Cuviello v. Feld Entertainment Inc. et al, No. 5:2013cv04951 - Document 44 (N.D. Cal. 2014)
Court Description: ORDER GRANTING SPECIAL MOTIONS TO STRIKE AS TO CLAIM 1; GRANTING MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND AS TO CLAIM 2; AND AWARDING ATTORNEYS' FEES AND COSTS AS TO CLAIM 1 (addressing 18 and 20 ). Signed by Judge Beth Labson Freeman on 9/4/2014. (blflc1, COURT STAFF) (Filed on 9/4/2014)
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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JOSEPH CUVIELLO, Plaintiff, 8 v. 9 11 For the Northern District of California United States District Court 10 FELD ENTERTAINMENT, INC. (dba RINGLING BROS. AND BARNUM & BAILEY CIRCUS), et al., Case No. 13-cv-04951-BLF ORDER GRANTING SPECIAL MOTIONS TO STRIKE AS TO CLAIM 1; GRANTING MOTIONS TO DISMISS WITHOUT LEAVE TO AMEND AS TO CLAIM 2; AND AWARDING ATTORNEYS’ FEES AND COSTS AS TO CLAIM 1 [Re: ECF 18, 20] Defendants. 12 13 Plaintiff Joseph Cuviello is a member of a group that seeks to prevent mistreatment of circus 14 animals. For more than twenty years, Plaintiff has been traveling to the sites of performances 15 presented by Defendant Feld Entertainment, Inc., dba Ringling Bros. and Barnum & Bailey Circus 16 (“Feld”), for the purpose of videotaping the treatment and living conditions of circus animals, 17 distributing leaflets to circus patrons, and organizing demonstrations. Plaintiff, proceeding pro se, 18 filed the present lawsuit after Feld failed to obtain a permanent injunction and restraining order 19 against him in state court under California’s Workplace Violence Safety Act. Plaintiff claims that 20 the restraining order application constituted malicious prosecution and violated his First 21 Amendment rights. Plaintiff sues Feld, two Feld employees who submitted declarations in support 22 of the restraining order application, and the attorneys who represented Feld in the state court 23 proceedings. 24 25 Feld and its employees Mike Stuart (“Stuart”) and David Bailey (“Bailey”) (collectively, “Feld Defendants”) have filed a motion to dismiss the complaint under Federal Rule of Civil 26 Procedure 12(b)(6) and a special motion to strike the complaint under California Code of Civil 27 28 Procedure section 425.16. Feld’s attorneys in the restraining order proceedings, James McManis 1 (“McManis”), Ruby Kazi (“Kazi”), Gregory Ward (“Ward”), and Tyler Atkinson (“Atkinson”) 2 (collectively, “Attorney Defendants”), separately have filed a motion to dismiss under Rule 12(b)(6) 3 and a special motion to strike under section 425.16. The Court was prepared to hear oral argument at the time set for hearing on Defendants’ 4 5 motions, September 4, 2014 at 9:00 a.m., but Plaintiff did not appear at the designated time or 6 before the Court recessed at 10:33 a.m. Because Plaintiff was not present, the Court declined to 7 hear substantive argument from Defendants’ counsel, who were present. The Court has considered 8 the briefing submitted by Plaintiff and Defendants. For the reasons discussed below, the special 9 motions to strike are GRANTED as to Claim 1, the motions to dismiss are GRANTED without leave to amend as to Claim 2, and Defendants are AWARDED reasonable attorneys’ fees and costs 11 For the Northern District of California United States District Court 10 as to Claim 1, the amounts to be submitted by separate motions. 12 I. BACKGROUND 13 Plaintiff alleges that he and his fellow activists are well-known to Feld, and that Feld 14 attempts to block their access to circus venues and otherwise chill their exercise of their First 15 Amendment rights. (Compl. ¶¶ 33-53) According to Plaintiff, Feld employees meet with local 16 police and venue management prior to engagements to discuss ways to restrict Plaintiff’s access to 17 the venue and the circus animals. (Id. ¶ 36) Plaintiff claims that Feld employees have intentionally 18 blocked his view, sprayed him with fire hoses, shined laser pointers in his eye and camera lens, and 19 swatted at his camera with long poles bearing blown up photos of him and other activists. (Id. ¶ 37) 20 Plaintiff also claims that Feld employees frequently walk alongside the elephants and horses 21 carrying a long rope that they use to push activists or wrap around activists and the monopod poles 22 upon which their cameras are mounted. (Id. ¶ 38) 23 On August 7, 2012, Plaintiff traveled to Oakland, California, where Feld had a scheduled 24 engagement, for the purpose of videotaping the circus animals when they were unloaded from the 25 circus train and walked to the venue, an event referred to as the “animal walk.” (Compl. 47) 26 Plaintiff observed that Feld had hired two professional videographers to film Plaintiff and other 27 activists during the animal walk. (Id. ¶ 49) Plaintiff claims that Feld’s employees, supervised by 28 Defendants Stuart and Bailey, pushed the long rope and their bodies against Plaintiff, interfering 2 1 with his ability to see and film the animal walk. (Id. ¶ 50) Plaintiff also claims that a Feld 2 employee “violently slammed his body into” Plaintiff and that when Plaintiff pushed the employee 3 off, Plaintiff was surrounded by other Feld employees who yelled at him and pushed him. (Id. ¶ 51) 4 Plaintiff surmised that Feld had intended to provoke Plaintiff and the other activists and to capture 5 their reactions on film. (Id. ¶ 52) 6 On August 13, 2012, the circus moved to San Jose, California. (Compl. ¶ 56) Plaintiff and 7 other activists went to the San Jose Arena to observe the animal walk. (Id.) In previous years, the 8 animals had been unloaded at the train station just a block away from the Arena, but after waiting 9 for some time Plaintiff realized that Feld must be unloading the animals at a different location. (Id.) As Plaintiff reached this realization, circus trucks pulled out of the parking lot. (Id.) Plaintiff 11 For the Northern District of California United States District Court 10 directed two activists who were parked nearby to follow the trucks while Plaintiff waited for a 12 fourth activist to retrieve her car and pick him up. (Id.) The individuals in the first car reported the 13 circus trucks’ route to Plaintiff by cellular telephone, and Plaintiff and his companion caught up 14 with the circus trucks shortly before the trucks entered a train depot in Milpitas, California. (Id. ¶¶ 15 57-58) Plaintiff and the other activists filmed elephants and horses being unloaded from the train 16 and onto the circus trucks, and then prepared to drive back to San Jose to film the animals being 17 unloaded from the trucks. (Id. ¶ 59) However, they were stopped by a Milpitas police officer 18 because Defendant Bailey had reported them for reckless driving. (Id.) The police held the two 19 drivers for more than an hour and then released them without citing them. (Id.) The detention 20 prevented Plaintiff and the other activists from returning to San Jose in time to see the unloading of 21 the animals at the San Jose Arena. (Id.) On August 14, 2012, Feld petitioned the Santa Clara County Superior Court for temporary 22 23 restraining orders and permanent injunctions and restraining orders against Plaintiff and other 24 activists under California’s Workplace Violence Safety Act, Cal. Civ. P. Code section 527.8.1 25 1 26 27 28 California’s Workplace Violence Safety Act provides that: Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an injunction on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at 3 1 (Compl. ¶ 62; Attorney Defs.’ RJN Exh. 4, ECF 19-4)2 The petition against Plaintiff alleged that he 2 had used the pole upon which his camera was mounted to assault circus employees on August 7, 3 2012, and that Petitioner’s conduct had escalated since then. (Attorney Defs.’ RJN Exh. 4, ECF 19- 4 4) The petition was supported by Defendant Stuart’s declaration, which stated among other things 5 that Plaintiff was accompanied to the August 7, 2012 animal walk by two other activists, Deniz 6 Bolbol (“Bolbol”) and Sherisa Anderson (“Anderson”). (Attorney Defs.’ RJN Exh. 7 at ¶ 6, ECF 7 19-7) Stuart stated that Plaintiff, Bolbol, and Anderson shouted obscenities at circus employees, 8 including the animal handlers, and that Anderson punched him (Stuart) in the back. (Id. ¶¶ 5-7) 9 Defendant Bailey submitted a declaration as well, which stated among other things that during the August 7, 2012 animal walk Plaintiff and Bolbol worked in tandem, with Bolbol distracting a circus 11 For the Northern District of California United States District Court 10 employee and while Plaintiff hit the employee with his monopod-mounted camera. (Attorney Defs.’ 12 RJN Exh. 6 at ¶ 7, ECF 19-6) Finally, the petition was supported by a disc containing footage of the 13 August 7, 2012 Oakland animal walk. (Attorney Defs.’ RJN Exh. 7 at ¶ 6). 14 The superior court issued temporary restraining orders (“TROs”) requiring Plaintiff and the 15 other respondents to stay five yards away from any Feld employee and, when driving, to maintain a 16 distance of one car length for every ten miles per hour from any Feld vehicle. (Compl. ¶ 63; 17 Attorney Defs.’ RJN Exh. 9, ECF 19-9) The court denied Plaintiff’s motion to dissolve the TRO. 18 (Attorney Defs.’ RJN Exh. 11 at 2:5-11, 21:18-19, ECF 19-11) Plaintiff claims that the TRO interfered with his ability to film animals and pass out leaflets 19 20 at the San Jose Arena. (Compl. ¶¶ 66-77) Moreover, Plaintiff alleges that he constantly was 21 worried that a Feld employee might come within five yards of him and thus render him in contempt 22 of the TRO. (Id.) Plaintiff chose not to attend the animal walk at the circus’s Sacramento venue 23 24 25 26 27 28 other workplaces of the employer. Cal. Civ. P. Code § 527.8(a). 2 All parties have submitted requests for judicial notice of documents filed in federal and state courts. (See ECF 19, 20-3, and 27) Those requests are granted. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Plaintiff additionally requests judicial notice of a police report. (Pl.’s RJN Exh. 7, ECF 27) That request is denied. See Pina v. Henderson, 752 F.2d 47, 50 (2d Cir. 1985) (holding that a police report is not properly the subject of judicial notice), cited with approval in United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003). 4 1 because he did not believe that he could do so and comply with the TRO. (Id. ¶ 76) Ultimately, the 2 superior court declined to issue a permanent injunction against Plaintiff, although it did issue a 3 permanent injunction against Bolbol. (Id. ¶ 77-78; Feld Defs.’ RJN Exh. J) 79) According to Plaintiff, the video discredits Feld’s witnesses and shows that Defendants lacked 6 probable cause to file the petitions for workplace violence restraining orders. (Id.) Plaintiff claims 7 that Defendants nonetheless “intentionally interfered with Plaintiff’s Free Speech Rights with the 8 intent to interfere with and chill Plaintiff in the exercise of his Constitutionally-protected rights.” 9 (Id. ¶ 81) He asserts claims against all Defendants for (1) malicious prosecution under California 10 law and (2) violation of his First Amendment rights under 42 U.S.C. § 1983. The Feld Defendants 11 For the Northern District of California Plaintiff later obtained all of Feld’s video from the August 7, 2012 animal walk. (Compl. ¶ 5 United States District Court 4 and the Attorney Defendants separately have filed motions to dismiss and special motions to strike 12 the complaint. II. 13 ANTI-SLAPP MOTIONS Both the Feld Defendants and the Attorney Defendants assert special motions to strike 14 15 Plaintiff’s first claim for malicious prosecution under California’s anti-SLAPP3 statute, California 16 Code of Civil Procedure section 425.16. The Court notes that because the Feld Defendants’ motion 17 combines their arguments relating to the anti-SLAPP statute with those relating to Rule 12(b)(6), the 18 motion could be construed to assert a special motion to strike Plaintiffs’ § 1983 claim as well as his 19 malicious prosecution claim. However, “the anti-SLAPP statute does not apply to federal law 20 causes of action.” Doe v. Gangland Productions, Inc., 730 F.3d 946, 955 (9th Cir. 2013) (quoting 21 Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)). Accordingly, the Court addresses the 22 parties’ anti-SLAPP motions only with respect to the claim for malicious prosecution. 23 A. Legal Standard 24 “California law provides for the pre-trial dismissal of certain actions, known as Strategic 25 Lawsuits Against Public Participation, or SLAPPs, that masquerade as ordinary lawsuits but are 26 intended to deter ordinary people from exercising their political or legal rights or to punish them for 27 28 3 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 732 n.1 (2003). 5 1 doing so.” Makaeff v. Trump University, LLC, 715 F.3d 254, 261 (9th Cir. 2013) (internal quotation 2 marks and citations omitted). Section 425.16 of the California Code of Civil Procedure, also 3 referred to as the anti-SLAPP statute, provides in relevant part that: 4 5 6 7 A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. Cal. Civ. P. Code § 425.16(b)(1). 8 Resolution of an anti-SLAPP motion is a two-step process. Jarrow Formulas, Inc. v. 9 LaMarche, 31 Cal. 4th 728, 733 (2003). “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” Id. 11 For the Northern District of California United States District Court 10 (quoting Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). Second, “[i]f the 12 court finds such a showing has been made, it then determines whether the plaintiff has demonstrated 13 a probability of prevailing on the claim.” Id. Under the second step, “the claim should be dismissed 14 if the plaintiff presents an insufficient legal basis for it, or if, on the basis of the facts shown by the 15 plaintiff, no reasonable jury could find for the plaintiff.” Makaeff, 715 F.3d at 261 (internal 16 quotation marks and citation omitted). 17 B. 18 In his malicious prosecution claim, Plaintiff asserts that Defendants’ filing of the petition for 19 restraining order under California Code of Civil Procedure section 527.8 was without basis and done 20 solely “as part of an ongoing malicious retaliation campaign against Plaintiff meant to interfere with 21 and chill Plaintiff’s free speech rights.” (Compl. ¶ 87) Under the framework outlined above, the 22 Court’s first step is to determine whether Defendants have made a threshold showing that this claim 23 for malicious prosecution arises from protected activity. Protected activity includes: 24 25 26 27 28 Malicious Prosecution (Claim 1) (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. 6 1 Cal. Civ. P. Code § 425.16(e) (emphasis added). Because the malicious prosecution claim arises 2 from the filing of a petition in a judicial proceeding, the claim clearly arises from protected activity. 3 The California Supreme Court has acknowledged that “by its terms, section 425.16 potentially may 4 apply to every malicious prosecution action, because every such action arises from an underlying 5 lawsuit, or petition to the judicial branch.” Jarrow, 31 Cal. 4th at 734-35. Plaintiff concedes that 6 “the Defendants have satisfied the first step required by section 425.16.” (Opp. at 14) 7 The burden thus shifts to Plaintiff to demonstrate a probability of prevailing on his malicious 8 prosecution claim. “To establish a cause of action for malicious prosecution, the plaintiff must 9 prove the prior action was: (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice.” 11 For the Northern District of California United States District Court 10 Robinzine v. Vicory, 143 Cal. App. 4th 1416, 1422 (2006). While ordinarily the Court would 12 perform an element-by-element analysis to determine whether Plaintiff has demonstrated a 13 probability of prevailing on his malicious prosecution claim, the Court need not do so here because 14 as a matter of California law “petitions under the Workplace Violence Safety Act do not provide a 15 basis for malicious prosecution actions.” Id. at 1424. Thus, Plaintiff cannot meet his burden under 16 section 425.16 to demonstrate a probability of prevailing on this claim. 17 In Robinzine, a dispute arose between Kimberly and Clifford Robinzine on the one hand and 18 Kimberly’s former employer, RPM Company, and several of RPM’s employees on the other. RPM 19 obtained a TRO against Clifford under section 527.8 based upon allegedly “phony allegations of 20 workplace violence.” Robinzine, 143 Cal. App. 4th at 1419. After the court dissolved the TRO, the 21 Robinzines brought a malicious prosecution claim based upon the defendants’ filing of the section 22 527.8 petition. The trial court denied the defendants’ special motion to strike under the anti-SLAPP 23 statute, concluding that Clifford had submitted evidence sufficient to make a prima facie showing 24 that the defendants had filed the section 527.8 petition without probable cause. Id. at 1422. 25 Although it agreed with the trial court’s factual assessment of Clifford’s showing on 26 probable cause, Robinzine, 143 Cal. App. 4th at 1422, the Court of Appeal concluded that for policy 27 reasons a petition under the Workplace Violence Safety Act simply cannot provide a basis for a 28 malicious prosecution claim, id. at 1423-24. The court relied heavily upon Siam v. Kizilbash, 130 7 1 Cal. App. 4th 1563 (2005), which held that a cause of action for malicious prosecution cannot be 2 predicated on an unsuccessful civil harassment petition brought under California Code of Civil 3 Procedure section 527.6. Siam observed that section 527.6 provides an expedited process and 4 opined that “[p]ermitting a malicious prosecution claim to follow an unsuccessful section 527.6 5 petition would frustrate this streamlined procedure” and “might dissuade victims of serious 6 harassment from seeking the remedy.” Siam, 130 Cal. App. 4th at 1573. 7 Noting the substantial similarities between sections 527.6 and 527.8, the Robinzine court 8 pointed out that “[b]oth statutory schemes describe a streamlined process for obtaining a temporary 9 restraining order and preliminary injunction”; “[b]oth envision self-representation by parties without the benefit of counsel, and exempt the process from filing fees”; and “[t]o the extent a defendant 11 For the Northern District of California United States District Court 10 may have grievances of his or her own, both statutes permit a cross-complaint.” Id. at 1424. The 12 court also observed if a section 527.8 action is baseless or filed for an improper purpose, the 13 defendant may seek sanctions under California Code of Civil Procedure section 128.7. Id. Given 14 those similarities, the Robinzine court applied the Siam rationale to bar malicious prosecution claims 15 premised upon section 527.8 petitions. Id. 16 The California Supreme Court has not addressed whether a petition under section 527.8 may 17 form the basis of a malicious prosecution claim. When the state supreme court has not ruled 18 definitively on a point, federal courts look to decisions by intermediate appellate state courts for 19 guidance, and follow those decisions “unless there is convincing evidence that the state supreme 20 court would decide differently.” State Farm Fire and Casualty Co. v. Abraio, 874 F.2d 619, 621 21 (9th Cir. 1989). 22 Plaintiff acknowledges that if this Court applies the holding in Robinzine to this case, “the 23 case is closed.” (Opp. at 1, ECF 25) He urges this Court not to follow Robinzine and contends that 24 this case is distinguishable from Robinzine because he acted pro se during the civil harassment 25 proceedings and thus could not recover attorneys’ fees in those proceedings. See Elwood v. 26 Drescher, 456 F.3d 943, 947 (9th Cir. 2006) (pro se litigants may not recover statutory attorneys’ 27 fees); Musaelian v. Adams, 45 Cal. 4th 512, 517 (2009) (pro se litigants may not recover attorneys’ 28 fees as sanctions under California Code of Civil Procedure section 128.7). Plaintiff suggests that the 8 1 California Supreme Court would not apply Robinzine under these circumstances, asserting that 2 “[t]he issue of what if any meaningful recovery is available to a Pro Se litigant has never been 3 decided by the California Supreme Court or addressed by any California appellate court.” (Opp. at 4 11-12) As an initial matter, the Robinzine decision stated expressly that section 527.8 envisions 5 “self-representation by parties without the benefit of counsel.” Robinzine, 143 Cal. App. 4th at 6 1424. In light of that statement, Plaintiff’s attempt to distinguish Robinzine based upon his pro se 7 status is unpersuasive. Moreover, section 527.8 does not provide for an award of attorneys’ fees. 8 See Cal. Civ. P. Code § 527.8; Robinzine, 143 Cal. App. 4th at 1424 n.8 (acknowledging that the 9 greatest difference between sections 527.6 and 527.8 is that the former contains an attorneys’ fees provision while the latter does not). Plaintiffs’ argument is based upon Robinzine’s observation that 11 For the Northern District of California United States District Court 10 if a section 527.8 action is baseless or harassing, a prevailing defendant might be able to recover 12 attorneys’ fees as sanctions under California Code of Civil Procedure section 128.7. See Robinzine, 13 143 Cal. App. 4th at 1424. This Court is not persuaded that the California Supreme Court would 14 create a pro se exception to Robinzine on this basis. Accordingly, Defendants’ special motions to strike are GRANTED as to Claim 1.4 15 III. 16 RULE 12(b)(6) MOTIONS Both the Feld Defendants and the Attorney Defendants move to dismiss Plaintiff’s second 17 18 claim, brought under 42 U.S.C. § 1983, under Rule 12(b)(6) for failure to state a claim upon which 19 relief may be granted. 20 A. Legal Standard 21 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 22 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 23 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 24 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all 25 well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. 26 BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not 27 28 4 In light of its disposition of Claim 1 based upon Robinzine, the Court need not reach Defendants’ additional arguments regarding the merits of Plaintiff’s malicious prosecution claim. 9 1 “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations 2 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 3 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 4 omitted). While a complaint need not contain detailed factual allegations, it “must contain sufficient 5 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 6 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 7 claim is facially plausible when it “allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Id. B. 9 In his § 1983 claim, Plaintiff alleges that Defendants interfered with and chilled his free 10 11 For the Northern District of California United States District Court 42 U.S.C. § 1983 speech rights when they “willfully lied to obtain a temporary restraining order against Plaintiff.” 12 (Compl. ¶ 98) “To succeed on a § 1983 claim, a plaintiff must show that (1) the conduct 13 complained of was committed by a person acting under color of state law; and (2) the conduct 14 deprived the plaintiff of a federal constitutional or statutory right.” Patel v. Kent School Dist., 648 15 F.3d 965, 971 (9th Cir. 2011). It is clear from Plaintiff’s allegations that all of the defendants are private parties rather than 16 17 state actors. Under certain circumstances, “[a] private individual’s action may be under color of 18 state law where there is significant state involvement in the action.” Franklin v. Fox, 312 F.3d 423, 19 444 (9th Cir. 2002). “The Supreme Court has articulated four tests for determining whether a 20 private individual’s actions amount to state action: (1) the public function test; (2) the joint action 21 test; (3) the state compulsion test; and (4) the governmental nexus test.” Id. at 444-45. Plaintiff’s 22 complaint does not indicate which, if any, of these tests he believes applies. In his opposition, 23 Plaintiff argues that “[b]y filing the petition for workplace violence and requesting a temporary 24 restraining order Defendants were acting jointly with the state to deprive Plaintiff of his First 25 Amendment right to free speech.” (Opp. at 27) The Court understands Plaintiff to be arguing that 26 Defendant’s conduct satisfies the joint action test.5 27 28 5 Plaintiff does not suggest that the public function, state compulsion, or governmental nexus tests apply. 10 1 “Under the joint action test, courts examine whether state officials and private parties have 2 acted in concert in effecting a particular deprivation of constitutional rights.” Franklin, 312 F.3d at 3 445 (internal quotation marks and citation omitted). “The test focuses on whether the state has so 4 far insinuated itself into a position of interdependence with [the private actor] that it must be 5 recognized as a joint participant in the challenged activity.” Id. (internal quotation marks and 6 citations omitted) (alteration in original). “A plaintiff may demonstrate joint action by proving the 7 existence of a conspiracy or by showing that the private party was a willful participant in joint 8 action with the State or its agents.” Id. (internal quotation marks and citations omitted). 9 Plaintiff does not allege any type of conspiracy or other joint action in this case. His claim rests solely on Defendants’ actions in pursuing a restraining order against him. Plaintiff has not 11 For the Northern District of California United States District Court 10 cited, and the Court has not discovered, any authority suggesting that seeking a restraining order can 12 convert a private individual to a state actor. In fact, the applicable authorities hold directly to the 13 contrary. With respect to the Attorney Defendants, the Ninth Circuit has “repeatedly held that a 14 privately-retained attorney does not act under color of state law for purposes of actions brought 15 under the Civil Rights Act.” Briley v. State of California, 564 F.2d 849, 855 (9th Cir. 1977); see 16 also Simmons v. Sacramento County Sup. Ct., 318 F.3d 116, 1161 (9th Cir. 2003) (dismissing § 17 1983 claim brought against private counsel). With respect to the Feld defendants, Plaintiff’s 18 argument is precluded by the Supreme Court’s holding in Lugar v. Edmondson Oil Co., Inc., 457 19 U.S. 922 (1982), a case relied upon by Plaintiff. 20 Lugar, a lessee-operator of a truck stop, was indebted to his supplier, Edmondson. 21 Edmondson sued on the debt in state court and obtained prejudgment attachment of Lugar’s 22 property under a state law requiring only that Edmondson allege a belief that Lugar might dispose of 23 his property in order to defeat his creditors. The state court later dismissed the attachment after 24 concluding that Edmondson had failed to establish the statutory grounds for attachment alleged in 25 the petition. Lugar then sued Edmondson and its president under § 1983, alleging that the 26 defendants had acted jointly with the state to deprive him of his property without due process of 27 law. The Supreme Court held that Lugar had alleged a viable § 1983 claim to the extent that he was 28 challenging the state’s attachment scheme as procedurally defective under the Fourteenth 11 1 Amendment. Id. at 941. However, the Court held that no viable § 1983 claim could be asserted 2 based upon the defendants’ alleged misuse of the attachment statute, because “private misuse of a 3 state statute does not describe conduct that can be attributed to the State.” Id. Accordingly, Defendants’ motion to dismiss under Rule 12(b)(6) is GRANTED as to Claim 4 5 2. Because Plaintiff has not given any indication that he could cure the defects noted herein, leave 6 to amend would be futile and will not be granted. 6 IV. 7 Both the Feld Defendants and the Attorney Defendants seek attorneys’ fees and costs under 8 9 ATTORNEYS’ FEES AND COSTS California Code of Civil Procedure section 425.16 and 42 U.S.C. § 1988. Attorneys’ Fees and Costs under Section 425.16 A. 11 For the Northern District of California United States District Court 10 Under section 425.16, an award of attorneys’ fees and costs is mandatory when an anti- 12 SLAPP motion is granted. Cal. Civ. P. Code § 425.16(c). “[D]efendants sued in federal courts can 13 bring anti-SLAPP motions to strike state law claims and are entitled to attorneys’ fees and costs 14 when they prevail.” Verizon Delaware, Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 15 2004). Because the Feld Defendants and the Attorney Defendants prevailed on their special motions 16 to strike Claim 1, they are entitled to recover the attorneys’ fees and costs that they incurred in 17 litigating those motions. Defendants may file a motion for an award of reasonable attorneys’ fees 18 and costs. 19 B. 20 Under § 1988, the Court has discretion to award reasonable attorneys’ fees and costs to a Attorneys’ Fees and Costs under § 1988 21 prevailing party, other than the United States, in an action to enforce § 1983. 42 U.S.C. § 1988(b); 22 see also Braunstein v. Arizona Dep’t of Transp., 683 F.3d 1177, 1187 (9th Cir. 2012). “[A] 23 prevailing defendant may only recover fees in ‘exceptional circumstances’ where the court finds that 24 the plaintiff’s claims are ‘frivolous, unreasonable, or groundless.’” Id. (quoting Harris v. Maricopa 25 Cnty. Superior Court, 631 F.3d 963, 971 (9th Cir. 2011)). After considering all of the 26 circumstances of the case, including the mandatory fee award with respect to Claim 1, Plaintiff’s 27 28 6 In light of its disposition of Claim 2 based upon the state action requirement, the Court need not reach Defendants’ additional argument based upon the Noerr-Pennington doctrine. 12 1 pro se status, and Plaintiff’s arguments for expansion of the definition of state actor, the Court in the 2 exercise of its discretion declines to award attorneys’ fees and costs under § 1988. 3 V. ORDER 4 For the foregoing reasons, 5 (1) section 425.16 are GRANTED as to Claim 1; 6 7 (2) Defendants’ motions to dismiss under Rule 12(b)(6) are GRANTED without leave to amend as to Claim 2; 8 9 Defendants’ special motions to strike under California Code of Civil Procedure (3) Defendants are AWARDED attorneys’ fees and costs under California Code of Civil Procedure section 425.16 with respect to Claim 1; Defendants may file motions for 11 For the Northern District of California United States District Court 10 reasonable attorneys’ fees and costs; and 12 13 (4) Defendants’ requests for attorneys’ fees and costs under 42 U.S.C. § 1988 are DENIED. 14 15 Dated: September 4, 2014 __________________________________ BETH LABSON FREEMAN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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