United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S SPECIAL MOTION TO
STRIKE COMPLAINT; AND DENYING PLAINTIFF'S REQUEST FOR
ATTORNEYS' FEES [RE: ECF 8]
LABSON FREEMAN United States District Judge.
Hudson Martin Ferrante Street Witten & Demaria, PC
(“Hudson Martin” or “the firm”)
claims that Defendant David Alan Forsythe
(“Forsythe”) unlawfully accessed and used
information stored on the firm's computers in order to
gain an advantage in his divorce from the firm's managing
partner, non-party Jeannette Witten (“Witten”).
Forsythe has filed a special motion to strike the complaint
under California Code of Civil Procedure § 425.16.
Hudson Martin opposes the motion and requests that the Court
award it statutory attorneys' fees on the basis that the
motion is frivolous. Both the motion and the request for
attorneys' fees are DENIED for the reasons discussed
Martin filed the complaint in this action on November 10,
2016, alleging the following facts. The firm is one of the
oldest and most prestigious law firms in Monterey,
California. Compl. ¶ 7, ECF 1. The firm's managing
partner, Witten, married Defendant Forsythe in 2006.
Id. ¶ 8. Forsythe is a computer programmer and
network integration specialist who works from home as an
outside contractor for pharmaceutical companies. Id.
¶ 9. Beginning in 2014, Forsythe began performing
occasional IT services for Hudson Martin in exchange for use
of office space at the firm. Id. ¶ 10.
March 16, 2015, Witten filed a divorce petition to commence
what have become “[b]itter divorce proceedings.”
Compl. ¶ 11. In June 2015, Hudson Martin revoked
Forsythe's office privileges and changed the firm's
locks to ensure that Forsythe would not have access.
Id. ¶ 12. Shortly thereafter, on June 27, 2015,
an unknown individual accessed the firm's account at
Wells Fargo Bank from a location outside of the firm.
Id. ¶ 13. Hudson Martin immediately changed all
of its financial passwords and user names, but an unknown
user continued to access the Wells Fargo account.
Id. ¶ 15. On July 24, 2015, Wells Fargo
prohibited the firm from accessing its accounts online and
suggested that the firm might be a victim of spyware.
August 2015, Hudson Martin discovered that an unknown
individual had accessed the firm's servers remotely and,
in particular, had accessed Witten's personal email
correspondence regarding her divorce proceedings. Compl.
¶ 16. Hudson Martin immediately changed all of its firm
passwords, after which there were dozens of failed login
attempts. Id. ¶ 17. Hudson Martin had IT
professionals search all its computers, which resulted in
discovery of spyware on computer workstations at the firm and
on Witten's laptop computer which she used both at the
firm and at home. Id. ¶ 18. The search also
revealed that a remote login program had been installed on
Witten's laptop without her permission or knowledge.
Id. ¶ 19. After the remote login program was
removed from the laptop, the unauthorized login attempts to
the firm's Wells Fargo account stopped. Id.
October 2016, Forsythe produced documents to Witten in the
divorce proceedings which included images of Hudson Martin
checks. Compl. ¶ 24. Hudson Martin determined that the
images were cropped screenshots taken from the firm's
QuickBooks files. Id. The firm uses its QuickBook
files as a client management system, and the files contain
attorney-client protected material, including client lists;
clients' contact information and financial information;
and employees' contact information, social security
numbers, paycheck information, and medical insurance
information. Id. ¶ 22. Forsythe had attempted
to obtain Hudson Martin's QuickBook files for use in the
divorce proceedings by means of subpoena, but after Hudson
Martin objected to production, Forsythe dropped the issue and
did not move to compel production. Id. ¶¶
21-23. At no time was any Hudson Martin employee, or
non-employee such as Forsythe, authorized to copy or remove
the firm's QuickBook files from the firm's secure,
firewalled server. Id. ¶ 25. Forsythe's
divorce attorney thereafter stated that Forsythe had copied
Hudson Martin's QuickBook files to his personal computer
and that both Forsythe and his counsel were in possession of
the QuickBook files. Id. ¶ 26.
Martin believes that Forsythe was the individual who remotely
accessed the firm's servers and the firm's Wells
Fargo account. Compl. ¶¶ 29-13. The firm also
believes that Forsythe used that access to view Witten's
email correspondence with her divorce attorney. Id.
Hudson Martin sues Forsythe for: (1) violation of the federal
Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq.;
(2) violation of California's Comprehensive Computer Data
Access and Fraud Act, California Penal Code § 502; and
asserts that Hudson Martin's suit is a strategic lawsuit
against public participation (“SLAPP”), and he
brings a special motion to strike the complaint under
California's anti-SLAPP statute, California Code of Civil
Procedure § 425.16. Hudson Martin opposes the motion and
seeks attorneys' fees under a subsection of § 425.16
which provides for an award of fees where the special motion
to strike is frivolous.
California's anti-SLAPP statute, a defendant may bring a
special motion to strike a cause of action arising from
constitutionally protected speech or petitioning
activity.” Barry v. State Bar of California, 2
Cal. 5th 318, 320 (2017) (citing Cal. Civ. P. Code §
425.16(b)(1)). A defendant in federal court may bring an
anti-SLAPP motion with respect to California state law claims
asserted under either diversity jurisdiction or supplemental
jurisdiction. Jen v. City & Cty. of San
Francisco, No. 15-CV-03834-HSG, 2016 WL 3669985, at *11
(N.D. Cal. July 11, 2016). The anti-SLAPP statute does not
apply to claims asserted under federal law. Hilton v.
Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).
analysis of an anti-SLAPP motion proceeds in two steps:
First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one
arising from protected activity.” Barry, 2
Cal. 5th at 321 (internal quotation marks and citations
omitted). When a claim is mixed, meaning that it is based on
allegations of both protected and unprotected activity, the
unprotected activity is disregarded at the first step.
Baral v. Schnitt, 1 Cal. 5th 376');">1 Cal. 5th 376, 396 (2016).
the court determines that relief is sought based on
allegations arising from activity protected by the statute,
the second step is reached.” Baral, 1 Cal. 5th
at 396. “There, the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually
substantiated.” Id. “The court, without
resolving evidentiary conflicts, must determine whether the
plaintiff's showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.”
Id. “[T]hough 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.” Hilton, 599 F.3d at 903
(internal quotation marks and citations omitted) (brackets in
original). If the plaintiff fails to meet its burden at the
second step, the claim based on protected activity is
stricken and “[a]llegations of protected activity
supporting the stricken claim are eliminated from the
complaint, unless they also support a distinct claim on which
the plaintiff has shown a probability of prevailing.”
Baral, 1 Cal. 5th at 396.