Travelers Cas. Ins. Co. v. Hirsh, No. 14-55539 (9th Cir. 2016)
Annotate this CaseDefendant appealed the denial of his special motion under the California anti-strategic lawsuit against public participation (“anti-SLAPP”) statute, Cal. Civ. Proc. Code 425.16, to strike the second amended complaint filed by Travelers. Defendant maintains that Travelers' claims arise out of his representation of Travelers' insured, VDG, as Cumis counsel, and thus defendant's activity was protected under the anti-SLAPP statute. Determining that the court has jurisdiction to consider the appeal, the court concluded that Travelers' causes of action for declaratory judgment, unjust enrichment, breach of Cal. Civ. Code 2860(d), and concealment do no arise from protected activity because they are not based on an act in furtherance of defendant's right of petition or free speech; Travelers has made a prima facie showing of facts supporting its causes of action so as to establish a probability of prevailing on the merits sufficient to survive the motion to strike; and, because the causes of action at issue arise from defendant's post-settlement conduct, not his communications with VDG in settling the prior lawsuit, California’s litigation privilege, Cal. Civ. Code 47(b), does not bar this suit. The court concluded that it did not have jurisdiction to review defendant's challenge to the district court’s striking count two, alleging breach of a defense handling agreement, because the denial was without prejudice, and there is no final order as to this claim. Accordingly, the court affirmed the judgment.
Court Description: California Anti-SLAPP Statute. The panel affirmed the district court’s denial of Robert Hirsh’s special motion under the California anti-strategic lawsuit against public participation (“anti-SLAPP”) statute, Cal. Civ. Proc. Code § 425.16, to strike the second amended complaint filed by Travelers Casualty Insurance Company of America. Hirsh alleged that Travelers’ claims arose out of his representation of Travelers’ insured, Visemer De Gelt, as Cumis counsel; and his activity was therefore protected under the anti-SLAPP statute. The panel held that because Travelers’ causes of action for declaratory judgment, unjust enrichment, breach of Cal. Civ. Code § 2860(d), and concealment were not based on an act in furtherance of Hirsh’s right of petition or free speech, they did not “arise from” protected activity. The panel also held that Travelers established a probability of prevailing on the merits sufficient to survive a motion to strike. The panel further held that California’s litigation privilege, Cal. Civ. Code § 47(b), did not bar the suit because the causes of action TRAVELERS CAS. INS. CO. V. HIRSH 3 arose from Hirsh’s post-settlement conduct, not his communications with De Gelt in settling a prior lawsuit. Finally, the panel held that it did not have jurisdiction to review Hirsh’s challenge to the district court’s striking count two, alleging breach of a defense handling agreement, because the denial was without prejudice, and there was no final order as to the claim. Judge Kozinski, joined by Judge Gould, concurred to emphasize that the existing caselaw is wrong, and he would urge the court to follow the D.C. Circuit’s holding in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333–37 (D.C. Cir. 2015), that anti-SLAPP motions do not belong in federal court because they directly conflict with the Federal Rules of Civil Procedure. At the very least, Judge Kozinski would urge the court to reconsider the holding in Batzel v. Smith, 333 F.3d 1018, 1025–26 (9th Cir. 2003), which allows defendants who lose anti-SLAPP motions to bring an immediate interlocutory appeal. Concurring, Judge Gould joined the per curiam opinion, concurred in Judge Kozinski’s separate concurrence, and receded from his previous position joining in part the Batzel precedent. 4 TRAVELERS CAS. INS. CO. V. HIRSH
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