`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MEMORANDUM
`
`Case No. CV 14-9032 DSF (JCGx)
`John Blaha v. Rightscorp, Inc., et al.
`Title
`
`Date 5/8/15
`
`Present: The
`Honorable
`
`DALE S. FISCHER, United States District Judge
`
`Not Present
`Debra Plato
`Court Reporter
`Deputy Clerk
`Attorneys Present for Defendants:
`Attorneys Present for Plaintiffs:
`Not Present
`Not Present
`Proceedings:
`(In Chambers) Order GRANTING Defendant’s Special Motion to
`Strike the Second Cause of Action (Dkt. No. 30, 35, 68)
`
`Plaintiff’s class action arises from numerous subpoenas sought by Defendants in
`federal court under a special provision of the Digital Millennium Copyright Act
`(DMCA), codified at 17 U.S.C. § 512(h). Defendants now move to strike the second
`cause of action for abuse of process relying on the California anti-SLAPP statute,
`California Code of Civil Procedure § 425.16. The Court deems this matter appropriate
`for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15.
`
`I.
`
`The California Anti-SLAPP Statute Applies to Plaintiff’s Abuse of Process
`Claim
`
`Plaintiff first argues that § 425.16 does not apply at all to the abuse of process
`claim because the claim is a federal one. He argues that the claim “arises under” federal
`law because it involves abuse of a process (subpoenas) permitted by a particular federal
`statute.1 But the Supreme Court has explicitly rejected the idea of a federal common law
`tort of abuse of process. “[I]t is difficult for us to see how the present statute, which only
`grants power to issue subpoenas implies a cause of action for abuse of that power.
`
`1 Plaintiff requested leave to file a surreply on this point and Defendants opposed and filed a
`reply to the surreply. While a surreply was probably not warranted under the circumstances,
`the Court has considered all arguments made in the filings.
`MEMORANDUM
`CV-90 (12/02)
`
`Page 1 of 5
`
`
`
`Case 2:14-cv-09032-DSF-JCG Document 71 Filed 05/08/15 Page 2 of 5 Page ID #:1200
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MEMORANDUM
`
`Congress has not . . . left to federal courts the creation of a federal common law for abuse
`of process.” Wheeldin v. Wheeler, 373 U.S. 647, 651-52 (1963). And even if such an
`argument is not directly barred by Wheeldin, the “arising under” doctrine used by
`Plaintiff was developed in the context of federal question jurisdiction. The Court is not
`convinced that it would block application of § 425.16 to an abuse of process claim even if
`that claim were sufficiently intertwined with federal law to provide federal question
`jurisdiction. Finally, the application of the “arising under” doctrine does not favor
`Plaintiff’s position. A state law claim arises under federal law if it “necessarily raise[s] a
`stated federal issue, actually disputed and substantial, which a federal forum may
`entertain without disturbing any congressionally approved balance of federal and state
`judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg.,
`545 U.S. 308, 314 (2005). As will be seen in more detail below, contrary to Plaintiff’s
`apparent belief, Plaintiff’s claim does not rise or fall on any particular interpretation of 17
`U.S.C. § 512(h). In fact, Plaintiff’s entire theory of liability is premised on the idea that
`there is no bona fide dispute about the interpretation of § 512(h) – Defendants are alleged
`to have knowingly and intentionally misused § 512(h) as it has been interpreted by all
`federal courts to have addressed the issue.2 Further, transformation of abuse of process
`claims involving federal process into federal claims threatens to federalize a substantial
`number of ordinary state tort claims and would upset the normal balance between federal
`and state courts.
`
`II.
`
`Plaintiff’s Abuse of Process Claim is Barred by the California Anti-SLAPP
`Statute
`
`A.
`
`Legal Standard
`
`In analyzing an anti-SLAPP motion, a court must first decide “whether the
`defendant has made a threshold showing that the challenged cause of action is one arising
`from protected activity.” Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 819
`(2011) (internal quotation marks omitted). Under the statute, an
`“act in furtherance of a person’s right of petition or free speech under the
`United States or California Constitution in connection with a public issue”
`includes: (1) any written or oral statement or writing made before a
`
`2 Plaintiff suggests that this Court decided the issue in a previous action to quash one of the
`subpoenas in question. This is incorrect. The Court granted the petition to quash based on
`consent of the respondent as shown by a lack of opposition.
`MEMORANDUM
`CV-90 (12/02)
`
`Page 2 of 5
`
`
`
`Case 2:14-cv-09032-DSF-JCG Document 71 Filed 05/08/15 Page 3 of 5 Page ID #:1201
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MEMORANDUM
`
`legislative, executive, or judicial proceeding, or any other official
`proceeding authorized by law, (2) any written or oral statement or writing
`made in connection with an issue under consideration or review by a
`legislative, executive, or judicial body, or any other official proceeding
`authorized by law, (3) any written or oral statement or writing made in a
`place open to the public or a public forum in connection with an issue of
`public interest, or (4) any other conduct in furtherance of the exercise of the
`constitutional right of petition or the constitutional right of free speech in
`connection with a public issue or an issue of public interest.
`Cal. Civ. Pro. § 425.16(e). “In deciding whether the ‘arising from’ requirement is met, a
`court considers the pleadings, and supporting and opposing affidavits stating the facts
`upon which the liability or defense is based.” City of Cotati v. Cashman, 29 Cal. 4th 69,
`79 (2002) (internal quotation marks omitted).
`
`“If the court finds such a showing has been made, it then must consider whether
`the plaintiff has demonstrated a probability of prevailing on the claim.” Oasis West, 51
`Cal. 4th at 819-20 (internal quotation marks omitted). To meet this requirement, “the
`plaintiff must demonstrate that the complaint is both legally sufficient and supported by a
`sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
`submitted by the plaintiff is credited.” Id. at 820 (internal quotation marks omitted).
`Courts consider the pleadings and supporting and opposing affidavits, but do not make
`credibility determinations or compare the weight of the evidence. Id. Instead, courts
`“accept as true the evidence favorable to the plaintiff and evaluate the defendant’s
`evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
`law.” Id. (internal quotation marks and brackets omitted).
`
`“Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e.,
`that arises from protected speech or petitioning and lacks even minimal merit – is a
`SLAPP, subject to being stricken under the statute.” Id. (internal quotation marks
`omitted).
`
`B.
`
`Analysis
`
`There is no question that the complained of conduct satisfies the first prong of the
`anti-SLAPP statute. The entire claim is based on Defendants’ representations to various
`
`CV-90 (12/02)
`
`MEMORANDUM
`
`Page 3 of 5
`
`
`
`Case 2:14-cv-09032-DSF-JCG Document 71 Filed 05/08/15 Page 4 of 5 Page ID #:1202
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MEMORANDUM
`
`federal courts in order to convince those courts to issue subpoenas.3 This kind of action
`is specifically defined as protected action by § 425.16(e).
`
`The analysis then moves to the second prong – whether Plaintiff has demonstrated
`a probability of prevailing on the claim. “To succeed in an action for abuse of process, a
`litigant must establish that the defendant (1) contemplated an ulterior motive in using the
`process, and (2) committed a willful act in the use of the process not proper in the regular
`conduct of the proceedings.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006).
`
`The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises
`no ulterior motive in Defendants’ use of the subpoenas. Whether or not § 512(h)
`subpoenas should validly be issued under the circumstances in which Defendants sought
`them, there is no allegation and no evidence that Defendants sought to do anything other
`than what their subpoena requests indicated – identify potential copyright infringers for
`the purpose of pursuing Defendants’ rights under the Copyright Act. Plaintiff’s extensive
`discussion of the elements of abuse of process, (see Opp’n at 7-12), can be summarized
`as a view that seeking and obtaining some form of court order that should not have been
`issued is sufficient to satisfy both elements of the abuse of process tort. But, despite
`extensive rhetoric, Plaintiff provides no authority for this view and the most relevant
`authority is against it. See Ion Equip. Corp. v. Nelson, 110 Cal. App. 3d 868, 876-77
`(1980) (“Appellant attempts to infer an ulterior motive on respondents’ part by alleging
`that issuance of the writ itself was improper because it was issued at a time when
`enforcement of a money judgment was stayed on appeal pursuant to Code of Civil
`Procedure section 917.1. Issuance of the writ may be improper, but since appellant’s
`cause of action is framed as one for abuse of process, it must still sufficiently plead the
`elements necessary in establishing the tort.”). Again, the only “ulterior motive” identified
`by Plaintiffs is the motive disclosed on the face of the subpoena requests. (See FAC, Ex.
`A. ¶ 2 (“The purpose of the accompanying Subpoena is to obtain the identity of the
`alleged copyright infringers . . . . The information obtained will be used only for the
`purposes of protecting the rights granted [under the Copyright Act].”).) A disclosed
`motive is, by definition, not ulterior.
`
`The second fatal deficiency in Plaintiff’s claim is that it is barred by the California
`litigation privilege. The litigation privilege “applies to any communication (1) made in
`judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by
`
`3 Plaintiff refers to subpoenas being issued by Rightscorp. Courts issued the subpoenas;
`Rightscorp served them.
`CV-90 (12/02)
`
`MEMORANDUM
`
`Page 4 of 5
`
`
`
`Case 2:14-cv-09032-DSF-JCG Document 71 Filed 05/08/15 Page 5 of 5 Page ID #:1203
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`MEMORANDUM
`
`law; (3) to achieve the objects of the litigation; and (4) that have some connection or
`logical relation to the action.” Rusheen, 37 Cal. 4th at 1057. The litigation privilege is
`validly used as a defense to abuse of process claims. Id. at 1058. The entirety of
`Plaintiff’s claim is based on communications by Defendants to various courts in order to
`acquire subpoenas. Plaintiff’s opposition misses the point by focusing on the later
`communications made by Defendants to the now-identified potential infringers. But
`these communications are not the basis of the abuse of process claim; the complaint is
`clear that the abuse of process is alleged to have occurred when Defendants obtained (and
`served)4 the subpoenas knowing that the subpoenas were improper under the law. (See
`FAC ¶¶ 93-97.) Plaintiff provides no argument why those communications to the various
`courts in acquiring the subpoenas do not satisfy the four part test quoted above, perhaps
`because they obviously do. While application of the litigation privilege narrows the
`scope of the abuse of process tort, California courts are well-aware of this and find it
`consistent with the public policy of the state. See Rusheen, 37 Cal. 4th at 1063 (“But,
`despite Drum’s concern for the potential abolishment of the common law tort of abuse of
`process, modern public policy seeks to encourage free access to the courts and finality of
`judgments by limiting derivative tort claims arising out of litigation-related misconduct
`and by favoring sanctions within the original lawsuit.”) (internal citation omitted).
`
`III. Conclusion
`
`The motion to strike is GRANTED. Attorney’s fees and costs must be awarded
`under California Code of Civil Procedure § 425.16(c) and are granted subject to a
`properly noticed motion as to amount. The parties are strongly encouraged to agree on a
`reasonable amount of fees and costs and should bear in mind that this Court reviews fee
`requests thoroughly and critically. The Court’s order regarding its requirements for
`attorney’s fee motions is available on the Court’s website under “Judge Fischer’s
`Procedures and Schedules” contained in the Judges’ Requirements tab.
`
`IT IS SO ORDERED.
`
`4 Any attempt to avoid the litigation privilege by focusing on the service of the process, rather
`than obtaining it, is foreclosed in this context by Rusheen. See 37 Cal. 4th at 1061-65 (claim
`related to execution of writ barred by litigation privilege where “gravamen of the action” was
`communicative acts in obtaining writ).
`CV-90 (12/02)
`
`MEMORANDUM
`
`Page 5 of 5