Kearney v. Foley & Lardner, LLP

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOAN BROWN KEARNEY, 

Plaintiff-Appellant,

No. 07-55566

v.

FOLEY & LARDNER, LLP; GREGORY  D.C. No.

CV-05-02112-L

V. MOSER; LARRY L. MARSHALL

OPINION

MICHAEL MCCARTY,

Defendants-Appellees.



Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted

October 22, 2008—Pasadena, California

Filed May 12, 2009

Before: Harry Pregerson and Cynthia Holcomb Hall, Circuit

Judges, and David Alan Ezra,* District Judge.

Opinion by Judge David Alan Ezra

*The Honorable David Alan Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

5653

KEARNEY v. FOLEY & LARDNER 5657

COUNSEL

Joseph J. Wheeler, Jill M. Sullivan, Chapin Wheeler LLP, San

Diego, California, for the appellant.

Seth M. Galanter, Michael V. Sachdev, Morrison & Foerster

LLP, Washington, D.C., Mark C. Zebrowski, Morrison &

Foerster LLP, San Diego, California, for appellees Foley &

Lardner LLP, Larry L. Marshall, and Gregory V. Moser.

Daniel R. Shinoff, Paul V. Carelli, IV, Stutz Artiano Shinoff

& Holtz, APC, San Diego, California, for appellee Michael T.

McCarty.

OPINION

EZRA, District Judge:

Joan Kearney (“Kearney”) appeals the district court’s dis-

missal of the federal and state law claims she filed against a

representative of the Ramona Unified School District

5658 KEARNEY v. FOLEY & LARDNER

(“RUSD”) and the law firm that represented RUSD (collec-

tively “Defendants”) in an earlier eminent domain proceeding

regarding her property. We have jurisdiction pursuant to 28

U.S.C. § 1291. As to Kearney’s federal law claims, we vacate

the district court’s judgment and remand so that those claims

may be heard. As to Kearney’s state law claims, we affirm the

district court on all but the spoliation of evidence claim,

which we instead remand.

I. Background

A. Events Leading Up to the State Valuation Trial

We must begin, not with the case at hand, but with the ear-

lier eminent domain proceedings from which Kearney’s cur-

rent claims arose.

Kearney is the former owner of a 52.06-acre parcel of prop-

erty in Ramona, California. In June of 2000, RUSD initiated

the condemnation process for that property. Pursuant to that,

it hired Construction Testing & Engineering, Inc. (“CTE”) to

conduct a septic system assessment, including percolation

testing, of Kearney’s land and then issue a report with the

results. Those results would reveal the number of residential

lots the land could support, and thus determine the land’s

value.

CTE entered the property on December 12, 2000. On

December 13, Kearney wrote RUSD that it must obtain her

approval first. Two days later, Gregory Moser, of Foley &

Lardner, LLP, replied on behalf of RUSD, requesting consent

to enter to conduct percolation testing in exchange for a copy

of the report generated. On December 26, Kearney’s attorney

responded, making disclosure of the report a condition of

Kearney’s consent. In late January and early February 2001,

CTE completed its percolation testing. It did not prepare a

formal report of the results.

KEARNEY v. FOLEY & LARDNER 5659

In response to Kearney’s March 2001 discovery request,

RUSD produced no test results. Other documents produced

suggested testing had been done. In his October 2001 deposi-

tion, Michael McCarty, RUSD’s then-Business Manager, told

Kearney’s attorney that he thought testing had been done.

Nonetheless, no results were produced.

B. The Valuation Trial and Subsequent Appeals

The trial to determine the property’s value lasted from

April 29 to May 9, 2002. Kearney’s expert testified that,

based on the percolation tests performed on the property in

1996, the parcel could support up to sixteen residential lots,

giving it a total value of $1.4 million. RUSD’s expert

appraised the property at $850,000, based on her understand-

ing that it could support six to eight lots. Larry Marshall

(“Marshall”), one of RUSD’s attorneys, said in trial that no

new percolation testing had been performed. The jury

awarded Kearney $953,000 in compensation.

It was only after the trial that Kearney learned from a

school expense itemization report that percolation testing had

actually been performed. But even then, her May 2002 Cali-

fornia Public Records Act (“CPRA”) request for documents

obtained no results. RUSD said it did not possess anything

that had not been provided during discovery. It also said that,

to the extent any documents existed in the offices of profes-

sionals it employed, the documents were exempt from CPRA.

Kearney moved for a new trial based on the itemization

report. The state trial court denied the motion. Kearney

appealed.

While that appeal was pending, Kearney made another

CPRA request and exchanged letters with Marshall. In one of

these, Marshall said RUSD would waive its CPRA exemp-

tion. On November 12, 2002, it produced a copy of the testing

results, saying the document had never been in RUSD’s pos-

session and was obtained after the trial. Kearney had RUSD’s

5660 KEARNEY v. FOLEY & LARDNER

experts review the results, and they determined that the results

were significant to valuation and supported a higher value for

the property.

Kearney filed more motions for a new trial, but both were

denied on jurisdictional grounds. Kearney appealed these as

well. On March 3, 2004, the California Court of Appeal

issued three opinions. One affirmed the trial court’s dismissal

of Kearney’s motion for new trial, finding that Kearney failed

to show that RUSD’s assertions about the absence of testing

denied her a fair trial and that she should have instead pursued

the evidence suggesting testing had been completed. The

other two opinions affirmed the trial court’s orders on the

grounds that it lacked jurisdiction. The California Supreme

Court denied review.

C. The Current Action

Having thus received no relief on valuation in state court,

Kearney commenced the present action in federal court

against RUSD’s representative, the law firm that represented

RUSD in the state proceedings, and two of that firm’s law-

yers, seeking relief for the conduct that led to that valuation.

Her complaint alleged federal causes of action under RICO,

conspiracy to violate RICO, and 42 U.S.C. § 1983. Her state

causes of action included false promise, fraud and deceit, spo-

liation of evidence, and prima facie tort.

Defendants filed motions to dismiss. The district court

granted them, dismissing Kearney’s federal claims under the

Noerr-Pennington doctrine because the conduct on which

Kearney relied to establish liability was incidental to First

Amendment-protected petitioning activity. The court further

held that the complaint did not fit into the “sham exception”

to that doctrine because Kearney had not supported the posi-

tion that defendants’ alleged intentional misrepresentations to

the court “depriv[ed] the condemnation proceeding of its

legitimacy.” The court also dismissed Kearney’s state claims

KEARNEY v. FOLEY & LARDNER 5661

under California’s anti-SLAPP statute,1 finding that defen-

dants acted in furtherance of their rights to petition and that

Kearney had not showed a probability of prevailing on the

merits.

II. Standard of Review

This Court reviews de novo: (1) a district court’s dismissal

of a complaint for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), Pack v. United States, 992

F.2d 955, 957 (9th Cir. 1993); (2) a district court’s dismissal

based on the Noerr-Pennington doctrine, Sosa v. DIRECTV,

Inc., 437 F.3d 923, 929 (9th Cir. 2006); and (3) a district

court’s grant of a motion to strike under California’s anti-

SLAPP statute, Vess v. Ciba-Geigy Corp. USA, 317 F.3d

1097, 1102 (9th Cir. 2003).

III. Discussion

A. The Noerr-Pennington Doctrine

On appeal, Kearney argues that the Noerr-Pennington doc-

trine should not apply in this case because (1) this is not one

of the limited situations in which government officials may

receive immunity, and (2) Defendants’ conduct was not peti-

tioning conduct. Although we find both of these arguments

unavailing, we are persuaded that the doctrine’s sham litiga-

tion exception applies to her claims and prevents the immuni-

zation of Defendants’ petitioning conduct.

[1] The Noerr-Pennington doctrine derives from the Peti-

tion Clause of the First Amendment and provides that “those

who petition any department of the government for redress

are generally immune from statutory liability for their peti-

1

“SLAPP is an acronym for ‘strategic lawsuit against public participa-

tion.’ ” Jarrow Formulas, Inc. v. La Marche, 31 Cal. 4th 728, 732 n.1

(2003).

5662 KEARNEY v. FOLEY & LARDNER

tioning conduct.” Sosa, 437 F.3d at 929. It initially emerged

in the antitrust context. See E. R.R. Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine

Workers v. Pennington, 381 U.S. 657 (1965). Recognizing

that the “ ‘right to petition extends to all departments of the

government’ ” and includes access to courts, the Supreme

Court extended the doctrine to provide immunity for the use

of “ ‘the channels and procedures’ ” of state and federal

courts to advocate causes. Sosa, 437 F.3d at 929-30 (quoting

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,

510-11 (1972)).

The Supreme Court has since held that Noerr-Pennington

principles “apply with full force in other statutory contexts”

outside antitrust. Id. at 930 (discussing BE & K Constr. Co.

v. NLRB, 536 U.S. 516, 525 (2002)). In BE & K, the Court

held that the National Labor Relations Act (“NLRA”) did not

permit holding an employer liable for unsuccessfully prose-

cuting retaliatory lawsuits against employees who were exer-

cising rights the NLRA protects. 536 U.S. 516. In doing so,

the Court adopted a three-part test to determine whether the

defendant’s conduct is immunized: (1) identify whether the

lawsuit imposes a burden on petitioning rights, (2) decide

whether the alleged activities constitute protected petitioning

activity, and (3) analyze whether the statutes at issue may be

construed to preclude that burden on the protected petitioning

activity. See id. at 530-33, 535-37.

[2] Not all petitioning activity is immunized, however. A

“sham” exception to the doctrine developed to prevent the

immunization of conduct that used “governmental process . . .

as an anticompetitive weapon.” Kottle v. Nw. Kidney Ctrs.,

146 F.3d 1056, 1060 (9th Cir. 1998). The Ninth Circuit has

held that a defendant’s activities may fall into this exception

if they include making intentional misrepresentations to the

court that then “deprive[s] the litigation of its legitimacy.” Id.

As an initial matter, Kearney claims that the doctrine was

meant to protect a citizen’s right to petition the government,

KEARNEY v. FOLEY & LARDNER 5663

and never intended to bar suit by a private citizen against gov-

ernment officials. In support of her argument, she cites Man-

istee Town Ctr. v. City of Glendale, 227 F.3d 1090 (9th Cir.

2000), for the principle that the immunization of government

officials or entities has been limited to cases in which those

officials are lobbying other government officials on behalf of

their constituents. She argues that a case of government initi-

ated litigation against a citizen does not fit within the rationale

supporting immunity for lobbying.

[3] As a matter of first impression, the Manistee court held

that Noerr-Pennington could apply to government entities or

officials because the city officials’ lobbying efforts amounted

to a petition on behalf of citizens. See id. at 1093. There is no

reason, however, to limit Manistee’s holding to lobbying

efforts. In a representative democracy, the court recognized

that branches of government often “act on behalf of the peo-

ple” and “intercede” to “advance their constituents’ goals,

both expressed and perceived.” Id. Such intercession is just as

likely to be accomplished through lawsuits—the very act of

petitioning—as through lobbying. See Theofel v. Farey-Jones,

359 F.3d 1066, 1078 (9th Cir. 2004). Furthermore, an eminent

domain proceeding is consistent with the principles laid out in

Manistee: a governmental entity acts on behalf of the public

it represents when it seeks to take private property and con-

vert it to public use. Cf. New West, L.P. v. City of Joliet, 491

F.3d 717, 721-22 (7th Cir. 2007) (holding that Noerr-

Pennington applies to a municipality’s condemnation action).

[4] We find that a governmental entity or official may

receive Noerr-Pennington immunity for the petitioning

involved in an eminent domain proceeding. The agents of that

litigation—employees and law firms and lawyers—may bene-

fit from the immunity as well. Freeman v. Lasky, Haas &

Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005). Noerr-

Pennington may therefore protect Defendants here.

We now apply the doctrine and its sham exception to the

case at hand.

5664 KEARNEY v. FOLEY & LARDNER

1. Does Kearney’s lawsuit burden Defendants’

petitioning rights?

Though the district court did not address this issue explic-

itly, Kearney argues that her federal claims do not burden

Defendants’ right to prosecute an eminent domain proceeding,

but instead just challenge abuse of the process. She thus con-

tends that, if her lawsuit were successful, it would not dis-

courage future eminent domain proceedings, just fraudulent

behavior in those lawsuits.

[5] However, the question at this stage is not whether the

conduct at issue is fraudulent and abusive, but instead whether

the success of Kearney’s lawsuit would constitute a burden on

petitioning rights. As Sosa v. DIRECTV, Inc., 437 F.3d 923

(9th Cir. 2006), illustrates, the lawsuit may burden conduct

incidental to litigation. Even though the prelitigation settle-

ment demands at issue there were not themselves litigation,

they were part of the “breathing space required” for the effec-

tive exercise of petitioning rights. Id. at 933. Imposing liabil-

ity for that conduct burdened DIRECTV’s ability to avoid

litigation through settlement. Id. at 932.

This question of burden is separate from the question of

whether the conduct challenged included intentional misrepre-

sentations or fraud. In Sosa, the plaintiff alleged that the let-

ters amounted to extortion and fraud. Id. at 927. Yet the court

did not address these allegations when determining the burden

under the test’s first step. Instead, it suggested that the ques-

tion of whether there would be absolute immunity for conduct

including intentional misrepresentations or fraud should be

analyzed under the sham exception. See id. at 938 (declining

to decide whether the exception applied since the plaintiff did

not argue it). Other cases have similarly found petitioning

rights burdened even though the plaintiffs were alleging mis-

conduct in that petitioning. See BE & K Constr. Co. v. NLRB,

536 U.S. 516 (2002) (finding that declaring an employer’s

lawsuit illegal burdens petitioning rights even though the law-

KEARNEY v. FOLEY & LARDNER 5665

suit itself was retaliatory); cf. Freeman v. Lasky, Haas &

Cohler, 410 F.3d 1180 (9th Cir. 2005) (finding that defen-

dants who allegedly committed discovery misconduct in an

earlier suit were protected by the Noerr-Pennington doctrine

because the sham exception did not apply).

[6] Kearney alleges misconduct in events that occurred in

the course of Defendants’ petition on RUSD’s behalf in emi-

nent domain proceedings. It is undisputed that those proceed-

ings represent a petition to the government. Her challenge to

the discovery communications, interactions with expert wit-

nesses and contractors, and statements to the court by

RUSD’s agents pursuant to those proceedings places a burden

on RUSD’s ability to bring such actions.

2. Do Defendants’ alleged acts constitute protected

petitioning activity?

Kearney alleges that Defendants suppressed the percolation

test results, instructed CTE’s engineers not to prepare a for-

mal report of those results, and repeatedly misrepresented

during trial that RUSD had not conducted percolation testing.

None of these actions are petitions in and of themselves; they

are not complaints, answers, counterclaims, or pleadings

which make representations to the court. See Freeman, 410

F.3d at 1184.

[7] However, in order to “preserve the breathing space

required for the effective exercise of the rights [the Petition

Clause] protects,” “conduct incidental to the prosecution of

the suit” may also be immunized under the Noerr-Pennington

doctrine. Sosa v. DIRECTV, Inc., 437 F.3d 923, 933-34 (9th

Cir. 2004) (internal quotation marks omitted). As the district

court noted, this court has held that discovery is incidental to

litigation and comes within the Noerr-Pennington doctrine if

the underlying litigation is protected by the Petition Clause.

See Freeman, 410 F.3d at 1185.

5666 KEARNEY v. FOLEY & LARDNER

[8] Since we have already determined above that the under-

lying litigation here was protected, it follows that the miscon-

duct Kearney alleges in the discovery communications

surrounding that litigation and the trial advocacy of that litiga-

tion likewise comes within Noerr-Pennington. Kearney

argues that, in so saying, we would be broadening the notion

of what conduct is “incidental” beyond what our precedents

have recognized. We disagree and do not find “incidental” so

narrow. Discovery communications have already been recog-

nized as “incidental,” see Freeman, 410 F.3d at 1185, and,

like trial advocacy, are a “common . . . feature of modern liti-

gation.” Sosa, 437 F.3d at 936. Defendants’ alleged instruc-

tion to CTE not to prepare a report with the test results is

perhaps more far afield. However, the testing was completed

in preparation for the valuation trial, and so statements to

those completing the testing would be incidental to that litiga-

tion as well. See id. at 935-36 (discussing the protection of

prelitigation communications).

Kearney presses further that misconduct could not be peti-

tioning conduct or conduct incidental because misconduct is

not essential to the petition. In so doing, she collapses the

question of petitioning conduct with that of the sham excep-

tion’s application. See id. at 938 (“Finding that the protections

of the Petition Clause extend to [conduct] does not mean that

the [conduct is] absolutely protected from liability.”). We

instead find the misconduct she alleges to be petitioning con-

duct and now turn to the sham exception to determine whether

it might nonetheless be subject to liability.

3. Does the sham exception apply to Defendants’

conduct?

[9] In Kottle v. Northwest Kidney Centers, 146 F.3d 1056,

1060 (9th Cir. 1998), the Ninth Circuit identified three cir-

cumstances in which the sham litigation exception might

apply. Kearney argues for the third here: where the allegedly

unlawful conduct “consists of making intentional misrepre-

KEARNEY v. FOLEY & LARDNER 5667

sentations to the court” and those misrepresentations or the

“party’s knowing fraud upon . . . the court deprive the litiga-

tion of its legitimacy.” Id. We are persuaded that Defendants’

alleged misconduct here was precisely the sort the sham

exception was created to address.

[10] Since this matter arose on a motion to dismiss, Kear-

ney’s allegations must be assumed true. Kearney has alleged

intentional misrepresentations to the court, and fraud upon the

court through the suppression of evidence, that ultimately led

to her property being valued lower than it should have been.

In Sosa v. DIRECTV, Inc., the court described a similar situa-

tion of a RICO suit predicated on “fraudulent discovery con-

duct in prior litigation that induced the plaintiffs to settle the

suit for a lower amount than they would have in the absence

of the fraud.” 437 F.3d 923, 940 (9th Cir. 2006) (discussing

Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431

F.3d 353 (9th Cir. 2005)). Although Living Designs was not

considered under Noerr-Pennington, the Sosa court said “the

conduct alleged quite clearly fell within the third prong of

Kottle’s sham litigation exception, in that it amounted to a

‘knowing fraud . . . upon the court depriv[ing] the litigation

of its legitimacy.’ ” Id. (quoting Kottle, 146 F.3d at 1060).

Kearney’s allegations are very similar to those described by

the Sosa court in Living Designs and so should also fall within

the third prong of the sham litigation exception. See also

Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th

Cir. 2005) (“Had [the discovery misconduct] not been brought

to light in time, it is entirely possible that [it] would so have

infected the defense of the lawsuit as to make it a sham.”).

The district court found that the exception did not apply

because Kearney did not “support[ ] her position that defen-

dants made intentional misrepresentations to the court thereby

depriving the court of its legitimacy.” The requirement of

“support” suggests the court was not taking her allegations as

true. At the motion to dismiss stage, it was error to require

such support.

5668 KEARNEY v. FOLEY & LARDNER

If, however, the court was actually faulting Kearney for

insufficiently specific allegations, this could be a proper basis

for denying the sham litigation exception. See Kottle, 146

F.3d at 1063 (“[W]hen a plaintiff seeks damages . . . for con-

duct which is prima facie protected by the First Amendment,

the danger that the mere pendency of the action will chill the

exercise of First Amendment rights requires more specific

allegations than would otherwise be required.” (internal quo-

tation marks omitted)). In Kottle, the court suggested the

required specifics would include such things as “exactly what

representations [defendant] made, or to whom; with whom

[defendant] conspired; [and] what exactly its ‘improper and/or

unlawful’ methods of advocacy were.” Id. The district court

did not indicate that it found any of these specifics lacking.

Kearney’s complaint includes the required specifics with

extensive factual descriptions.2 Thus, Kearney’s allegations

are appropriate under Kottle.

Instead of looking to Kearney’s allegations, the district

court’s ruling seems based in large part on its belief that Kear-

ney did not do enough to discover the test results she sought

from Defendants. It is unclear why Kearney’s behavior on this

point should matter since the Noerr-Pennington doctrine is

concerned with the immunization of petitioning conduct and

strips immunization in certain cases where a sham is perpe-

trated by that petitioner. See Clipper Exxpress v. Rocky Moun-

tain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir.

1982) (holding there is “no first amendment protection for

furnishing with predatory intent false information to an . . .

adjudicative body”). Thus, the concerns behind the doctrine

have everything to do with the petitioner and little to do with

the other party’s conduct. Even if, as the court found, Kearney

could have done more to discover the test results, the suffi-

2

The specificity of these, as well as the fact that the misrepresentations

alleged go to the central issue of the valuation litigation, make Defen-

dants’ argument that Kearney alleged insufficient “isolated” instances

unpersuasive.

KEARNEY v. FOLEY & LARDNER 5669

ciency of Kearney’s efforts is a question of fact not properly

dealt with at the pleading stage, and does nothing to negate

allegations of Defendants’ misrepresentations to the court and

jury on the central issue in the litigation.

[11] We therefore find that the district court erred in hold-

ing the sham litigation exception did not apply to Kearney’s

allegations, and remand for consideration of her federal

claims.

B. The Anti-SLAPP Statute

[12] The anti-SLAPP statute establishes a procedure to

expose and dismiss meritless and harassing claims that seek

to chill the exercise of petitioning or free speech rights in con-

nection with a public issue. See Bosley Med. Inst., Inc. v.

Kremer, 403 F.3d 672, 682 (9th Cir. 2005). Analysis of an

anti-SLAPP motion to strike involves a two-step process.

First, the defendant must show that the cause of action arises

from “any act of that person in furtherance of the person’s

right of petition or free speech under the United States or Cal-

ifornia Constitution in connection with a public issue . . . . ”

Cal. Code Civ. P. § 425.16(b)(1).3

3

Such an act is defined within the same statute to mean:

(1) any written or oral statement or writing made before a legis-

lative, executive, or judicial proceeding, or any other official pro-

ceeding authorized by law; (2) any written or oral statement or

writing made in connection with an issue under consideration or

review by a legislative, executive, or judicial body, or any other

official proceeding authorized by law; (3) any written or oral

statement or writing made in a place open to the public or a pub-

lic forum in connection with an issue of public interest; (4) or any

other conduct in furtherance of the exercise of the constitutional

right of petition or the constitutional right of free speech in con-

nection with a public issue or an issue of public interest.

Cal. Code Civ. P. § 425.16(e).

5670 KEARNEY v. FOLEY & LARDNER

If the court determines that the defendant has met this bur-

den, it must then determine whether the plaintiff has demon-

strated a probability of prevailing on the merits. DuPont

Merck Pharm. Co. v. Superior Court, 78 Cal. App. 4th. 562,

567 (Ct. App. 2000). To establish a probability of prevailing,

the plaintiff must show that “the complaint is both legally suf-

ficient and supported by a sufficient prima facie showing of

facts to sustain a favorable judgment if the evidence submit-

ted by the plaintiff is credited.” Navellier v. Sletten, 29 Cal.

4th 82, 88-89 (2002) (internal quotation marks omitted).

Kearney initially argues that applying the anti-SLAPP stat-

ute to her claims goes against the purpose of that statute. Her

contentions here are similar to those she made regarding the

application of the Noerr-Pennington doctrine to government

officials. For similar reasons we find her arguments unpersua-

sive: Kearney’s arguments ignore the fact that Defendants, as

agents of RUSD, were petitioning on behalf of the citizenry

by seeking to take private land for public use. See Bradbury

v. Superior Court, 57 Cal. Rptr. 2d 207, 211 (Ct. App. 1996)

(holding that governmental entities and their representatives

are included in the anti-SLAPP statute’s protection of peti-

tioning rights).

We thus proceed to the analysis of the anti-SLAPP motion

to strike.

1. An Act in Furtherance of Petitioning or Free Speech

Rights

As to the first inquiry, Kearney contends that her state

claims are not based on conduct either in a judicial proceeding

or in connection with an issue under consideration by a judi-

cial body. The state claims are based on the same conduct as

the federal claims, and, just as we found above in relation to

the federal claims, we here hold that Kearney’s state claims

are based on conduct “in furtherance of the exercise of the

KEARNEY v. FOLEY & LARDNER 5671

constitutional right of petition.” Cal. Code Civ. P.

§ 425.16(e)(4).

Kearney’s arguments to the contrary are not persuasive.

The fact that some claims are based on events which took

place prior to the initiation of the condemnation action does

not prevent that conduct from being protected by the anti-

SLAPP statute. See Briggs v. Eden Council for Hope &

Opportunity, 19 Cal. 4th 1106, 1115 (1999) (finding that

§ 425.16’s definition includes “communications preparatory

to or in anticipation of the bringing of an action or other offi-

cial proceeding” (internal quotation marks omitted)). The fact

that the claims allege misconduct also does not keep Defen-

dants’ acts from being in furtherance of petitioning. See

Taheri Law Group v. Evans, 72 Cal. Rptr. 3d 847, 852-53 (Ct.

App. 2008) (finding that the cause of action arose from pro-

tected activity when it concerned an improper solicitation of

another attorney’s client).

The “critical point is whether the plaintiff’s cause of action

was itself based on an act in furtherance of the defendant’s

right of petition . . . .” Peregrine Funding, Inc. v. Sheppard,

Mullin, Richter & Hampton LLP, 35 Cal. Rptr. 3d 31, 38 (Ct.

App. 2005). Kearney’s state claims are based on Defendants’

communications with Kearney regarding the testing that

would be done in preparation for the eminent domain pro-

ceeding and disclosures in an ongoing lawsuit, as well as its

communications with its expert witnesses and testing contrac-

tor. All of these actions were in furtherance of the condemna-

tion proceeding. See id. at 40 (finding conduct including

refusing to allow a witness to testify, making threats, and

withholding documents to be in furtherance as “litigation tac-

tics . . . employed to benefit [the client’s] position in an ongo-

ing lawsuit”). The district court therefore did not err in

finding that Defendants had met their burden on this issue.

5672 KEARNEY v. FOLEY & LARDNER

2. Probability of Prevailing on the Merits

Because we find the first requirement of an anti-SLAPP

motion met, we now turn to the second requirement. Kearney

argues that she stated valid claims as to spoliation of evidence

and prima facie tort.4

a. Spoliation of Evidence

Spoliation of evidence is the “destruction or significant

alteration of evidence, or the failure to preserve property for

another’s use as evidence, in pending or future litigation.”

Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (Ct. App.

1998). The district court rests its holding on the fact that the

tort is not recognized when “the spoliation was or should have

been discovered before the conclusion of the litigation.” It

held that, because the state trial and appellate courts found

Defendants did not withhold evidence and Kearney could

have discovered evidence during discovery or trial, Kearney

had not showed a probability of prevailing on the merits.

Kearney argues that her spoliation claim was based on the

evidence that Defendants told the testing company not to pre-

pare a formal report, and notes that this evidence was not

mentioned by either state court. Kearney’s allegations do not

indicate when she discovered this evidence, only that she

believed the event occurred in 2001, which was prior to the

valuation trial. Because Kearney may be able to show a prob-

ability of prevailing on the merits here,5 we vacate the district

4

It is not clear whether Kearney contests the district court’s finding that

she did not show a probability of prevailing on her fraud claim. She does

not discuss her likelihood of prevailing on the merits, but does discuss the

application of the Noerr-Pennington doctrine and the California litigation

privilege to bar that fraud claim. To the extent she is contesting the dispo-

sition of the fraud claim, we find that the district court properly found that

the California litigation privilege barred the claim, as described under the

prima facie tort section.

5

Spoliation claims are exempted from the litigation privilege. Cal. Civ.

Code § 47(b)(2).

KEARNEY v. FOLEY & LARDNER 5673

court’s holding on this issue and remand to determine whether

she discovered or should have discovered the evidence prior

to or during the valuation trial.

b. Prima Facie Tort

The district court found Kearney had not showed a proba-

bility of success on the merits here because it found the claim

barred by both the Noerr-Pennington doctrine and Califor-

nia’s litigation privilege and because it was unpersuaded to

apply the prima facie tort claim as had been done in the case

law cited by Kearney.

As analyzed above, the Noerr-Pennington doctrine does not

bar this suit because, even if the doctrine applied, the sham

exception would also apply.

Nonetheless, we find that the district court did not err when

it held that California’s litigation privilege would bar Kear-

ney’s claims. Though Kearney argues that her claims are

based on conduct prior to the litigation, the district court was

correct that even allegations of such conduct may be privi-

leged if reasonably related to the action. See People ex rel.

Gallegos v. Pacific Lumber Co., 158 Cal. App. 4th 950, 958

(Ct. App. 2008) (“[T]he privilege is not limited to statements

made during a trial or other proceedings, but may extend to

steps taken prior thereto, or afterwards.” (internal quotation

marks omitted)). Because the alleged misconduct is all rea-

sonably related to the eminent domain proceeding, it is sub-

ject to the litigation privilege bar.

IV. Conclusion

For the foregoing reasons, we vacate the district court’s

judgment as to Kearney’s federal law claims. Because Noerr-

Pennington immunity does not apply to Defendants’ actions,

we remand so that the court may consider Kearney’s claims.

5674 KEARNEY v. FOLEY & LARDNER

As to Kearney’s state law claims, we affirm the district

court on all but the spoliation of evidence claim, which we

remand for a determination of when Kearney discovered the

evidence.

Affirmed in part and vacated and remanded in part.