831 F.3d 1179 (9th Cir. 2016), 14-55539, Travelers Casualty Ins. Co. of America v. Hirsh

Docket Nº:14-55539
Citation:831 F.3d 1179
Opinion Judge:PER CURIAM:
Party Name:TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee, v. ROBERT W. HIRSH, Defendant-Appellant, and VISEMER DE GELT, LLC, Defendant
Attorney:Brandon Scott Reif (argued) and Marc S. Ehrlich, Winget Spadafora & Schwartzberg, LLP, Los Angeles, California, for Defendant-Appellant. Andrew R. McCloskey (argued), McCloskey, Waring & Waisman LLP, San Diego, California; Heather L. McCloskey, McCloskey, Waring & Waisman LLP, El Segundo, Califor...
Judge Panel:Before: Alex Kozinski, Ronald M. Gould, and Andrew D. Hurwitz, Circuit Judges. Concurrence by Judge Kozinski; Concurrence by Judge Gould. KOZINSKI, Circuit Judge, with whom Circuit Judge GOULD joins, concurring: GOULD, Circuit Judge, concurring:
Case Date:August 03, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Defendant 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... (see full summary)

 
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Page 1179

831 F.3d 1179 (9th Cir. 2016)

TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee,

v.

ROBERT W. HIRSH, Defendant-Appellant,

and

VISEMER DE GELT, LLC, Defendant

No. 14-55539

United States Court of Appeals, Ninth Circuit

August 3, 2016

Argued and Submitted, Pasadena, California June 8, 2016.

As Corrected August 5, 2016.

Appeal from the United States District Court for the Central District of California. D.C. No. 2:13-cv-02504-GW-JC. George H. Wu, District Judge, Presiding.

AFFIRMED.

SUMMARY[*]

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 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, 414 U.S.App.D.C. 465 (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.

Brandon Scott Reif (argued) and Marc S. Ehrlich, Winget Spadafora & Schwartzberg, LLP, Los Angeles, California, for Defendant-Appellant.

Andrew R. McCloskey (argued), McCloskey, Waring & Waisman LLP, San Diego, California; Heather L. McCloskey, McCloskey, Waring & Waisman LLP, El Segundo, California; for Plaintiff-Appellee.

Before: Alex Kozinski, Ronald M. Gould, and Andrew D. Hurwitz, Circuit Judges. Concurrence by Judge Kozinski; Concurrence by Judge Gould.

OPINION

PER CURIAM:

In this diversity suit, Robert W. Hirsh appeals 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 Casualty Insurance Company of America (" Travelers" ). We affirm.

1. Notwithstanding that the denial of the anti-SLAPP motion did not give rise to what traditionally would be deemed a final judgment (one resolving all claims in a suit), our precedents establish our jurisdiction to consider this appeal. " Because California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well." Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003). We therefore have held that the denial of an anti-SLAPP motion is " an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Id. at 1026; see also DC Comics v. P. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir. 2013) (affirming appealability of denial of California anti-SLAPP motion after Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009)). We therefore turn to the merits of this appeal.

2. Hirsh maintains that Travelers' claims arise out of his representation of Travelers' insured, Visemer De Gelt (" VDG" ), as Cumis counsel. See

San Diego Navy Fed. Credit Union v. Cumis Ins. Soc'y, Inc., 162 Cal.App.3d 358, 208 Cal.Rptr. 494, 496 (Ct.App. 1984); see also Cal. Civ. Code § 2860 (implementing Cumis rule). He contends that his activity was therefore protected under the anti-SLAPP statute. See Thayer v. Kabateck Brown Kellner LLP, 207 Cal.App.4th 141, 143 Cal.Rptr.3d 17, 27 (Ct.App. 2012) (" Numerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity." ). However, Travelers' claims do not involve Hirsh's representation of VDG in the prior suit, but rather his allegedly wrongful retention of settlement funds without offsetting the fees he charged to Travelers. See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal.App.4th 658, 35 Cal.Rptr.3d 31, 40 (Ct.App. 2005) (stating that anti-SLAPP statute does not apply when " protected conduct is 'merely incidental' to the unprotected conduct" (citation omitted)); see also

Coretronic Corp. v. Cozen O'Connor, 192 Cal.App.4th 1381, 121 Cal.Rptr.3d 254, 261 (Ct.App. 2011) (holding that gravamen of complaint was attorneys' failure to disclose dual representation and that " the concealment occurred in the context of litigation" did not turn it into protected activity). Because Travelers' causes of action for declaratory judgment, unjust enrichment, breach of Cal. Civ. Code § 2860(d), and concealment are not " based on an act in furtherance of [Hirsh's] right of petition or free speech," Peregrine Funding, 133 Cal.App.4th 658, 35 Cal.Rprt.3d at 38 (quoting City of Cotati v. Cashman, 29 Cal.4th 69, 124 Cal.Rptr.2d 519, 52 P.3d 695, 701 (Cal...

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