The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: November 20, 2023
4 No. A-1-CA-40013
5 JOHNNY RAUL VALENZUELA,
6 Plaintiff-Appellee,
7 v.
8 MY WAY HOLDINGS, LLC, a Nevada 9 Limited Company dba SUNLAND 10 PARK RACETRACK and CASINO, 11 RICK BAUGH, JOHNNY P. LUNA, 12 MARTIN BUSTILLOS,
13 Defendants-Appellants,
14 and
15 VIOLET SMITH, in her individual 16 capacity, THE NEW MEXICO RACING 17 COMMISSION; and ISMAEL TREJO, 18 EXECUTIVE DIRECTOR OF THE NEW 19 MEXICO RACING COMMISSION, 20 in his official capacity,
21 Defendants.
22 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 23 Marci E. Beyer, District Court Judge
24 Daniel A. Marquez 25 El Paso, TX 1 Gene N. Chavez 2 Albuquerque, NM
3 for Appellee
4 Jennings Haug 5 Keleher Mcleod LLP 6 Thomas C. Bird 7 Deron B. Knoner 8 Ryan M. Walters 9 Albuquerque, NM
10 for Appellants 1 OPINION
2 MEDINA, Judge.
3 {1} In this case we interpret the scope of the jurisdiction granted to this Court by
4 New Mexico’s statute prohibiting strategic litigation against public participation
5 (Anti-SLAPP statute) expedited appeal provision, NMSA 1978, § 38-2-9.1(C)
6 (2001), as well as considering the statute’s application under the circumstances.
7 Appellants My Way Holdings, LLC, Rick Baugh, Johnny P. Luna, and Martin
8 Bustillos appeal the district court’s denial of their motion to dismiss Appellee Johnny
9 Raul Valenzuela’s complaint via special motion under the Anti-SLAPP statute, or in
10 the alternative under Rule 1-012(B)(6) NMRA for failure to state a claim. In our
11 calendar notice, this Court directed the parties to brief “whether the right to an
12 expedited appeal described in . . . Section 38-2-9.1(C) . . . is applicable to the district
13 court’s denial of [Appellants’] request for dismissal pursuant to Rule 1-012(B)(6).”
14 {2} We first hold that the expedited appeal under Section 38-2-9.1(C) applies only
15 to the special motion raising speech-based affirmative defenses under the Anti-
16 SLAPP statute and the Noerr-Pennington doctrine. Therefore, we lack jurisdiction
17 to consider Appellants’ alternative Rule 1-012(B)(6) arguments on expedited appeal.
18 We next affirm the district court’s denial of Appellants’ special motion to dismiss. 1 BACKGROUND
2 {3} We draw the following facts from Appellee’s allegations set forth in the
3 complaint. In 2017, Appellee was licensed by the New Mexico Racing Commission
4 (NMRC) as a racehorse jockey. On January 15, 2017, Appellee was scheduled to
5 jockey a racehorse at Sunland Park Racetrack. Prior to the race, Appellants
6 conducted a compliance inspection and spot check of jockeys inside the changing
7 room and in the hallway near the changing room. Appellants Luna and Bustillos,
8 Sunland Park security personnel, claimed to have observed a prohibited electrical
9 device in the hallway trash can after witnessing Appellee move towards it during the
10 inspection, wrote reports about the incident, and provided the reports to the NMRC.1
11 Before the NMRC board of stewards began disciplinary proceedings against Plaintiff
12 for violations of the New Mexico Horse Racing Act, NMSA 1978, Sections 60-1A-
13 1 to -30 (2007, amended through 2023), Appellants banned Appellee from the
14 Sunland Park Racetrack. See 15.2.1.7(S)(11) NMAC (providing that the stewards
15 are racing officials “with powers and duties specified by” statute and the
16 regulations); 15.2.1.9(B) NMAC (subjecting licensees to disciplinary proceedings
17 conducted by the stewards).
NMRC regulatory rules prohibit electrical or mechanical devices designed to 1
increase or retard the speed of a horse. 15.2.5.13(E)(6)(c) NMAC.
2 1 {4} The board of stewards summarily suspended Appellee from using his NMRC
2 license and entering any property under the jurisdiction of the NMRC, including
3 Sunland Park Racetrack. See 15.2.1.9(B)(3)(a) NMAC (authorizing the board of
4 stewards to summarily suspend a person pending a hearing). The board of stewards
5 held a disciplinary hearing at which Appellants Luna and Bustillos both testified
6 about their discovery of a prohibited electrical device at the Sunland Park Racetrack
7 on January 15, 2017. Following the hearing, the board of stewards suspended
8 Appellee’s NMRC license for five years and imposed a $5,000 fine.
9 {5} Appellee appealed the board of stewards’ decision to an administrative
10 hearing officer under the NMRC, and an evidentiary hearing was held on January
11 30, 2018. See 15.2.1.9(B)(9)(a) NMAC (stating that a “person who has been
12 aggrieved by a ruling of the stewards may appeal to the [NMRC]”). Appellants Luna,
13 Bustillos, and Defendant Violet Smith, a member of the Sunland Park Racetrack
14 board of stewards, testified at the evidentiary hearing. The hearing officer reversed
15 the board of stewards’ decision and dismissed the disciplinary action. The hearing
16 officer cited to a lack of physical evidence purported to be in Appellee’s possession
17 as well as inconsistent testimony from Appellants Luna, Bustillos, and Defendant
18 Smith and found that the NMRC board of stewards failed to meet its burden of proof
19 to show by a preponderance of the evidence that Appellee possessed a prohibited
20 electrical device.
3 1 {6} Appellee sued Appellants for negligent misrepresentation, fraud, negligence,
2 civil conspiracy, tortious interference with contract, prima facie tort, spoliation, and
3 malicious abuse of process. Appellee also alleged that despite the dismissal of the
4 disciplinary action, Appellants continued to ban Appellee from the Sunland Park
5 property. Appellants filed a motion to dismiss all of Appellee’s claims via special
6 motion under the Anti-SLAPP statute, arguing that their participation and testimony
7 at Appellee’s disciplinary hearings was protected speech under two different theories
8 of immunity—absolute immunity for testimony and qualified immunity for
9 reporting—and under the Noerr-Pennington doctrine because Appellants exercised
10 their right to petition a government agency. Appellants also argued in the alternative
11 that Appellee’s complaint generally failed to state a claim under Rule 1-012(B)(6)
12 because Appellee could not prevail under any state of facts provable under the claim,
13 or the claims were barred by the applicable statute of limitations.
14 {7} The district court denied Appellants’ motion, ruling that “the . . . Anti-SLAPP
15 statute and the Noerr-Pennington doctrine [did] not apply” because Appellants’
16 “alleged conduct, if true, [was] not conduct the Legislature intended the Anti-SLAPP
17 statute to protect.” Further, the district court stated if the allegations against
18 Appellants “are found to be true, . . . [Appellants’] conduct would be considered to
19 be a sham under the Noerr-Pennington test and the protections under the doctrine
20 would also be waived.” The district court also denied Appellants’ alternative Rule
4 1 1-012(B)(6) motion, ruling that Appellee sufficiently pleaded causes of action such
2 that he may be entitled to recover from Appellants. Appellants appealed the district
3 court’s order that “the . . . Anti-SLAPP statute and the Noerr-Pennington doctrine
4 [did] not apply” and the denial of Appellants’ Rule 1-012(B)(6) motion, under the
5 Anti-SLAPP statute’s expedited appeal provision. See § 38-2-9.1(C) (authorizing an
6 expedited appeal from an order ruling on a special motion under the statute);
7 Cordova v. Cline, 2017-NMSC-020, ¶ 17, 396 P.3d 159 (concluding “that the Anti-
8 SLAPP statute provides a right to an interlocutory appeal under the expedited appeal
9 provision”).
10 DISCUSSION
11 {8} We begin our analysis with our review of Section 38-2-9.1(C), which provides
12 for an expedited appeal. We hold that the Section 38-2-9.1(C) expedited appeal
13 applies to the affirmative, speech-based defenses raised in a special motion under
14 the Anti-SLAPP statute and not to all possible defenses raised by a defendant. After
15 determining the scope of our review on appeal, we then turn to the merits of
16 Appellants’ special motion to dismiss. Under the facts of this case, we first hold that
17 the Anti-SLAPP statute applies to Appellants’ conduct at issue. We then determine
18 whether Appellants’ speech-based defenses bar Appellee’s claims. Concluding that
19 that they do not, we affirm the district court’s denial of Appellants’ special motion
20 to dismiss. Although this is a close case under the heightened pleading standard, we
5 1 hold that Appellee pleaded sufficient factual and legal information to prevent
2 dismissal under the Anti-SLAPP statute.
3 I. Appellate Jurisdiction Under the Anti-SLAPP Statute’s Expedited 4 Appeal Provision
5 {9} We begin by addressing whether the expedited appeal provision in Section
6 38-2-9.1(C) extends to the defenses Appellants alternatively raised under Rule 1-
7 012(B)(6). We do so because “[t]he question of jurisdiction is a controlling
8 consideration that must be resolved before [proceeding] further.” State v. ex rel
9 Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 6, 406 P.3d 547 (internal quotation
10 marks and citation omitted). “Whether a court has jurisdiction to hear a particular
11 matter is a question of law that we review de novo.” Gzaskow v. Pub. Emps. Ret.
12 Bd., 2017-NMCA-064, ¶ 22, 403 P.3d 694 (internal quotation marks and citation
13 omitted). Our analysis also requires interpretation of Section 38-2-9.1, which we
14 review de novo. See Baker v. Hedstrom, 2013-NMSC-043, ¶ 10, 309 P.3d 1047.
15 {10} Appellee argues that Appellants’ Rule 1-012(B)(6) defenses are not properly
16 brought before this Court under the expedited appeal provision of Section 38-1-
17 9.1(C) because a moving party is entitled to the procedural protections of the Anti-
18 SLAPP statute only if they demonstrate they are the target of a SLAPP suit by special
19 motion. The expedited appeal considers only that question. Appellants respond in
20 part that the plain language of Section 38-1-9.1 does not create a “specific limitation
21 on the type, nature, or number of defenses that a defendant may assert” under the
6 1 Anti-SLAPP statute and permits various forms motions. Instead, Appellants suggest
2 that “flexible consideration of any arguments properly raised by [A]ppellant[s]” is
3 warranted based on persuasive federal authority. Because we limit our analysis to
4 the language of Section 38-1-9.1 and the intent of our Anti-SLAPP statute, we do
5 not address Appellants’ policy arguments based on federal authority.
6 {11} After review of the Anti-SLAPP statute, our own case law, the principles of
7 finality, and other jurisdictions’ case law, we hold that Section 38-2.9.1(C)’s
8 expedited appeal applies only to the speech-based defenses brought in a special
9 motion under the statute. Therefore, we lack jurisdiction to reach the merits of other,
10 nonspeech affirmative defenses raised by Appellants at the same time the Anti-
11 SLAPP statute is invoked. We explain.
12 {12} Our Supreme Court addressed Section 38-2-9.1, in Cordova, and held that
13 “Section 38-2-9.1(C) allows any party to bring an interlocutory appeal from a trial
14 court order on the special motion(s) brought pursuant to [the] Anti-SLAPP statute.”
15 Cordova, 2017-NMSC-020, ¶ 12. The Supreme Court noted that the “plain language
16 of Subsections A, B, and C of the Anti-SLAPP statute describe an expedited process
17 that is necessarily interlocutory in nature.” Id. ¶ 14, (internal quotation marks and
18 citation omitted). However, the opinion in Cordova did not address the question
19 presented here: whether the interlocutory appeal applies only to affirmative speech-
7 1 based defenses under Section 38-2-9.1 or all possible defenses to a plaintiff’s
2 complaint.
3 {13} “In interpreting statutes, we seek to give effect to the Legislature’s intent, and
4 in determining intent we look to the language used and consider the statute’s history
5 and background.” Valenzuela v. Snyder, 2014-NMCA-061, ¶ 16, 326 P.3d 1120
6 (internal quotation marks and citation omitted). “New Mexico courts have long
7 honored this statutory command through application of the plain meaning rule,
8 recognizing that when a statute contains language which is clear and unambiguous,
9 we must give effect to that language and refrain from further statutory
10 interpretation.” Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583,
11 227 P.3d 73 (text only) (citation omitted). “The statute or statutes, whose
12 construction is in question, are to be read in connection with other statutes
13 concerning the same subject matter.” Wild Horse Observers Ass’n v. N.M. Livestock
14 Bd., 2022-NMCA-061, ¶ 8, 519 P.3d 74 (internal quotation marks and citation
15 omitted). “Statutes must also be construed so that no part of the statute is rendered
16 surplusage or superfluous, and we will not read into a statute language which is not
17 there.” Am. Fed’n of State, Cnty. & Mun. Emps. v. City of Albuquerque, 2013-
18 NMCA-063, ¶ 5, 304 P.3d 443 (text only) (citations omitted).
19 {14} We begin with the applicable language of the Anti-SLAPP statute, which
20 states in relevant part:
8 1 A. Any action seeking money damages against a person for 2 conduct or speech undertaken or made in connection with a public 3 hearing or public meeting in a quasi-judicial proceeding before a tribunal 4 or decision-making body of any political subdivision of the state is 5 subject to a special motion to dismiss, motion for judgment on the 6 pleadings, or motion for summary judgment that shall be considered by 7 the court on a priority or expedited basis to ensure the early consideration 8 of the issues raised by the motion and to prevent the unnecessary expense 9 of litigation.
10 B. If the rights afforded by this section are raised as an 11 affirmative defense and if a court grants a motion to dismiss, a motion 12 for judgment on the pleadings or a motion for summary judgment filed 13 within ninety days of the filing of the moving party’s answer, the court 14 shall award reasonable attorney fees and costs incurred by the moving 15 party in defending the action. If the court finds that a special motion to 16 dismiss or motion for summary judgment is frivolous or solely intended 17 to cause unnecessary delay, the court shall award costs and reasonable 18 attorney fees to the party prevailing on the motion.
19 C. Any party shall have the right to an expedited appeal from 20 a trial court order on the special motions described in Subsection B of 21 this section or from a trial court’s failure to rule on the motion on an 22 expedited basis.
23 Section 38-2-9.1(A)-(C).
24 {15} Reading Subsections (A), (B), and (C) together, the right to an expedited
25 appeal applies to a “trial court[’s] order on the special motions described in
26 Subsection (B),” which is a motion where “the rights afforded by this section are
27 raised as an affirmative defense” in response to “any action seeking money damages
28 against a person for conduct or speech undertaken or made in connection with a
29 public hearing or public meeting in a quasi-judicial proceeding.” Id. The plain
30 language of Section 38-2-9.1(C) ties the expedited appeal—one of the rights
9 1 afforded by the statute—to the affirmative defenses referenced in Subsection (B):
2 defenses against the allegations involving speech or conduct in Subsection (A). See
3 NMSA 1978, § 38-2-9.2 (2001) (declaring the public policy of New Mexico to be
4 protecting the rights of its citizens “to petition and to participate in quasi-judicial
5 proceedings before governmental tribunals”). Nevertheless, while the limited scope
6 of the Anti-SLAPP statute extends our jurisdiction on appeal only to those defenses
7 that implicate the “rights afforded by this section,” Section 38-2-9.1(B) does not
8 explicitly define those rights. As a result, we agree with Appellants that the plain
9 language of Section 38-2-9.1 alone, although it suggests a limit on what defenses
10 may be raised, does not definitively impose such a limit.
11 {16} We therefore look to the object and purpose of the legislation in an effort to
12 discern the Legislature’s intent. Ferebee v. Hume, 2021-NMCA-012, ¶ 23, 485 P.3d
13 778 (“In addition to the plain language of the statute, our review of legislative intent
14 is informed by the context in which the statute was promulgated, including the
15 history of the statute and the object and purpose the Legislature sought to
16 accomplish.” (alteration, internal quotation marks, and citation omitted)). “The
17 Legislature enacted the Anti-SLAPP statute with the policy goal of protecting its
18 citizens from lawsuits in retaliation for exercising their right to petition and to
19 participate in quasi-judicial proceedings.” Cordova, 2017-NMSC-020, ¶ 19 (citing
20 § 38-2-9.2 (stating the findings and purpose of the Anti-SLAPP statute)). The
10 1 Legislature passed the Anti-SLAPP statute with a “broad intent to protect citizens
2 exercising their right to petition.” Cordova, 2017-NMSC-020, ¶ 22 (citing § 38-2-
3 9.2).
4 {17} To achieve this end, our Supreme Court has directed that “[r]ather than
5 treating SLAPP suits as ordinary commercial or tort litigation, courts must identify
6 the challenged activities of the target of the SLAPP suit in relation to their First
7 Amendment protections.” Cordova, 2017-NMSC-020, ¶ 18; Ferebee, 2021-NMCA-
8 012, ¶ 14 (“As the Legislature makes clear, the Anti-SLAPP statute is intended to
9 ensure that baseless lawsuits brought to chill persons from exercising the petition
10 rights described therein, are promptly dismissed to prevent the abuse of the legal
11 process and to protect persons exercising those rights from the burdens of such
12 suits.”). The language of Subsections (A), (B), and (C) thus reflects the Legislature’s
13 intent that the procedural protections of the Anti-SLAPP statute apply when a
14 defendant has invoked speech-based defenses for speech or action connected to a
15 quasi-judicial proceeding or a public hearing. Therefore, we conclude that the
16 Legislature’s grant of expedited appellate jurisdiction under Section 38-2-9.1(C)
17 applies to speech-based defenses raised, and not to any other possible affirmative
18 defense.
19 {18} Appellants contend that our Supreme Court’s analysis in Cordova should
20 result in a different conclusion than our analysis today. We disagree. As Appellants
11 1 acknowledge, our Supreme Court did not address the issue before us in Cordova.
2 Rather, Appellants argue that our Supreme Court’s use of a Rule 1-012(B)(6) review
3 framework implicitly allows review of Appellants’ other Rule 1-012(B)(6) defenses.
4 We disagree. As our Supreme Court stated, Section 38-2-9.1 provides procedural,
5 not substantive protections. See Cordova, 2017-NMSC-020, ¶ 24. A defendant’s
6 special motion to dismiss is only one of the types of special motions allowed under
7 the statute. Section 38-2-9.1(A), (B). Because the defendants in Cordova made a
8 special motion to dismiss under Rule 1-012(B)(6), our Supreme Court reviewed
9 under a Rule 1-012(B)(6) framework with the addition of a heightened pleading
10 standard. See Cordova, 2017-NMSC-020, ¶¶ 7, 29. The adoption of this procedural
11 mechanism does not suggest an expansion of the issues appellate courts will consider
12 in an expedited appeal under Section 38-2-9.1(C).
13 {19} We find support for our conclusion in Ferebee. In Ferebee, the plaintiff filed
14 a special motion to dismiss the defendants’ counterclaims under the Anti-SLAPP
15 statute, and additionally moved to dismiss the counterclaims under Rule 1-011(A)
16 NMRA as a sanction. Ferebee, 2021-NMCA-012, ¶ 4. The district court denied both
17 motions. Id. ¶ 5. On appeal, this Court affirmed the district court’s denial of the
18 special motion, holding that the defendants’ actions did not fall under the “class of
19 actions governed by the Anti-SLAPP statute.” Id. ¶ 26. Without explicitly
20 determining it was without appellate jurisdiction, this Court did not review the
12 1 district court’s denial of the plaintiff’s motion under Rule 1-011. This Court
2 reasoned that the plaintiff “fail[ed] to explain how this Court has appellate
3 jurisdiction over the district court’s non[]final decision on her request for sanctions,
4 particularly when the district court did not craft its order in conformity with NMSA
5 1978, [Section] 39-3-4(A) (1999).” Id. ¶ 27
6 {20} Similarly, in Chandler v. Advance New Mexico Now PAC, the defendants filed
7 a special motion to dismiss the plaintiff’s defamation claims under the Anti-SLAPP
8 statute. 2021-NMCA-017, ¶ 4, 488 P.3d 691. The district court denied the
9 defendants’ special motion. Id. ¶ 5. This Court affirmed the district court on appeal,
10 concluding the “[d]efendants’ conduct or speech was not undertaken or made in
11 connection with a public hearing or public meeting.” Id. ¶ 20 (alteration, internal
12 quotation marks, and citation omitted). After determining that the Anti-SLAPP
13 statute did not apply and our jurisdiction was limited to review of the Anti-SLAPP
14 statute, this Court then held “we do not have jurisdiction to address the district
15 court’s ruling concerning the legal sufficiency of [the p]laintiff’s defamation or other
16 claims at this time.” Id.
17 {21} Our principles of finality also support our conclusion. On appeal, we are
18 generally limited to reviewing only any “final judgment or decision, any
19 interlocutory order or decision which practically disposes of the merits of the action,
20 or any final order after entry of judgment which affects substantial rights.” NMSA
13 1 1978, § 39-3-2 (1966). “The general rule in New Mexico for determining the finality
2 of a judgment is that an order or judgment is not considered final unless all issues of
3 law and fact have been determined and the case disposed of by the trial court to the
4 fullest extent possible.” Zuni Indian Tribe v. McKinley Cnty. Bd. of Cnty. Comm’rs,
5 2013-NMCA-041, ¶ 16, 300 P.3d 133 (internal quotation marks and citation
6 omitted). Our Anti-SLAPP statute provides a unique procedural mechanism for the
7 Appellants to establish “immunity predicated on the First Amendment right to
8 petition” that is separate from the underlying claims. See Cordova, 2017-NMSC-
9 020, ¶ 25. As such, the expedited appeal provided by Section 38-2-9.1(C) creates a
10 narrow exception to this principle of finality in order to timely address important
11 First Amendment considerations. But outside the scope of the Anti-SLAPP statute,
12 the district court has not yet determined any issue of law or fact that would dispose
13 of the case to the fullest extent possible. If dismissal is not required by the special
14 Anti-SLAPP defense, then remand to the district court is appropriate to allow the
15 action to continue in the normal course until a final decision. See Zuni Indian Tribe,
16 2013-NMCA-041, ¶ 16.
17 {22} Finally, our conclusion is consistent with decisions of other jurisdictions with
18 similar language in their own Anti-SLAPP statutes. For example, in determining
19 how an Anti-SLAPP motion should be reviewed on appeal, the Supreme Judicial
20 Court of Massachusetts declined to equate a special motion to dismiss, pursuant to
14 1 the Massachusetts’ Anti-SLAPP statute with a motion to dismiss on nonFirst
2 Amendment issues, raised pursuant to the Massachusetts’ equivalent to Rule 1-
3 012(B)(6). Town of Hanover v. New England Reg’l Couns. of Carpenters, 6 N.E.3d
4 522, 530 n.11 (Mass. 2014). Similarly, the District of Columbia Court of Appeals
5 noted that the denial of an Anti-SLAPP motion to dismiss is immediately appealable,
6 but the denial of a motion to dismiss on other grounds, under the equivalent to Rule
7 1-012(B)(6), is not because it is nonfinal. Am. Stud. Ass’n v. Bronner, 259 A.3d 728,
8 734 n.8 (D.C. 2021). The Supreme Court of Connecticut held that the denial of an
9 Anti-SLAPP special motion is immediately appealable because it is an “entirely
10 independent” determination of a claim “of a right to avoid litigation” under the
11 Connecticut Anti-SLAPP statute. Smith v. Supple, 293 A.3d 851, 866-71 (Conn.
12 2023). The Connecticut Supreme Court reviewed multiple other jurisdictions
13 applying a similar analysis, including New Mexico. See id. at 866 n.23.
14 {23} We therefore hold that the expedited appeal of Section 38-2-9.1(C) applies
15 only to affirmative speech-based defenses for “conduct or speech undertaken or
16 made in connection with a public hearing or public meeting in a quasi-judicial
17 proceeding” under Section 38-2-9.1(A). Consequently, our appellate jurisdiction in
18 this appeal is limited to the Anti-SLAPP special motion under Section 38-2-9.1(C).
19 As such, our appellate jurisdiction does not extend to review Appellants’ appeal
15 1 from the district court’s ruling on their alternative Rule 1-012(B)(6) motion to
2 dismiss.
3 {24} Under the same reasoning outlined above, we also decline to review
4 Appellants’ claims that absolute immunity against defamation for testimony or the
5 qualified immunity for government reporting precludes Appellee’s claims. In the
6 context of an Anti-SLAPP special motion, our Supreme Court has stated that “the
7 Noerr-Pennington doctrine is the mechanism that offers [the defendants] the
8 substantive First Amendment protections they seek” when moving to dismiss under
9 Section 38.2.9.1 for petitioning the government. Cordova, 2017-NMSC-020, ¶ 24;
10 see also Hume, 2021-NMCA-012, ¶ 26 (stating that if the Anti-SLAPP statute
11 applies, then we determine if the party is entitled to the substantive protections under
12 the Noerr-Pennington doctrine). The Noerr-Pennington doctrine was adopted to
13 serve the same purposes as other speech based immunities, but is specifically
14 tailored for the context of the Anti-SLAPP statute. See Cordova, 2017-NMSC-020,
15 ¶ 24 (“Under the Noerr-Pennington doctrine, those who engage in conduct aimed at
16 influencing the government, including litigation, are shielded from retaliation
17 provided their conduct is not a sham.”). Having determined the scope of our
18 appellate jurisdiction in this case, we next address the district court’s denial of
19 Appellants’ special motion to dismiss.
16 1 II. The District Court’s Denial of Appellants’ Special Motion to Dismiss
2 {25} Appellants argue that the district court erred when denying their special
3 motion to dismiss under the Anti-SLAPP statute. We begin with Appellants’
4 argument that the district court erred by concluding Section 38-2-9.1(A) did not
5 apply to Appellants’ conduct.
6 {26} Appellants argue that the district court erred as a matter of law because it
7 failed to identify the challenged activities and the applicable First Amendment
8 protections at issue as required under Cordova, 2017-NMSC-020, ¶ 21, and instead
9 determined the strength of the speech-based defenses before determining if Section
10 38-2-9.1 applied. Appellants’ argument requires that we again interpret Section 38-
11 2-9.1, which we review de novo. Hedstrom, 2013-NMSC-043, ¶ 10. We agree with
12 Appellants that, under the facts and procedural posture of the case, Section 38-2-9.1
13 applies to their conduct and explain.
14 {27} In interpreting Section 38-2-9.1 and the paired Section 38-2-9.2, our Supreme
15 Court concluded that the “Legislature enacted the Anti-SLAPP statute with the
16 policy goal of protecting its citizens from lawsuits in retaliation for exercising their
17 right to petition and to participate in quasi-judicial proceedings” and “intended to
18 protect all public participation.” Cordova, 2017-NMSC-020, ¶ 19. As such, “the
19 phrase ‘in connection with’ in Section 38-2-9.1(A) reveals the Legislature’s intent
20 to protect all activities related to the public hearing before a tribunal.” Id. ¶ 21; see
17 1 § 38-2-9.1(A) (protecting from actions seeking money damages conduct or speech
2 “made in connection with a public hearing or public meeting in a quasi-judicial
3 proceeding”). Therefore, “a narrow interpretation of the language of the Anti-
4 SLAPP statute is contrary to the Legislature’s broad intent to protect citizens
5 exercising their right to petition.” Cordova, 2017-NMSC-020, ¶ 22 (citing § 38-2-
6 9.2).
7 {28} Under this broad interpretation of Section 38-2-9.1, Appellants properly
8 invoked the protections of the Anti-SLAPP statute. Appellee’s complaint and
9 various causes of action seek money damages for Appellants’ alleged negligent or
10 fraudulent reporting to a public agency and their subsequent testimony and
11 presentation of evidence to a quasi-judicial tribunal. The disciplinary proceedings
12 were quasi-judicial in nature because they determined whether Appellee’s license
13 should be revoked after a presentation of evidence. See Benavidez v. Bernalillo Cnty.
14 Bd. of Cnty. Comm’rs, 2021-NMCA-029, ¶ 18, 493 P.3d 1024 (defining a quasi-
15 judicial action as “involving a determination of the rights, duties, or obligations of
16 specific individuals on the basis of the application of presently existing legal
17 standards or policy considerations to past or present facts developed at a hearing
18 conducted for the purpose of resolving the particular interests in question” (internal
19 quotation marks and citation omitted)). Therefore, Appellants’ conduct was “in
18 1 connection with” a quasi-judicial proceeding, and protected by Section 38-2-9.1. See
2 Cordova, 2017-NMSC-020, ¶ 21 (internal quotation marks omitted).
3 {29} Appellee does not dispute that the Anti-SLAPP statute applies under the
4 statutory language. Instead, Appellee argues that the statute does not apply because
5 it does not protect individuals who have made false reports. Although Appellee’s
6 allegations are relevant to determine if a special motion under the statute should be
7 granted on its merits under the Noerr-Pennington doctrine, they are not relevant to
8 determining if the Anti-SLAPP statute applies. Here, because Appellants fulfill the
9 statutory requirements of Section 38-2-9.1(A), and the parties do not dispute its
10 application, we hold that Appellants properly filed a special motion to dismiss under
11 the Anti-SLAPP statute.
12 {30} We next briefly address Appellants’ argument that the district court
13 misinterpreted Section 38-2-9.1(E) when it determined the subsection applies to both
14 parties and not just the moving party under the Anti-SLAPP statute. Section 38-2-
15 9.1(E) states, “Nothing in this section limits or prohibits the exercise of a right or
16 remedy of a party granted pursuant to another constitutional, statutory, common law
17 or administrative provision, including civil actions for defamation or malicious
18 abuse of process.” Under the plain language, Section 38-2-9.1(E) applies to both
19 parties, not just a defendant to a SLAPP suit. See id. (stating the subsection applies
20 to a party when the statute is invoked (emphasis added)). To apply Section 38-2-
19 1 9.1(E) only to Appellants would require that we read language into the statute, which
2 we will not do. See City of Albuquerque, 2013-NMCA-063, ¶ 5. Instead, reading
3 Subsection E with the remainder of the statute, clarifies that the Anti-SLAPP statute
4 provides additional protection to targets of SLAPP suits but is not an absolute bar to
5 lawsuits involving possibly protected speech. See Nat’l Educ. Ass’n of N.M. v. Santa
6 Fe Pub. Schs., 2016-NMCA-009, ¶ 6, 365 P.3d 1 (“All parts of a statute must be
7 read together to accurately reflect legislative intent, and courts must read the statute
8 in its entirety and construe each part in connection with every other part to produce
9 a harmonious whole.” (internal quotation marks and citation omitted)).
10 {31} In conclusion, we hold that under the facts and procedural posture of this case,
11 the district court erred when ruling that the Anti-SLAPP statute did not apply to
12 Appellants, and that Appellants could not bring a special motion to dismiss under
13 the statute. Because we determine Appellants properly invoked Section 38-2-9.1, we
14 next address Appellants’ speech-based defenses to Appellee’s complaint.
15 A. Noerr-Pennington Doctrine Analysis
16 {32} We now turn to Appellants’ argument that the district court erred by
17 concluding that the Noerr-Pennington doctrine did not bar Appellee’s complaint.
18 Our Supreme Court adopted the Noerr-Pennington doctrine as the mechanism that
19 offers defendants the “substantive First Amendment protections” they seek under
20 Section 38-2-9.1. Cordova, 2017-NMSC-020, ¶ 24. “The Noerr-Pennington
20 1 doctrine is a body of federal law that provides First Amendment protections for
2 citizens who petition the government” and shields them from retaliation for “conduct
3 aimed at influencing the government.” Id. Although the Noerr-Pennington doctrine
4 emerged from antitrust litigation, the doctrine “is rooted in the First Amendment
5 right to petition and therefore must be applied to all claims implicating that right,
6 not just to antitrust claims.” Id. ¶¶ 25-26 (internal quotation marks and citation
7 omitted); see id. (discussing the origination of the Noerr-Pennington doctrine and
8 its current application to First Amendment cases).
9 {33} However, the “Noerr-Pennington doctrine protections are not absolute. To be
10 entitled to First Amendment protection under the Noerr-Pennington doctrine, the
11 activity must be genuine and not a mere sham.” Id. ¶ 27 (citation omitted). This is
12 because a sham petition “lacking a genuine, legitimate purpose of procuring
13 favorable governmental action are not protected by the First Amendment.” Id.
14 {34} Our Supreme Court provided the analytical framework for our analysis on
15 appeal. “To constitute a sham, the petitioning activities must meet a two-part test.
16 First, the petitioning activities must be objectively baseless in the sense that no
17 reasonable litigant could realistically expect success on the merits.” Id. ¶ 28 (internal
18 quotation marks and citation omitted). A reviewing court proceeds to the second step
19 only if the petitioning activities are objectively baseless. Id. Second, the reviewing
20 court must determine “whether the subjective motivation underlying the challenged
21 1 conduct was improper.” Id. In other words, Appellee must have pleaded facts to
2 establish that (1) Appellants’ report initiating disciplinary proceedings and
3 testimony at the proceedings was objectively baseless in that it did not have
4 sufficient factual or legal support; and (2) Appellants’ primary purpose was to
5 effectuate an improper objective. See id. (explaining the sham test in practice).
6 {35} “We review the denial of a motion to dismiss de novo because such a motion
7 tests the legal sufficiency of the allegations.” Padilla v. Wall Colmonoy Corp., 2006-
8 NMCA-137, ¶ 7, 140 N.M. 630, 145 P.3d 110. In reviewing the district court’s
9 decision, “we accept all well-pleaded factual allegations in the complaint as true and
10 resolve all doubts in favor of sufficiency of the complaint.” Delfino v. Griffo, 2011-
11 NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917 (internal quotation marks and citation
12 omitted). For cases involving conduct arguably protected by the First Amendment
13 and special motions brought under Section 38-2-9.1, our Supreme Court adopted a
14 higher pleading standard. Cordova, 2017-NMSC-020, ¶¶ 29-30 (discussing the
15 higher pleading standard and its adoption in New Mexico). “This higher standard of
16 pleading requires more than conclusory allegations in the complaint.” Id. ¶ 30.
17 Instead, a plaintiff must plead claims “with sufficient factual and legal specificity to
18 establish that the . . . activities were a sham to overcome both the Noerr-Pennington
19 doctrine and the affirmative defense under the Anti-SLAPP statute.” Id. We
20 therefore turn to consider the specific facts Appellee alleged in the complaint.
22 1 {36} Appellee alleged that Appellants Luna and Bustillos claimed to have observed
2 Appellee move towards a trash can located near the jockey’s changing room and
3 claimed to have observed a prohibited electrical device in the trash can after
4 Appellee was inspected, searched, and allowed to leave during a routine inspection
5 of jockeys on January 15, 2017. Appellant Bustillos also claimed that he took a color
6 photo of the device. Both Appellants Luna and Bustillos wrote incident reports
7 regarding the alleged prohibited device, which were provided to NMRC officials
8 who in turn initiated disciplinary proceedings against Appellee. The board of
9 stewards ruled against Appellee, suspending his NMRC license for five years, issued
10 a $5,000 fine and banned him from entering any grounds under the NMRC’s
11 jurisdiction on April 9, 2017.
12 {37} Appellee appealed the board of steward’s decision to suspend his license and
13 ban him from NMRC premises. The hearing officer found that Appellants Luna’s
14 and Bustillos’s testimony was inconsistent with each other about the placement of
15 the trash can, where the jockeys were located during the search, and the timeline of
16 events. Appellant Bustillos was also inconsistent within his own testimony about
17 events. The electrical device reportedly found was never introduced into evidence,
18 the device was never provided to Appellee or his counsel for inspection, and no
19 witness could explain what happened to the electrical device. From January 15,
23 1 2017, to today, despite the dismissal of the allegations against Appellee, Appellants
2 continue to exclude Appellee from Sunland Park Racetrack.
3 {38} Appellee contends that the Appellants either negligently or fraudulently
4 misrepresented information to represent (1) Appellee possessed a prohibited
5 electrical device; (2) Appellee was seen discarding the electrical device; and (3) the
6 electrical device was discovered in the trash can. As a result, Appellants deceived
7 Sunland Park personnel and the board of stewards to obtain a baseless decision that
8 Appellee possessed an electrical device, and then participated in the issuance of a
9 formal ruling against Appellee that he possessed a prohibited electrical device.
10 Appellee alleges that Sunland Park is vicariously liable for their employees’ conduct,
11 and further contends that Sunland Park failed to properly train its employees, making
12 Sunland Park directly liable for the employees’ negligent or fraudulent
13 misrepresentations.
14 {39} Appellee also contends that Appellants conspired with NMRC officials to
15 pursue and participate in the disciplinary action against Appellee even though the
16 testimony and reports were false and without physical evidence, and continue to
17 participate in Appellee’s exclusion from Sunland Park Racetrack to Appellee’s
18 detriment. Appellee alleges that this interfered with Appellee’s contractual
19 obligations as a racehorse jockey with third parties. Appellee, to support spoliation
20 of evidence, states that Appellants were aware that their actions could create liability
24 1 and result in a potential lawsuit from Appellee, and Appellants intended to disrupt
2 Appellee’s lawsuit by destroying the potential physical evidence relevant to the
3 suit—the electrical device, the colored photographs, and the camera used to take the
4 photos. Finally, to support a claim for prima facie tort, Appellee argues that, even if
5 the actions were lawful, Appellants acted with the intent to injure Appellee; that
6 Appellants acted without justification or with insufficient justification; and
7 Appellants intentionally misused the disciplinary proceeding to accomplish an
8 illegitimate end.
9 {40} With our analytical framework and the facts as alleged by Appellee
10 established, we now turn to the parties’ arguments on appeal. Appellants argue they
11 had no control over the board of stewards or the NMRC when initiating disciplinary
12 proceedings, and the board of stewards believed there were sufficient facts to go
13 forward. Appellants claim they cannot be held responsible for government action or
14 the government’s failure to meet its burden of proof. Additionally, Appellants argue
15 they were required to report to the NMRC. Further, Appellants argue that the sham
16 exception does not look at the ultimate success of the government action, but instead
17 only at the intention to influence government action. Finally, Appellants argue that
18 Appellee’s argument focuses too much on Appellants’ subjective intent and that
19 Appellee cannot show the first step to the sham exception—that Appellants’ actions
20 were objectively baseless.
25 1 {41} In response, Appellee argues Appellants’ characterization of themselves as
2 passive participants is inaccurate when looking at Appellee’s complaint and the
3 additional actions taken by Appellants alleged within. We also understand Appellee
4 to argue that Appellants petitioned the NMRC to punish Appellee, even though the
5 overall outcome of the proceedings was irrelevant to Appellants. Finally, even under
6 the heightened pleading standard, Appellee maintains he pleaded sufficient facts to
7 show Appellants’ conduct was a sham.
8 {42} We hold Appellee pleaded sufficient facts to establish both elements of the
9 sham exception. As such, we affirm the district court’s denial of Appellants’ special
10 motion to dismiss. We explain.
11 {43} Taking Appellee’s allegations as true, Appellants’ incident report and
12 participation in the disciplinary proceedings against Appellee were objectively
13 baseless. Appellants either negligently or fraudulently misrepresented the events of
14 Appellee’s inspection and search to the NMRC. At the same time, Appellants
15 actively communicated with the NMRC to pursue the disciplinary action, as well as
16 voluntarily testifying at both the evidentiary hearing before the board of stewards
17 and the administrative hearing officer on appeal. Finally, Appellants destroyed or
18 failed to produce all potential physical evidence from the alleged incident—the
19 electrical device itself, the color photographs, and the camera used to take the photos
20 apparently in order to avoid undermining their false testimony.
26 1 {44} Based on these alleged facts, Appellants had insufficient legal or factual
2 support to file an incident report against Appellee to the NMRC or testify to the same
3 facts. Rather, according to Appellee’s allegations, there was no factual support at all.
4 See Cordova, 2017-NMSC-020, ¶ 28 (providing that a petition is “objectively
5 baseless in that it did not have sufficient factual or legal support”). Therefore,
6 Appellants’ actions were objectively baseless. Cf. id. ¶ 35 (holding that the
7 defendants conduct was objectively baseless because they filed the petition without
8 verification of the truth and accuracy of the events described, and therefore no
9 reasonable litigant could realistically expect success on the merits). Because
10 Appellee sufficiently pleaded that Appellants’ actions were objectively baseless, we
11 continue to the next step of our analysis—whether Appellee pleaded that Appellants’
12 primary purpose was improper.
13 {45} Again taking Appellee’s allegations as true, Appellants had an improper
14 motivation. Appellants acted with intent to injure Appellee and intentionally
15 misused the disciplinary proceeding to accomplish their goal. Appellants’ pursuit of
16 the disciplinary action interfered with Appellee’s contractual obligations as a
17 racehorse jockey. Finally, Appellants used the report and disciplinary hearing as
18 justification for banning Appellee from their property, and that ban remains in place
19 even though the administrative hearing officer has since dismissed the allegations
20 against Appellee.
27 1 {46} We conclude that Appellee has sufficiently pleaded that Appellants’
2 motivations were improper. Unlike the plaintiff in Cordova, Appellee here has more
3 than pleaded an improper motive. See id. ¶ 38 (“From the face of [the plaintiff]’s
4 complaint, we cannot decipher precisely how [the d]efendants’ motivations, even if
5 political, make them improper.”). Appellee has provided specific allegations—
6 Appellants’ continued ban on Appellee entering their property as a jockey or private
7 citizen—to support his claim of improper motivation. See id. ¶ 39 (“In this case, [the
8 plaintiff]’s complaint lacks the factual specificity necessary to establish an improper
9 subjective motivation.”). Appellee identified multiple specific misrepresentations,
10 including that Appellee possessed and discarded a prohibited electrical device, and
11 alleged that Appellants knew or should have known the allegations were false but
12 nevertheless continued to pursue proceedings.
13 {47} Therefore the allegations in the complaint are sufficient under our heightened
14 pleading standard to establish the sham exception to the Noerr-Pennington doctrine.
15 See id. ¶ 38 (stating that “the complaint must include allegations of the specific
16 activities which demonstrate that the petitioning activity falls within the sham
17 exception” (internal quotation marks and citation omitted)). As such, Appellants’
18 actions are not protected by the First Amendment right to petition. Accordingly, we
19 affirm the district court’s denial of Appellants’ special motion to dismiss under
20 Section 38-2-9.1.
28 1 CONCLUSION
2 {48} For the foregoing reasons, we affirm the district court’s denial of Appellants’
3 special motion to dismiss under the Anti-SLAPP statute, Section 38-2-9.1.
4 {49} IT IS SO ORDERED.
5 ______________________________ 6 JACQUELINE R. MEDINA, Judge
7 WE CONCUR:
8 _____________________________ 9 JANE B. YOHALEM, Judge
10 _____________________________ 11 KATHERINE A. WRAY, Judge