Kent Salveson v. Hal Kessler ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENT SALVESON, No. 22-55472
Plaintiff-Appellee, D.C. No.
8:22-cv-00310-CJC-ADS
v.
HAL ROSS KESSLER, Esquire, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted March 16, 2023
Pasadena, California
Before: BRESS and MENDOZA, Circuit Judges, and ERICKSEN,** District
Judge.
Concurrence by Judge BRESS.
Kent Salveson brought this suit against his former lawyer, Hal Kessler, for
statements that Kessler made to Variety magazine about Kessler’s prior
representation of Salveson and Salveson’s business dealings. Salveson brought
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
claims for breaches of fiduciary duty and confidentiality and invasion of privacy.
Kessler now appeals the district court’s order denying his motion to strike under
California’s anti-SLAPP statute. See Cal. Civ. Proc. Code § 425.16(b)(1). We have
jurisdiction under the collateral order doctrine. See, e.g., Planned Parenthood Fed’n
of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 832 (9th Cir. 2018), as
amended, 897 F.3d 1224 (9th Cir. 2018); DC Comics v. Pac. Pictures Corp., 706
F.3d 1009, 1016 (9th Cir. 2013). Our review is de novo. Herring Networks, Inc. v.
Maddow, 8 F.4th 1148, 1154–55 (9th Cir. 2021). We affirm.
California’s anti-SLAPP statute allows defendants to move to strike a
complaint that “aris[es] from” protected speech “in connection with a public
issue . . . 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); see also id. § 425.16(e)(3)–(4) (protected acts must be “in
connection with” a public issue or issue of public interest). This inquiry proceeds in
two steps.
First, a defendant must “make a prima facie showing that the plaintiff’s suit
arises from” protected speech. Jordan-Benel v. Universal City Studios, Inc., 859
F.3d 1184, 1188 (9th Cir. 2017). The defendant must also establish “some degree
of closeness between the challenged statements and the asserted public interest” by
showing that the challenged statements “contribute to the public debate.”
2
FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1165–66 (Cal. 2019)
(quotation omitted). A mere “fleeting or tangential” connection is insufficient. Rand
Res., LLC v. City of Carson, 433 P.3d 899, 909 (Cal. 2019). California law instructs
that “[w]hat a court scrutinizing the nature of speech in the anti-SLAPP context must
focus on is the speech at hand, rather than the prospects that such speech may
conceivably have indirect consequences for an issue of public concern.” Id.Second, if the defendant has shown protected speech in connection with a
public issue, the plaintiff then has the burden of establishing a “reasonable
probability” of prevailing on the claims. Herring, 8 F.4th at 1155 (quoting Makaeff
v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013)). At this point, the district
court can dismiss the complaint if it finds that there is no reasonable probability that
the plaintiff will prevail as a matter of law, using a Federal Rule of Civil Procedure
12(b)(6) standard, or due to factual insufficiency, using the Rule 56 standard. See
Planned Parenthood, 890 F.3d at 834–35.
In this case, the district court correctly determined that Kessler’s anti-SLAPP
motion failed at the first step of the analysis because Salveson’s claims did not arise
from Kessler’s protected activity undertaken “in connection with” a public issue.
The only public issue that Kessler identified in his anti-SLAPP motion before the
district court was the October 2021 shooting on the set of the movie Rust, for which
Salveson’s daughter was an executive producer. But none of the challenged
3
statements by Kessler in the Variety article connected Salveson to the Rust shooting.
Nor does Kessler show a sufficient connection between the challenged statements
and any other issue of public interest. Even assuming a lawyer could properly assert
an anti-SLAPP defense in a suit alleging breach of client confidences, see Castleman
v. Sagaser, 156 Cal. Rptr. 3d 492, 498–99 (Ct. App. 2013), Kessler has not
demonstrated that Salveson’s business dealings, tax practices, or Kessler’s prior
representation of Salveson are matters of public interest within the meaning of the
anti-SLAPP law. See Weinberg v. Feisel, 2 Cal. Rptr. 3d 385, 392 (Ct. App. 2003)
(explaining that under the anti-SLAPP statute, “the focus of the speaker’s conduct
should be the public interest rather than a mere effort to gather ammunition for
another round of private controversy”) (quotations and brackets omitted).
Because the district court correctly found that Kessler failed to make a prima
facie showing that he engaged in protected speech “in connection with” a public
issue, the district court did not err in denying the anti-SLAPP motion. The district
court was therefore not required to evaluate Salveson’s likelihood of success on his
claims. To the extent Kessler argues that greater factual development was needed
before the district court ruled on the anti-SLAPP motion, the argument is without
merit because the record was sufficient.
AFFIRMED.
4
FILED
MAR 29 2023
Salveson v. Kessler, 22-55472 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Bress, Circuit Judge, concurring.
This case is the latest example of why we should question whether we have
jurisdiction under the collateral order doctrine over an interlocutory appeal of the
denial of an anti-SLAPP motion. See Flo & Eddie, Inc. v. Pandora Media, LLC,
2022 WL 1800780, at *4 (9th Cir. June 2, 2022) (Bress, J., concurring) (“I believe
our case law allowing interlocutory appeals of the denial of anti-SLAPP motions
warrants broader reexamination.”); see also Makaeff v. Trump Univ., LLC, 736 F.3d
1180, 1190–92 (9th Cir. 2013) (Watford, J., dissenting from the denial of rehearing
en banc); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890
F.3d 828 (9th Cir.) (Gould, J., concurring), as amended, 897 F.3d 1224 (9th Cir.
2018).
The complaint in this case was filed in February 2022. The district court
denied the defendant’s anti-SLAPP motion in April 2022, and the case has been
stayed in the district court pending resolution of this interlocutory appeal. This
piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally
meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither
sound as a matter of law nor sensible as a matter of litigation management.