California anti-SLAPP in the 9th Circuit: Can it survive?

A recent 9th U.S. Circuit Court of Appeals decision aptly illustrates the uncertain future of California's anti-SLAPP statute in federal cases. There is increasing sentiment at the Court of Appeals to reject the statute altogether as a disruptive state procedural mechanism irreconcilable with federal civil procedure. Will the statute continue to be judicially trimmed until it collapses? Or will the 9th Circuit lop it off completely with an en banc swing of the judicial ax? Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 2018 DJDAR 4561 (May 16, 2018), may represent a turning point -- toward the statute's ultimate demise in 9th Circuit diversity cases.

SLAPP Disarray in the Federal Circuits

Friction arises due to the general principle that federal courts sitting in diversity jurisdiction apply federal procedural rules and state substantive law. State procedural statutes "are not used in federal court if to do so would result in a 'direct collision' with a Federal Rule of Civil Procedure." Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980)). But whether a state statute is more accurately described as substantive or procedural often presents "an enduring conundrum." United States v. Poland, 562 F.3d 35 (1st Cir. 2009).

Accordingly, across the country, state law anti-SLAPP statutes have received a mixed reception in federal courts. The 9th Circuit is one of the circuits which permit SLAPP motions in federal court diversity actions. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). The 1st and 5th Circuits have also allowed some states' anti-SLAPP statutes to operate in federal court. See Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); Henry v. Lake Charles American Press, LLC, 566 F.3d 164 (5th Cir. 2009).

Other circuits have rejected anti-SLAPP statutes, but not always for the same reasons. See Los Lobos Renewable Power, LLC. v. Americulture, Inc., 885 F.3d 659 (10th Cir. 2018) (finding New Mexico's anti-SLAPP statute entirely procedural and therefore, inapplicable in federal court); Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015) (holding that due to conflict with Federal Rules of Civil Procedure 12 and 56, the District of Columbia's anti-SLAPP statute cannot apply); Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729 (7th Cir. 2015) (concluding that Washington's anti-SLAPP statute is inapplicable in a federal action because of its procedural aspects, but leaving for another day whether "other states' anti-SLAPP statutes work in federal court").

The California SLAPP Statute's 9th Circuit History

California's anti-SLAPP statute, Code of Civil Procedure Section 425.16, has many well-known (if not uncontroversial) attributes including: an immediate stay of discovery; burdening the non-moving party with making a showing of probable success on the merits at the outset of the litigation; the right to costs and attorney fees for bringing a successful SLAPP motion; and win or lose, the right to an immediate appeal. See Code Civ. Proc. Section 425.16, subdivisions (b)(1), (c)(1) and (g); see also Code Civ. Proc. Section 904.1 subd. (a)(13). With a flurry of reported decisions year in and year out since enactment, and no letup in sight, the anti-SLAPP statute is vigorously deployed in California's state courts.

The 9th Circuit has officially blessed operation of California's anti-SLAPP statute in diversity cases. Newsham, 190 F.3d 963. Newsham also condoned statutory awards of costs and fees for successful SLAPP motions. And in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the 9th Circuit held that denial of an anti-SLAPP motion is immediately appealable (ostensibly under the collateral order doctrine).

But while seeking to accommodate California's anti-SLAPP statute, the 9th Circuit has stripped away some of its salient features. For example, there is no automatic stay on discovery when a SLAPP motion is filed because such discovery limitations "collide with the discovery-allowing aspects of Rule 56." Metabolife, 264 F.3d at 846. And contrary to California law, there is no immediate appeal from the grant of a SLAPP motion. Hyan v. Hummer, 825 F.3d 1043 (9th Cir. 2016).

Planned Parenthood & the Latest Call for Reconsideration

Former Chief Judge Alex Kozinski argued that conflict analysis is beside the point because California's anti-SLAPP statute is quite obviously, entirely procedural. To Kozinski, the business of accepting and rejecting parts of the statute is absurd because federal civil procedure should operate exclusively. Makaeff v. Trump University, 715 F.3d 254 (9th Cir. 2013) (Kozinski, C.J., concurring). Other circuit judges have engaged in deeper analysis, searching for actual conflict between the anti-SLAPP statute and the federal rules. For example, Circuit Judge Paul Watford has concluded that actual conflict exists because "California's anti-SLAPP statute bars claims at the pleading stage when Rule 12 would allow them to proceed." Makaeff v. Trump University, 736 F.3d 1180, 1189 (dissental).

Enter the Planned Parenthood decision. Planned Parenthood sued the Center for Medical Progress for fraudulently infiltrating the organization and other torts. The Center for Medical Progress responded with a SLAPP motion, asserting that the right to "undercover journalism" and the resulting findings on issues of public interest were being assaulted. The district court denied the SLAPP motion and the Center for Medical Progress appealed.

Borrowing from an unpublished 9th Circuit opinion, Planned Parenthood announced the adoption of two ways for a district court to address an anti-SLAPP motion: If the motion is based purely on legal arguments, then the motion can be resolved within the framework of Federal Rules 8 and 12. But if the motion turns on factual issues, then Rule 56 should be applied. As Planned Parenthood put it, "In order to prevent the collision of California state procedural rules with federal procedural rules, we will review anti-SLAPP motions to strike under [these] different standards."

Planned Parenthood was searching for a way to reconcile the state statute's prohibition on discovery with the broader federal rules. Rather than simply asserting that all SLAPP motions should be resolved under Rule 56 (after sufficient discovery), Planned Parenthood ostensibly takes a pragmatic approach for situations where SLAPP motions can be resolved without discovery because the issues are purely legal ones. But if this sounds good in theory, will it actually work? And can it work without doing violence to the anti-SLAPP statute it is supposedly enabling?

For example, will every case which appears to involve only "legal" challenges under the SLAPP statute fit within the Planned Parenthood paradigm? Remember that under Rule 12(b)(6), a complaint need only pass the plausibility standard in order to survive. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). By contrast, under the anti-SLAPP statute, plausible or not, the non-moving party must go much further (once the moving party demonstrates a cause of action arising from protected activity), demonstrating at the pleading stage a reasonable probability of success on the merits. Therefore, in ostensibly reconciling the state and federal statutes, has Planned Parenthood eviscerated the key design feature of the anti-SLAPP statute, essentially erasing the second prong?

And what about those SLAPP motions involving what Planned Parenthood describes as "factual" issues? According to Planned Parenthood, district courts should treat them like motions for summary judgment. But another key feature of the anti-SLAPP statute is the automatic stay on discovery and the early resolution the scheme's filtering architecture provides. Indeed, the entire foundation of the anti-SLAPP statute is avoidance of litigation by early termination of SLAPP suits. So again, in "harmonizing" federal civil procedure with state civil procedure, hasn't Planned Parenthood eroded both the letter and the spirit of the law?

Many other questions remain, including whether the 9th Circuit will take up Planned Parenthood en banc. In a concurrence, Circuit Judge Ronald Gould, joined by Judge Mary Murguia, urged the 9th Circuit to take the case en banc to reverse Batzel, thereby eliminating interlocutory appeals from denials of SLAPP motions. If the court does so, then yet another key aspect of the state statute will be lost -- the right to an immediate appeal. At what point, if the whittling and chopping continues, will the conflict-avoiding, "harmonized" version of California's anti-SLAPP statute become only a shadow of itself? And given the disparate treatment, depending on state versus federal forum, will the twin goals of the Erie doctrine, "discouragement of forum shopping and avoidance of inequitable administration of the laws" be forgotten?