California courts continue to circumscribe anti-SLAPP motions

California’s landmark anti-SLAPP statute (Code of Civil Procedure section 425.16) has been cited in more than 10,000 judicial opinions since its passage in 1992 and shows no signs of slowing down, having added more than 800 additional citations in 2023 alone. Of these new decisions, approximately two dozen are canonical (i.e., published) under California law, and many of them continue to grapple with the most fundamental question posed in anti-SLAPP litigation: when does a plaintiff’s claim turn on a defendant’s unprotected action rather than protected speech?

In Mary’s Kitchen v. City of Orange, 96 Cal. App. 5th 1009 (2023), a non-profit organization sued the City of Orange for affirming the cancellation of its license to use city property without providing adequate notice that the cancellation would be on the city council’s meeting agenda in alleged violation of the Brown Act. The court observed that “[t]he dispute between the parties turns primarily on whether the complaint is interpreted as arising from an unprotected action by the City, or protected speech by the City.” Mary’s’ Kitchen, 96 Cal. App. 5th at 1016. In siding with the non-profit, the court rejected the argument that the complaint was “based on the conversation the city council had with the city attorney in anticipation of litigation” by the non-profit rather than the act of confirming the cancellation in a closed-door session that robbed the public of input on the decision. Id.

The decision in Mary’s Kitchen draws a critical distinction between “conduct in furtherance of free speech” and “ordinary business,” holding that only the former falls within the ambit of section 425.16. Id. at 1018. A similar result was reached in BioCorRx, Inc. v. VDM Biochemicals, Inc., 96 Cal. App. 5th 841 (2023), which held that “[a] company’s promotion of its securities is simply another form of advertising” and falls under the anti-SLAPP statute’s carveout for commercial speech when dealing with misrepresentations found in promotional materials. BioCorRx, Inc., 96 Cal. App. 5th at 856-57. Even litigation privilege has been parsed into the “ordinary business” of early dispute resolution versus protected prelitigation communications. See Nirschl v. Schiller, 91 Cal. App. 5th 386, 404 (2023) (finding “statements made in a prelitigation negotiation are not automatically protected under the anti-SLAPP law just because they relate to ‘settlement.’”).

The focus on requiring defendants to identify specific protected activity as “the wrong complained of” by a plaintiff shows a continuing interest by the courts to curb overbroad application of the anti-SLAPP statute. See, e.g., Hastings Coll. Conservation Comm. v. Faigman, 92 Cal. App. 5th 323, 334 (2023) (denying anti-SLAPP motion because a challenge to an assembly bill that renamed a law school “derive[d] from the wrongfulness of [the bill] itself,” not what the defendants wished to refer to the law school as); White v. Davis, 87 Cal. App. 5th 270, 290 (2023) (“White’s applications for EAROs do not arise out of defendants’ protected activity, but out of their actions to unduly influence Thomas regarding his decades-long estate plan.”); Starr v. Ashbrook, 87 Cal. App. 5th 999, 1021 (2023) (“Misconduct in the administration of a trust and preservation of trust assets is not action ‘in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution.’”).

Most relevant to the entertainment industry is the courts’ reaffirmation of the notion that “the mere fact an action was filed after protected activity took place does not mean it arose from that activity.” Durkin v. City & Cty. of S.F., 90 Cal. App. 5th 643, 653 (2023) (quoting City of Cotati v. Cashman, 29 Cal. 4th 69, 76-77 (2002)). This notion underpins a resonant decision by the Ninth Circuit holding that the failure to pay a screenwriter for the use of their pitched idea in a film arises not from the defendant’s use of the idea (i.e., expressive activity protected by section 425.16), but the failure to pay for said use (i.e., ordinary business). Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184 (9th Cir. 2017).

Subsequent to Jordan-Benel, the foregoing principle was momentarily thrown into doubt in Musero v. Creative Artists Agency, LLC, 72 Cal. App. 5th 802 (2021), which held that the California Supreme Court’s decisions in Bonni and Baral v. Schnitt, 1 Cal.5th 376 (2016) had disavowed the “gravamen” approach to analyzing mixed causes of action utilized in the Jordan-Benel decision and undermined its continued application. Two separate decisions have now disagreed with or otherwise distinguished Musero, one unpublished (Kaplan v. NBCUniversal Media LLC, No. B313911, 2023 WL 4858526, 2023 Cal. App. Unpub. LEXIS 4460 (July 31, 2023)) and one published (Li v. Jenkins, 95 Cal. App. 5th 493 (2023)).

Of these two decisions, Kaplan is the most thorough and persuasive. Not only does it reaffirm that the relevant act giving rise to a so-called “Desny claim” is the use of plaintiff-submitted material without compensation (not the dissemination of that material in an expressive work), it further concludes that “poaching” an actor in violation of an existing contract and/or economic relationship does not amount to a “casting decision” protected by the anti-SLAPP statute any more that failing to pay a writer constitutes a “publishing decision.” Kaplan at p. 29 (“That [an actor previously in a business relationship with the plaintiff] went on to make [the defendant’s competing film] explains why [the defendant] induced [the actor] not to participate in [the plaintif’s] film, but was not itself an element of [the plaintiff’s] injury—[the plaintiff] would have suffered the same harm whether [the actor] left [the plaintiff’s] project to make [the defendant’s project] or for a reason wholly unconnected with filmmaking.”).

Unfortunately, the unpublished nature of Kaplan precludes its use as precedent in California state courts and further militates in favor of bringing Desny claims in federal court, whether by diversity jurisdiction or pendent to a copyright claim, to avoid the strict application of California Rule of Court 8.1115(a) (holding unpublished state court opinions “must not be cited or relied upon”). Cf. Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620 (9th Cir. 2010) (asserting both copyright infringement and breach of contract). However, the balance of authority otherwise discussed herein may be readily wielded in either forum to enforce the careful reticulation of section 425.16 and prevent its unwarranted expansion by the defense bar.