Lezlie Gunn v. Christine Drage ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEZLIE J. GUNN, Nos. 20-16046
21-15005
Plaintiff-Appellant, 21-15442
21-15549
v.
D.C. No.
CHRISTINE E. DRAGE, 2:19-cv-02102-
JCM-EJY
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 15, 2022
Las Vegas, Nevada
Filed April 21, 2023
Before: Johnnie B. Rawlinson and Mark J. Bennett, Circuit
Judges, and Brian M. Cogan, * District Judge.
Opinion by Judge Cogan
*
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
2 GUNN V. DRAGE
SUMMARY **
California Anti-SLAPP Statute
The panel vacated the district court’s order denying
Lezlie Gunn’s motion for an extension of time to file her
notice of appeal, and affirmed the district court’s order
granting Christine Drage’s motion to strike Gunn’s
complaint in its entirety pursuant to California’s Strategic
Lawsuit Against Public Participation (“anti-SLAPP”) statute
and dismissing the action.
Gunn alleged that Drage had interfered with a release
and settlement agreement (“RSA”) entered into by Gunn and
non-party Dr. Hans Peter Wild, establishing the terms of the
breakup of their personal and professional relationship.
Subsequently, Wild and Drage began a personal
relationship. In this action, Gunn claimed that Wild
breached the RSA, and that Drage persuaded Wild to breach
the RSA. Gunn sought recovery of $150 million in damages,
as well as punitive damages. On April 10, 2020, the district
court granted Drage’s anti-SLAPP motion.
The panel held that the notice of appeal was timely. Fed.
R. Civ. P. 58(a) required a separate document to implement
the district court’s April 10 Order on Gunn’s anti-SLAPP
motion. But judgment was not “set forth on a separate
document” until May 1, 2020. Therefore, Gunn’s notice of
appeal was timely when filed on May 28, 2020.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GUNN V. DRAGE 3
Turning to the merits of Gunn’s appeal, the panel applied
the California burden-shifting framework to answer whether
the claim called for the anti-SLAPP statute’s protections,
and, if so, whether the claim had sufficient merit. At the first
step, the moving defendant must make a prima facie
showing that the plaintiff’s suit arose from an act in
furtherance of the defendant’s right to free speech. The
panel rejected Gunn’s argument that the district court erred
by considering evidence in the first prong of its anti-SLAPP
analysis. The panel held that where an anti-SLAPP
defendant lodges a factual challenge, district courts may
properly consider extrinsic evidence in evaluating whether a
defendant has met her prima facie burden under step
one. Here, the district court correctly evaluated Drage’s
challenge as a factual one based on her own statements in
her anti-SLAPP motion and her reliance on extrinsic
evidence at both steps. The court was therefore entitled to
consider evidence at both steps.
Next, the panel considered Gunn’s remaining argument
that the district court erred in finding that her pre-October
2016 claims arose under the anti-SLAPP statute. In laying
out her prima facie case, Drage identified both of Gunn’s
challenged claims as resting upon the allegation that she
induced Wild to breach the RSA. She contended that these
acts consisted of providing legal advice to Wild in her
capacity as his attorney. Next, Drage had to show that the
acts were protected under a statutorily defined category of
protected activity. The anti-SLAPP statute protects lawyers
sued for litigation-related speech and activity. The panel
held that Drage’s actions, including counseling Wild in
anticipation of litigation, easily qualified. A court need not
resolve whether Wild actually retained Drage as his lawyer,
or if she merely advised him as a prospective client. Both
4 GUNN V. DRAGE
were protected activities when undertaken in connection
with litigation seriously contemplated in good faith at the
time those communications took place, as was the case
here. Finally, there was no dispute that Gunn’s claims arose
from Drage’s protected activities since Drage’s acts
satisfying those elements formed the basis for
liability. Because Drage met her prima facie burden to show
that all relief sought was based on allegations arising from
protected activity, the district court properly struck Gunn’s
complaint in its entirety.
The panel filed a contemporaneous memorandum
disposition in Gunn’s related appeals regarding the
attorneys’ fees.
COUNSEL
Thomas A. Vogele (argued) and Timothy M. Kowal,
Thomas Vogele & Associates APC, Costa Mesa, California,
for Plaintiff-Appellant.
Todd M. Lander (argued), Rosen Saba LLP, El Segundo,
California; Robert M. Heller and John P. Godsil, Freeman
Freeman & Smiley LLP, Los Angeles, California; Jason M.
Wiley and Ryan S. Petersen, Wiley Petersen Law Offices,
Las Vegas, Nevada; Mitchell J. Langberg, Brownstein Hyatt
Farber & Schreck LLP, Los Angeles, California; for
Defendant-Appellee.
GUNN V. DRAGE 5
OPINION
COGAN, District Judge:
Plaintiff-Appellant Lezlie J. Gunn sued Defendant-
Appellee Christine E. Drage in California court alleging that
Drage had interfered with a release and settlement agreement
(“RSA”) entered into by Gunn and non-party Dr. Hans Peter
Wild. Drage subsequently moved to strike Gunn’s
complaint in its entirety pursuant to California’s Strategic
Lawsuit Against Public Participation (“anti-SLAPP”)
statute. See Cal. Civ. Proc. Code § 425.16(b). The district
court granted Drage’s motion and dismissed Gunn’s lawsuit
with prejudice. It also denied Gunn’s related motion for an
extension of time to file her notice of appeal on its decision.
The instant appeal concerns both district court
decisions. 1 After first concluding that Gunn’s notice of
appeal was timely, we find that the district court did not err
in its analysis of the first step of Drage’s anti-SLAPP
motion, and properly dismissed the action.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The facts of this case would not seem out of place as the
plot of a daytime soap opera. They arise out of a love
triangle between Gunn, her ex (Wild, a wealthy Swiss
businessman), and Drage (Wild’s former attorney and new
girlfriend). Before 2016, Gunn and Wild had been involved
1
Gunn relatedly appealed other district court decisions regarding the
attorneys’ fees in this same case. Those arguments and our conclusions
related thereto are resolved in a contemporaneously filed memorandum
disposition.
6 GUNN V. DRAGE
in a close personal and professional relationship for
approximately thirty years. Sometime in 2015 or 2016 – the
exact dates are disputed – they decided to break up. To
establish the terms of their breakup, on December 21, 2015,
Gunn and Wild entered into the RSA. It provided, among
other things: that (a) Wild would make a tax-free gift of
approximately $60 million to Gunn by December 31, 2015;
(b) Gunn would transfer three properties (the “Dossenheim
Properties”) to an entity designated by Wild in exchange for
payment of $2.78 million; (c) for a period of 10 years, Wild
would transfer an additional $3.5 million annually to Gunn,
with the first payment to be sent on January 15, 2016; (d) by
March 15, 2016, Wild would transfer $20 million for an
educational trust fund; and (e) Wild would pay certain of
Gunn’s expenses.
The RSA did not provide the parties with a clean break.
Soon after its execution, both Wild and Gunn exchanged
accusations of breach. According to Gunn, although she
acknowledged receiving the $60 million gift and payment
for the Dossenheim Properties soon after executing the RSA,
Wild breached others of its provisions almost immediately.
In turn, Wild contended that it was Gunn who breached the
RSA by refusing to sign a ratification statement to complete
the exchange of the Dossenheim Properties, despite having
already received payment.
Mutual threats of litigation followed. Gunn was the first
to expressly articulate these threats. As memorialized in a
December 2017 declaration she submitted in connection
with a separate action against Wild, she stated that “[i]n
August 2016, I told [Wild] that I was planning on suing him
GUNN V. DRAGE 7
for his failure to pay me as obligated under the RSA.” 2 She
gave him until December 2016 to comply, after which she
said she would initiate litigation.
Wild beat her to the punch, initiating litigation in Europe
on October 6, 2016. 3 In that action, Wild alleged, among
other things, that the RSA was not binding due to
misrepresentations allegedly made by Gunn. He sought the
return of all funds paid to Gunn under it. That same day,
Wild’s attorneys also wrote to Gunn, demanding that she
either ratify the Dossenheim transaction or confirm she
would not. They explained to her that if she refused to ratify,
the RSA would “finally and irreversibly become null and
void.” After she refused, legal disputes between Gunn and
Wild concerning the RSA proliferated, eventually stretching
across multiple jurisdictions, where some remain ongoing to
this day. See, e.g., Gunn v. Wild, No. 20-cv-150, 2021 WL
5853586, at *1 (E.D. Ky. Dec. 9, 2021); Gunn v. Wild, No.
20-cv-00820, 2020 WL 5167755 (C.D. Cal. June 11, 2020).
II.
Against this backdrop, on October 15, 2016, Wild
reached out to Drage, an attorney. Drage, a founding
2
In December 2016, Casun Invest, A.G., an entity in which Wild was
the sole shareholder, sued Gunn, raising various causes of action related
to its sale of a parcel of real property to an entity Gunn owned. See
Casun Invest, A.G. v. Ponder, No. 16-cv-02925, 2018 WL 11290228, at
*1 (D. Nev. Sept. 13, 2018). In the same action, Gunn later filed a third-
party complaint for express indemnity against Wild premised on an
Indemnification Agreement she signed in connection with the RSA. See
2022 WL 2818476, at *1 (D. Nev. July 15, 2022).
3
Wild initiated formal proceedings in Switzerland against Gunn by
submitting a Request for Conciliation to the Conciliation Office of the
Canton of Zug.
8 GUNN V. DRAGE
member of Weil & Drage (“W&D”), a law firm specializing
in complex business litigation, had become acquainted with
Wild when, in March 2011, she and W&D became litigation
counsel for Wild Affiliated Holdings, Inc. (“Wild
Holdings”). During that period, in connection with her
representation of Wild Holdings, Drage also became
acquainted with Gunn.
Drage and W&D represented Wild Holdings until 2014,
after which she contends that she did not have any contact
with Wild for some time. In a 2017 declaration she filed in
the Casun litigation, Drage stated that Wild got back in
contact to “advise[] [her] that he had permanently separated
from” Gunn in “approximately August of 2016.” 4 In this
litigation, she has since clarified that the exact date Wild
informed her that “he was no longer in a relationship with
Gunn” was actually on or about October 15, 2016.
In that October 15, 2016 email, Wild informed Drage
that because he was no longer in a relationship with Gunn,
he would not pay any legal fees or costs she might incur.
Drage advised Wild that she had not been working for Gunn
and told him to reach out to her (Drage) if he “ever need[ed]
anything.”
Both Wild and Drage assert that he did need something
– namely legal services concerning Gunn and the RSA. At
that time, Wild was contemplating numerous lawsuits
concerning Gunn. Beginning in November 2016, he wound
4
Although Drage and W&D were not parties to this lawsuit, Gunn had
issued subpoenas to both pursuant to Fed. R. Civ. P. 45. The district
court quashed these subpoenas, determining that many documents
sought were likely protected by attorney-client privilege and the work
product doctrine, and awarded W&D sanctions against Gunn.
GUNN V. DRAGE 9
up initiating or responding to many, including in
jurisdictions where Drage was not authorized to practice
law.
Emails from that period reflect that Drage and Wild
engaged in legal discussions as early as October 28, 2016.5
Thereafter, Drage became involved in an action that Gunn
filed against Wild on January 7, 2017 in the District of
Nevada, in which she alleged, among other things, that Wild
had breached the RSA. 6 In anticipation of possibly
representing Wild in connection with the lawsuit, Drage’s
assistant set up a secure file for the matter, prepared a new
case memorandum which referenced the docket number, and
e-mailed the firm’s accounting department to inform it of the
associated billing code. W&D invoices from February and
March 2017 reflect that Drage billed Wild for that matter.
Sometime during the month that Gunn filed this action,
Wild and Drage also began a personal relationship. Gunn
learned of the personal relationship between Drage and Wild
on October 7, 2017.
III.
In September 2019, Gunn commenced the underlying
action against Drage in Orange County Superior Court. She
alleged intentional interference with a contract and civil
conspiracy. In her complaint, Gunn alleged that despite
“Wild partially perform[ing] his obligations under the
5
The subject line of an email sent to Wild on this date, copying Drage,
reflects that the recipients were discussing the potential filing of the
Casun lawsuit.
6
Ultimately, the district court dismissed Gunn’s various contract and tort
claims against Wild for lack of personal jurisdiction, and we affirmed.
See Gunn v. Wild, 771 F. App’x 392 (9th Cir. 2019).
10 GUNN V. DRAGE
RSA,” he had “breached many of the financial and non-
financial terms of the RSA since” beginning his relationship
with Drage. Specifically, Gunn claimed that “Wild breached
the RSA by, among other things, failing and refusing to
make the annual tax-free gifts to Gunn [which were slated to
begin as of January 15, 2016], failing and refusing to make
the payment to establish the educational trust fund [on
March 15, 2016], and failing and refusing to pay [her]
expenses.”
Gunn went on to contend that “by virtue of her
relationship with Wild” “Drage became aware of the terms
of the RSA . . . and caused and persuaded Wild to breach” it
“in whole or in part.” Gunn included the RSA and the related
indemnification agreement as exhibits to her complaint. She
sought recovery of $150 million in damages, as well as
punitive damages.
Notably, Gunn’s complaint did not disclose any facts
surrounding Drage’s representation of Wild, although she
knew that Drage was representing Wild and had asserted
attorney-client privilege claims in other lawsuits as recently
as two months prior.
Shortly thereafter, Drage timely removed the action to
the Central District of California, and in December 2019, it
was transferred by stipulation to the District of Nevada.
On December 27, 2019, Drage filed a special motion to
strike or dismiss Gunn’s complaint in its entirety under
California’s anti-SLAPP statute, California Code of Civil
Procedure § 425.16. She explicitly framed her challenge as
a factual one and therefore submitted a significant amount of
extrinsic evidence, including declarations, emails, and
filings from other court cases. While the motion was
GUNN V. DRAGE 11
pending, the parties engaged in discovery, serving initial
disclosures and requests for production of documents.
On April 10, 2020, the district court granted Drage’s
anti-SLAPP motion, dismissing with prejudice the action in
its entirety (the “April 10 Order”). As the motion challenged
the factual sufficiency of Gunn’s complaint, the district court
considered it to be one for summary judgment under Fed. R.
Civ. P. Rule 56 and it applied California substantive law.
First, the district court concluded that Drage had
adequately established that Gunn’s claims arose out of
protected activity. Although the district court found that
there was a genuine dispute of material fact as to whether a
formal attorney-client relationship existed between Drage
and Wild in 2016, it noted that “Drage need not establish an
attorney-client relationship to prove that her conduct is
protected” – that she provided specific advice to a
prospective client on potential litigation was enough.
Further, the district court found that because “Drage
indicate[d] that she had no knowledge of the RSA before
Wild reached out to her in 2016 . . . [a]ny communications
between Wild and Drage regarding the RSA were thus
necessarily driven by Wild’s anticipation of litigation.”
“Accordingly, Drage’s alleged advice for Wild to breach the
RSA occurred as a part of Drage’s serious consideration of
potential litigation” and constituted protected conduct.
The district court entered judgment on May 1, 2020.
Although Gunn filed her notice of appeal on May 28 because
she believed that there might be an issue with the timeliness
of her appeal, she also filed a motion under Fed. R. App. P.
Rule 4(a)(5) for an extension of time to file her notice of
appeal.
12 GUNN V. DRAGE
The district court denied Gunn’s motion to extend her
time to appeal. 7 It found that for Gunn to have timely
appealed its April 10 dismissal, she must have filed her
notice of appeal before May 11 or filed a “proper tolling
motion no later than May 8, 2020.” The court concluded that
she had done neither. 8 Gunn timely appealed.
Subsequently, we directed the parties to address at oral
argument if the appeal would be timely if the time for filing
had been calculated from the date of entry of judgment as
opposed to the date of entry of the April 10 Order.
ANALYSIS
I.
At the outset, we must first determine whether we have
jurisdiction to consider Gunn’s appeal. The district court’s
order granting Drage’s anti-SLAPP motion is a final
decision, which we have jurisdiction to review. 28 U.S.C. §
1291. However, the parties dispute the timeliness of the
appeal, and timely notice of appeal is a prerequisite to our
having jurisdiction over the appeal. See United States v.
Sadler, 480 F.3d 932, 937 (9th Cir. 2007).
Generally, a litigant must file a notice of appeal “with the
district clerk within 30 days after entry of the judgment or
order appealed from.” Fed. R. App. P. 4(a)(1)(A). Here, the
7
In the same decision, it also denied her motion for reconsideration.
8
On May 8, 2020, Gunn filed a motion for a new trial, which the district
court construed as a motion for reconsideration under Fed. R. Civ. P.
59(e). However, due to a technical pleading deficiency, she withdrew
and subsequently refiled the motion on May 26, 2020. The district court
declined to review the motion on the merits because it found the motion
to be time-barred.
GUNN V. DRAGE 13
parties, as well as the district court, presumed that this thirty-
day period began to run when the district court granted
Drage’s anti-SLAPP motion on April 10. The district court
determined that Gunn’s notice of appeal, filed on May 28,
would be untimely unless she had either properly filed a
tolling motion within 28 days of the April 10 Order, see Fed.
R. App. P. 4(a)(4)(A)(iv), or successfully moved for an
extension of time, see Fed. R. App. P. 4(a)(5)(A). The
district court found that she did neither, concluding that
Gunn’s tolling motion was untimely and denying her motion
for an extension of time. On the issue of timeliness, Gunn
disputes the district court’s decision only as it relates to when
an appeal should have been filed. 9
Under the Federal Rules of Appellate Procedure, the
timeliness of an appeal depends upon whether a party
properly filed a notice of appeal after entry of judgment.
Where Federal Rule of Civil Procedure 58 requires entry of
a separate document as the judgment, judgment is not
considered entered until “the judgment or order is entered in
the civil docket under Federal Rule of Civil Procedure 79(a)”
and such a separate document is filed. Fed. R. App. P.
4(a)(7)(A)(ii).
Rule 58(a) required a separate document to implement
the district court’s April 10 Order on Gunn’s anti-SLAPP
motion. Fed. R. Civ. P. 58(a). But judgment was not “set
forth on a separate document” until May 1, 2020.
Calculating Gunn’s window to appeal based on this later
date, her notice of appeal was timely when filed on May 28,
9
Gunn has therefore waived any other arguments by failing to brief
them. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929–
30 (9th Cir. 2003).
14 GUNN V. DRAGE
2020. See Kingsbury v. United States, 900 F.3d 1147, 1149
(9th Cir. 2018) (“Under Rule 58, an order that is dispositive
of the proceedings is usually insufficient to enter judgment.
Instead, judgment must be expressly entered in a separate
document, except when the district court decides certain
listed motions. . . . If a separate document is required, and
one is not filed, judgment is entered automatically 150 days
after the court enters an order disposing of a case.”) (cleaned
up); see also Hajro v. U.S. Citizenship and Immigr. Servs.,
811 F.3d 1086, 1097 (9th Cir. 2016), as amended (reasoning
that if summary judgment order “disposed of all claims,” it
“would be immediately appealable if immediately followed
by the entry of judgment”) (internal quotation marks omitted)
(emphasis added).
This argument has not been waived, despite Gunn’s
failure to raise it below or on appeal. Although it is possible
to waive the requirement for filing a separate judgment, such
waiver occurs only where “one has accidentally not been
entered.” Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386
(1978). However, in instances where a separate judgment
has been entered, as here, “[t]echnical application of the
separate-judgment requirement is necessary . . . to avoid the
uncertainties that once plagued the determination of when an
appeal must be brought.” Id.Since we find the appeal timely, we move to the merits.
II.
A.
Having determined that Gunn’s notice of appeal was
timely and that we otherwise have jurisdiction under 28
U.S.C. § 1291, we may consider the merits of Gunn’s appeal
of the April 10 Order. We review such an order de novo, see
GUNN V. DRAGE 15
Roberts v. McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir.
2011), and we may affirm “on any ground supported by the
record,” Jones v. Allison, 9 F.4th 1136, 1139 (9th Cir. 2021).
First, courts ask whether “the claim call[s] for the anti-
SLAPP statute’s protections” and, if so, whether the claim
has “sufficient merit.” Serova v. Sony Music Ent., 515 P.3d
1, 8 (Cal. 2022).
California courts apply a burden-shifting framework to
answer these questions. At the first step, “the moving
defendant must make a prima facie showing that the
plaintiff’s suit arises from an act in furtherance of the
defendant’s constitutional right to free speech.” Makaeff v.
Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). In
making a prima facie showing, the “moving defendant bears
the burden of identifying all allegations of protected
activity[] and the [plaintiffs’] claims for relief supported by
them.” Baral v. Schnitt, 376 P.3d 604, 617 (Cal. 2016).
Where the defendant satisfies her burden at the first step,
“the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally
sufficient and factually substantiated.” Id.Gunn appeals only the district court’s analysis at the first
step. 10 She argues the district court erred by considering
evidence in the first prong of its anti-SLAPP analysis. We
disagree. Although our prior decisions are not entirely clear,
we now hold that where an anti-SLAPP defendant lodges a
factual challenge, district courts may properly consider
10
She has therefore waived any challenge as to the second. See Indep.
Towers of Washington, 350 F.3d at 929.
16 GUNN V. DRAGE
extrinsic evidence in evaluating whether a defendant has met
her prima facie burden under step one.
B
Under California’s anti-SLAPP statute, defendants are
entitled to rely on their own proffered evidence to show that
they have met the prima facie burden of demonstrating
protected activity. Indeed, California’s anti-SLAPP statute
requires courts to consider evidence outside the pleadings at
both steps of the analysis. See Cal. Civ. Proc. Code §
425.16(b)(2) (“[C]ourt[s] shall consider the pleadings[] and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.”); see also Wang v.
Wal-Mart Real Est. Bus. Tr., 63 Cal. Rptr. 3d 575, 585
(2007) (quoting, applying same). A defendant need not
necessarily introduce evidence at the first step, but if
extrinsic evidence is necessary to meet the prima facie
burden as to the applicability of the anti-SLAPP statute, then
she must.
California state courts regularly consider extrinsic
evidence in determining whether a defendant has met his
burden at the protected activity (first) step of the anti-SLAPP
analysis. See Rand Res., LLC v. City of Carson, 433 P.3d
899, 910 (Cal. 2019) (defendant’s failure “to introduce such
evidence is a material deficiency since defendants bear the
burden at the first stage of the anti-SLAPP analysis”); see
also Geiser v. Kuhns, 515 P.3d 623, 631 (Cal. 2022)
(considering evidence in determining whether defendants
“have met their burden of demonstrating that the activity
from which the lawsuit arises falls within the scope of the
anti-SLAPP statute’s protection”); Navellier v. Sletten, 52
P.3d 703, 709 (Cal. 2002) (examining declarations and other
documents at step one to determine whether each of the acts
GUNN V. DRAGE 17
“about which plaintiffs complain falls squarely within the
plain language of the anti-SLAPP statute”).
California state courts also routinely look outside the
pleadings at the first step. The Supreme Court of California
has held that a court need not accept or be limited to the
allegations in a plaintiff’s complaint. See Wilson v. Cable
News Network, Inc., 444 P.3d 706, 715 (Cal. 2019). This is
because “[s]uch conclusive deference would be difficult to
reconcile with the statutory admonition that courts must look
beyond the pleadings to consider any party evidentiary
submissions as well.” Id.; see also Bonni v. St. Joseph
Health Sys., 491 P.3d 1058, 1071 n.5 (Cal. 2021) (noting that
“Even if [the plaintiff’s] complaint omits specific detail . . .
[t]he statute instructs us to take account of those additional
allegations [from plaintiff’s opposition to the anti-SLAPP
motion] in our analysis”); Stewart v. Rolling Stone LLC, 105
Cal. Rptr. 3d 98, 110 (2010) (“[W]e do not evaluate the first
prong of the anti-SLAPP test solely through the lens of a
plaintiff’s cause of action.”).
However, even though consideration of a defendant’s
extrinsic evidence is required under California law, that does
not mean this procedural requirement applies in federal
court. Although we have repeatedly affirmed the
applicability of California’s anti-SLAPP statute in diversity
cases, see e.g., CoreCivic, Inc. v. Candide Grp., LLC, 46
F.4th 1136, 1140 (9th Cir. 2022), we have also recognized
that some provisions of California’s anti-SLAPP law cannot
apply in federal practice. See, e.g., Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (“Because the
discovery-limiting aspects of § 425.16(f) and (g) collide with
the discovery-allowing aspects of Rule 56, these aspects of
subsections [425.16](f) and (g) cannot apply in federal
court.”) (internal quotation omitted). Throughout the years,
18 GUNN V. DRAGE
we have therefore sought to “weed[] out specific provisions
of the law that ran afoul of the Erie doctrine and fine-tun[e]
our application of those provisions that remained.”
CoreCivic, Inc, 46 F.4th at 1140 (declining to reconsider
whether the special motion to strike provision of California’s
anti-SLAPP statute is inapplicable in federal court because
it conflicts with Federal Rules of Civil Procedure 8, 12, and
56).
Recently, we clarified that to “eliminate[] conflicts
between California’s anti-SLAPP law’s procedural
provisions and the Federal Rules of Civil Procedure,” courts
must “review anti-SLAPP motions to strike under different
standards depending on the motion’s basis.” Planned
Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890
F.3d 828, 833 (9th Cir.), as amended, 897 F.3d 1224 (9th
Cir. 2018). If a defendant moves to strike “on purely legal
arguments,” courts must analyze the motion under Rules 8
and 12, but where a defendant asserts “a factual challenge,”
courts must treat the motion to strike as “a motion for
summary judgment,” triggering discovery. Id. (citation
omitted); see also CoreCivic, Inc, 46 F.4th at 1143.
We now hold that these rules for anti-SLAPP motions to
strike apply in federal court regardless of whether a plaintiff
challenges the first or second step of the anti-SLAPP
analysis. And courts are entitled to rely on extrinsic
evidence whether the challenge is as to the first step, the
second step, or both steps.
To be sure, a defendant’s reliance on evidence at the first
step may still implicate Erie issues. Where a defendant has
brought a challenge to a complaint’s legal sufficiency under
Rule 12(b)(6), we have insisted that a plaintiff’s “reliance on
evidence outside of its complaint in defending against [an
GUNN V. DRAGE 19
anti-SLAPP motion] was improper and inconsistent with the
Federal Rules.” Herring Networks, Inc. v. Maddow, 8 F.4th
1148, 1156 (9th Cir. 2021). This is because “[w]hen ruling
on a Rule 12(b)(6) motion to dismiss, if a district court
considers evidence outside the pleadings, it must normally
convert the 12(b)(6) motion into a Rule 56 motion for
summary judgment.” United States v. Ritchie, 342 F.3d 903,
907–08 (9th Cir. 2003).
However, a district court cannot consider a defendant’s
evidence of factual sufficiency at the first step of an anti-
SLAPP motion without essentially converting the motion
into one for summary judgment because in such cases, the
first step of anti-SLAPP, a prima facie showing of protected
activity, significantly overlaps with challenges to “the
factual sufficiency of a claim.” 890 F.3d at 834. For
example, as here, in evaluating whether a defendant’s speech
is protected under the anti-SLAPP statute, district courts
may need to consider evidence relevant to the litigation
privilege. See Neville v. Chudacoff, 73 Cal. Rptr. 3d 383,
388–89 (2008) (noting that as “the [anti-SLAPP and
litigation privilege] statutes serve similar policy interests”,
courts utilize litigation privilege in construing scope of
protected conduct at first prong). This very same evidence
may also be implicated at the second step when a district
court determines whether the litigation privilege precludes a
plaintiff from succeeding on the merits.
Here, the district court correctly evaluated Drage’s
challenge as a factual one based on her own statements in
her anti-SLAPP motion and her reliance on extrinsic
evidence at both steps. See Herring Networks, Inc., 8 F.4th
at 1156 (“The defendant determines which motions she files,
not the plaintiff.”). The court was therefore entitled to
consider evidence at both prongs.
20 GUNN V. DRAGE
C.
Having determined that the district court could properly
consider evidence at both steps, we turn to Gunn’s remaining
argument, which is only that the district court erred in
finding that her pre-October 2016 claims arose under the
anti-SLAPP statute. Because Gunn does not contest on
appeal that the district court erred at the second step of its
analysis, nor does she argue that Drage’s post-October 2016
conduct falls under the ambit of the anti-SLAPP statute, we
need only consider whether Drage’s earlier activity is
entitled to anti-SLAPP protection. We find that it is.
“The first prong of the anti-SLAPP analysis involves two
related inquiries: (1) whether the Complaint alleges activity
protected by section 425.16 and (2) whether the cause or
causes of action alleged arise from those activities.”
Contreras v. Dowling, 208 Cal. Rptr. 3d 707, 717 (2016).
Importantly, “[a]t this stage, the question is only whether a
defendant has made out a prima facie case that activity
underlying a plaintiff’s claims is statutorily protected.”
Wilson, 444 P.3d at 715.
In laying out her prima facie case, Drage was first
required to “identify what acts each challenged claim rests
on.” Bonni, 491 P.3d at 1065–66. Drage identified both of
Gunn’s challenged claims as resting upon the allegation that
she induced Wild to breach the RSA. These acts, she
contends, consisted of providing legal advice to Wild in her
capacity as his attorney.
Next, she had to “show how those acts are protected
under a statutorily defined category of protected activity.”
Id. at 1066. The categories of activity protected under the
anti-SLAPP statute include “any written or oral statement or
writing made before a legislative, executive, or judicial
GUNN V. DRAGE 21
proceeding” or made “in connection with an issue under
consideration or review” in such proceedings. Cal. Civ.
Proc. Code § 425.16(e)(1)-(2). Accordingly, “[n]umerous
cases have held that the SLAPP statute protects lawyers sued
for litigation-related speech and activity.” Thayer v.
Kabateck Brown Kellner LLP, 143 Cal. Rptr. 3d 17, 27
(2012) (collecting cases). An attorney-client relationship is
not necessarily required: “a cause of action arising from a
lawyer’s conduct, when the conduct includes advice to a
prospective client on pending litigation,” is also protectable.
Taheri L. Grp. v. Evans, 72 Cal. Rptr. 3d 847, 853 (2008).
Additionally, “[s]tatements made in preparation for
litigation or in anticipation of bringing an action fall within
these categories.” Pech v. Doniger, 290 Cal. Rptr. 3d 471,
485 (2022) (citations omitted). This includes “[c]ounseling
others in anticipation of litigation or encouraging others to
sue.” Id. at 486 (attorneys’ advice to clients about proposed
litigation and their obligations under fee agreement which
led to client breaching agreement was protected prelitigation
speech activity). For pre-litigation statements to be
protected, courts have imposed the additional requirement
that “the contemplated litigation [be] seriously proposed in
good faith for purposes of resolving the dispute.” Ruiz v.
Harbor View Cmty. Assn., 37 Cal. Rptr. 3d 133, 146
(2005). 11
11
There is some disagreement about the applicability of this requirement
at the first step of the anti-SLAPP analysis. In Pech, the court of appeal
cast doubt on whether this additional requirement should apply. See 290
Cal. Rptr. 3d at 487. However, the court ultimately declined “to decide
whether the additional limitations of the litigation privilege apply in the
anti-SLAPP context,” since the conduct at issue was considered
protected under either standard. Id.
22 GUNN V. DRAGE
Under this broad standard, Drage’s actions, including
counseling Wild “in anticipation of litigation,” easily
qualify. Pech, 290 Cal. Rptr. 3d at 485. For the purposes of
this analysis, a court need not resolve whether Wild actually
retained Drage as his lawyer, or if she merely advised him as
a prospective client. Both are protected activities when
undertaken in connection with litigation seriously
contemplated in good faith at the time these communications
took place, as was the case here. When Wild purportedly
reached out to Drage in October 2016, litigation regarding
the RSA was already ongoing in Switzerland, with more to
follow in jurisdictions where Drage was licensed. 12
Finally, there is no dispute that Gunn’s claims arose from
Drage’s protected activities since Drage’s acts “satisfying
those elements [] form the basis for liability.” Pech, 290 Cal.
Rptr. 3d at 481. Gunn’s intentional interference claims
require a showing that Drage acted intentionally “to induce
a breach or disruption of the contractual relationship.”
Quelimane Co. v. Stewart Title Guar. Co., 960 P.2d 513, 530
(Cal. 1998). Drage’s legal communications with Wild
satisfy this element, as they were not “incidental
background.” Bonni, 491 P.3d at 1067.
Although Gunn concedes that Drage satisfied her step
one burden of showing protected activity as to some of the
allegations, she argues that other allegations were
improperly struck. Her argument relies on the Supreme
Court of California’s recent clarification regarding situations
where a complaint includes a count with a mixed cause of
12
Even if Drage’s original declaration was correct and the
communications started in August 2016, litigation was still clearly and
sufficiently imminent.
GUNN V. DRAGE 23
action, “supported by allegations of unprotected activity as
well as protected activity.” Baral, 376 P.3d at 607. In Baral,
the court held that because an anti-SLAPP motion “does not
reach claims based on unprotected activity,” any
“unprotected activity [must be] disregarded at this stage.”
Id. at 617. Gunn insists that her complaint includes such
mixed causes of action, with allegations that implicate
unprotected activity. In other words, because Drage’s
protected activity began in October 2016, Gunn argues
Drage’s conduct between January and October 2016 is not
covered by anti-SLAPP.
However, Gunn is limited by her complaint. See Bel Air
Internet, LLC v. Morales, 230 Cal. Rptr. 3d 71, 81 (2018)
(“[C]ourts have rejected attempts by plaintiffs opposing anti-
SLAPP motions to disavow their own allegations in favor of
evidence that is inconsistent with their complaints.”). Her
complaint provides only that “Drage became aware of the
terms of the RSA by virtue of her relationship with Wild and
caused and persuaded Wild to breach the RSA.” Therefore,
on its face, Gunn can only seek relief for activity that took
place after Drage became aware of the RSA by virtue of her
relationship with Wild. Drage and Wild’s first contact after
the RSA’s execution was on October 15, 2016, the date the
protected activity began. Because Drage met her prima facie
burden to show that all relief sought was based on allegations
arising from protected activity, the district court properly
struck Gunn’s complaint in its entirety.
CONCLUSION
Accordingly, the district court’s order finding the notice
of appeal untimely is vacated, and its order dismissing the
case is AFFIRMED.