425.16 of the California Code of Civil Procedure was enacted in
order to provide for the early dismissal of meritless suits aimed at
chilling the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances. See Cal.Code Civ.P.
§ 425.16(a); Braun v. Chronicle Publishing Co., 52 Cal.App.4th 1036,
1042, 61 Cal.Rptr.2d 58 (1997). These meritless suits often are referred
to as "Strategic Lawsuits Against Public Participation" or "SLAPP"
suits, with the result that § 425.16 has come to be called the
"anti-SLAPP statute." See Id. at 1040 & n. 1, 61 Cal.Rptr.2d 58. The
statute provides that:
A cause of action against a person arising from any
act of that person in furtherance of the person's
right of petition or free speech under the United
States or California Constitution in connection with a
public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff
that there is a probability that the plaintiff will
prevail on the claim.
Cal.Code Civ.P. § 425.16(b)(1). Acts "in furtherance of a person's
right of petition or free speech . . . in connection with a public issue"
are defined as including: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law; or (3) any written or oral
statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest. See id. §
425.16(b)(e); Briggs v. Eden Council For Hope And Opportunity,
19 Cal.4th 1106, 1112, 81 Cal.Rptr.2d 471, 969 P.2d 564 (1999). The
California courts have made clear that a defendant seeking to strike a
cause of action arising from statements made before a legislative,
executive or judicial proceeding or in connection with such a proceeding
need not show that the statements were made in connection with a public
issue. See Briggs, 19 Cal.4th at 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.
A defendant filing an anti-SLAPP motion must make an initial prima
facie showing that the plaintiffs suit arises from an act in furtherance
of the defendant's rights of petition or free speech. See Braun, 52
Cal.App.4th at 1042-43, 61 Cal.Rptr.2d 58. If the defendant makes this
showing, the burden shifts to the plaintiff to demonstrate a probability
of prevailing on the challenged claims. See Conroy v. Spitzer,
70 Cal.App.4th 1446, 1450, 83 Cal.Rptr.2d 443 (1999).
The parties disagree as to whether and to what extent the
anti-SLAPP statute is applicable to the counterclaims in this action.
Globetrotter asserts that the anti-SLAPP statute is applicable to all of
the causes of action contained in the counterclaims, including those
based upon federal statute. Elan and Rainbow contend that the special
motion to strike was not timely filed, and that in any case the
anti-SLAPP statute applies (if at all) only to the state law causes of
action asserted in the counterclaims.
Under § 425.16(f) a special motion to strike generally must be
filed "within sixty days of the service of the complaint."*fn3 It is
unclear from this language whether the sixty days runs from the service
of the original complaint or from the service of the most recent amended
complaint. There does not appear to be any authority addressing this
issue. Section 425.16(a) provides that the statute is to be "construed
broadly." Thus, in the absence of statutory language indicating that the
sixty day period runs from the filing of the "original complaint," the
Court construes the statute to mean that the sixty day period runs from
the filing of the most recent amended complaint. In this case, the
special motion to strike was filed within sixty days after the operative
amended counterclaims were filed. Accordingly, the motion is timely.
The Erie doctrine applies to pendent state law claims to the same
extent it applies to state law claims before a federal court on the basis
of diversity jurisdiction. See Nathan v. Boeing Co., 116 F.3d 422, 423
(9th Cir. 1997). Accordingly, it appears that under the Erie analysis set
forth in Lockheed the anti-SLAPP statute may be applied to state law
claims which, as in this case, are asserted pendent to federal question
Globetrotter argues that the anti-SLAPP statute should be applied
to federal question claims as well as pendent state law claims, at least
when the federal question claims are asserted in the same action as state
law claims to which the statute applies. This argument is not supported
by the Erie rationale articulated in the Lockheed decision or by any
other authority of which the Court is aware. Consequently, the ...