NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEPH R. FRANCIS, an individual, No. 12-55858
Plaintiff - Appellee, D.C. No. 2:11-cv-09054-DSF-
VBK
v.
WYNN LAS VEGAS, LLC, a Nevada MEMORANDUM*
limited liability company, DBA Wynn Las
Vegas; STEPHEN A. WYNN, an
individual; BARBARA CONWAY, an
individual,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 6, 2014
Pasadena, California
Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
In this diversity suit, defendants-appellants Wynn Las Vegas, LLC, Stephen A.
Wynn, and Barbara Conway (collectively, “Wynn”) appeal the denial of a special
motion filed under California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, to
strike the complaint filed by plaintiff-appellee Joseph R. Francis. We affirm.
1. Applicability of California or Nevada anti-SLAPP law.
Francis argues that the Nevada anti-SLAPP statute, not California’s, applies,
and that this court therefore lacks jurisdiction. Because California’s anti-SLAPP
statute, Cal. Civ. Proc. Code §§ 425.16(b), (i), 904.1, provides a right to appeal the
denial of a special motion to dismiss, we have treated such denials as final orders
under 28 U.S.C. § 1291. DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015 (9th
Cir 2013). Nevada’s statute, however, does not provide a right of appeal from the
denial of a special motion to dismiss. Nev. Rev. Stat. §§ 41.660(1)(a), 41.650.
“When a federal court sits in diversity, it must look to the forum state’s choice
of law rules to determine the controlling substantive law.” Patton v. Cox, 276 F.3d
493, 495 (9th Cir. 2002). California applies the “governmental interest analysis in
resolving choice-of-law issues.” Kearney v. Salomon Smith Barney, Inc., 137 P.3d
914, 922 (Cal. 2006). Under this approach the court “evaluates and compares the
nature and strength of the interest of each jurisdiction in the application of its own law
to determine which state’s interest would be more impaired if its policy were
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subordinated to the policy of the other state.” Id. at 922 (quotation marks and citation
omitted).
California’s anti-SLAPP statute applies here. California is both the domicile
and selected forum of the putatively injured party, Francis. See Kasel v. Remington
Arms Co., 101 Cal. Rptr. 314, 330 (Ct. App. 1972). Further, applying Nevada’s law
would improperly limit California’s expansive defendant-friendly policy. See
Bernhard v. Harrah’s Club, 546 P.2d 719, 724 (Cal. 1976). This court has
jurisdiction.
2. Applicability of California or Nevada substantive law to Francis’
claims.
Applying the California choice-of-law analysis, we agree with the district court
that a California court would apply Nevada’s substantive law1 to determine whether
Francis has put forth sufficient evidence to survive the anti-SLAPP statute’s
“summary-judgment-like procedure,” Taus v. Loftus, 151 P.3d 1185, 1205 (Cal.
2007), on his claims against Wynn for malicious prosecution, abuse of process,
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Wynn argues that Francis is estopped from invoking Nevada substantive law
because he sued in California. California, however, applies “its own rule of decision
unless a party litigant timely invokes the law of a foreign state” and demonstrates that
“the latter rule of decision will further the interest of the foreign state and therefore
that it is an appropriate one for the forum to apply to the case before it.” Hurtado v.
Super. Ct., 522 P.2d 666, 670 (Cal. 1974). Francis invoked Nevada law in response
to Wynn’s anti-SLAPP motion.
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defamation, intentional infliction of emotional distress, and conspiracy. Cal. Civ.
Proc. Code § 425.16(b)(1).
The “state with the ‘predominant’ interest” in applying its law “normally is the
state in which [the underlying] conduct occurs.” Cable v. Sahara Tahoe Corp., 155
Cal. Rptr. 770, 777 (Ct. App. 1979). Here, as the district court noted, all of “the
alleged criminal conduct took place in Nevada and the allegedly false criminal
complaint was made by Nevada citizens in Nevada to a Nevada prosecutor.” Thus,
Nevada substantive law applies to Francis’ claims.
3. Probability of prevailing -- malicious prosecution.
Under Nevada law, malicious prosecution requires: “(1) want of probable cause
to initiate the prior criminal proceeding; (2) malice; (3) termination of the prior
criminal proceedings; and (4) damage.” Jordan v. Bailey, 944 P.2d 828, 834 (Nev.
1997). Wynn does not dispute that the prior criminal proceedings terminated in
Francis’ favor or that Francis can establish damages.
There is substantial evidence to support Francis’ position that there was no
probable cause to initiate charges against Francis in connection with a marker he
issued to the Wynn casino. A Nevada court, in dismissing criminal charges against
Francis, explicitly held that “the State did not present ‘slight’ or ‘marginal’ evidence
demonstrating Mr. Francis intended to take the marker out from the Wynn and not
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repay his debt.” Nevada v. Francis, No. C-11-270780-1 (Nev. Dist. Ct. filed Sept. 14,
2011). And, Francis has put forth some evidence of actual malice--a reasonable jury
could infer malice from Wynn’s filing a complaint stating that the casino had
submitted Francis’ marker within “30 days” as was its “normal course of business,”
when in fact it submitted the marker some sixteen months after execution. See Pope
v. Motel 6, 114 P.3d 277, 284 (Nev. 2005) (holding that actual malice may be “proven
by demonstrating that a statement is published . . . with reckless disregard for its
veracity”). The district court correctly determined that Francis has made a sufficient
showing on the malicious prosecution claim to defeat an anti-SLAPP motion.
4. Probability of prevailing -- other claims.
Francis’ remaining claims can only succeed if Wynn’s submission of the
complaint to the Las Vegas police was not privileged. Under Nevada law, Wynn’s
action is privileged unless Francis can “prove by a preponderance of the evidence that
the defendant abused the privilege by publishing the defamatory communication with
actual malice.” Pope, 114 P.3d at 283-84. Francis has come forward with evidence
of actual malice and thus has “submit[ted] specific factual evidence demonstrating the
existence of a genuine factual issue.” John v. Douglas, 219 P.3d 1276, 1281 (Nev.
2009).
AFFIRMED.
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