COUNSEL:
For MIMI ROGERS, plaintiff: Laurie K Jones, Bronson Bronson & McKinnon, Los Angeles, CA.

For MIMI ROGERS, plaintiff: Richard S Forman, Stroock Stroock & Lavan, Los Angeles, CA.

For HOME SHOPPING NETWORK, INC dba The Home Shopping Network dba Home Shopping Network, defendant: W Douglas Kari, Robert Max Mahlowitz, Orrick Herrington & Sutcliffe, Los Angeles, CA.

For NATIONAL ENQUIRER INC dba National Enquirer, defendant: Bruce A Wessel, Irell & Manella, Los Angeles, CA.

For NATIONAL ENQUIRER INC dba National Enquirer, defendant: Gerson A Zweifach, Paul Gaffney, Craig Singer, Williams & Connolly, Washington, DC.

JUDGES: DEAN D. PREGERSON, United States District Judge.

Plaintiff Mimi Rogers has brought a libel action against defendants. Defendant National Enquirer has filed a special motion to strike Rogers's complaint pursuant to California Code of Civil Procedure s. 425.16. Rogers has made an ex parte application to continue the hearing on the special motion so that she can pursue discovery. Early consideration of National Enquirer's motion would contradict the scheme of the Federal Rules of Civil Procedure and therefore run afoul of the Erie doctrine. The Court therefore grants Rogers's application.

On June 2, 1998, National Enquirer published an article containing certain statements about Rogers. (Compl. at P 13.) Rogers brought a libel action against the Home Shopping Network and National Enquirer, alleging that both defendants knew the statements in the article were false.

National Enquirer filed a special motion to strike pursuant to California Code of Civil Procedure s. 425.16. Under section 425.16, Rogers must show "a probability that [she] will prevail on the claim." Id. at s. 425.16(b)(1). Otherwise, the section provides that her claim must be dismissed. Id.

Rogers has filed an ex parte application seeking to continue consideration of the special motion. Rogers argues that she is unable to produce the proof required by section 425.16 because she has not had sufficient time for discovery. (Ex Parte Appl. at 5.) National Enquirer responds that a hearing before discovery is precisely the point of section 425.16 and delaying the hearing would frustrate the purposes of that section. (Opp. to Ex Parte Appl. at 2-3.) Thus, the Court must consider the appropriateness of holding a section 425.16 hearing before discovery.

A. The statute

In 1992, the California Legislature enacted a provision commonly known as an "anti-SLAPP suit" statute. "The term 'SLAPP suit,' the acronym for 'strategic lawsuit against public participation,' was coined by two University of Denver professors, George W. Pring and Penelope Canan, who authored the seminal influential studies on this phenomenon." Briggs v. Eden Council for Hope and Opportunity, 19 Cal. 4th 1106, 81 Cal.Rptr. 2d 471, 483, 969 P.2d 564 (Cal. 1999).

SLAPP suits are often brought for "'purely political purposes'" in order "to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff.'" Id. (quoting Hull v. Rossi, 13 Cal. App. 4th 1763, 17 Cal. Rptr. 2d 457, 461 (App. Div. 1993), and Wilcox v. Superior Ct. (Peters), 27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446, 450 (App. Div. 1994), respectively). To summarize, "while SLAPP suits 'masquerade as ordinary lawsuits' the conceptual features which reveal them as SLAPPs are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so." Wilcox, 33 Cal. Rptr. 2d at 450 (quoting Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envt'l L. Rev., 3, 5-6, 9 (1989)).

The California Legislature found that such suits were being used to harass plaintiffs who spoke out on matters of public concern and often could not afford to defend even a meritless suit. See Briggs, 81 Cal. Rptr. 2d at 479-80 (discussing legislative intent of s. 425.16); Cal. Civ. Proc. Code 425.16(a).

As it appears today, the statute begins by noting the legislative intent behind its enactment:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

To prevent such chilling, the Legislature created a special procedure for early testing of the validity of suits involving such rights:

(b)(1) 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 or 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

As an additional safeguard, the Legislature provided that a successful defendant may recover his or her expenses in bringing the special motion:

(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

The Legislature then defined the activities that enjoy the special protections provided by this statute:

(e) As used in this section, "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 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; (4) or 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.

Consistent with its intent to protect defendants from incurring legal expenses, the Legislature provided that the special motion to strike may be brought early in the lawsuit and that discovery ordinarily may not proceed unless and until the court finds that the suit has a probability of success:

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

Thus, the California Legislature created new protections for defendants in suits related to public participation. The protections consist of a mechanism for early testing of the plaintiff's claims and an award of costs and fees to a successful defendant.

B. Application of the statute by California courts

While the anti-SLAPP statute is still fairly new, it has frequently been invoked and certain aspects of its application have become clear.

Although "the typical SLAPP suit involves citizens opposed to a particular real estate development," Dixon v. Superior Ct. (Scientific Resource Surveys, Inc.), 30 Cal. App. 4th 733, 36 Cal. Rptr. 2d 687, 693 (App. Div. 1994) (footnote omitted), section 425.16 is not limited to claims regarding any particular subject. Instead, as the statute makes clear, it applies to a suit based on any statement as part of or in connection with an official proceeding, any statement made in a public forum on a matter of public interest, or any "conduct in furtherance of the exercise of the constitutional right . . . of free speech in connection with a public issue or an issue of public interest." Cal. Civ. Proc. Code s. 425.16(e); see also Sipple v. Foundation for Nat'l Progress, 71 Cal. App. 4th 226, 83 Cal. Rptr. 2d 677, 682-83 (App. Div. 1999) (discussing breadth of subjects covered by anti-SLAPP statute).

A special motion to strike can be based on any defect in the plaintiff's action. Thus, a special motion may be premised on legal deficiencies inherent in the plaintiff's claim, analogous to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See e.g., Wilcox, 33 Cal. Rptr. 2d at 457 (motion to strike based on pleading deficiencies). Or, a motion may assume that the plaintiff has stated a claim but assert that the plaintiff cannot support that claim with evidence, analogous to a motion for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Sipple, 83 Cal. Rptr. 2d at 690 (plaintiff sufficiently stated claim but motion to strike successful because plaintiff could not support claim with evidence); Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 49 Cal. Rptr. 2d 620, 637-38 (App. Div. 1996) (same).

On a special motion to strike, "the moving party bears the initial burden of establishing a prima facie showing [that] the plaintiff's cause of action arises from the defendant's free speech or petition activity." Id. at 630; see also Wilcox, 33 Cal. Rptr. 2d at 452. "Once the party moving to strike the complaint makes that threshold showing, the burden shifts to the responding plaintiff to establish a probability of prevailing at trial." Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 54 Cal. Rptr. 2d 830, 835 (App. Div. 1996).

The plaintiff can meet this evidence only by showing "'a probability that the plaintiff will prevail on the claim,' i.e., 'making a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.'" Church of Scientology, 49 Cal. Rptr. 2d at 630-31 (quoting Wilcox, 33 Cal. Rptr. 2d 446). While "the pleadings frame the issues to be decided," Church of Scientology, 49 Cal. Rptr. 2d at 636, the "assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time," Evans v. Unkow, 38 Cal. App. 4th 1490, 45 Cal. Rptr. 2d 624, 628 (App. Div. 1995). Therefore, the evidence upon which the plaintiff bases his or her response must be admissible at trial. See Beilenson v. Superior Ct. (Sybert), 44 Cal.App. 4th 944, 52 Cal.Rptr. 2d 357, 362 (App. Div. 1996) (declaration not signed under penalty of perjury insufficient to sustain plaintiff's burden); Evans, 45 Cal. Rptr. 2d at 629 (averments on information and belief insufficient to sustain burden).

The California courts that have addressed the issue have all agreed that section 425.16 does not substantively alter any cause of action. Instead,  425.16 is "a mere rule of procedure," Ludwig v. Superior Ct. (Barstow), 37 Cal. App. 4th 8, 43 Cal. Rptr. 2d 350, 360 (App. Div. 1995), which "does not change the legal effect of past conduct," Robertson v. Rodriguez, 36 Cal. App. 4th 347, 42 Cal. Rptr. 2d 464, 469 (App. Div. 1995) (applying s. 425.16 to acts occurring before the statute's enactment).

This "rule of procedure" provides that discovery is automatically stayed upon the defendant's filing of a special motion to strike. Cal. Civ. Proc. Code s. 425.16(g). A plaintiff who desires to conduct further discovery after the defendant files a special motion must file a noticed motion for permission to conduct such discovery, which the court will grant only for good cause shown and only for specified discovery. Id. These requirements have been strictly applied by California courts. See, e.g., Sipple, 83 Cal. Rptr. 2d at 690 (denial of further discovery proper when plaintiff did not "explain what additional facts he expects to uncover, or why such far-ranging discovery is necessary to carry his burden"); Evans, 45 Cal. Rptr. 2d at 630 (denial of discovery proper when plaintiff requested discovery but failed to do so by noticed motion).

C. Section 425.16 applies in federal court

The Erie doctrine provides that in diversity actions state law controls substantive issues while federal rules provide the procedure. See Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938); see generally Wright, et al., Federal Practice & Procedure, s. 4501, et seq. (2d ed. 1996). Like most rules, however, the Erie doctrine is not without exception.

The Ninth Circuit Court of Appeals recently held that section 425.16 falls within one of Erie's exceptions. In United States v. Lockheed Missiles & Space Co., 171 F.3d 1208, 1218 (9th Cir. 1999), the only Ninth Circuit authority on this matter, [FN 1] the court held that at least subsections (b) and (c) of section 425.16 apply in federal court in a diversity case. The precise scope of Lockheed is important to the matter presently before the Court, therefore the Court will discuss it in detail.

[FN 1] Only one other Ninth Circuit order mentions section 425.16, an unpublished memorandum in Frias v. Los Angeles County Metro. Transp. Auth., 1999 U.S. App. LEXIS 4089, No. 97-56078, 1999 WL 273152 (9th Cir. March 11, 1999) (Mem.). In that case, the Ninth Circuit granted a motion to dismiss pursuant to Rule 12(b)(6) and then affirmed an award of attorney's fees pursuant to section 425.16. The issue of the applicability of section 425.16 was not raised in that case and the Ninth Circuit did not address it. As seen from the discussion of Lockheed, the application of section 425.16 in Lockheed and Frias is the same.

Both parties appealed the district court decision to the Ninth Circuit. Although the appeal raised various issues, only the Ninth Circuit's discussion of section 425.16 is relevant here.

The Ninth Circuit began by discussing the legislative history of California's anti-SLAPP statutes and then outlined some of the provisions of section 425.16. Lockheed, 171 F.3d at 1215. Specifically, the Ninth Circuit discussed the subsections of section 425.16 that provide for the special motion to strike, the plaintiff's obligation to show a probability of success, and the availability of attorney's fees to a party that successfully moves to strike. Lockheed, 171 F.3d at 1216 (discussing Cal. Civ. Proc. Code s. 425.16(b), (c)). The Ninth Circuit noted that the question of whether these subsections apply in federal diversity cases was one of first impression. Id.

To answer this question, the Ninth Circuit began "by asking whether such an application would result in a 'direct collision' with the Federal Rules." 171 F.3d at 1217 (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980)). Pointing out that "only two aspects of California's Anti-SLAPP statute are at issue: the special motion to strike and the availability of fees and costs," the Ninth Circuit concluded "that these provisions and Rules 8, 12, and 56 'can exist side by side . . . each controlling its own intended sphere of coverage without conflict.'" Id. (citations omitted, other omissions in original) (quoting Walker, 446 U.S. at 752). To illustrate, "[a] qui tam plaintiff, for example, after being served in federal court with counterclaims . . . may bring a special motion to strike pursuant to section 425.16(b). If successful, the litigant may be entitled to fees pursuant to section 425.16(c). If unsuccessful, the litigant remains free to bring a Rule 12 motion to dismiss, or a Rule 56 motion for summary judgment." Id. "In summary, there is no 'direct collision' here." Id.

"In the absence of a 'direct collision,'" the Ninth Circuit stated that it must "make the 'typical, relatively unguided Erie choice.'" Id. at 1218 (quoting Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965)). The Ninth Circuit noted that Lockheed had not identified any federal interests that would be undermined by application of the anti-SLAPP provisions in diversity cases and that California has a strong interest in such application. Id. In addition, the Ninth Circuit noted that "the twin purposes of the Erie rule -- 'discouragement of forum shopping and avoidance of inequitable administration of the law' -- favor application of California's Anti-SLAPP statute in federal cases." Id. (quoting Hanna, 380 U.S. at 468). If the anti-SLAPP provisions were not to apply in federal court, "a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum" and a "litigant otherwise entitled to the protections of the Anti-SLAPP statute would find considerable disadvantage in a federal proceeding." Id. In light of these considerations, the Ninth Circuit held that "subsections (b) and (c) of California's Anti-SLAPP statute" apply in federal court in diversity cases. Id. However, the Ninth Circuit "expressed no opinion regarding the applicability of any other provisions of Cal. Civ. P. Code section 425.16 in federal court." 171 F.3d at 1217 n.12.

D. The manner in which section 425.16 must be applied in federal court

While Lockheed concluded that some portions of section 425.16 apply in federal court, it did not address the precise methods and limits of its application. Lockheed considered only two provisions of section 425.16, subsections (b) and (c), and held that they are to be applied in federal court because they do not conflict with the federal rules. Subsection (b) provides the general availability of the special motion to strike and subsection (c) provides for awards of attorney's fees. See Cal. Civ. Proc. Code s. 425.16(b), (c). As noted earlier, however, Lockheed "expressed no opinion regarding the applicability of any other provisions" of section 425.16. Lockheed, 171 F.3d at 1217 n.12. In the present case, the Court must consider the application of other provisions of section 425.16, especially subsections (f) and (g), relating to the timing of the special motion and the availability of discovery.

To determine the appropriate method of applying section 425.16 in federal court, the Court will consider each of the section's provisions and determine whether it is in "direct collision" with the Federal Rules. See Walker, 446 U.S. at 749-50. If a provision collides with a Federal Rule, it cannot apply in federal court. If a provision does not collide with the Federal Rules, the Court must make a balancing judgment to determine whether that provision applies in federal court. See Hanna, 380 U.S. at 471. The Court will address in order each subsection of section 425.16.

The first subsection of section 425.16 is a preamble declaring the Legislature's intent in enacting the statute. See Cal. Civ. Proc. Code s. 425.16(a). This subsection also declares that section 425.16 "shall be construed broadly." Id. Because this subsection contains no substantive provisions, it does not conflict with any Federal Rule.

Subsection (b)(1) provides for the availability of the special motion to strike and requires the defendant to show "a probability" of success on the merits in order to survive the motion; subsection (b)(2) set out the scope of the evidence upon which the court decides the motion; and subsection (b)(3) provides that the finding of a probability of success is not admissible at any later stage of the case and does not alter any burden of proof. See Cal. Civ. Proc. Code s. 425.16(b).

Subsection (c) provides that the court shall award attorney's fees to a party bringing a successful motion to strike or to a plaintiff forced to defend a frivolous motion to strike. Cal. Civ. Proc. Code s. 425.16(c). As discussed earlier, the Ninth Circuit has held that subsections (b) and (c) apply in federal court. See Lockheed , 171 F.3d at 1218.

Subsection (d) provides that the special motion to strike may not be used against an action brought by a public prosecutor in the name of the people of the state of California. Cal. Civ. Proc. Code s. 425.16(d). Restricting the availability of a state created special motion to strike does not conflict with any Federal Rule.

Subsection (e) defines the activities that receive the protections of special motion to strike. Cal. Civ. Code s. 423.16(e). Because subsection (e) merely explains a phrase used in subsection (b) and because the Ninth Circuit has held that subsection (b) applies in federal court, subsection (e) must apply in federal court as well. In addition, because subsection (e) only defines the scope of the application of the special motion, it does not conflict with any federal rule.

While the previous subsections were dealt with easily, subsections (f) and (g) require more detailed consideration. Because these subsections affect each other, they must be considered together.

Subsection (f) provides that the special motion may be filed within sixty days of the filing of the complaint or, at the court's discretion, at any later date. The subsection also provides that "the motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing." Cal. Civ. Proc. Code s. 425.16(f). Subsection (g) provides that the filing of a special motion automatically stays all further discovery until the court rules on the motion. However, "the court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." Cal. Civ. Proc. Code s. 425.16(g).

Taken together, subdivisions (f) and (g) allow the defendant to file a special motion to strike immediately upon being served with the complaint. This filing automatically stays all further discovery. Should the plaintiff desire further discovery, he or she must file a noticed motion showing good cause and the court "may" permit "specified discovery."

Thus, subdivisions (f) and (g) create a default rule that allows the defendant served with a complaint to immediately put the plaintiff to his or her proof before the plaintiff can conduct discovery. Only by noticed motion for and good cause shown will a court disturb this default rule by continuing the hearing regarding the special motion and even then the court will only allow "specified" discovery. [FN 2] If this expedited procedure were used in federal court to test the plaintiff's evidence before the plaintiff has completed discovery, it would collide with Federal Rule of Civil Procedure 56.

[FN 2] As noted earlier, California courts have strictly applied these requirements. See, e.g., Sipple, 83 Cal. Rptr. 2d at 690 (denial of further discovery proper when plaintiff did not "explain what additional facts he expects to uncover, or why such far-ranging discovery is necessary to carry his burden"); Evans, 45 Cal. Rptr. 2d at 630 (denial of discovery proper when plaintiff requested discovery but failed to do so by noticed motion).