738 F.3d 1131
9th Cir.2013Background
- Graham-Sult and Graham heirs sue Clainos (executor/trustee) and BGA Defendants over estate assets; estate included copyrights, the Fillmore trademark, scrapbooks, and original posters.
- Greene & Hennigh law firm represented Clainos; probate court issued final order of distribution in 1995; assignment of IP was prepared in 1995 but backdated.
- BGE shareholders/estate distributed shares to Graham heirs; BGP later acquired BGE and the Archives rights; plaintiffs did not exercise ROFR but received proceeds.
- Assignment sought to transfer ownership of IP back to BGE, executed after probate final order and recorded in 1996, allegedly to consolidate assets.
- Plaintiffs assert twelve claims (fraud, concealment, fiduciary breach, conversion, unjust enrichment, copyright claims, etc.) and seek related fees; district court granted anti-SLAPP motion to strike some claims and dismissed others.
- Court analyzes anti-SLAPP motion de novo, concluding certain claims arise from protected activity while others do not, and reviews tolling, res judicata, and business judgment rule defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does anti-SLAPP apply to all claims against Clainos and Greene Defendants? | Plaintiffs seek relief on many non-petitioning acts. | Most claims arise from estate administration and are protected. | Some claims arise from unprotected conduct; anti-SLAPP partial applicability. |
| Do protected activities under anti-SLAPP underlie the claims against Clainos/Greene? | Protected activity supports these claims. | Protected activity underlies many claims; others are incidental. | Six claims arise from protected activity; others not. |
| Is there tolling of statute of limitations due to fiduciary relationship? | Fiduciary relationship tolls limitations for fraud claims. | Tolling applies only to certain claims; must assess each. | Fiduciary tolling applies to some claims (not all) and warrants remand for prima facie showing. |
| Is res judicata applicable to scrapbooks-based claims? | Final probate order can be circumvented by extrinsic fraud. | Final order generally bars heirs' claims, absent fraud. | Extrinsic fraud defeats res judicata; some scrapbook claims survive. |
| Did district court err in granting dismissal of certain BGA claims? | Conversion, copyright, declaratory relief survive; misinterpretation of evidence. | Pleadings insufficient or barred by defenses; court acted within discretion. | District court erred in part by dismissing some claims; reversed in part. |
Key Cases Cited
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (two-step anti-SLAPP analysis; reasonable probability standard)
- Cabral v. Martins, 99 Cal. Rptr. 3d 394 (Cal. Ct. App. 2009) (petitioning activity includes statements in preparation for judicial proceedings)
- Fremont Reorg. Corp. v. Faigin, 131 Cal. Rptr. 3d 478 (Cal. Ct. App. 2011) (communication in connection with issues under consideration by court; protected)
- Salma v. Capon, 74 Cal. Rptr. 3d 873 (Cal. Ct. App. 2008) (protected activity under anti-SLAPP when underlying conduct underlies claim)
- Kupiec v. Am. Int'l Adjustment Co., 1 Cal. Rptr. 2d 371 (Cal. Ct. App. 1991) (litigation privilege covers concealment/communications in judicial context)
- Birkner v. Lam, 67 Cal. Rptr. 3d 190 (Cal. Ct. App. 2007) (protection extends to acts preparatory to litigation; pre-filing conduct may be protected)