Kim Martinez v. Zoominfo Technologies, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM CARTER MARTINEZ, on No. 22-35305

behalf of herself and all others

similarly situated, D.C. No.

3:21-cv-05725-

Plaintiff-Appellee, MJP

v.

OPINION

ZOOMINFO TECHNOLOGIES,

INC., a Delaware corporation,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted April 14, 2023

Seattle, Washington

Filed September 21, 2023

Before: M. Margaret McKeown and Roopali H. Desai,

Circuit Judges, and Roslyn O. Silver,* District Judge.

*

The Honorable Roslyn O. Silver, United States District Judge for the

District of Arizona, sitting by designation.

2 MARTINEZ V. ZOOMINFO TECH. INC.

Opinion by Judge McKeown;

Concurrence by Judge McKeown;

Concurrence by Judge Desai

SUMMARY**

California Anti-SLAPP Statute

The panel affirmed the district court’s denial of

ZoomInfo Technologies, Inc.’s motion to strike Kim Carter

Martinez’s complaint under California’s anti-SLAPP law on

the alternative ground that Martinez’s complaint fell within

the public-interest exemption to the anti-SLAPP law.

Martinez asserted that ZoomInfo did not obtain her

permission or compensate her when it used her name and

likeness in its online directory to promote its product, in

violation of California’s Right of Publicity statute and her

common-law privacy and intellectual property rights.

ZoomInfo moved to strike the complaint under California

anti-SLAPP statute.

The panel held that it had appellate jurisdiction under the

collateral order doctrine to review the denial of ZoomInfo’s

anti-SLAPP motion. The panel also held that, at this stage,

Martinez has plausibly pleaded that she suffered sufficient

injury to establish constitutional standing to sue.

Before engaging in a merits analysis, a court must

consider any claims by the plaintiff that a statutory

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MARTINEZ V. ZOOMINFO TECH. INC. 3

exemption to California’s anti-SLAPP law applies.

Although the district court did not address the exemptions,

the panel held that her case fell within the public-interest

exemption to the anti-SLAPP law. Martinez met the three

conditions for the public interest exemption: Martinez

requests all relief on behalf of the alleged class of which she

is a member and does not seek any additional relief for

herself; Martinez’s lawsuit seeks to enforce the public

interest of the right to control one’s name and likeness; and

private enforcement is necessary and disproportionately

burdensome.

Concurring, Judge McKeown wrote separately to

question the propriety of the court reviewing on

interlocutory appeal denials of anti-SLAPP motions to

strike.

Concurring, Judge Desai, joined by Judge McKeown,

wrote separately to urge the court to reconsider its precedent

that the district court’s denial of anti-SLAPP motions to

strike are collateral orders subject to interlocutory appeal.

4 MARTINEZ V. ZOOMINFO TECH. INC.

COUNSEL

Jeffrey A. Lamken (argued), Lucas M. Walker, Lauren M.

Weinstein, and Jennifer E. Fischell, MoloLamken LLP,

Washington, D.C.; Eugene A. Sokoloff, Jordan A. Rice, and

Kenneth E. Notter III, MoloLamken LLP, Chicago, Illinois;

Alexandra C. Eynon, MoloLamken LLP, New York, New

York; Shon Morgan, Daniel C. Posner, and John W.

Baumann, Quinn Emanuel Urquhart & Sullivan LLP, Los

Angeles, California; Cristina Henriquez, Quinn Emanuel

Urquhart & Sullivan LLP, Redwood Shores, CA; for

Defendant-Appellant.

Ben R. Osborn (argued), Law Office of Benjamin R. Osborn,

Brooklyn, New York; Michael F. Ram and Marie N. Appel,

Morgan & Morgan Complex Litigation Group, San

Francisco, California; Sam Strauss and Raina Borrelli, Turke

& Strauss LLP, Madison, Wisconsin; for Plaintiff-Appellee.

Mark A. Lemley, Stanford Law School, Stanford,

California; Rebecca Tushnet, Harvard Law School,

Cambridge, Massachusetts; for Amicus Curiae Intellectual

Property and First Amendment Law Professors.

John Nadolenco, Jennifer M. Chang, and Daniel D. Queen,

Mayer Brown LLP, Los Angeles, California; Nicole A.

Saharsky, Mayer Brown LLP, Washington, D.C.; Benjamin

D. Bright, Mayer Brown LLP, New York, New York; for

Amici Curiae Spokeo Inc., PeopleFinders LLC, and

BeenVerified LLC.

Megan Iorio and Tom McBrien, Electronic Privacy

Information Center, Washington, D.C.; Ellen Noble, Public

Justice, Washington, D.C.; for Amici Curiae Electronic

Privacy Information Center and Public Justice.

MARTINEZ V. ZOOMINFO TECH. INC. 5

OPINION

McKEOWN, Circuit Judge:

Countless websites offer access to personal information,

ranging from phone numbers to residence data, employment

information, and more. One such website is ZoomInfo, an

online directory of professionals and their employment

information. Clicking on a ZoomInfo link in a search

engine—or searching the ZoomInfo website itself for a

specific professional—produces a redacted “teaser profile,”

offering the individual’s name, employer, and job title. On

the same page are links inviting the viewer to sign up for a

trial subscription or subscribe to ZoomInfo to view the full

profile.

Kim Martinez, a California citizen and political director

for a local union, objects to ZoomInfo providing such a

“teaser profile” of her information along with these

subscription links. Her complaint asserts that, because

ZoomInfo did not obtain her permission or compensate her,

the directory is using her name and likeness to promote its

product in violation of California’s Right of Publicity statute

and her common-law privacy and intellectual property

rights.

In the district court, ZoomInfo moved to dismiss the

complaint and to cut off the claims at the pleading stage

under California’s anti-SLAPP—strategic lawsuits against

public participation—law, a statute that restricts suits aimed

at repressing free speech. Cal. Civ. Proc. Code § 425.16.

The district court denied the motion to dismiss and rejected

ZoomInfo’s special motion to strike the complaint under

California anti-SLAPP statute.

6 MARTINEZ V. ZOOMINFO TECH. INC.

At this stage, we have interlocutory jurisdiction solely

with respect to the motion to strike. We do not address the

district court’s ruling on the motion to dismiss. We affirm

the district court’s denial of ZoomInfo’s motion to strike

under California’s anti-SLAPP law.

BACKGROUND

ZoomInfo maintains a database of 125 million business

professionals and their employment information. When

someone searches for an individual professional, either

through a search engine or on ZoomInfo’s website,

ZoomInfo displays a “teaser profile,” which shows partially

redacted information about the individual. The profile also

includes several “buttons,” offering “Get Access to

[Name’s] Full Info,” “Get Email Address,” “We have who

you are looking for: View [Name’s] Full Org-Chart,” and

“See more information about [Name].” Clicking on one of

these buttons leads the user to a page detailing options to

subscribe to ZoomInfo before viewing the individual’s full

profile. As pleaded, a paid ZoomInfo subscription costs a

minimum of $10,000 annually. Alternatively, a user can

register for the “Community Edition,” a free subscription in

which the subscriber provides ZoomInfo with the names and

contact information of everyone with whom the subscriber

has emailed.

Kim Martinez is the Political and Legislative Director of

the American Federation of State, County, and Municipal

Employees (“AFSCME”), Local 51, a labor union that

represents public sector employees. ZoomInfo has a profile

of Martinez in its database, and an internet search for

Martinez reveals a teaser profile stating her job title,

employment at AFSCME, the contact information for

AFSCME’s national headquarters, and the names and job

MARTINEZ V. ZOOMINFO TECH. INC. 7

titles of Martinez’s colleagues.1 The teaser profile includes

the above-referenced subscription buttons offering full

access to Martinez’s profile to subscribers. Martinez, who

has never used ZoomInfo, objects to “ZoomInfo using her

name and personal information” without her consent “to

advertise subscriptions to zoominfo.com.”

Martinez filed suit in September 2021, on behalf of

herself and a proposed class of California citizens whose

information is included in ZoomInfo’s directory and

provided in teaser profiles. Her complaint asserts that

ZoomInfo’s use of the class’s information to advertise

subscriptions is a tortious misappropriation of their names

and likenesses under California law and violates California’s

Right of Publicity Statute, California Civil Code § 3344.

Martinez pleads that ZoomInfo’s nonconsensual use has

injured her and the class by unlawfully taking their

intellectual property, invading their privacy rights, profiting

from their names and information, and harming their peace

of mind. Martinez seeks a declaration that ZoomInfo

infringes on her state-law privacy and intellectual property

rights, injunctive relief, restitution, and damages.

ZoomInfo moved to dismiss the complaint for lack of

Article III standing under Rule 12(b)(1) and for failure to

state a claim under Rule 12(b)(6). ZoomInfo also moved to

strike Martinez’s claims pursuant to California’s anti-

SLAPP statute, California Civil Procedure Code § 425.16.

The district court denied ZoomInfo’s motions to dismiss,

1

ZoomInfo makes much of the fact that, in its view, much of Martinez’s

professional information is publicly available on other websites.

Because our review is limited to the complaint and Martinez’s teaser

profile, of which the district court took judicial notice, we do not address

that argument here.

8 MARTINEZ V. ZOOMINFO TECH. INC.

finding Martinez had sufficiently pleaded her alleged

injuries to have standing to sue and that the conduct alleged

did not fall within the publicity statute’s exception for “use

of a name . . . or likeness in connection with any news [or]

public affairs,” Cal. Civ. Code § 3344(d). The district court

also denied ZoomInfo’s special motion to strike the

complaint, holding that California’s anti-SLAPP law did not

require throwing out the case because the speech at issue is

commercial in nature and therefore not protected under the

statute and because Martinez showed a reasonable

probability of prevailing on the merits of her claims.

ZoomInfo filed a notice of appeal regarding the denial of its

anti-SLAPP motion. In its briefing on appeal, ZoomInfo

now asks us to decide not only the anti-SLAPP issue, but

also to review the district court’s ruling on whether Martinez

has standing to bring this action.

ANALYSIS

I. Jurisdiction

The parties take polar opposite positions on whether this

court has jurisdiction over Martinez’s appeal. Neither is

wholly correct. ZoomInfo raises two issues on interlocutory

appeal: (1) whether the district court erred in denying

ZoomInfo’s anti-SLAPP motion; and (2) whether the district

court erred in concluding that Martinez has standing to sue.

Martinez asserts that we lack jurisdiction to review either

issue. We conclude that we have appellate jurisdiction under

the collateral order doctrine to review the anti-SLAPP issue

and assure ourselves of our subject matter jurisdiction to

reach that issue.

MARTINEZ V. ZOOMINFO TECH. INC. 9

A. Jurisdiction Over Interlocutory Appeal of Anti-

SLAPP Motion

In general, our jurisdiction is limited to appeals from a

district court’s final order. 28 U.S.C. § 1291. Under the

collateral order doctrine, however, we may review a district

court’s ruling if it (1) is “conclusive,” (2) “resolve[s]

important questions separate from the merits,” and (3) is

“effectively unreviewable on appeal from the final judgment

in the underlying action.” Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 42 (1995)). Consistent with our

precedent in Batzel v. Smith, 333 F.3d 1018, 1025–26 (9th

Cir. 2003), we recently held that an order denying a motion

to strike under an anti-SLAPP law is a collateral order

subject to immediate interlocutory appeal. Langer v. Kiser,

57 F.4th 1085, 1104 (9th Cir. 2023). Accordingly, the

district court’s denial of ZoomInfo’s anti-SLAPP motion is

properly before us on appeal.

Martinez challenges our appellate jurisdiction on the

ground that statutory exemptions remove this case from the

scope of California’s anti-SLAPP law. This is incorrect. As

California law provides—and we have held—if a district

court denies an anti-SLAPP motion based on one of the

statutory exemptions, that denial may not be appealed. Cal.

Civ. Proc. Code § 425.17(b)–(e); see also Breazeale v.

Victim Servs., Inc., 878 F.3d 759, 765 (9th Cir. 2017). Here,

the district court did not deny ZoomInfo’s anti-SLAPP

motion on the exemptions, but rather based on ZoomInfo’s

failure to establish the elements for SLAPP relief. See Cal.

Civ. Proc. Code § 425.16(b). Therefore, the exemption from

appeal is not applicable and we have jurisdiction over the

interlocutory appeal from the denial of the anti-SLAPP

motion. See Langer, 57 F.4th at 1104.

10 MARTINEZ V. ZOOMINFO TECH. INC.

B. Jurisdiction Over Interlocutory Appeal of

Standing

Although this is an interlocutory appeal, we first ensure

that we have subject matter jurisdiction to hear this appeal,

including the threshold question of constitutional standing.2

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–

95 (1998) (“Every federal appellate court has a special

obligation to satisfy itself not only of its own jurisdiction,

but also that of the lower courts in a cause under review.”)

(internal citations and quotation marks omitted). At this

stage, Martinez has plausibly pleaded that she suffered

sufficient injury to establish standing to sue. ZoomInfo’s

arguments to the contrary primarily attack fact and merits

2

We recognize that, in some circumstances, a few circuits have

addressed subject matter jurisdiction in interlocutory appeals using

pendent jurisdiction. See, e.g., Timpanogos Tribe v. Conway, 286 F.3d

1195, 1200–01 (10th Cir. 2002) (holding that resolving subject matter

jurisdiction over the underlying claim was necessary to ensure

meaningful review of the collateral order denying Eleventh Amendment

immunity on that claim); Merritt v. Shuttle, 187 F.3d 263, 267–69 (2d

Cir. 1999) (same conclusion regarding subject matter jurisdiction and

order on qualified immunity). We also recognize that a few circuits have

declined to address standing under pendent jurisdiction. See, e.g., Indus.

Servs. Grp., Inc. v. Dobson, 68 F.4th 155, 166–68 (4th Cir. 2023)

(holding that the standing analysis was not inextricably intertwined with

or necessary to ensure meaningful review of the Eleventh Amendment

immunity claim); Freyre v. Chronister, 910 F.3d 1371, 1379 (11th Cir.

2018) (same). And other cases on interlocutory review reference

standing without discussion of pendent jurisdiction. See Vt. Agency of

Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771–78 (2000)

(addressing the purely legal question of whether a private party has

standing when bringing a qui tam action without discussing pendent

jurisdiction); Hilton v. Hallmark Cards, 599 F.3d 894, 904 n.6 (9th Cir.

2010) (noting that “the jurisdictional elements of standing . . . are

unarguably present here” without analyzing standing through pendent

jurisdiction). None of these cases involved SLAPP statutes.

MARTINEZ V. ZOOMINFO TECH. INC. 11

issues that we do not reach. Nonetheless, standing remains

an issue throughout the litigation and we take no position on

whether, upon discovery and further examination, Martinez

will meet the standing requirements. See TransUnion LLC

v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“A plaintiff must

demonstrate standing ‘with the manner and degree of

evidence required at the successive stages of the litigation.’”

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992))).

II. The Anti-SLAPP Motion to Strike

We now turn to the question of whether the district court

should have struck Martinez’s action as a SLAPP, an issue

that we review de novo. Jordan-Benel v. Univ. City Studios,

Inc., 859 F.3d 1184, 1188 (9th Cir. 2017). California’s anti-

SLAPP law was enacted to “protect against ‘lawsuits brought

primarily to chill’ the exercise of speech and petition rights”

and to “encourage continued participation in matters of public

significance.” Film-On.com Inc. v. DoubleVerify Inc., 439

P.3d 1156, 1160 (Cal. 2019) (quoting Cal. Civ. Proc. Code

§ 425.16(a)). The scope of the law is limited, however, by

two exemptions: it does not apply to “any action brought

solely in the public interest or on behalf of the general public,”

Cal. Civ. Proc. Code § 425.17(b), or to causes of action

arising from commercial speech, id. § 425.17(c); Simpson

Strong-Tie Co., Inc. v. Gore, 230 P.3d 1117, 1129 (Cal. 2010).

California law teaches that “[b]efore engaging in [the

merits] analysis, a court must consider any claims by the

plaintiff that a statutory exemption contained in

section 425.17 applies.” Takhar v. People ex rel. Feather

River Air Quality Mgmt. Dist., 237 Cal. Rptr. 3d 759, 766

(Ct. App. 2018) (quoting San Diegans for Open Gov’t v. Har

Constr., Inc., 192 Cal. Rptr. 3d 559, 567 (Ct. App. 2015)).

12 MARTINEZ V. ZOOMINFO TECH. INC.

Although the district court put the cart before the horse and

did not address the exemptions, on de novo review we do so

here. This approach is consistent with the analytical

framework adopted by the California courts of appeal. See,

e.g., Xu v. Huang, 288 Cal. Rptr. 3d 558, 561–62 (Ct. App.

2021) (addressing commercial speech exemption after it was

pressed, but not passed upon, below); Takhar, 237 Cal. Rptr.

3d at 766–68 (same for public interest exemption). It is also

consistent with the express language of the statute: if

Martinez’s action satisfies either exemption, her action

cannot be struck as a SLAPP. See Cal. Civ. Proc. Code

§ 425.17(b)–(c). We hold that, on the face of Martinez’s

complaint, her case is brought solely in the public interest

and therefore is exempt from California’s anti-SLAPP law.

California’s anti-SLAPP law exempts a case “brought

solely in the public interest or on behalf of the general

public” if three conditions are met:

(1) The plaintiff does not seek any relief

greater than or different from the relief

sought for the general public or a class

of which the plaintiff is a member.

(2) The action, if successful, would enforce

an important right affecting the public

interest, and would confer a significant

benefit, whether pecuniary or

nonpecuniary, on the general public or a

large class of persons.

(3) Private enforcement is necessary and

places a disproportionate financial

burden on the plaintiff in relation to the

plaintiff’s stake in the matter.

MARTINEZ V. ZOOMINFO TECH. INC. 13

Id. § 425.17(b). The California Supreme Court counsels that

the public interest exception is to be narrowly construed and

applies “only when the entire action is brought in the public

interest.” Simpson, 230 P.3d at 1123 (quoting Club

Members for an Honest Election v. Sierra Club, 196 P.3d

1094, 1096 (Cal. 2008)). The applicability of the

exemptions is evaluated based on the allegations in the

complaint. See Tourgeman v. Nelson & Kennard, 166 Cal.

Rptr. 3d 729, 741 (Ct. App. 2014).

ZoomInfo’s primary argument regarding the public

interest exemption is that Martinez fails to satisfy the first

criterion because she seeks “individualized” or “personal”

relief. We disagree. While no California Supreme Court

case answers the precise question here, that court has

signaled approval of the result we reach. See Muniz v.

United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013)

(“Decisions of the California Supreme Court, including

reasoned dicta, are binding on us as to California law.”).

ZoomInfo argues that, by seeking relief that may require an

individualized determination—namely damages, Martinez is

seeking “personal relief,” as forbidden by Club Members for

an Honest Election v. Sierra Club, 196 P.3d 1094, 1098 (Cal.

2008). But in that case, the plaintiff sought certain relief that

would advance solely its members’ own interests. Id. at

1099. For example, the plaintiff asked the court to order the

Sierra Club to give board seats to plaintiff’s members and to

pay to publish an article advancing plaintiff’s view on the

direction of the Club. Id. Therefore, the plaintiff

impermissibly sought “relief greater than or different from

the relief sought for the general public.” Id. (quoting

§ 425.17(b)). The California Supreme Court clarified that

the bar on “any personal relief” prohibits seeking “a more

narrow advantage for a particular plaintiff.” Id. at 1098

14 MARTINEZ V. ZOOMINFO TECH. INC.

(internal quotation marks omitted). In context, “a more

narrow advantage” is most reasonably construed as referring

to relief that applies only to the plaintiff, and not the class.

Here, a California Court of Appeal decision is the most

relevant authority and our best indication of how the

California Supreme Court would rule. See Muniz, 738 F.3d

at 219 (noting that California appellate decisions are

“persuasive,” not binding, but “[w]e should nevertheless

follow a published intermediate state court decision

regarding California law unless we are convinced that the

California Supreme Court would reject it”). The bottom line

is that seeking individualized relief is permissible and not a

death knell to the public interest exemption. In People ex

rel. Strathmann v. Acacia Research Corp., 148 Cal. Rptr. 3d

361 (Ct. App. 2012), the court observed that “[a] claim

brought on behalf of the general public might include some

kind of individual relief, in which case, it would have to be

determined under section 425.17(b)(1) whether that relief is

greater than or different from the relief sought for the general

public.” Id. at 371 (emphasis added). Thus, a request for

individual relief is the starting, not the ending, point for the

§ 425.17(b)(1) analysis.

No California intermediate appellate authority

undermines this conclusion. ZoomInfo rests its argument on

Ingels v. Westwood One Broadcasting Services, Inc., where

the court held that an action seeking “recovery of damages

personal to [the plaintiff]” did not fall within the public

interest exemption. 28 Cal. Rptr. 3d 933, 937, 943 (Ct. App.

2005). But the important distinction is that the plaintiff in

Ingels sought damages solely for himself and not for

members of the alleged class. Id. Therefore, the court’s use

of “personal” damages is most reasonably understood as

relief sought solely on behalf of the individual plaintiff.

MARTINEZ V. ZOOMINFO TECH. INC. 15

Similarly, the California appellate courts have found the

public interest exemption does not apply when the plaintiff

seeks damages that apply to a fraction of the class, not its

entirety. Thayer v. Kabateck Brown Kellner LLP, 143 Cal.

Rptr. 3d 17, 29 (Ct. App. 2012), as modified (June 22, 2012)

(noting that Thayer sought damages that were statutorily

available only to senior citizens and concluding that Thayer

sought “relief much greater than the relief sought for the

purported class”).3 Here, by contrast, Martinez has

requested all relief on behalf of the alleged class; she has not

requested any additional relief that would not apply to some

or all of the class. Given this critical difference between the

above cases and the one before us, we cannot reasonably

construe these authorities to prohibit all requested class-wide

relief that might require individualized calculations to award

damages. Rather, as instructed by Strathmann, the

possibility of “some kind of individual relief” prompts us to

proceed to the § 425.17(b)(1) analysis.

Martinez’s complaint does not seek relief that is greater

than or different from the relief sought on behalf of the

alleged class. Martinez seeks relief solely on behalf of a

class of which she is a member. She does not seek any

additional relief solely for herself, the fatal flaw for the

plaintiffs in Club Members for an Honest Election and

Ingels. Nor does she seek, at least from the face of the

3

The court in Thayer also noted that the plaintiff had requested general

damages, which “includes pain and suffering, emotional distress, and

other ‘subjective’ items.” 143 Cal. Rptr. 3d at 29 (quoting Beeman v.

Burling, 265 Cal. Rptr. 719, 727 (Ct. App. 1990)). But because the court

found fault with the plaintiff’s complaint for seeking “much greater”—

rather than different—relief, Thayer should not be read to mean that

requesting “subjective” damages such as emotional distress on behalf of

the entire class violates § 425.17(b)’s requirements. See id.

16 MARTINEZ V. ZOOMINFO TECH. INC.

complaint, relief that would apply only to a subset of the

class, as at issue in Thayer. Nothing in Martinez’s complaint

suggests that, if her action is successful, her recovery will be

greater than the recovery of other members of the class.

On the second criterion, Martinez’s action, if successful,

would “enforce an important right affecting the public

interest” and would “confer a significant benefit” on the

general public. See Cal. Civ. Proc. Code § 425.17(b)(2).

Courts make this determination by “examining [the]

complaint to determine whether [the] lawsuit is of the kind

that seeks to vindicate public policy goals.” Tourgeman, 166

Cal. Rptr. 3d at 743. Martinez’s lawsuit clearly intersects

with California’s public policy goals.

The birthplace of American cinema and home of

Hollywood, California has long declared a policy of

protecting artists’ and other individuals’ right to control the

use of their persona. California’s original constitution

substantively began by identifying “protecting property” and

“pursuing and obtaining . . . happiness” as “inalienable

rights.” Cal. Const. Art. I, § 1 (1849). Nearly a century ago,

California’s courts enshrined the right to privacy in the state

constitution by interpreting this right to happiness as

“includ[ing] the right to live free from the unwarranted

attack of others upon one’s liberty, property, and

reputation.” Melvin v. Reid, 297 P. 91, 93 (Cal. Ct. App.

1931). In doing so, the court in Melvin concluded that the

right to privacy supported a tort action for using the

plaintiff’s name and biography without her permission. Id.

at 92–93.

Since then, California has continued to firmly declare its

public policy commitment to protecting its citizens’ property

and privacy rights. Subsequent decisions confirmed that the

MARTINEZ V. ZOOMINFO TECH. INC. 17

unauthorized use of a person’s name for commercial

exploitation is actionable. Stilson v. Reader’s Dig. Ass’n,

Inc., 104 Cal. Rptr. 581, 582 (Ct. App. 1972); Fairfield v.

Am. Photocopy Equip. Co., 291 P.2d 194, 197 (Cal. Ct. App.

1955) (condemning such exploitation as “one of the most

flagrant and common means of invasion of privacy”). These

decisions underscore the breadth of the privacy protection,

permitting actions not just by celebrities and well-known

corporations, but also by private citizens with no public

reputation. See Stilson, 104 Cal. Rptr. at 582. The California

public has also endorsed the state’s commitment to privacy.

In 1972, California voters explicitly added privacy to the

state’s constitutional rights. Hill v. Nat’l Collegiate Athletic

Ass’n, 7 Cal. 4th 1, 15 (1994); see also Cal. Const. Art. I,

§ 1.

This longstanding protection demonstrates that

California considers the right to control one’s name and

likeness to be an important right affecting the public interest.

Although we take no position on the merits, Martinez’s

lawsuit, on the face of the complaint, seeks to enforce this

right. California’s common-law and statutory recognition of

this right suggests that if Martinez prevails, she will confer a

significant benefit on thousands of Californians.

Finally, Martinez also satisfies the third criterion of the

public-interest exemption because private enforcement is

both necessary and disproportionately burdensome. See Cal.

Civ. Proc. Code § 425.17(b)(3). California Courts of Appeal

have held that if no public entity has sought to enforce the

right plaintiff seeks to vindicate in the lawsuit, “[t]his fact

alone is a sufficient basis to conclude the action is

‘necessary,’ within the meaning of the public interest

exception.” Inland Oversight Comm. v. County of San

Bernardino, 190 Cal. Rptr. 3d 884, 887–88 (Ct. App. 2015);

18 MARTINEZ V. ZOOMINFO TECH. INC.

see also Tourgeman, 166 Cal. Rptr. 3d at 744 (citing cases).

There is no indication in the record or briefing here that a

public entity has brought a right-to-publicity,

misappropriation, or similar action against ZoomInfo. On the

relative financial cost, a case is disproportionately

burdensome if “the cost of [Martinez’s] legal victory

transcends [her] personal interest.” Tourgeman, 166 Cal.

Rptr. 3d at 744 (quoting Blanchard v. DIRECTV, Inc., 20

Cal. Rptr. 3d 385, 393 (Ct. App. 2004)). As a non-celebrity

who may struggle to demonstrate the economic value of her

name or likeness, Martinez may well recover only the

minimum statutory damages. At $750 per person, these

damages would not even cover the cost of litigating this

action. See Cal. Civ. Code § 3344(a). But, if her class action

is successful, Martinez’s personal recovery would be

dwarfed by the total recovery for the putative class, which

she alleges may number in the millions.

We therefore conclude that Martinez’s complaint is

exempted from California’s anti-SLAPP law as a suit

“brought solely in the public interest” under § 425.17(b).

Because the public interest exemption applies, it is

unnecessary for us to determine whether the commercial

speech exemption also applies or to reach the merits grounds

on which the district court decided the motion.

We affirm the district court’s denial of ZoomInfo’s

motion to strike Martinez’s complaint under California’s

anti-SLAPP law on the alternative ground that Martinez’s

complaint falls within the public-interest exemption to the

anti-SLAPP law. Costs shall be awarded to Martinez.

AFFIRMED.

MARTINEZ V. ZOOMINFO TECH. INC. 19

McKEOWN, Circuit Judge, concurring:

I write separately to question the propriety of our court

reviewing on interlocutory appeal denials of anti-SLAPP

motions to strike. My particular objection is that a motion

based on California’s anti-SLAPP statute is wholly

grounded in that state’s procedural law, yet we have infused

it with substantive significance. Rusheen v. Cohen, 128 P.3d

713, 717 (Cal. 2006) (“The Legislature enacted Code of

Civil Procedure section 425.16—known as the anti-SLAPP

statute—to provide a procedural remedy to dispose of

lawsuits that are brought to chill the valid exercise of

constitutional rights.”); Cal. S. Judiciary Comm., Analysis

of S.B. No. 515 (2003–2004 Reg. Sess.), as amended May

1, 2003, p. 12 (“At its core, the anti-SLAPP law is a

procedural device crafted by the Legislature to weed out

certain frivolous lawsuits arising out of the defendant’s valid

(and thus protected) first amendment conduct.”). Over time,

we have turned the statute into a ground for interlocutory

appeal in the federal courts.

What is more, at odds with the venerable doctrine of Erie

Railroad Co. v. Tompkins, 304 U.S. 64 (1938), we have even

decided that we will adopt the California state procedural

rules as to when the denial of a SLAPP motion is appealable.

Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th

Cir. 2017) (holding that the statutory prohibition on

interlocutory appeals of denials of anti-SLAPP motions to

strike on public-interest-exemption grounds, California

Civil Procedure Code § 425.17(e), applies in federal court).

Ironically, we let anti-SLAPP denials jump the line and

become automatically classified as appealable under the

collateral order doctrine, but we decline interlocutory review

of the more draconian result when a trial court grants an anti-

SLAPP motion and ousts a party from court. See, e.g., Hyan

20 MARTINEZ V. ZOOMINFO TECH. INC.

v. Hummer, 825 F.3d 1043, 1047 (9th Cir. 2016) (holding

that the grant of an anti-SLAPP motion to strike is fully

reviewable on appeal from final judgment, and thus not

appealable under the collateral order doctrine). We cannot

justify this discrepancy on the grounds that anti-SLAPP is a

form of immunity from suit. Cf. Batzel v. Smith, 333 F.3d

1018, 1025–26 (9th Cir. 2003), superseded by statute, Cal.

Civ. Proc. Code § 425.17(e). That line of reasoning has been

soundly rejected by the California Supreme Court, which has

repeatedly insisted that “the anti-SLAPP statute neither

constitutes—nor enables courts to effect—any type of

‘immunity.’” Jarrow Formulas, Inc. v. LaMarche, 74 P.3d

737, 743–44 (Cal. 2003) (quoting Navellier v. Sletten, 52

P.3d 703, 712 (Cal. 2002)).

Our jurisprudence on anti-SLAPP statutes places us in

the minority among our sister circuits. The Second, Seventh,

Tenth, Eleventh, and D.C. Circuits do not recognize the

applicability of SLAPP statutes’ provisions for motions to

strike or dismiss. The Second Circuit put it succinctly:

“[W]e lack appellate jurisdiction to consider the district

court’s order passing on the merits of the defendants’ anti-

SLAPP motions to strike.” Ernst v. Carrigan, 814 F.3d 116,

122 (2d Cir. 2016). See also Intercon Sols., Inc. v. Basel

Action Network,1 791 F.3d 729, 732 (7th Cir. 2015) (holding

that Washington’s anti-SLAPP law, as a whole, is

inapplicable in federal court); Los Lobos Renewable Power,

LLC v. Americulture, Inc., 885 F.3d 659, 668–73 (10th Cir.

1

Before the Seventh Circuit’s decision, the Washington Supreme Court

ruled that the state’s anti-SLAPP statute violated the Washington

Constitution and that its special motion to strike provision was not

severable. Davis v. Cox, 351 P.3d 862, 864, 871–74 (Wash. 2015) (en

banc), abrogated on other grounds, Maytown Sand & Gravel, LLC v.

Thurston Cnty., 423 P.3d 223, 248 n.15 (Wash. 2018) (en banc).

MARTINEZ V. ZOOMINFO TECH. INC. 21

2018) (holding that New Mexico’s anti-SLAPP statute is

inapplicable in a federal diversity action); Carbone v. Cable

News Network, Inc., 910 F.3d 1345, 1349–51 (11th Cir.

2018) (holding that the motion to strike provision of

Georgia’s anti-SLAPP statute does not apply in federal

court); Abbas v. Foreign Pol’y Grp., 783 F.3d 1328, 1333

(D.C. Cir. 2015) (declining to apply the District of

Columbia’s anti-SLAPP law’s special motion to dismiss

provision). Only two circuits side with the Ninth Circuit

approach—the First and Fifth Circuits. See Franchini v.

Inv.’s Bus. Daily, Inc., 981 F.3d 1, 6–8 (1st Cir. 2020)

(holding the appellate court had jurisdiction to hear an

interlocutory appeal of a denial of a motion to dismiss under

Maine’s anti-SLAPP law); Henry v. Lake Charles Am.

Press, L.L.C., 566 F.3d 164, 180–81 (5th Cir. 2009) (holding

that interlocutory appeal of denial of anti-SLAPP dismissal

under Louisiana law permitted); but see Cuba v. Pylant, 814

F.3d 701, 718–21 (5th Cir. 2016) (Graves, J., dissenting)

(disagreeing with circuit’s applying Texas’s anti-SLAPP

law on the basis that, under Erie, such a procedural law is

inapplicable in federal court).

Several of my colleagues have already registered their

doubts whether it is appropriate to review anti-SLAPP

motions on interlocutory appeal. See Planned Parenthood

Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828,

835–38 (9th Cir.) (Gould, J., joined by Murguia, J.,

concurring), amended, 897 F.3d 1224 (9th Cir. 2018);

Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179,

1182–86 (9th Cir. 2016) (Kozinski and Gould, JJ.,

concurring); Makaeff v. Trump Univ., LLC, 736 F.3d 1180,

1188–92 (9th Cir. 2013) (Watford, J., joined by Kozinski,

Paez, & Bea, JJ., dissenting from denial of rehearing en

22 MARTINEZ V. ZOOMINFO TECH. INC.

banc); Makaeff v. Trump Univ., LLC, 715 F.3d 254, 272–76

(9th Cir. 2013) (Kozinski, C.J. & Paez, J., concurring).

We have turned a blind eye to the incongruity of this

practice—with Erie and with common sense—for too long.

DESAI, Circuit Judge, with whom McKEOWN, Circuit

Judge, joins, concurring:

As discussed in the panel’s opinion, ZoomInfo’s

interlocutory appeal of the district court’s denial of its anti-

SLAPP motion to strike is properly before us because

binding circuit precedent establishes that denials of such

motions are collateral orders subject to interlocutory appeal.

While I join my colleagues in affirming the trial court’s

denial of ZoomInfo’s anti-SLAPP motion to strike, I write

separately to urge our court to reconsider our precedent

allowing interlocutory appeals of such collateral orders in

the first place.

In Batzel v. Smith, this court held that denials of anti-

SLAPP motions to strike are immediately appealable

collateral orders. 333 F.3d 1018, 1024–26 (9th Cir. 2003).

Since then, some of my colleagues have challenged the

appropriateness of reviewing denials of anti-SLAPP motions

to strike on interlocutory appeal, urging the court to

reconsider this precedent. See Planned Parenthood Fed’n of

Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835–38

(9th Cir. 2018) (Gould, J., joined by Murguia, J.,

concurring), amended, 897 F.3d 1224 (9th Cir. 2018). And

several of my colleagues have separately questioned the

propriety of reviewing denials of anti-SLAPP motions to

strike on interlocutory appeal even when they more broadly

urge no federal court review of any action arising under state

MARTINEZ V. ZOOMINFO TECH. INC. 23

anti-SLAPP laws. Travelers Cas. Ins. Co. of Am. v. Hirsh,

831 F.3d 1179, 1182–86 (9th Cir. 2016) (Kozinski and

Gould, JJ., concurring); Makaeff v. Trump Univ., LLC, 736

F.3d 1180, 1188–92 (9th Cir. 2013) (Watford, J., joined by

Kozinski, Paez, & Bea, JJ., dissenting from denial of

rehearing en banc). Moreover, two of our sister circuits have

reasoned that anti-SLAPP motions are not collateral orders

subject to interlocutory appeal. Ernst v. Carrigan, 814 F.3d

116, 122 (2d Cir. 2016); cf. Intercon Sols., Inc. v. Basel

Action Network, 791 F.3d 729, 731 (7th Cir. 2015) (stating

in dicta that anti-SLAPP motions to strike are not collateral

orders).

Because denials of anti-SLAPP motions do not qualify

as collateral orders, this court does not have jurisdiction to

entertain them on an interlocutory basis. For an otherwise

non-appealable, interlocutory decision to be subject to

immediate review by a court of appeals, it must

(1) “conclusively determine the disputed question,”

(2) “resolve an important issue completely separate from the

merits of the action,” and (3) “be effectively unreviewable

on appeal from a final judgment.” Will v. Hallock, 546 U.S.

345, 349 (2006). The denial of an anti-SLAPP motion to

strike does not satisfy the final two elements of the Will

collateral order analysis.

First, the denial of an anti-SLAPP motion to strike,

which necessarily considers the plaintiff’s likelihood of

success, see Cal. Civ. Proc. Code § 425.16(b), does not

resolve an important issue completely separate from the

merits. Nor is the denial of an anti-SLAPP motion to strike

“effectively unreviewable on appeal from a final judgment.”

Will, 546 U.S. at 349. Courts typically find this factor

satisfied when a decision denies a defendant immunity from

suit, such as denials of absolute or qualified immunity. See

24 MARTINEZ V. ZOOMINFO TECH. INC.

Mitchell v. Forsyth, 472 U.S. 511, 526–30 (1985). But “the

anti-SLAPP statute neither constitutes—nor enables courts

to effect—any type of ‘immunity.’” Jarrow Formulas, Inc.

v. LaMarche, 74 P.3d 737, 743–44 (Cal. 2003) (quoting

Navellier v. Sletten, 52 P.3d 703, 712 (Cal. 2002)). And the

merits of the plaintiff’s claims and the defendant’s defenses

can be reviewed upon a final judgment. That the anti-SLAPP

statute itself may provide for interlocutory appeal of denials

of anti-SLAPP motions to strike in state court does not alter

this analysis in federal court.

In sum, because anti-SLAPP motions to strike require

the court to assess the merits of a plaintiff’s claims and are

not effectively unreviewable on appeal from a final

judgment, I join many of my colleagues and two of our sister

circuits in concluding that the court lacks jurisdiction to

consider denials of such motions on interlocutory appeal

absent certification from the district court under 28 U.S.C.

§ 1292(b).