Evangers Dog and Cat Food Co., Inc. v. Environmental Democracy Project

• Court: District Court, C.D. California
• Decided: January 20, 2022
• Docket: 2:21-cv-08489
• Status: Unknown

Opinion

Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 1 of 19 Page ID #:212 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-08489-RSWL-ASx 12 EVANGER’S DOG AND CAT FOOD CO, INC., an Illinois ORDER re: MOTION TO 13 corporation, DISMISS [17] and MOTION TO 14 Plaintiff, STRIKE [18] 15 v. 16 ENVIRONMENTAL DEMOCRACY 17 PROJECT, a California not- for-profit corporation; 18 and DOES 1-100, 19 Defendants. 20 21 Currently before the Court are Defendant 22 Environmental Democracy Project’s (“Defendant”) Motion 23 to Dismiss [17] and Motion to Strike [18]. Having 24 reviewed all papers submitted pertaining to these 25 Motions, the Court NOW FINDS AND RULES AS FOLLOWS: the 26 Court GRANTS in part and DENIES in part the Motion to 27 Dismiss and DENIES the Motion to Strike as moot. 28 1 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 2 of 19 Page ID #:213

1 I. BACKGROUND

2 A. Factual Background

3 Plaintiff Evanger’s Dog and Cat Food Company, Inc. 4 (“Plaintiff”) is a corporation that sells a line of pet 5 food products under the brand name “OrgaNOMics” (the 6 “Products”). First Am. Compl. (“FAC”) ¶¶ 1, 6, ECF No. 7 13. Plaintiff asserts that the Products are not sold as 8 organic products, but the ingredient panel and 9 advertising for the Products state that the various 10 flavors include organic produce. Id. ¶ 6. Plaintiff 11 further asserts that the ingredients represented as 12 organic are 100% organic. Id. 13 On April 22, 2021, Plaintiff received a letter from 14 a law firm that purported to represent Defendant. Id. ¶ 15 10. Plaintiff asserts that Defendant “is the alter ego 16 of its attorneys . . . whose purpose ostensibly is to 17 rectify violations of certain governmental regulations.” 18 Id. The letter stated that Plaintiff’s marketing and 19 sale of the Products violated California’s Organic Food 20 and Farming Act (“COFFA”)1 because the Products are 21 “prominently labeled as organic on their principal 22 display panels, and are represented as being 23 ‘Organically Sourced’ and ‘Made with Organic Produce’” 24 but do not contain the required 95% of certified organic

25 1 COFFA requires products that are “sold as organic” to 26 consist “of products manufactured only from raw or processed agricultural products.” Cal. Health & Safety Code § 110820. 27 Ingredients other than raw or processed agricultural products may be added to the product only if they do not represent more than 28 5% of the weight of the total finished product. Id. 2 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 3 of 19 Page ID #:214

1 ingredients. Id.; FAC Ex. 1, ECF No. 13-1. The letter

2 also stated that Defendant intended to file a lawsuit in

3 California to rectify the violations shortly, and it 4 invited Plaintiff to contact Defendant to “discuss a 5 potential settlement . . . short of litigation.” FAC 6 Ex. 1. 7 On September 8, 2021, Defendant sent a letter to 8 Chewy.com (“Chewy”) stating that Chewy was selling 9 Plaintiff’s Products in violation of COFFA. FAC ¶ 11; 10 FAC Ex. 2, ECF No. 13-2. Specifically, the letter 11 identified five Products that are prominently labeled on 12 the principal display panel as being “organic” but do 13 not contain the required 95% of certified organic 14 materials. FAC Ex. 2. The letter demanded that Chewy 15 cease selling the Products immediately and that 16 Defendant intended to file a lawsuit if Chewy failed to 17 comply. FAC ¶ 11; FAC Ex. 2. Chewy then notified 18 Plaintiff that it would no longer sell the Products and 19 would refuse to do so until Defendant’s objections were 20 resolved. FAC ¶ 12. 21 After receiving this notice from Chewy, Plaintiff 22 sent an email to Defendant stating that Defendant’s 23 claims about Plaintiff’s COFFA violations lacked merit 24 and requested that Defendant contact Chewy and withdraw 25 its threat of litigation. Id. ¶ 28; FAC Ex. 3, ECF No. 26 13-3. When Defendant failed to comply with Plaintiff’s 27 request, Plaintiff filed the instant suit on October 26, 28 2021. See Compl., ECF No. 1. On November 1, 2021, 3 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 4 of 19 Page ID #:215

1 Defendant filed a lawsuit against Plaintiff in the

2 Superior Court of California, County of Alameda,

3 alleging a single cause of action to enjoin Plaintiff 4 from selling the Products in violation of COFFA. See 5 Req. for Judicial Notice in Supp. of Mot. to Dismiss Ex. 6 1, ECF No. 17-1. Plaintiff then removed that suit to 7 the United States District Court for the Northern 8 District of California on November 24, 2021, where it 9 remains pending. Id. 10 B. Procedural Background 11 Plaintiff initiated this Action [1] against 12 Defendant on October 26, 2021, seeking two forms of 13 declaratory relief: (1) declaratory judgment that the 14 Products do not violate COFFA; and (2) to the extent the 15 Products violate COFFA, declaratory judgment that this 16 application of COFFA violates the First Amendment. On 17 November 23, 2021, Plaintiff filed its First Amended 18 Complaint (“FAC”) [13], which added four new causes of 19 action: (3) tortious interference with contractual 20 relations; (4) tortious interference with prospective 21 economic relations; (5) negligent interference with 22 prospective economic relations; and (6) inducing breach 23 of contract. 24 On December 19, 2021, this Court granted [15] the 25 Attorney General’s Ex Parte Application to Respond to 26 Notice of Constitutional Question. Defendant filed the 27 instant Motion to Dismiss [17] and Motion to Strike [18] 28 on December 27, 2021. Plaintiff filed Oppositions to 4 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 5 of 19 Page ID #:216

1 each Motion [22, 23] on January 4, 2022. Defendant

2 replied [24, 26] on January 11, 2022.

3 II. DISCUSSION 4 A. Legal Standard 5 1. Motion to Dismiss 6 Rule 12(b)(6) of the Federal Rules of Civil 7 Procedure allows a party to move for dismissal of one or 8 more claims if the pleading fails to state a claim upon 9 which relief can be granted. A complaint must “contain 10 sufficient factual matter, accepted as true, to state a 11 claim to relief that is plausible on its face.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation 13 omitted). Dismissal is warranted for a “lack of a 14 cognizable legal theory or the absence of sufficient 15 facts alleged under a cognizable legal theory.” 16 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 17 (9th Cir. 1988) (citation omitted). 18 In ruling on a 12(b)(6) motion, a court may 19 generally consider only allegations contained in the 20 pleadings, exhibits attached to the complaint, and 21 matters properly subject to judicial notice. Swartz v. 22 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court 23 must presume all factual allegations of the complaint to 24 be true and draw all reasonable inferences in favor of 25 the non-moving party. Klarfeld v. United States, 944 26 F.2d 583, 585 (9th Cir. 1991). The question is not 27 whether the plaintiff will ultimately prevail, but 28 whether the plaintiff is entitled to present evidence to 5 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 6 of 19 Page ID #:217

1 support its claims. Jackson v. Birmingham Bd. of Educ.,

2 544 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416

3 U.S. 232, 236 (1974)). While a complaint need not 4 contain detailed factual allegations, a plaintiff must 5 provide more than “labels and conclusions” or “a 6 formulaic recitation of the elements of a cause of 7 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 8 (2007). However, “a well-pleaded complaint may proceed 9 even if it strikes a savvy judge that actual proof of 10 those facts is improbable, and ‘that a recovery is very 11 remote and unlikely.’” Id. at 556 (quoting Scheuer v. 12 Rhodes, 416 U.S. 232, 236 (1974)). 13 2. Motion to Strike 14 California’s anti-Strategic Lawsuit Public 15 Participation (“anti-SLAPP”) statute provides for a 16 special motion to strike state law claims brought 17 “primarily to chill the valid exercise of the 18 constitutional rights of freedom of speech and petition 19 for the redress of grievances.” Cal. Civ. Proc. Code 20 § 425.16(a). “A court considering a motion to strike 21 under the anti-SLAPP statute must engage in a two-part 22 inquiry.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 23 1110 (9th Cir. 2003). “First, a defendant must make an 24 initial prima facie showing that the plaintiff’s suit 25 arises from an act in furtherance of the defendant’s 26 rights of petition or free speech.” Id. (internal 27 quotation marks and citation omitted). “Second, once 28 the defendant has made a prima facie showing, the burden 6 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 7 of 19 Page ID #:218

1 shifts to the plaintiff to demonstrate a probability of

2 prevailing on the challenged claims.” Id. (internal

3 quotation marks and citation omitted). 4 B. Analysis 5 1. Requests for Judicial Notice 6 Pursuant to Rule 201 of the Federal Rules of 7 Evidence, “[a] court may judicially notice a fact that 8 is not subject to reasonable dispute because it . . . 9 can be accurately and readily determined from sources 10 whose accuracy cannot reasonably be questioned.” While 11 a court may take judicial notice of matters of public 12 record, a court may not take judicial notice of the 13 substance of such records if subject to reasonable 14 dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689- 15 90 (9th Cir. 2001) (stating that a court may take 16 judicial notice of the fact that certain court records 17 were filed but not of the truth of any facts stated 18 therein). 19 Defendant requests that the Court take judicial 20 notice of three documents: (1) the complaint filed by 21 Defendant in the Superior Court of California, County of 22 Alameda; (2) an instruction published by the National 23 Organic Program (“NOP”) on the “Use of Brand or Company 24 Names Containing the Word ‘Organic’”; and (3) 25 photographs of various Products’ labels. See Req. for 26 Judicial Notice in Supp. of Mot. to Dismiss 1:26-2:3, 27 ECF No. 19; Req. for Judicial Notice in Supp. of Reply 28 2:10-13, ECF No. 25-1. 7 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 8 of 19 Page ID #:219

1 Defendant’s first request involves a court record,

2 the existence of which is not subject to reasonable

3 dispute. The Court therefore GRANTS Defendant’s first 4 request and takes judicial notice that this complaint 5 was filed, that it rests on the allegations contained 6 within it, and that the action was then removed to the 7 United States District Court for the Northern District 8 of California. See B&G Foods N.A., Inc. v. Embry, No. 9 2:20-cv-00526-KJM-DB, 2020 WL 5944330, at *1 n.2 (E.D. 10 Cal. Oct. 7, 2020). However, the Court declines 11 Defendant’s second and third requests because they 12 involve matters that are not relevant to determining 13 whether the allegations of the FAC, taken as true, state 14 a claim for relief. See Gerritsen v. Warner Bros. Ent. 15 Inc., 112 F. Supp. 3d 1011, 1022 (C.D. Cal. 2015) 16 (declining to take judicial notice of a chart as 17 irrelevant and subject to reasonable dispute because it 18 diverted from the facts as stated in the complaint). 19 Accordingly, the Court DENIES Defendant’s second and 20 third requests for judicial notice of the NOP 21 instruction and the photographs. 22 2. Motion to Dismiss 23 Defendant moves to dismiss the Complaint, arguing: 24 (1) Plaintiff’s entire cause of action is barred by the 25 Noerr-Pennington doctrine; (2) Plaintiff’s tort claims 26 should be dismissed because they are based on privileged 27 communications; and (3) Chewy must be joined to this 28 Action as a necessary party with respect to Plaintiff’s 8 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 9 of 19 Page ID #:220

1 tort claims. See generally Def.’s Mot. to Dismiss, ECF

2 No. 17. The Court concludes that the Noerr-Pennington

3 doctrine bars Plaintiff’s tort claims (Counts 3-6) but 4 not Plaintiff’s claims for declaratory relief. Because 5 Defendant’s second and third arguments pertain only to 6 Plaintiff’s tort claims, which are barred under Noerr- 7 Pennington, the Court need not address those arguments. 8 a. Applicability of Noerr-Pennington Doctrine 9 The Noerr-Pennington doctrine is derived from the 10 First Amendment “right of the people . . . to petition 11 the Government for a redress of grievances.” U.S. 12 Const. amend. I. “Under the Noerr-Pennington doctrine, 13 those who petition any department of the government for 14 redress are generally immune from statutory liability 15 for their petitioning conduct.” Sosa v. DIRECTV, Inc., 16 437 F.3d 923, 929 (9th Cir. 2006). The doctrine has 17 been extended to also protect petitioners from liability 18 under state tort law. Theme Promotions, Inc. v. News 19 Am. Mktg. FSI, 546 F.3d 991, 1007 (9th Cir. 2008). 20 Petitioning activity directed at any branch of 21 government is protected under Noerr-Pennington, 22 including petitions in the form of a lawsuit in federal 23 or state court. Sosa, 437 F.3d at 929-30 (quoting Cal. 24 Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 25 510-11 (1972)). “Conduct incidental to a lawsuit, 26 including a pre-suit demand letter, [also] falls within 27 the protection of the Noerr-Pennington doctrine.” Theme 28 Promotions, 546 F.3d at 1007. 9 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 10 of 19 Page ID #:221

1 Here, each of Plaintiff’s tort claims against

2 Defendant arises from the damages allegedly caused by

3 Defendant’s letter to Chewy. See FAC ¶¶ 23-48. This 4 letter asserted that the Products Chewy obtained from 5 Plaintiff violated COFFA requirements and that Defendant 6 intended to file a lawsuit if Chewy did not confirm with 7 Defendant that it had stopped selling the Products. See 8 FAC Ex. 2. This letter therefore qualifies as a pre- 9 suit demand letter that was written in anticipation of 10 Defendant’s petition to the government — i.e., a lawsuit 11 seeking COFFA compliance from Plaintiff and the 12 retailers who sell Plaintiff’s Products. The letter 13 therefore constitutes protected petitioning activity, 14 and Defendant is immune from liability for damages 15 caused by this letter pursuant to Noerr-Pennington. See 16 Theme Promotions, 546 F.3d at 1007. 17 Plaintiff argues that Defendant is not entitled to 18 Noerr-Pennington protection because Defendant was acting 19 in its “capacity as a private attorney general on behalf 20 of the people of the State of California and not on 21 behalf of itself.” Opp’n 10:14-17. However, “Noerr- 22 Pennington can apply to government actors acting in 23 their official capacity” so long as those actors “engage 24 with other state entities for the sake of ‘procuring 25 favorable government action.’” Comm. to Protect our 26 Agric. Water v. Occidental Oil & Gas Co., 235 F. Supp. 27 3d 1132, 1158-59 (E.D. Cal. 2017) (citing Manistee Town 28 Ctr. V. City of Glendale, 227 F.3d 1090, 1094 (9th Cir. 10 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 11 of 19 Page ID #:222

1 2000); quoting Kottle v. Nw. Kidney Ctrs., 146 F.3d

2 1056, 1060 (9th Cir. 1998)). Even if Defendant were

3 considered to be a state actor when it sent the demand 4 letter to Chewy, it did so with the intent to engage 5 with the courts and procure a favorable ruling to 6 enforce COFFA requirements. See FAC ¶ 10. This conduct 7 was therefore petitioning activity that is protected 8 under Noerr-Pennington. 9 Plaintiff similarly argues that Noerr-Pennington 10 should not apply to Defendant’s petition because 11 Defendant “has suffered no individual injury.” Opp’n 12 10:17-19. Plaintiff cites no authority, and the Court 13 has found none, to support the proposition that a 14 petitioner must suffer an individual injury to be 15 afforded Noerr-Pennington immunity. On the contrary, 16 the Ninth Circuit has recognized that petitions by 17 representative entities “may be nearly as vital to the 18 functioning of a modern representative democracy as 19 petitioning that originates with private citizens.” 20 Manistee Town Ctr., 227 F.3d at 1093. Accordingly, 21 Defendant is entitled to immunity from liability under 22 Noerr-Pennington for its petitioning activity. 23 b. Sham Litigation Exception 24 Not all petitioning activity is protected under the 25 Noerr-Pennington doctrine. “Pre-suit letters 26 threatening legal action may . . . be restricted by law 27 where they include representations so baseless that the 28 threatened litigation would fall into the ‘sham 11 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 12 of 19 Page ID #:223

1 litigation’ exception.” Theme Promotions, 546 F.3d at

2 1007. In other words, a petitioner will not be shielded

3 from liability for damages caused by a demand letter 4 where the threatened lawsuit is “objectively baseless 5 and the defendant’s motive in bringing it was unlawful.” 6 Sosa, 437 F.3d at 938. The Ninth Circuit has imposed a 7 heightened pleading standard to claims of sham 8 litigation because “when a plaintiff seeks damages . . . 9 for conduct which is prima facie protected by the First 10 Amendment, the danger that the mere pendency of the 11 action will chill the exercise of First Amendment rights 12 requires more specific allegations than would otherwise 13 be required.” Kottle, 146 F.3d at 1063. In particular, 14 a plaintiff alleging the sham litigation exception 15 should specify “exactly what representations [defendant] 16 made, or to whom; with whom [defendant] conspired; [and] 17 what exactly its ‘improper and/or unlawful’ methods of 18 advocacy were.” Id. 19 Plaintiff first argues that Defendant’s claim in 20 its demand letter to Chewy that the Products were “sold 21 as organic” was objectively baseless. It reasons that 22 the letter asserts that the Products were labeled as 23 “organic” on the principal display panel, yet the word 24 “organic” appears nowhere on the principal panel of any 25 Product. Opp’n 14:13-17. However, Defendant believed 26 that use of the brand name “OrgaNOMics” qualified as a 27 grammatical variation of the word “organic” under COFFA, 28 and no allegation in the FAC convinces the Court that 12 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 13 of 19 Page ID #:224

1 this belief was unreasonable. Because there is very

2 little case law interpreting COFFA’s definition of “sold

3 as organic,” this Court cannot say with any certainty 4 that the California legislature intended to exclude 5 products sold under a brand name such as “OrgaNOMics” 6 from this definition. See Pro. Real Estate Invs., Inc. 7 v. Columbia Pictures Indus., Inc., 508 U.S. 49, 65 8 (1993) (“In light of the unsettled condition of the law, 9 [Petitioner] plainly had probable cause to sue.”). 10 The fact that Chewy decided to avoid a potential 11 lawsuit by complying with the demand letter suggests 12 that Defendant’s claims may have merit. See Theme 13 Promotions, 546 F.3d at 1008 (“The fact that this 14 ongoing litigation settled suggests that the original 15 suit was not objectively baseless.”); Toyo Tire & Rubber 16 Co., Ltd. v. CIA Wheel Grp., No. SACV 15–246–JLS (DFMx), 17 2015 WL 4545187, at *3 (stating that other parties’ 18 settlement of claims in the same proceeding “cannot be 19 reconciled with [the] allegation that [those claims] 20 were ‘objectively baseless’”). Moreover, Defendant’s 21 letter to Plaintiff and the lawsuit it actually filed 22 against Plaintiff discuss not only the representations 23 made on the principal panel of the Products but also 24 Plaintiff’s alleged advertising of the Products as 25 organically sourced and made with organic ingredients. 26 See FAC Ex. 1; RJN Ex. 1 ¶ 15. Viewing Defendant’s 27 petitioning activity as a whole, the Court concludes 28 that Defendant’s claim that the Products were “sold as 13 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 14 of 19 Page ID #:225

1 organic” is not objectively baseless.

2 Plaintiff additionally argues that Defendant’s

3 claims in its demand letter to Chewy were objectively 4 baseless because Defendant makes no reference to the 5 actual ingredients contained in the Products. Opp’n 6 16:14-28. However, Defendant’s claims may have merit 7 regardless of the details it chooses to disclose in a 8 particular demand letter. Defendant’s petitioning 9 activity is protected so long as Defendant’s claims are 10 “potentially meritorious.” Theme Promotions, 546 F.3d 11 at 1007. Plaintiff bears the burden of pleading how and 12 why Defendant’s claims are a sham, and the FAC fails to 13 explain why Defendant’s belief that the Products 14 contained less than the required percentage of organic 15 ingredients was unreasonable. See EcoDisc Tech. AG v. 16 DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 17 1084 (C.D. Cal. 2010) (holding that plaintiff failed to 18 meet the heightened pleading standard for the sham 19 litigation exception because the complaint contained no 20 allegation that the defendant’s belief leading to its 21 petitioning conduct was unreasonable). 22 Finally, even if Defendant’s claims were 23 objectively baseless, Plaintiff fails to adequately 24 plead that Defendant was petitioning for an unlawful 25 purpose. The FAC does not allege that Defendant ever 26 had any purpose for its petitioning activity beyond 27 achieving compliance with the organics laws of 28 California. Indeed, Plaintiff itself acknowledges that 14 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 15 of 19 Page ID #:226

1 Defendant’s purpose is to “rectify violations of certain

2 governmental regulations.” See FAC ¶ 10. Moreover, the

3 Court is not convinced that Defendant’s delay in filing 4 suit is indicative of bad faith. Defendants may have 5 simply wanted the issue resolved outside of court 6 without resorting to litigation. Because Plaintiff 7 fails to allege any plausible alternative purpose that 8 would amount to unlawful behavior, it has failed to meet 9 its burden of pleading that Defendant had an unlawful 10 motive for its petitioning conduct. 11 Accordingly, the sham litigation exception does not 12 apply here. Defendant is therefore entitled to immunity 13 under Noerr-Pennington from liability for Plaintiff’s 14 state tort claims. The Court therefore GRANTS the 15 Motion to Dismiss as to Counts 3-6 of the FAC. 16 c. Declaratory Judgment Claims 17 Plaintiff argues that the Motion to Dismiss should 18 be denied as to Counts 1 and 2 of the FAC because the 19 Noerr-Pennington doctrine does not bar claims for 20 declaratory relief. Opp’n 11:6-10. Defendant counters 21 that the doctrine bars any claim that burdens rights 22 protected by the Petition Clause, and it should 23 therefore bar Plaintiff’s declaratory relief claims as 24 well. Reply 4:5-7. 25 “The essence of the Noerr-Pennington doctrine is 26 that those who petition any department of the government 27 for redress are immune from statutory [or tort] 28 liability for their petitioning conduct.” Theme 15 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 16 of 19 Page ID #:227

1 Promotions, 546 F.3d at 1006 (emphasis added). Other

2 courts within this Circuit have therefore concluded that

3 the Noerr-Pennington doctrine “immunizes a party from 4 liability and not from an entire claim.” Cisco Sys., 5 Inc. v. Becella’s Etc., LLC, 402 F. Supp. 3d 813, 825 6 (N.D. Cal. 2019) (quoting Shell Gulf of Mex., Inc. v. 7 Ctr. for Biological Diversity, Inc., No. 3:12-CV-0048- 8 RRB, 2012 WL 12865419, at *9–*10 (D. Alaska June 26, 9 2012)). It follows that where a claim does not seek to 10 impose liability upon a defendant and does not otherwise 11 burden the defendant’s right to petition, Noerr- 12 Pennington does not bar the claim. See Sosa, 437 F.3d 13 at 930 (stating that the first step in determining 14 whether Noerr-Pennington bars a claim is to identify the 15 burden it imposes on petitioning rights). 16 Here, Plaintiff’s claims for declaratory relief do 17 not seek to hold Defendant liable or to otherwise 18 penalize Defendant for its petition to the courts. 19 Rather, these claims seek a declaration that Plaintiff 20 itself is not liable for violating COFFA. Accordingly, 21 the substance of these claims does not place a burden on 22 Defendant’s petitioning rights because they do not 23 prevent or discourage Defendant from filing its own 24 claims against Plaintiff. See Cisco, 403 F. Supp. 3d at 25 824-25. On the contrary, these claims ensure that 26 Defendant will have its day in court to explain the 27 violations it believes Plaintiff is committing. 28 Defendant nevertheless argues that Plaintiff’s 16 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 17 of 19 Page ID #:228

1 claims for declaratory relief burden Defendant’s

2 petitioning rights because they prevent Defendant from

3 being able to “petition state courts for enforcement of 4 a state law . . . by requiring [Defendant] to defend its 5 state law claims in federal court.” Reply 3:23-25. 6 However, Plaintiff’s declaratory relief claims did not 7 prevent Defendant from filing a petition in state court, 8 as Defendant did shortly after this Action was filed. 9 Although Defendant’s action was then removed to federal 10 court, removal is not a violation of Defendant’s First 11 Amendment right to petition. The right to petition 12 protects petitioners’ “use of the channels and 13 procedures of state and federal . . . courts to advocate 14 their causes and points of view.” Cal. Motor. Transp., 15 404 U.S. at 511. Thus, the transfer of Defendant’s 16 petition from one forum to another pursuant to well- 17 established rules of procedure is not a violation of 18 Defendant’s First Amendment rights. See Larkins v. 19 Moore, No. 16cv2661-LAB (NLS), 2018 WL 4468854, at *6 20 (S.D. Cal. Sept. 18, 2018) (citing Minn. State Bd. for 21 Comm. Colls. v. Knight, 465 U.S. 271, 282 (1984)) 22 (“[T]he right to petition does not include the right to 23 be heard in a particular manner or setting.”). 24 In sum, the Noerr-Pennington doctrine does not bar 25 Plaintiff’s claims for declaratory relief because they 26 do not burden Defendant’s right to petition. The Court 27 therefore DENIES the Motion to Dismiss as to Counts 1 28 and 2 of the FAC. 17 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 18 of 19 Page ID #:229

1 3. Motion to Strike 2 Defendant argues that Plaintiff’s state tort claims

3 should be stricken from the FAC under California’s anti- 4 SLAPP statute. Def.’s Mot. to Strike 4:2-7, ECF No. 18. 5 Because Counts 3-6 of the FAC are dismissed pursuant to 6 the Noerr-Pennington doctrine, Defendant’s Motion to 7 Strike is DENIED as moot. 8 4. Leave to Amend 9 “The Court should give leave [to amend] freely when 10 justice so requires.” Fed. R. Civ. P. 15(a)(2). While 11 the Ninth Circuit has “stressed Rule 15’s policy of 12 favoring amendments,” leave need not be granted where 13 amendment would be “an exercise in futility.” Ascon 14 Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th 15 Cir. 1989). Here, granting Plaintiff leave to amend its 16 state tort claims would be futile because the Noerr- 17 Pennington doctrine would bar any tort claim arising 18 from Defendant’s demand letters. See B&G Foods, 2020 WL 19 5944330, at *3. Counts 3-6 of the FAC are therefore 20 DISMISSED with prejudice. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 18 Case 2:21-cv-08489-RSWL-AS Document 28 Filed 01/20/22 Page 19 of 19 Page ID #:230

1 III. CONCLUSION

2 Based on the foregoing, the Court GRANTS in part

3 and DENIES in part Defendant’s Motion to Dismiss. The 4 Motion is DENIED as to Counts 1 and 2 of the FAC. The 5 Motion is GRANTED without leave to amend as to Counts 3- 6 6 of the FAC. Defendant’s Motion to Strike is DENIED as 7 moot. 8 IT IS SO ORDERED. 9 10 DATED: January 20, 2022 _____/_s_/ _R_o_n_a_ld_ S_._W__. L_e_w_________ HONORABLE RONALD S.W. LEW 11 Senior U.S. District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19