Cirrus Beijing Corp. v. Christopher Adams

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2019
• Docket: 17-56741
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 08 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CIRRUS BEIJING CORP., a corporation; No. 17-56741 et al., D.C. No. Plaintiffs-Appellants, 2:16-cv-09194-TJH-GJS

v. MEMORANDUM* CHRISTOPHER M. ADAMS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding

Argued and Submitted March 5, 2019 Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Cirrus (Beijing) Corp. (“Cirrus Beijing”) appeals the district court’s order

dismissing its claims of defamation and related torts against Christopher Adams.

The district court held that Adams’s allegedly tortious letter to a Chinese stock

exchange, the National Equities Exchange and Quotations (the “NEEQ”), was

protected by California’s litigation privilege, codified at California Civil Code §

47(b). Cirrus Beijing argues that the privilege was applied in error, as its

Complaint does not provide sufficient facts to establish that the NEEQ is a quasi-

judicial entity. We agree.

California courts apply a multi-factor test when determining whether an

entity is quasi-judicial for purposes of the litigation privilege. See Picton v.

Anderson United High Sch. Dist., 57 Cal. Rptr. 2d 829, 835 (Ct. App. 1996).

Those factors include: “(1) whether the administrative body is vested with

discretion based upon investigation and consideration of evidentiary facts, (2)

whether it is entitled to hold hearings and decide the issue by the application of

rules of law to the ascertained facts, and (3) whether its power affects the personal

or property rights of private persons.” Id.

Cirrus Beijing’s Complaint describes the NEEQ as “an over-the-counter

Chinese stock exchange which provides a greater depth of financing for Chinese

small-to-medium enterprises like Cirrus Beijing. The NEEQ is regulated by the

2 China Securities Regulatory Commission.” Nothing in the Complaint establishes

whether the NEEQ is an administrative body vested with discretion to consider

evidentiary facts, or whether it is “entitled to hold hearings and decide the issue by

the application of rules of law to the ascertained facts.” Id. Although Adams sent

a letter to the NEEQ requesting an investigation, nothing in the Complaint

addresses the process by which such letters are reviewed or adjudicated. The

district court therefore erred in dismissing Cirrus Beijing’s claims on the basis of

the litigation privilege.

We further find that Cirrus Beijing’s appeal is timely. The district court

issued a written opinion and dismissed all claims, but did not enter final judgment

pursuant to Federal Rules of Civil Procedure 58(a) and 79(a). See Radio Television

Espanola S.A. v. New World Entm’t, Ltd., 183 F.3d 922, 930 (9th Cir. 1999).

Consequently, judgment became final 150 days after docketing of the court’s

written opinion. See Fed. R. App. P. 4(a)(7)(A)(ii). Cirrus Beijing had 30 days

from that date to file its notice of appeal, see Fed. R. App. P. 4(a)(1)(A), and

satisfied that deadline.

Costs on appeal are awarded to Cirrus Beijing.

REVERSED AND REMANDED.