The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS WEISSMAN; COMDEN; WASSERMAN, COMDEN, CASSELMAN & ESENSTEN; AND WASSERMAN, COMDEN & CASSELMAN'S MOTION TO STRIKE COMPLAINT AS "SLAPP" SUIT (DOC. 22)
This lawsuit arises out of the filing of two underlying cases: (1) Destfino, et al. v. Kennedy, et al., filed in Stanislaus County Superior Court, then removed on August 26, 2008 to this Court as Case No. 1:08-cv-01269 LJO DLB; and (2) Mansu, et al. v. Kennedy, et al., filed in San Joaquin County Superior Court, Case. No. 39-2008-00183590-CU-FR-ST (collectively, "Underlying Actions"). Destfino and Mansu, as well as a third action, Whaley et al. v. Kennedy, et al., San Bernardino County Superior Court Case No. CIVVS-802478, were filed by the law firm of Wasserman, Comden & Casselman, L.L.P ("WCC"), now known as Wasserman, Comden, Casselman & Esensten, L.L.P. ("WCCE"), on behalf of plaintiffs who alleged they were victimized by a fraudulent "Corporation Sole" debt and tax elimination scheme allegedly marketed by individuals named as defendants in the Underlying Actions. As alleged in the Underlying Actions, the scheme was marketed as a full service program and involved the referral of individuals to various professionals who could help them establish a "Corporation Sole" in the State of Washington, which they could use to, among other things, avoid paying taxes. See generally Complaints in Underlying Actions, Attached to Defendants' Request for Judicial Notice ("DRJN"), Doc. 27, Exhs. B & C. One of these professionals was Judith A. Roderick, who was alleged to have provided tax expertise to some of the plaintiffs in the Underlying Actions. Id. at ¶ 14. All claims brought against Roderick in Destfino or Mansu were eventually dismissed on noticed motions. See Destfino, 1:08-cv-01269, Doc. 141; Mansu, Case No. 39-2008-00183590, Doc. 492.
Roderick now brings the instant lawsuit against WCC, WCCE, and individual lawyers Irvin Donald Weissman, aka I. Donald Weissman ("Weissman"), and Leonard J. Comden ("Comden"). Roderick alleges that the filing and prosecution of the Destfino and Mansu actions constituted malicious prosecution.*fn1 The Complaint contains no allegations concerning the Whaley case.
Before the court for decision is WCC, WCCE, Weissman, and Comden's motion to strike, brought pursuant to California Code of Civil Procedure, section 425.16, which permits a special motion to strike any "Strategic Lawsuit Against Public Participation" ("SLAPP"). Doc. 22. Plaintiff timely opposed the motion and later filed a supplemental case citation. Docs. 31 & 35. Defendant Replied. Doc. 32. The motion was originally set for hearing on February 16, 2012, but the hearing was vacated and the matter submitted for decision on the papers. See Doc. 36.
California's "Anti-SLAPP" statute provides in relevant part:
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 has established that there is a probability that the plaintiff will prevail on the claim.
Cal. Code Civ. Pro. § 425.16(b)(1).
A court considering a motion to strike under the Anti-SLAPP statute must engage in a two-part inquiry. First, a defendant must make an initial prima facie showing that the plaintiff's suit "aris[es] from" activity protected by the Anti-SLAPP statute. Brill Media Co. v. TCW Group, Inc., 132 Cal. App. 4th 324, 329 (2005); Cal. Code Civ. Pro. § 425.16(b)(1). In performing this analysis, the California Supreme Court has stressed, "the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." City of Cotati v. Cashman, 29 Cal. 4th 69, 78 (2002). If the defendant is able to make this threshold showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims. In practice, a plaintiff must show that the claim is "both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 744 (2003). Claims for which Plaintiff is able to satisfy this burden are "not subject to being stricken as a SLAPP." Id.
The Ninth Circuit has clearly articulated the evidentiary burden applicable to Anti-SLAPP motions heard in federal district court:
In the anti-SLAPP context, "probability" is a low bar. To withstand an anti-SLAPP motion to strike in California, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.
Manufactured Home Communities, Inc. v. Cnty. of San Diego, 655 F.3d 1171, 1176--77 (9th Cir. 2011) (internal alterations and quotation marks omitted). The plaintiff's burden resembles the burden he would have in fending off a motion for summary judgment or directed verdict. Gilbert v. Sykes, 147 Cal. App. 4th 13 (2007) [additional citation].
Roberts v. McAfee Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (emphasis added).
A.Does the Plaintiff's Suit "Arise From" Activity Protected by the Anti-SLAPP Statute?
Defendants bear the burden of making a prima facie showing that the plaintiff's suit "aris[es] from" activity protected by the Anti-SLAPP statute. Brill Media, 132 Cal. App. 4th at 329; Cal. Code Civ. Pro. § 425.16(b)(1). "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." Navellier v. Sletten, 29 Cal. 4th 82, 89 (2002). "[A] defendant that satisfies its initial burden of demonstrating the targeted action is one arising from protected activity faces no additional requirement of proving the plaintiff's subjective intent ... Nor need a moving defendant demonstrate that the action actually has had a chilling effect on the exercise of such rights." Id. at 88 (citation omitted). "A defendant meets this [protected activity] burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)." Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036, 1043 (1997). Subdivision (e) provides:
As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes:
(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 ...