Keely v. Skylab Apps, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HEATHER HOLLANDER KEELY, Case No.: 19-CV-2078-CAB-KSC STEVE WOLF, and BRITTANY 11 DOSTER, ORDER DENYING MOTION TO 12 STRIKE Plaintiffs,

13 v.

14 SKYLAB APPS, INC. et al, [Doc. No. 33] 15 Defendants. 16 AND RELATED COUNTERCLAIMS 17 18 19 On January 20, 2020, Defendants/Counter-Plaintiffs Skylab Apps, Inc. and Dean 20 Grey (together, “Skylab”) filed an answer and first amended counterclaim (“FAC”) that 21 asserted three claims against Heather Hollander Keely, Steve Wolf, and Brittany Doster 22 (together, “Counter-Defendants”): (1) breach of contract; (2) intentional interference with 23 prospective economic advantage; and (3) defamation. On February 3, 2020, Counter- 24 Defendants filed a motion to dismiss all three counterclaims or for a more definite 25 statement. On March 13, 2020, the Court denied that motion. A week later, on March 20, 26 2020, Counter-Defendants filed a motion to strike paragraph 18 of the amended 27 counterclaim pursuant to California’s statute precluding “Strategic Lawsuits Against 28 Public Participation” (“SLAPP”). Cal. Code Civ. Proc. § 425.16(c)(1). Paragraph 18 of 1 the FAC states: “Each Counter-Defendant also colluded with one another and other Skylab 2 contractors to fabricate a lawsuit against Skylab and Dean Grey, in violation of their 3 agreements.” This motion to strike is now fully briefed, and the Court deems it suitable 4 for submission without oral argument. Like the motion to dismiss, the motion to strike is 5 also denied. 6 “A SLAPP suit is one in which the plaintiff’s alleged injury results from petitioning 7 or free speech activities by a defendant that are protected by the federal or state 8 constitutions.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003). “The 9 overarching objective of the anti–SLAPP statute is to prevent and deter lawsuits chilling 10 speech and petition rights.” Hewlett-Packard Co. v. Oracle Corp., 239 Cal. App. 4th 1174, 11 1188 (Cal. Ct. App. 2015) (internal quotation marks omitted). More specifically, the 12 “central purpose of the statute [is to] screen[] out meritless claims that arise from protected 13 activity, before the defendant is required to undergo the expense and intrusion of 14 discovery.” Baral v. Schnitt, 1 Cal. 5th 376, 392 (2016). “It’s helpful to think of a ‘SLAPP’ 15 as a lawsuit defined by a particular strategy: obtaining an economic advantage over a 16 defendant, and not necessarily the vindication of a cognizable legal right.” Breazeale v. 17 Victim Servs., Inc., 878 F.3d 759, 764 (9th Cir. 2017). 18 “California’s anti-SLAPP statute allows a defendant to move to strike a plaintiff’s 19 complaint if it ‘aris[es] from any act of that person in furtherance of the person’s right of 20 petition or free speech under the United States or California Constitution in connection 21 with a public issue.’” Vess, 317 F.3d at 1109 (quoting Cal. Civ. Proc. Code § 425.16(a)). 22 “The anti-SLAPP statute does not insulate defendants from any liability for claims arising 23 from the protected rights of petition or speech. It only provides a procedure for weeding 24 out, at an early stage, meritless claims arising from protected activity.” Baral, 1 Cal. 5th 25 at 384 (emphasis in original). 26 “Motions to strike a state law claim under California’s anti-SLAPP statute may be 27 brought in federal court.” Vess, 317 F.3d at 1109. “If a defendant makes a special motion 28 to strike based on alleged deficiencies in the plaintiff’s complaint, the motion must be 1 treated in the same manner as a motion under Rule 12(b)(6) except that the attorney’s fee 2 provision of § 425.16(c) applies.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. 3 Progress, 890 F.3d 828, 834 (9th Cir. 2018) (quotation marks and citation omitted). Here, 4 despite arguing in their motion under California state law that the Court should employ a 5 summary judgment-like procedure requiring Skylab to present evidence supporting the 6 challenged claim, see, e.g,, Varian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005) 7 [Doc. No. 33-1 at 7], Counter-Defendants argue in the reply that their challenge is strictly 8 legal with respect to the sufficiency of the allegations in the complaint [Doc. No. 38 at 3]. 9 Accordingly, the Court treats this motion in the same manner as a motion under Rule 10 12(b)(6). 11 Counter-Defendants, however, already filed a Rule 12 concerning the FAC, which 12 the Court denied. Federal Rule of Civil Procedure 12(g) states that “[e]xcept as provided 13 in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another 14 motion under this rule raising a defense or objection that was available to the party but 15 omitted from its earlier motion.” Fed. R. Civ. P. 12(g); In re Apple iPhone Antitrust Litig., 16 846 F.3d 313, 318 (9th Cir. 2017) (“Rule 12(g) provides that a defendant who fails to assert 17 a failure-to-state-a-claim defense in a pre-answer Rule 12 motion cannot assert that defense 18 in a later pre-answer motion under Rule 12(b)(6). . . .”). “Rule 12(g) is written in broad 19 terms and requires consolidation of Rule 12 defenses and objections whenever a party 20 makes a motion under ‘this rule.’ Motions to strike and for a more definite statement are 21 motions under Rule 12 and thus clearly are within the language of subdivision (g).” 5C 22 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1388 (3d ed. 23 2018). 24 “Rule 12(g) is designed to avoid repetitive motion practice, delay, and ambush 25 tactics.” Allstate Ins. Co. v. Countrywide Fin. Corp., 824 F. Supp. 2d 1164, 1175 (C.D. 26 Cal. 2011). These concerns are all present here. The FAC has not changed since Counter- 27 Defendants filed their motion to dismiss, meaning this anti-SLAPP argument was available 28 to them but omitted from that motion. Indeed, the fact that this motion was filed exactly 1 week after the Court’s order denying the motion to dismiss indicates that delay and 2 ||repetitive motion practice were Counter-Defendant’s intent. Moreover, considering that 3 || the purpose of the anti-SLAPP statute is to screen out improper lawsuits from the outset, it 4 || would be particularly inappropriate to allow such a motion to proceed after Counter- 5 || Defendants’ delay and successive motion practice. Because the Court declines to entertain 6 || Counter-Defendants’ anti-SLAPP arguments in this second successive motion, the motion 7 DENIED. 8 It is SO ORDERED. 9 ||Dated: April 27, 2020 € Z 10 Hon. Cathy Ann Bencivengo 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28