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Ninth Circuit Rebuffs Challenge to Use in District Courts of State Anti-SLAPP Law
By a MetNews Staff Writer
A three-judge panel of the Ninth U.S. Circuit Court of Appeals held yesterday that a 2010 U.S. Supreme Court decision should not prompt it to overturn long-standing precedents that California’s anti-SLAPP statute is to be applied in diversity cases tried under California law.
Senior Judge Sidney Thomas authored the opinion which affirms District Court Judge William Alsup’s dismissal of a defamation action pursuant to a special motion to strike under California Code of Civil Procedure §425.16, the anti-SLAPP statute. Alsup, of the Northern District of California, found that statements made online by defendants Morgan Simon and his firm, Candide Group, were “true enough under the First Amendment and under California defamation law.”
Senior Judge Carlos T. Bea agreed with Thomas that district courts should continue to apply §425.16, but dissented as to the dismissal of the action by CoreCivic, Inc., saying that a jury should determine if liability exists. CoreCivic is a company that manages detention facilities and sued over statements linking it with the separation of families detained at the U.S.-Mexican border.
High Court Decision
Thomas declared:
“This appeal presents the question of whether our long line of precedents holding that California’s anti-SLAPP statute applies in federal court are so irreconcilable with the Supreme Court’s decision in Shady Grove Orthopedic Associates, P. A. v. Allstate Insurance Co….that we, acting as a three judge panel, must overrule them. We conclude that no intervening authority, including Shady Grove, is clearly irreconcilable with our prior cases, and we decline to overrule them.
He recited that a three-judge panel has authority to overrule precedents in the circuit if there has been intervening high authority. But, he observed, Shady Grove is not an “intervening” case, explaining:
“Since Shady Grove was decided, we have routinely applied the California anti-SLAPP statute in federal court….We are bound by those precedents….Therefore, CoreCivic’s argument fails at the first step.”
The former chief judge added that Shady Grove is not “clearly irreconcilable” with Ninth Circuit precedents. There, it was held that a New York statute limiting class actions could not be applied in the District Court because it clashes with a federal rule.
‘Direct Collision’
That case declares that state law must be disregarded where there is a “direct collision” with federal law, Thomas noted, but said that Ninth Circuit cases have reflected an understanding of that, and “to the extent that Shady Grove altered the relevant inquiry at all, it remains reconcilable with our precedents.”
While some other circuits have found state anti-SLAPP statutes to be in conflict with federal standards, the Ninth Circuit has avoided that situation, Thomas wrote, by applying §425.16 subject to the standards for motions to dismiss (the federal analogue of a demurrer) and motions for summary judgment.
Addressing the merits, the senior judge said it is not contested the action stems from protected speech—satisfyinmg the first prong of §425.16—but that CoreCivic did not adequately plead falsity, so that it cannot meeet its burden under the second prong of showing a probability of prevailing on its claim. He elaborated:
“In its complaint, CoreCivic made a very specific denial. It stated that it ‘does not, nor has it ever, operated any immigration detention facilities for children separated from their parents pursuant to the government’s family separation policy.’ But Simon never said that CoreCivic had done so. Instead, the substance of Simon’s charge—as actually made—was much broader; it was that CoreCivic was involved in the business of family separation and incarceration at the border. CoreCivic’s complaint did not plead otherwise.”
Bea argued that the statements in issue “did not need explicitly to accuse CoreCivic of housing separated children to give rise to a claim of implied defamation.”
The case is CoreCivic v. Candide Group, 20-17285.
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