United States District Court, S.D. California
SAN DIEGO PUPPY, INC., a California corporation; DAVID SALINAS and VERONICA SALINAS, husband and wife, Plaintiffs,
THE CITY OF SAN DIEGO, a California municipality; SAN DIEGO ANIMAL DEFENSE TEAM, business entity of unknown form; ANIMAL PROTECTION AND RESCUE LEAGUE, a California 501(c)(3) corporation; COMPANION ANIMAL PROTECTION SOCIETY, Delaware non-profit corporation; BRYAN PEASE, a California resident; SAN DIEGO HUMANE SOCIETY, a California corporation; BLACK CORPORATIONS 1-100, inclusive; and DOES 1-300, inclusive, Defendants/Respondents.
ORDER RE: DEFENDANTS' MOTIONS TO DISMISS & ANTI-SLAPP MOTIONS
BARRY TED MOSKOWITZ, Chief District Judge.
Plaintiffs began selling pure-bred puppies in San Diego in 2011. Declaration of David Salinas ("Salinas Decl.") at 2. They own and operate two pet stores-one in a small strip mall in San Diego ("San Diego Puppy"), and one in a small strip mall in Oceanside ("Oceanside Puppy"). (Compl. ¶¶209, 211.) On August 5, 2013, the City of San Diego passed the Companion Animal Protection Ordinance No. O-20280 (Municipal Code § 42.0706 ("the Ordinance"), which bans the sale or display of any dog, cat, or rabbit not obtained from a City-approved source (e.g., a California non-profit rescue or shelter). The Ordinance went into effect on September 4, 2013. On October 1, 2013, Mr. Salinas was informed by the City Attorney's office that the City was preparing to enforce the ordinance by bringing an unfair competition action against Plaintiffs. Declaration of Kira Schlesinger ("Schlesinger Decl."), Ex. 1. Plaintiffs thereafter moved their inventory of puppies from their San Diego store to their Oceanside store.
Plaintiffs filed a sixty-eight page verified complaint on November 25, 2013, invoking the Court's federal question and supplemental jurisdiction. (Doc. 1.) The Complaint (1) seeks a declaratory judgment that the Ordinance is unconstitutional, (2) alleges that the "Activist Defendants" and the City improperly colluded in passing the ordinance in violation of 42 U.S.C. §§ 1983, 1985, and (3) asserts tort claims (nuisance & trespass) as well as a hate crimes claim under Cal. Civ. Code § 52 (the Ralph Act). In brief, Plaintiffs allege that protesters have been harassing them, and that the activist defendants conspired to pass the Ordinance in an attempt to shut down San Diego Puppy and create a monopolistic environment for animal shelters and animal rescue organizations. (See, e.g., Compl. ¶¶31, 33, 34, 60, 78, 80, 92, 233, 239, 241.) This scheme was allegedly inspired by a "playbook" put out by the Humane Society of the United States entitled A Guide to Using Local Ordinances to Combat Puppy Mills. (Id. ¶31.) Plaintiffs sought an injunction enjoining protesters from holding a demonstration outside their Oceanside store and from "annoying, harassing, trespassing, threatening or otherwise violating the peaceful operation of the business...." (Doc. 7 at 3.) The Court denied Plaintiffs' request for temporary injunctive relief on December 13, 2013. (Doc. 13.)
The Animal Protection and Rescue League ("APRL") filed an Anti-SLAPP Motion to Strike on January 14, 2014. (Docs. 3, 23.) Defendant Bryan Pease filed a motion to dismiss for failure to state a claim as well as an Anti-SLAPP motion. (Docs. 17, 21.) Defendant Companion Animal Protection Society ("CAPS") filed its combined motion to dismiss/anti-SLAPP motion on April 17, 2014. (Doc. 39.) Plaintiffs have not filed an opposition to any of these motions.
The San Diego Humane Society also filed a motion to dismiss for failure to state a claim, which the Court denied as moot after Plaintiffs voluntarily dismissed the Humane Society from the suit. (Docs. 16, 27, 36.) A notice of voluntary dismissal as to the City of San Diego was filed on February 5, 2014. (Doc. 33.) Since then, a settlement conference failed to resolve the pending motions, and Plaintiffs' counsel filed a motion to withdraw from the case. (Doc. 45.)
II. ANTI-SLAPP MOTIONS
A. Legal Standard
"A Strategic Lawsuit Against Public Participation ("SLAPP") is a meritless suit that seeks to use costly, time-consuming litigation" to chill a person's constitutionally protected right to free speech.'" Gilabert v. Logue, No. 13-cv-578, 2013 U.S. Dist. LEXIS 179128 (C.D. Cal. Dec. 20, 2013) (quoting Metabolife Int'l, Inc. v. Wornick , 264 F.3d 832, 839 (9th Cir. 2001)). California enacted its Anti-SLAPP law in response to the "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. P. § 425.16(a). The statute is available to litigants in federal court. Thomas v. Fry's Elecs., Inc. , 400 F.3d 1206, 1206 (9th Cir. 2005). § 425.16 provides, in pertinent part:
(b)(1) 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.
(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(e) 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 other official proceeding authorized by law, (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, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
California courts apply a two part test to determine whether an action is subject to an Anti-SLAPP motion to strike. Navellier v. Sletten , 29 Cal.4th 82, 85, 88 (2002). First, the defendant must establish that "the challenged cause of action is one arising from protected activity." Id. at 88. Activity is protected if it falls within the categories outlined in § 425.16(e). Id . Speech is "in connection with an issue of public interest" if it concerns: (i) a person in the public eye, (ii) "conduct that could directly affect a large number of people beyond the direct participants, " or (iii) "a topic of widespread, public interest." Rivero v. Am. Fed'n of State, Cnty., and Mun. Employees, AFL-CIO , 105 Cal.App.4th 913, 924 (2003).
Once a defendant makes a threshold showing that the act in question is protected, the burden shifts to the plaintiff. To resist the special motion to strike, the plaintiff must establish "a probability of prevailing on the claim." Navellier , 29 Cal.4th at 88. The plaintiff meets this requirement if he has "stated and substantiated a legally sufficient claim." Id. at 88-89 (internal quotation marks and citation omitted); see also Wilson v. Parker, Covert & Chidester , 28 Cal.4th 811, 821 (2002) ("Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie ...