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Greenberg v. Murray

June 14, 2010

MICHAEL GREENBERG PLAINTIFF,
v.
ARLA MURRAY AND WILLIAM MURRAY, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Guilford United States District Judge

ORDER GRANTING MOTION TO STRIKE

Plaintiff Michael Greenberg ("Plaintiff") alleges that Defendants Arla and William Murray ("Defendants") invaded his privacy by secretly recording phone calls and later using those recordings in an arbitration proceeding. Defendants filed a Motion to Strike ("Motion") under California Code of Civil Procedure section 425.16 ("Anti-SLAPP law"), which lets courts strike "strategic lawsuits against public participation." After considering all papers and arguments submitted, the Court GRANTS the Motion with leave to amend.

BACKGROUND

The Motion is based on California's Anti-SLAPP law. Under this law, complaints may be attacked based on both the plaintiff's allegations and the evidence submitted by the parties. Cal. Civ. Pro. § 425.16(b)(2) (a court considering such a motion must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based"). The following facts are taken from admissible materials and Plaintiff's Complaint.

Plaintiff was a registered commodities broker and was associated with Coastline Trading Group ("Coastline"). (Compl. ¶ 10.) In June 2007, Plaintiff and Defendants agreed that Plaintiff and Coastline would represent Defendants and conduct futures commodities trading on their behalf. (Compl. ¶ 11.) By November 2007, Defendants decided to conclude their business with Plaintiff and began demanding that Plaintiff return the funds that had been invested. (Compl. ¶ 13.) Defendants recorded at least six telephone conversations between themselves and Plaintiff, all without Plaintiff's knowledge. (Compl. ¶ 14.) Plaintiff learned of these recordings in August 2009, when the recordings were disclosed during a related arbitration proceeding. (Compl. ¶ 16.) The recordings "adversely affected the outcome of the arbitration proceeding between the parties... which resulted in an award against Plaintiff." (Compl. ¶ 17.)

Plaintiff's only claim for relief is for invasion of privacy. Defendants now move to strike the Complaint on the grounds that the recordings were made in furtherance of a prosecution of a civil action.

LEGAL STANDARD

The Anti-SLAPP law was designed to prevent certain abusive lawsuits. The California legislature found "that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Code Civ. Proc. § 425.16(a). To address this issue, the Legislature enacted the Anti-SLAPP law, which provides:

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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Cal. Code Civ. Proc. § 425.16(b)(1). The Legislature also said that the Anti-SLAPP law "shall be construed broadly." Cal. Code Civ. Proc. § 425.16(a).

Resolution of an Anti-SLAPP motion requires a two step process. First, the defendant must make "a threshold prima facie showing that the defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue." Kashian v. Harriman, 98 Cal. App. 4th 892, 906 (2002); Paul for Council v. Hanyecz, 85 Cal. App. 4th 1356, 1364 (2001). Second, if the defendant makes this showing, "the burden then shifts to the plaintiff to establish a 'probability' of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." Kashian, 98 Cal. App. 4th at 906. If the plaintiff can establish a probability of prevailing on its claim, then the Anti-SLAPP motion fails.

The Court will now address whether Defendant's Motion can succeed on in light of these two steps and other arguments made by Plaintiff.

ANALYSIS

1. WHETHER THE RECORDINGS WERE IN FURTHERANCE OF DEFENDANTS' ...


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