FINDINGS AND RECOMMENDATIONS
This matter came before the court on February 10, 2012, for hearing of a motion to strike plaintiff's second amended complaint brought on behalf of defendant Ray George. Attorney Patrick Deedon appeared telephonically on behalf of defendant Ray George. No appearance was made by, or on behalf of, plaintiff Peter Harrell, who is proceeding pro se.*fn1 Oral argument was heard, and defendant's motion was thereafter taken under submission.
Plaintiff commenced this action on January 27, 2011, by filing a complaint and a request to proceed in forma pauperis. (Doc. Nos. 1 & 2.) On May 16, 2011, plaintiff's request to proceed in forma pauperis was granted, the original complaint was dismissed and plaintiff was granted thirty days leave to file an amended complaint. (Doc. No. 4.) On May 24, 2011, plaintiff filed a first amended complaint. (Doc. No. 6.) On June 24, 2011, the first amended complaint was dismissed and plaintiff was granted thirty days leave to file a second amended complaint. (Doc. No. 8.) Plaintiff filed a second amended complaint on July 19, 2011. (Sec. Am. Compl. (Doc. No. 10.))
In his second amended complaint plaintiff alleges that in the summer of 2010, defendant George published and circulated a petition for the removal of Larry Schultz as the Chairman of the Hornbrook Community Service District Board ("HCSD"). (Id. at 2, 18.*fn2
According to the second amended complaint, the petition attributed and implied "a great deal of nefarious, potentially criminal, and defamatory conduct to the Plaintiff," including allegations that plaintiff exerted illegal or undue influence over a public official, stole or destroyed public property and public records, and interfered with public business. (Id. at 2-3.) Plaintiff alleges that "all of which such claims" are "completely false" and paint plaintiff in a "false light." (Id. at 2.)
Attached to the second amended complaint as "Exhibit A" is a copy of the referred to petition, (id. at 16-18), which plaintiff has "incorporated as if fully set forth" within the second amended complaint. (Id. at 2.) Although the criticisms found in the petition are primarily directed at Schultz and his actions as chairman of the HCSD, with respect to plaintiff, the petition states that Schultz's acts were directed by plaintiff, who "is not even a California citizen," that plaintiff has a history of filing lawsuits against "anyone who does not act" as he wishes, that Schultz participated in the "harassment when "threats were made" by plaintiff," that plaintiff's lawsuits have "frightened away" many members of the community from attending HCSD meetings and that plaintiff instigated Schultz's verbal abuse directed at a HCSD bookkeeper. (Id. at 16-18.)
The second amended complaint also alleges that while circulating this petition, defendant George told Roger Gifford that plaintiff "had been arrested during the summer of 2010 for transporting marijuana for sale between Hornbrook and Medford." (Id. at 3.) The second amended complaint alleges that this allegation is "completely false." (Id. at 2.)
On August 5, 2011, the undersigned found that plaintiff's second amended complaint stated cognizable claims of defamation, false light, the negligent infliction of emotional distress and the intentional infliction of emotional distress against defendant Ray George, and ordered the United States Marshal to serve process on that defendant.*fn3 (Doc. No. 13.)
On November 16, 2011, defendant George filed the pending motion to strike pursuant to California Code of Civil Procedure § 425.16 on the grounds that the allegations of plaintiff's second amended complaint "arise out of defendant's exercise of his right to free speech under the State and Federal Constitutions in a public forum, in connection with an issue of public interest," and that plaintiff cannot show a probability of prevailing on his claim. (MTS (Doc. No. 18) at 1-2; (Doc. No. 18-1) at 9-16.) Defendant George seeks an order striking the second amended complaint, as well as an award of costs and attorney fees. (MTS (Doc. No. 18-1) at 14.) Plaintiff filed an opposition to defendant's motion on January 19, 2012, (Pl.'s Opp.'n (Doc. No. 27)), and defendant filed a reply on February 3, 2012. (Reply (Doc. No. 31.))
California Code of Civil Procedure § 425.16(b)(1), (also know as the "anti-SLAPP statute") 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.
See Manufactured Home Communities, Inc. v. County of San Diego, 655 F.3d 1171, 1176 (9th Cir. 2011). California's anti-SLAPP law is aimed at curtailing civil actions designed to deter private citizens from exercising their rights of free speech. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970 (9th Cir. 1999). The Ninth Circuit permits anti-SLAPP motions in federal court directed at state law claims such as that asserted by plaintiff against defendant George in this action. Id. at 973; see also Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081, 1091 (9th Cir. 2004) ("We have previously confirmed that defendants sued in federal courts can bring anti-SLAPP motions to strike state law claims and are entitled to attorneys' fees and costs when they prevail.").
"However, '[s]pecial procedural rules apply where an anti-SLAPP motion is brought in federal court.'" Thornbrough v. Western Placer Unified School District, No. 2:09-cv-02613-GEB-GGH, 2010 W L 2179917, at *3-4 (E.D. Cal. May 27, 2010) (quoting Lauter v. Anoufrieva, 642 F. Supp.2d 1060, 1109 (C.D. Cal. 2009)). See also Robinson v. Alameda County, No. C-12-00730 (JCS), 2012 WL 2367821, at *15 (N.D. Cal. June 21, 2012); Bulletin Displays, LLC v. Regency Outdoor Advertising, Inc., 448 F. Supp.2d 1172, 1180 (C.D. Cal. 2006)); but see Verizon Delaware, Inc., 377 F.3d at 1091 ("[P]rocedural state laws are not used in federal court if to do so would result in a direct collision with a Federal Rule of Civil Procedure . . . . ").
If a defendant makes an anti-SLAPP motion based on the plaintiff's failure to submit evidence to substantiate its claims, the motion is treated as a motion for summary judgment, and discovery must be developed sufficiently to permit summary judgment under Rule 56. This is because to permit a defendant to invoke the Anti-SLAPP statute to require a plaintiff to present evidence to support his claims before an opportunity for discovery would directly conflict with Federal Rule of Civil Procedure 56. If an anti-SLAPP motion is based on legal deficiencies in the complaint, a federal court must determine the motion in a manner that complies with the standards set by Federal Rules 8 and 12.
Lauter, 642 F. Supp.2d at 1109 (quotation and citations omitted) (denying an anti-SLAPP motion to dismiss or strike without prejudice because discovery had not closed). See also Condit v. National Enquirer, Inc., 248 F. Supp.2d 945, 953 (E.D. Cal. 2002) ("A special motion to strike under section 425.16 can be based on any defect in the Complaint, including legal deficiencies addressable on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or a failure to support a stated claim with evidence, analogous to a motion for summary judgment under Fed. R. Civ. P. 56.").
Here, "since this action is still in its infancy, requiring Plaintiff to present evidence to support his claims without the opportunity for discovery would directly conflict with Federal Rule of Civil Procedure 56." Thornbrough, 2010 WL 2179917, at * 4. See also Rogers v. Home Shopping Network, Inc., 57 F. Supp.2d 973, 980 (C.D. Cal. 1999) ("If a defendant desires to make a special motion to strike [under section 425.16] based on the plaintiff's lack of evidence, the defendant may not do so until discovery has been developed sufficiently to permit summary judgment under Rule 56."). Therefore, the pending motion brought on behalf of defendant George will be evaluated as a challenge to the legal sufficiency of plaintiff's complaint under Rule 8 and Rule 12 of the Federal Rules of Civil Procedure.
Evaluating a motion made pursuant to the anti-SLAPP statute "requires a two-part analysis: (1) the defendant must make a prima facie showing that the suit arises 'from an act in furtherance of the defendant's rights of petition or free speech'; and (2) once the defendant makes this showing, 'the burden shifts to the plaintiff to demonstrate a probability of prevailing on the challenged claims.'" Roberts v. McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (quoting Mindys Cosmetics, Inc. v. ...