Solomon Ward’s Advocacy Spotlighted as Ninth Circuit Reviews Federal Use of CA Anti-SLAPP Law

(CN) — On Tuesday, a Ninth Circuit en banc panel heard arguments on why California’s anti-SLAPP statute applies in federal court in a case stemming from disputes over parking spaces at a San Diego pizzeria that spiraled into cross claims of defamation, fake negative reviews, racial discrimination and First Amendment rights violations. 

“The federal rules answer many questions about the process of litigation, but the federal rules do not answer the question about how to protect speech from the litigation process itself. The state of California has tried to fill that gap with special rules of decision and liability for claims targeting speech. For decades, the federal courts in this circuit have upheld the core aspects of those rules by permitting litigants to file special motions that will either dismiss the case and provide attorney’s fees or provide a direct right of appeal,” said Chase Cobern of Munck Wilson Mandala, LLP, an attorney for appellants Ajay Thakore and Gopher Media, referring to California’s anti-SLAPP statute. 

The statute, which Cobern said reflects “the balance of federalism,” allows courts to dismiss meritless lawsuits that are determined to be intended to chill First Amendment speech rights. 

Short for “anti-strategic lawsuits against public participation,” the statute is usually used by journalists and even hospitals to protect themselves from groundless defamation suits. 

In this case, Thakore and Gopher Media claim that the statue should allow him to dismiss a lawsuit filed by Andrew Melone, the owner of American Pizza Manufacturing, a San Diego-based pizzeria, who says Thakore harassed him and his employees by posting hundreds of fake negative reviews of the restaurant on Google and Yelp, blocking customer parking, blowing marijuana smoke toward the restaurant and throwing paraphernalia at a minor employee and insinuating that employees supported animal abuse, racism and frozen pizza crust on social media. 

The U.S. District Court for the Southern District of California denied Thakore and Gopher Media’s motion to strike. They then appealed the ruling to the Ninth Circuit.   

Thakore initially sued Melone in federal court in 2021, arguing that he was racially discriminated against, called slurs, and that his First Amendment rights were violated by Melone. 

But the merits of the case were not something the en banc panel wanted to wade into on Tuesday. Instead, the focus of the hearing in the Ninth Circuit’s Seattle court was on whether the California statute was applicable in a federal court and whether the court could hear an interlocutory appeal, or an appeal of a non-final order issued during litigation in a lower court. 

“We want to do our job right, but we’re struggling with how this 12(b)(6) motion as [Circuit Judge Daniel] Collins just pointed out ends up having this special treatment when you have to mess with the facts to make any sort of determination, and not only that you could get the remedy at the end of a trial. So it just seems that you have a state based procedural posture that’s kind of running how we operate our court and people across the spectrum are kind of worried about it,” said  “What’s your best argument that all these judges are wrong?” said U.S. Circuit Judge Milan Smith, a George W. Bush appointee.

The anti-SLAPP statute doesn’t dictate what the federal courts do, Cobern said, but prior federal case law backs up his argument that states can expand important constitutional rights, like the First Amendment. If the court decides that using the state statute is a procedural right and not a substantive right in federal court, then litigants would not only engage in forum shopping to get defamation cases in front of a federal court, but there would be significant constitutional problems, Cobern said.   

“I do think it does create a significant problem in terms of the constitutional balance that Congress has struck, that the framers struck, that the U.S. Supreme Court has struck,” he said. “That the federal courts are no longer going to apply more protective rights that the states decide to enact on constitutional rights. If the states want to protect a constitutional right more than the federal government wants to protect it, that type of decision will say that they can’t do that.” 

In recent rulings, both the Second and Fifth Circuits have ruled that California’s anti-SLAPP statutes do not apply in their districts, U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, said.  

Circuits across the country are split on the issue, but there are more that agree with the Ninth Circuit’s case law that upheld the state statute in the district, Cobern said. 

When U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, asked whether Gopher Media could immediately appeal in the middle of litigation, Cobern said they could go through with litigation and then file an anti-SLAPP appeal at the end, but that would defeat the purpose of the statue, which is to prevent having to be “dragged through the courts because you exercised your constitutional rights.” 

In a friend-of-the-court brief addressing the first of the two issues raised by the court of appeals, the Reporters Committee for Freedom of the Press and a group of 25 media organizations urged the court to “reaffirm its longstanding recognition that California citizens are entitled to the substantive protections of the anti-SLAPP law’s fee-shifting provisions in federal district court” and rule that the court has held that California’s anti-SLAPP law apply in federal court. 

While he said his client is supportive of the anti-SLAPP, Gopher Media used it to call a timeout in the middle of litigation, said Owen Praskievicz of Solomon Ward Seidenwurm Smith, LLP, an attorney for Andrew Melone.

“The reason appellees are still waiting their day in court is because appellants who knew at the outset of this case that they intended to file an anti-SLAPP motion, waited until the last possible moment to do so, and they took advantage of this court’s precedent that allowed immediate appeals at any point in the case to stop the case dead in its tracks. Today, the court has the opportunity to end such gamesmanship and reverse its precedent that has allowed this type of behavior,” Praskievicz said.   

Anti-SLAPP laws are a substantive right that they want to see the court maintain while getting rid of the ability to make interlocutory appeals in the middle of litigation, he said.  

His clients, who’ve been waiting since 2021, just want to get the case back into a district court and in front of a jury, Praskievicz added.  

Chief Circuit Judge Mary H. Murguia, an Obama appointee, and U.S. Circuit Judges Mark Bennett, a Trump appointee; Consuelo Callahan, a Bush appointee; Daniel Collins, a Trump appointee; Kenneth Lee, a Trump appointee; Patrick Bumatay, a Trump appointee; Lawrence VanDyke, a Trump appointee; and Holly Thomas, a Joe Biden appointee, rounded out the panel.  

The suit stems from the city of San Diego’s conversion of parking spaces outside of Melone’s pizzeria into 15-minute parking zones. In his second amended complaint, Melone claims that beginning in 2020, Thakore regularly illegally parked his luxury vehicles outside of Melone’s pizzeria because he was unhappy with the parking zone changes, which Melone claims impeded his ability to frequent other business in the La Jolla neighborhood, namely another Italian restaurant called Carino’s Restaurant.

Melone claims that in 2021, Thakore started writing negative reviews and encouraging staff at Gopher Media to also write negative reviews on his restaurant’s Google and Yelp pages, causing their Google rating to drop from 5 to 2.9 stars.

Thakore, Melone claims, parked a car in front of the restaurant for several days with signs that accused employees of being racist and included the phrase “Take N Bake Pizza” in “gun scopes.”

In 2021, a customer entered the restaurant crying and said she had confronted Thakore about the vehicle wraps, which she considered derogatory and inflammatory, Melone claims. Thakore and his associates then accosted her and took her phone, Melone claims. The customer then called the police and filed a report.

In a story about Thakore selling his $4.5 million Lamborghini yacht, a San Diego TV news station refers to Thakore as a “notorious entrepreneur” with a “controversial reputation” for “emotional outbursts, various lawsuits, and brushes with the law.”

See article here: Courthouse News Service