Graham-Sult v. Clainos
756 F.3d 724
| 9th Cir. | 2013Background
- Graham estate; Nicholas Clainos as executor/trustee; Greene & law firm participated; Bill Graham Enterprises (BGE) and Bill Graham Presents (BGP) entities involved; Assignment of IP backdated to 1995; transfers to SFX, then Clear Channel, then Bill Graham Archives LLC and Norton, LLC (BGA); plaintiffs Alex and David discovered extensive IP registrations and ten scrapbooks in 2009–2010 and filed suit in 2010 asserting multiple causes of action; district court granted anti-SLAPP motion in part and dismissed several claims; opinion amendments narrow and reverse/remand specific claims and modify fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Anti-SLAPP applicability to the claims | Graham-Suit argues claims arise from fiduciary conduct protected by petitioning. | Clainos/Greene argue conduct is protected petitioning activity. | Only some claims arise from protected activity; others are unprotected; mixed; remand for remaining claims. |
| Reasonable probability of prevailing after anti-SLAPP | Plaintiffs can show likelihood of success for some stricken counts. | Defendants contend defenses (privilege, statute, res judicata) defeat likelihood. | Remand to determine prima facie likelihood to prevail for non-protected portions. |
| Statute of limitations tolling | Fiduciary relationship tolled the limitations period. | Limitations run despite fiduciary relationship. | Tolling applies for certain IP/personal property claims; remand to evaluate prima facie action beyond other defenses. |
| Res judicata impact on scrapbooks claims | Final probate order may be affected by fraud/ concealment. | Final order otherwise bars claims. | Not fully barred; extrinsic fraud and concealment allegations create potential for overcoming res judicata. |
| Copyright/infringement and related relief against BGA | Assignment not effective; Plaintiffs retain IP rights against BGA. | Assignment transferred ownership; district court should dismiss claims. | Reverses district court on copyright infringement; remands for further proceedings; fee awards adjusted accordingly. |
Key Cases Cited
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (two-step anti-SLAPP analysis; reasonable probability standard)
- Fremont Reorg. Corp. v. Faigin, 198 Cal.App.4th 1153 (Cal. Ct. App. 2011) (litigation privilege scope in anti-SLAPP analysis)
- Cabral v. Martins, 177 Cal.App.4th 471 (Cal. Ct. App. 2009) (petitioning activity within anti-SLAPP)
- Salma v. Capon, 161 Cal.App.4th 1275 (Cal. Ct. App. 2008) (protected activity under anti-SLAPP when underlying conduct underlies the claim)
- Kupiec v. Am. Int'l Adjustment Co., 235 Cal.App.3d 1326 (Cal. Ct. App. 1991) (litigation privilege extends to communications in probate context)
- Birkner v. Lam, 156 Cal.App.4th 275 (Cal. Ct. App. 2007) (protective scope of litigation privilege beyond formal proceedings)