The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIM
Presently before the Court is Tarla Makaeff's motion to strike Trump University's counterclaim against her for defamation, pursuant to California's anti-SLAPP statute, California Code of Civil Procedure § 425.16. Trump University filed an opposition, and Makaeff filed a reply. Trump University also filed a surreply with leave of the Court. Based on oral argument on August 2, 2010, and all the parties' arguments, the Court DENIES the motion to strike.
This case stems from Makaeff's participation in Trump University's real estate investment seminars. The following facts are drawn from Trump University's counterclaim unless otherwise noted. In 2008, Makaeff attended a free seminar offered by Trump University. Makaeff then attended a $1,500 seminar, and ultimately signed up for the $35,000 "Trump Gold Elite" program.
In April 2009, after completing five programs and workshops, and after seven months in the "Trump Gold Elite" program, Makaeff wrote a letter to Trump University stating she was having financial difficulties and demanded a refund. Trump University declined, but offered her additional free mentoring services, which she accepted.
Beginning in late summer of 2009, Makaeff published alleged defamatory statements in letters to her bank and the Better Business Bureau ("BBB") and to unknown third parties on the Internet. In her letter to the bank, she requested a refund of $5,100 charged for Trump University programs.
And in her letter to the BBB, Makaeff requested a refund for services for which she paid but did not receive. Specifically, Makaeff allegedly stated in these letters and on the Internet that Trump University engaged in: (1) "fraudulent business practices," (2) "deceptive business practices," (3)"illegal predatory high pressure tactics," (4) a "clear practice of personal financial information fraud," (5) "illegal bait and switch," (6) a "brainwashing scheme," (7) "outright fraud," (8) "grand larceny," (9)"identify theft," (10) "unsolicited taking of personal credit and trickery into [sic] opening credit cards without approval," (11) "fraudulent business practices utilized for illegal material gain," (12) "felonious teachings," (14) "neurolinguistic programming and high pressure sales tactics based on the psychology of scarcity," (15) "unethical tactics," (16) a "gargantuan amount of misleading, fraudulent, and predatory behavior," (17) "blatant lies" when it represented that it provided "mentoring and coaching sessions," (18) "fraudulent misleading tactics," and (19) "brainwashing tactics" to manipulate everyone to lie about their training and experiences. (Counterclaim ¶¶ 22-23.) Makaeff also allegedly stated Trump University's teachings are "outright criminal" and its business practices are "criminal." (Counterclaim ¶¶ 22-23.)
On April 30, 2010, Makaeff filed a class action complaint against Trump University, alleging it engaged in deceptive business practices. (Doc. No. 1.) On May 26, 2010, Trump University filed a counterclaim against Makeaff for defamation per se. (Doc. No. 4.) Makaeff later filed an amended complaint, adding four additional plaintiffs. (Doc. No. 10.)
Makaeff brings this anti-SLAPP motion to strike the counterclaim, arguing that Trump University's motive in filing the counterclaim is to retaliate against her for her exercise of free speech and to intimidate her into dropping her lawsuit. (Doc. No. 14.)
A Strategic Lawsuit Against Public Participation ("SLAPP") is a civil action "in which the plaintiff's alleged injury results from petitioning or free speech activities by a defendant that are protected by the federal or state constitutions." Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1109 (9th Cir. 2003). California's anti-SLAPP statute allows defendant to move to strike the plaintiff's cause of action if that cause of action arises from protected activity.*fn1 See Cal. Code Civ. P. § 425.16(b)(1). The statute was "enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Vess, 317 F.3d at 1109. The preamble to Section 425.16 states that its provisions "shall be construed broadly" to safeguard "the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Nygard, Inc. v. Uusi-Kerttula, 72 Cal. Rptr. 3d 210, 218 (Ct. App. 2008).
An anti-SLAPP motion to strike requires a two-step inquiry. First, the defendant must make a prima facie showing that the plaintiff's suit arises from the moving party's protected activity - i.e, an act in furtherance of that party's rights of petition or free speech. Id. at 1110. If the defendant meets its initial burden, the court proceeds to the second step and asks whether the plaintiff can establish by a "reasonable probability" that they will succeed on the merits of the challenged claims. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 971 (9th Cir. 1999); see also Cal. Code Civ. P. § 425.16(b). In order to establish the requisite probability, the plaintiff need only have "stated and substantiated a legally sufficient claim." Greka Integrated, Inc. v. Lowrey, 133 Cal. App. 4th 1572, 1580 (Ct. App. 2005). This requires the plaintiff to "make a 'prima facie showing of facts which would, if credited, support a judgment in his favor.'" Id. (quoting Conroy v. Spitzer, 70 Cal. App. 4th 1446, 1451 (Ct. App. 1999)).
In making its determination, a court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Cal. Code Civ. P. § 425.16(b).
As explained below, although Makaeff has satisfied her initial burden of proving the counterclaim for defamation arises from protected activity, Trump University has met its burden of establishing by a reasonable ...