143 F. Supp. 3d 982
N.D. Cal.2015Background
- Real Action filed 18 counterclaims; UT S and Counter-Defendants moved to dismiss or strike and Real Action sought transfer of the Indiana bond.
- Indiana Action involved PepperBall trademark; TRO and preliminary injunction; issues of personal jurisdiction and ownership of PepperBall assets.
- Real Action’s First Amended Counterclaims (FACC) assert 18 claims spanning federal and California/Indiana law, including wrongful injunction/seizure, abuse of process, malicious prosecution, interference theories, designation of origin, and antitrust/Cartwright Act, among others.
- Consolidation of ATO and UTS actions; Indiana bond reportedly released back to ATO; Real Action sought transfer of the bond, but the court lacked authority to compel transfer; the Indiana bond issue is treated as moot in part.
- Court applies California anti-SLAPP law to the mixed Indiana/California counterclaims; holds no conflict with federal rules, addresses mixed-claim parsing, and decides which claims survive, are dismissed, or may be amended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of California anti-SLAPP to mixed claims | Real Action argues anti-SLAPP should wait for discovery | Counter-Defendants contend CA anti-SLAPP applies to the counterclaims | CA anti-SLAPP applies to California and Indiana claims; denial of delay for discovery |
| Wrongful Injunction/seizure claims status | Wrongful Injunction claims should proceed; bond issue unresolved | Only Indiana-court issued injunction could hear wrongful injunction; bond issues control | Wrongful Injunction (federal and Indiana) dismissed with prejudice; Wrongful Seizure claim remains viable |
| Malicious Prosecution and Abuse of Process viability | Claims tied to protected petitioning activity may survive | Malicious Prosecution lacks probable cause; abuse of process tied to protected activity must show probability | Malicious Prosecution dismissed; Abuse of Process survives |
| Interference with contract/prospective economic advantage viability | Statements and conduct interfered with Real Action’s contracts and relationships | Need to show justified conduct and independent wrongful acts | Interference claims survive; partial grant as to related elements; both contractual and prospective theories viable |
| False Designation of Origin and Sherman Act claims viability | Ownership/ownership chain of PepperBall mark challenged; misrepresentation at issue | Ownership and designation conduct limited; some claims barred | False Designation of Origin claim against Gibson and Tiberius stricken with leave to amend; Sherman Act claim dismissed with leave to amend |
| Cartwright Act and Unfair Competition claims viability | Contracts stayed out of market; alleged collusion to restrain trade | Anti-SLAPP scope; some claims may be outside protected activity | Cartwright Act claim denied to be stricken; Unfair Competition claim denied strike due to 425.17 exemptions |
Key Cases Cited
- Baral v. Schnitt, 233 Cal.App.4th 1439 (Cal. Ct. App. 2015) (mixed anti-SLAPP actions; strike where protected activity dominates)
- Oasis W. Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (can’t automatically bar entire cause of action when partially meritorious)
- Mann v. Quality Old Time Serv., Inc., 120 Cal.App.4th 90 (Cal. Ct. App. 2004) (if any part has merit, claim not meritless; bar for protected portion debated)
- Baral v. Schnitt, 233 Cal.App.4th 1423 (Cal. Ct. App. 2015) (mixed actions; better rule favors not stripping meritorious non-protected claims)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (U.S. 1993) (antitrust litigation allowed based on baseless litigation under certain conditions)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (Supreme Court 2007) (pleading requires plausible claims, not mere speculation)
- Ashcroft v. Iqbal, 556 U.S. 662 (Supreme Court 2009) (plausibility standard for pleadings; bearing on Rule 12(b)(6))