Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress

Decision Date16 May 2018
Docket NumberNo. 16-16997,16-16997
Citation890 F.3d 828
Parties PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; Planned Parenthood: Shasta–Diablo, Inc., dba Planned Parenthood Northern California ; Planned Parenthood Mar Monte, Inc.; Planned Parenthood of the Pacific Southwest; Planned Parenthood Los Angeles; Planned Parenthood/Orange and San Bernardino Counties, Inc.; Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc. ; Planned Parenthood Pasadena and San Gabriel Valley, Inc.; Planned Parenthood Center for Choice; Planned Parenthood of the Rocky Mountains; Planned Parenthood Gulf Coast, Plaintiffs–Appellees, v. CENTER FOR MEDICAL PROGRESS; BioMax Procurement Services, LLC; David Daleiden, aka Robert Daoud Sarkis; Sandra Susan Merritt, aka Susan Tennenbaum; Gerardo Adrian Lopez, Defendants–Appellants, and Troy Newman; Phillip S. Cronin; Albin Rhomberg, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

Charles S. LiMandri (argued), Paul M. Jonna, Teresa L. Mendoza, and Jeffrey M. Trissell, Freedom of Conscience Defense Fund, Rancho Santa Fe, California; Horatio Mihet (argued), Liberty Counsel, Orlando, Florida; Catherine W. Short, Life Legal Defense Foundation, Ojai, California; Thomas Breicha and Peter Breen, Thomas More Society, Chicago, Illinois; Nicolaie Cocis, Law Office of Nic Cocis and Associates, Murrieta, California; for DefendantsAppellants.

Amy L. Bomse (argued), Stephanie Fine, Jee Young You, Sharon D. Mayo, and Steven L. Mayer, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Beth H. Parker, Planned Parenthood Affiliates of California, Sacramento, California; Helene T. Krasnoff, Planned Parenthood Federation of America; Paul W. Rodney, Arnold & Porter Kaye Scholer LLP, Denver, Colorado; John Robinson, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for PlaintiffsAppellees.

Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Nancy Freudenthal,* Chief District Judge.

Concurrence by Judge Gould


GOULD, Circuit Judge:

Plaintiffs1 sued Defendants2 in the federal district court for the Northern District of California alleging that Defendants had used fraudulent means to enter their conferences and gain meetings with their staff for the purpose of creating false and misleading videos that were disseminated on the internet. Defendants moved to dismiss Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6) and under California's Strategic Lawsuit Against Public Participation ("anti-SLAPP") statute. The district court denied both motions, and Defendants appeal the denial of the anti-SLAPP motion. We conclude that the district court did not err by reviewing Defendants' motion using a Rule 12(b)(6) standard and did not err by denying Defendants' anti-SLAPP motion.3 We affirm.


In the district court, Defendants the Center for Medical Progress (CMP), BioMax Procument Services LLC (BioMax), Daleiden, and Lopez moved to strike Plaintiffs' claims under California Code of Civil Procedure § 425.16, commonly known as the anti-SLAPP law. On their motion to dismiss for failure to state a claim, Defendants argued that Plaintiffs had not alleged enough factual content to state the necessary elements for each of their named claims. On their motion based on the anti-SLAPP law, Defendants argued that Plaintiffs' lawsuit is an attempt to silence and punish CMP and other Defendants for gathering information and publishing their findings. Defendants argued that Plaintiffs' state law claims arise out of their undercover investigative journalism, which falls within the scope of the anti-SLAPP statute. They further argued that Plaintiffs did not have a reasonable probability of prevailing on any of their state law claims because Defendants were entitled to "judgment as a matter of law."

The district court denied both Defendants' motion to strike under the anti-SLAPP law and their motion to dismiss for failure to state a claim. Because Defendants appeal only denial of their anti-SLAPP motion, we address only that issue on this interlocutory appeal.

In ruling on and denying Defendants' motion to strike, the district court assumed that Plaintiffs' lawsuit arose from acts in furtherance of Defendants' rights to free speech, but found that Plaintiffs showed a probability of succeeding on the merits. To succeed on their anti-SLAPP motion, Defendants had to show both that their acts arose from behavior aimed at furthering their First Amendment speech rights, and also that Plaintiffs had shown no probability of success on their claims. Because Defendants failed to prevail on the second element, they lost their anti-SLAPP motion.

The district court reasoned that "defendants repeat the identical arguments they made on their motions to dismiss," and that Defendants made no evidentiary-based argument to undermine Plaintiffs' probability of success other than the declaration from Daleiden. Daleiden's declaration only discusses his work as an investigative journalist. The district court said that because Defendants attacked "pleading deficiencies" and argued that Defendants were entitled to "judgment as a matter of law," it limited its review to the adequacy of Plaintiffs' pleadings. The district court therefore denied Defendants' motion to strike for the same reasons it had denied Defendants' motion to dismiss. The district court also rejected the evidentiary-based arguments Defendants made for the first time in their Reply brief supporting their motion to strike.

The district court found that Merritt's separate motion to strike raised two evidence-based arguments: (1) that the location of the lunch meetings with Drs. Nucatola and Gatter preclude a finding that the communications in those meetings were "confidential" and (2) that Merritt is exempt from liability for violations of California Penal Code §§ 632 and 634 because she reasonably believed that Plaintiffs were committing crimes of violence against unborn babies. The district court concluded that there were questions of fact regarding whether there was a reasonable expectation of privacy at the lunch meetings with Drs. Nucatola and Gatter. The district court also concluded that Merritt's exemption defense was an affirmative defense and that the parties' competing citations to Merritt's deposition demonstrated that there was a question of fact as to the reasonableness of her beliefs. The district court denied Merritt's anti-SLAPP motion. This appeal timely followed.


We review dismissals under Federal Rule of Civil Procedure 12(b)(6) and the district court's conclusions of law de novo . Vess v. Ciba–Geigy Corp. USA , 317 F.3d 1097, 1102 (9th Cir. 2003) ; Metabolife Intern., Inc. v. Wornick , 264 F.3d 832, 839 (9th Cir. 2001). We have jurisdiction to review the denial of an anti-SLAPP motion under the collateral order doctrine. Hilton v. Hallmark Cards , 599 F.3d 894, 900 (9th Cir. 2010).


Defendants argue that, once they had shown that Plaintiffs' suit arose from Defendants' acts in furtherance of their rights of petition or free speech, Plaintiffs were required to demonstrate a probability of prevailing on the challenged claims, and that Plaintiffs did not meet this burden because they did not provide rebutting evidence. Plaintiffs argue that for Defendants to succeed on their anti-SLAPP motion, Defendants had to show that Plaintiffs did not allege a legally sufficient claim or that Plaintiffs did not produce evidence showing a probability that Plaintiffs would prevail. Plaintiffs contend that Defendants' anti-SLAPP motion challenged the legal sufficiency of Plaintiffs' complaint and was correctly denied on those grounds, using the Federal Rule of Civil Procedure 12(b)(6) standard. Plaintiffs specifically argue that for the anti-SLAPP requirement of showing a probability of prevailing by evidence to apply, Defendants had to challenge their complaint on factual grounds.

In California, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal. Civ. Proc. Code § 425.16(b)(1). The district court, in making its decision, considers the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Id. (b)(2). In discussing how to conduct this analysis, we have held:

Once it is determined that an act in furtherance of protected expression is being challenged, the plaintiff must show a "reasonable probability" of prevailing in its claims for those claims to survive dismissal. § 425.16(b) ; Wilcox v. Superior Court, 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446, 455 (1994). To do this, the plaintiff must demonstrate that "the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Wilcox, 33 Cal.Rptr.2d at 454.

Metabolife , 264 F.3d at 840. We there concluded that a defendant's anti-SLAPP motion should be granted when a plaintiff presents an insufficient legal basis for his or her claims or when no sufficiently substantial evidence exists to support a judgment for him or her. Id.

The degree to which the anti-SLAPP provisions are consistent with the Federal Rules of Civil Procedure has been hotly disputed. Metabolife emphasized that some portions of California's anti-SLAPP law have been found to not conflict with the Federal Rules of Civil Procedure—such as § 425.16(b) allowing a special motion and § 425.16(c) providing fees and costs. 264 F.3d at 845. But, Metabolife also explained that courts in our circuit have found that § 425.16(f), requiring filing 60...

To continue reading

Request your trial
138 cases
  • Gallagher v. Philipps
    • United States
    • U.S. District Court — Southern District of California
    • September 27, 2021
    ...motion is founded on purely legal arguments or raises factual challenges to the complaint. Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress , 890 F.3d 828, 834 (9th Cir. 2018), concurrence amended , 897 F.3d 1224 (9th Cir. 2018). Where, as here,3 "an anti-SLAPP motion to stri......
  • Dossett v. Ho-Chunk, Inc.
    • United States
    • U.S. District Court — District of Oregon
    • July 14, 2020
    ...conflict, the Ninth Circuit recently adopted a tiered approach to anti-SLAPP motions. See Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress , 890 F.3d 828 (9th Cir. 2018). "[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court......
  • Johnson v. Altamirano
    • United States
    • U.S. District Court — Southern District of California
    • December 2, 2019
    ...Rule of Civil Procedure 56 standard will apply. But in such a case, discovery must be allowed." Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018).Here, Defendants only challenge the legal sufficiency of Plai......
  • Mandel v. Hafermann
    • United States
    • U.S. District Court — Northern District of California
    • November 30, 2020
    ...safeguards that have been firmly established by the Federal Rules of Civil Procedure." Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress , 890 F.3d 828, 833–34 (9th Cir. 2018). Countenancing no such "usurp[ation] [of] the federal rules," the Ninth Circuit in Planned Parenthood......
  • Request a trial to view additional results
1 books & journal articles
  • California and Federal Antitrust Law Update: Procedural Developments
    • United States
    • California Lawyers Association Competition: Antitrust, UCL and Privacy (CLA) No. 29-1, March 2019
    • Invalid date
    ...contract that is legally binding. (Id. at 124.)4. 21 Cal. App. 5th 438 (2018).5. ___ U.S. ___, 138 S. Ct. 1865, 201 L.Ed.2d 225 (2018).6. 890 F.3d 828 (9th Cir. May 16, 2018), modified, 897 F.3d 1224 (9th Cir. Aug. 1, 2018).7. For example, Center operatives recorded the conversation of two ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT