FILED
NOT FOR PUBLICATION FEB 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GWENDOLYN SMITH, No. 13-15070
Plaintiff - Appellant, D.C. No. 4:12-cv-01732-DMR
v.
MEMORANDUM*
PAUL PAYNE; SANTA ROSA PRESS
DEMOCRAT,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding**
Submitted February 17, 2015***
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Gwendolyn Smith appeals pro se from the district court’s judgment
dismissing her diversity action under California’s anti-Strategic Litigation Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Public Policy (“anti-SLAPP”) statute. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s grant of a motion to strike pursuant
to California’s anti-SLAPP statute. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
1102 (9th Cir. 2003). We affirm.
The district court properly granted defendants’ special motion to strike the
state law claims under California’s anti-SLAPP statute, because Smith’s claims
were based on protected activity and Smith failed to show a probability of
prevailing on the merits because the action was precluded by the doctrine of res
judicata. See Cal. Civ. Proc. Code § 425.16(e); Doe v. Gangland Prods., Inc., 730
F.3d 946, 953-54 (9th Cir. 2013) (under California law, “pre-publication or
pre-production acts such as investigating, newsgathering, and conducting
interviews constitute conduct that furthers the right of free speech” and
“defendants may satisfy their burden to show that they were engaged in conduct in
furtherance of their right of free speech under the anti-SLAPP statute, even when
their conduct was allegedly unlawful”); Stewart v. U.S. Bancorp, 297 F.3d 953,
956-57 (9th Cir. 2002) (setting forth the elements of the doctrine of res judicata,
and noting that it bars subsequent litigation both of claims that were raised and
those that could have been raised in the prior action and that dismissal for failure to
state a claim is a “judgment on the merits” for the purposes of the doctrine).
2 13-15070
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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