Kelly Crowe v. Rama Gogineni

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2019
• Docket: 17-17231
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KELLY CROWE, No. 17-17231

Plaintiff-Appellant, D.C. No. 2:11-cv-03438-EFB

v. MEMORANDUM* RAMA GOGINENI; BULLIVANT, HOUSER, BAILEY, P.C., an Oregon corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Edmund F. Brennan, Magistrate Judge, Presiding

Submitted June 5, 2019**

Before: Wallace, Farris, and Trott, Circuit Judges.

Kelly Crowe appeals pro se from the district court’s order, in Crowe’s

diversity action, granting defendant Bullivant, Houser, and Bailey, P.C.’s (“BHB”)

special motion to strike under California’s anti-Strategic Litigation Against Public

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Policy (“anti-SLAPP”) statute. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Manufactured Home Cmtys., Inc. v. County of San Diego, 655

F.3d 1171, 1176 (9th Cir. 2011). We affirm.

The district court properly granted BHB’s special motion to strike because

BHB met its prima facie burden of showing that each cause of action arose out of

BHB’s protected petitioning activity and Crowe failed to show a probability of

prevailing on the merits. See Cal. Civ. Proc. Code § 425.16(e); Roberts v. McAfee,

Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (once a defendant makes a prima facie

showing that plaintiff’s suit arises from the defendant’s protected activity, the

burden shifts to plaintiff to establish a reasonable probability of prevailing on the

claim); see also Finton Constr., Inc. v. Bidna & Keys, APLC, 190 Cal. Rptr. 3d 1, 9

(Ct. App. 2015) (“[A]ll communicative acts performed by attorneys as part of their

representation of a client in judicial proceedings or other petitioning context are

per se protected as petitioning activity by the anti-SLAPP statute.” (citation

omitted)). Crowe’s allegations against BHB were based entirely on BHB’s legal

representation, or communications on behalf of, its client, Cosmic.

Contrary to Crowe’s contentions, the district court did not commit reversible

error by failing to provide Crowe with an opportunity to conduct discovery. See

Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“A district

court is vested with broad discretion to permit or deny discovery, and a decision to

2 17-17231 deny discovery will not be disturbed except upon the clearest showing that the

denial of discovery results in actual and substantial prejudice to the complaining

litigant. Prejudice is established if there is a reasonable probability that the

outcome would have been different had discovery been allowed.” (internal

quotation and citation omitted)).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Because Crowe does not raise any challenges to the district court’s rulings

relating to defendant Rama Gogineni, the Clerk shall edit the docket to reflect that

Gogineni is not an appellee in this appeal.

AFFIRMED.

3 17-17231