Fallay v. First American Specialty Insurance Co.
706 F. App'x 439
| 9th Cir. | 2017Background
- Plaintiff Fallay sued First American and Dalton after First American cooperated with law enforcement and Dalton testified at trial.
- Defendants moved to strike under California’s anti‑SLAPP statute (Cal. Civ. Proc. Code § 425.16) in federal court.
- District court found defendants’ cooperation/testimony constituted protected activity and evaluated whether Fallay showed probability of prevailing.
- The district court concluded Fallay failed to show likelihood of success on malicious prosecution, IIED, disability‑related claims (Cal. Civ. Code §§ 51.7, 52.1), and breach of contract; other tort theories were waived.
- The district court awarded attorney’s fees and costs to the prevailing defendants limited to amounts attributable to the state‑law claims.
- Ninth Circuit affirmed the dismissal and fee award; concurrence (Kozinski) criticized allowing anti‑SLAPP motions in federal court as inconsistent with federal procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether challenged claims arise from protected activity | Fallay contended claims were not shielded by anti‑SLAPP | First American’s cooperation with law enforcement and Dalton’s trial testimony are protected under § 425.16(e) | Protected activity — anti‑SLAPP applies |
| Whether Fallay showed probability of prevailing on malicious prosecution | Fallay asserted malicious prosecution | Defendants argued probable cause existed and they did not initiate proceedings | No probability of success — malicious prosecution fails |
| Viability of other tort claims (abuse of process, civil conspiracy, §§ 51.7/52.1) | Fallay pressed various tort and statutory claims | Defendants argued claims were waived or lacked facts (no threats, no process abuse, no initiation) | Abuse of process and conspiracy waived; §§ 51.7/52.1 fail for lack of threatening conduct |
| Breach of contract and IIED claims | Fallay alleged breach of insurance contract and IIED | Defendants said no contractual provision identified and conduct not outrageous | Breach fails for lack of identified provision; IIED fails (conduct not beyond bounds of decency) |
| Attorney’s fees entitlement and amount | Fallay opposed fees | Defendants sought fees under § 425.16(c)(1); district court limited award to state‑law claim costs | Fees awarded to prevailing defendants limited to state‑law related amounts; affirmed |
Key Cases Cited
- Equilon Enters. v. Consumer Cause, Inc., 29 Cal.4th 53 (establishes two‑step anti‑SLAPP framework)
- Dickens v. Provident Life & Accident Ins. Co., 117 Cal. App. 4th 705 (cooperation with law enforcement/testimony can be protected activity)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (probable cause defeats malicious prosecution claim)
- Gabrielle A. v. Cty. of Orange, 10 Cal. App. 5th 1268 (standards for threatening conduct under civil rights statutes)
- Allen v. City of Sacramento, 234 Cal. App. 4th 41 (claims under §§ 51.7/52.1 require plausible threatening conduct)
- Cal. Physicians’ Serv. v. Garrison, 28 Cal.2d 790 (plaintiff must identify contract provision breached)
- Cochran v. Cochran, 65 Cal. App. 4th 488 (IIED requires conduct beyond all bounds of decency)
- United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (Ninth Circuit allowed anti‑SLAPP motions in federal diversity cases)