Augustine Fallay v. First American Speciality ( 2017 )

  •                                                                             FILED
                               NOT FOR PUBLICATION
                                                                                DEC 18 2017
                       UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    AUGUSTINE FALLAY,                                No.   16-15524
                  Plaintiff-Appellant,               D.C. No. 3:08-cv-02261-CRB
                        Appeal from the United States District Court
                          for the Northern District of California
                        Charles R. Breyer, District Judge, Presiding
                              Submitted December 4, 2017**
                                San Francisco, California
    Before:      KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,***
                 District Judge.
                 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).
                The Honorable Irene M. Keeley, United States District Judge for the
    Northern District of West Virginia, sitting by designation.
                                                                                     page 2
          1. In analyzing an anti-SLAPP motion under California law, we first ask
    whether defendants demonstrated that “the challenged cause[s] of action . . . aris[e]
    from protected activity.” Equilon Enters. v. Consumer Cause, Inc., 
    52 P.3d 685
    694 (Cal. 2002). First American’s cooperation with law enforcement and Dalton’s
    testimony at trial qualify as protected activities. See Cal. Code Civ. Proc. §
    425.16(e); Dickens v. Provident Life & Accident Ins. Co., 
    117 Cal. App. 4th 705
    714 (2004).
          Next, we consider whether “plaintiff has demonstrated a probability of
    prevailing on the claim[s].” Equilon Enters., 52 P.3d at 694. Fallay hasn’t done so
    here. First, he can’t establish malicious prosecution because the trial “was brought
    with[] probable cause,” Soukup v. Law Offices of Herbert Hafif, 
    139 P.3d 30
    , 51
    (Cal. 2006), and because there’s no evidence that First American initiated the
    proceedings against him. Second, Fallay didn’t raise claims for abuse of process or
    civil conspiracy below and thus waived them. Third, the claims under Cal. Civ.
    Code sections 51.7 and 52.1 fail since neither First American nor Dalton plausibly
    engaged in threatening conduct. See Gabrielle A. v. Cty. of Orange, 
    10 Cal. App. 5th
     1268, 1290–91 (2017); Allen v. City of Sacramento, 
    234 Cal. App. 4th 41
    , 67
    (2015). Fourth, Fallay’s breach of contract claim lacks merit because he hasn’t
    identified which provision of his insurance agreement First American violated.
                                                                                     page 3
    See Cal. Physicians’ Serv. v. Garrison, 
    172 P.2d 4
    , 12 (Cal. 1946). Fifth, the
    intentional infliction of emotional distress claim is unlikely to succeed because
    defendants’ conduct wasn’t “beyond all possible bounds of decency.” Cochran v.
    65 Cal. App. 4th 488
    , 496 (1998) (internal citation and quotation marks
          2. The “prevailing defendant on a special motion to strike shall be entitled
    to recover his . . . attorney’s fees and costs.” Cal. Civ. Proc. Code § 425.16(c)(1).
    The district court thoroughly reviewed First American’s requested fees and costs
    and awarded only those amounts related to the state law claims. There was no
    abuse of discretion.
    Fallay v. First Am. Specialty Ins. Co., No. 16-15524
                                                                               DEC 18 2017
                                                                            MOLLY C. DWYER, CLERK
    KOZINSKI, Circuit Judge, concurring:                                     U.S. COURT OF APPEALS
          Our decision in United States ex rel. Newsham v. Lockheed Missiles &
    Space Co. paved the way for defendants in diversity cases to raise anti-SLAPP
    motions under California law. See 
    190 F.3d 963
    , 972–73 (9th Cir. 1999). I’m
    duty-bound to follow Newsham and thus join today’s disposition. But, as I’ve
    explained at length elsewhere, our decision to allow anti-SLAPP motions into
    federal court conflicts with Supreme Court precedent and permits California to
    override the Federal Rules of Civil Procedure—a hijacking of Congress’ plenary
    power. See Makaeff v. Trump Univ., LLC, 
    715 F.3d 254
    , 272–75 (9th Cir. 2013)
    (Kozinski, C.J., concurring); Travelers Cas. Ins. Co. of Am. v. Hirsh, 
    831 F.3d 1179
    , 1182–86 (9th Cir. 2016) (per curiam) (Kozinski, J., concurring); see also id.
    at 1186 (Gould, J., concurring); Cuba v. Pylant, 
    814 F.3d 701
    , 718–21 (5th Cir.
    2016) (Graves, J., dissenting); Abbas v. Foreign Policy Grp., LLC, 
    783 F.3d 1328
    1333–37 (D.C. Cir. 2015) (Kavanaugh, J.); Makaeff v. Trump Univ., LLC, 
    736 F.3d 1180
    , 1188–92 (9th Cir. 2013) (Watford, J., dissenting from the denial of
    rehearing en banc). Two decades with anti-SLAPP motions as a scourge on our
    docket is penance enough for our blunder in Newsham. It’s high time for a course