Kearney v. Foley & Lardner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOAN BROWN KEARNEY,  No. 07-55566
Plaintiff-Appellant, D.C. No.
v. CV-05-02112-L
FOLEY & LARDNER, LLP; GREGORY ORDER
V. MOSER; LARRY L. MARSHALL;
MICHAEL MCCARTY,  AMENDING
OPINION AND
Defendants-Appellees. DENYING THE
PETITION FOR
REHEARING AND
AMENDED
 OPINION

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
Amended September 18, 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.

13551
 KEARNEY v. FOLEY & LARDNER 13555

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.

ORDER

The Opinion filed on May 12, 2009, is amended as follows:
on the slip opinion at page 5653, insert a semicolon following
13556 KEARNEY v. FOLEY & LARDNER
“Marshall.” At page 5658, place a period after “we affirm the
district court” and delete the balance of the sentence. On page
5672, delete section “a. Spoliation of Evidence” and replace
it with:

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.”5
Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (Ct. App.
1998). However, Kearney’s claims do not allege the destruc-
tion of or failure to preserve evidence, but instead contend
that Appellants delayed in creating a written version of the
evidence.

California courts have historically tried to limit the scope
of this tort (to the point of nearly eradicating it), looking to
policy concerns as well as the existence of other remedies to
support those limits. See Cedars-Sinai Med. Ctr. v. Sup. Ct.,
74 Cal. Rptr. 2d 248, 252, 254-56. To the extent the tort con-
tinues to exist in California to address spoliation a party did
not or could not have known about prior to the end of litigation,6
reading Hernandez’s description of spoliation broadly enough
to include this case would be out of step with that limiting
principle. Furthermore, other remedies are available. The Cal-
ifornia Penal Code better describes the kind of conduct here,
punishing criminally anyone who knows that a thing is about
to be produced in evidence for a trial and then conceals it to
keep it from being produced. See Cal. Penal Code § 135; see
Cedars-Sinai, 74 Cal. Rptr. 2d at 254 (describing § 135 as an
effective deterrent against wrongful conduct). The State Bar
of California also could impose sanctions on Appellants. See
Cedars-Sinai, 74 Cal. Rptr. 2d at 255. Finally, we note that
5
Spoliation claims are exempted from the litigation privilege. Cal. Civ.
Code § 47(b)(2).
6
We take no position on this point.
 KEARNEY v. FOLEY & LARDNER 13557
this opinion leaves Kearney with another avenue for relief:
her federal RICO claims against Appellants based on roughly
the same conduct. Because “[w]e may affirm the dismissal on
any ground supported by the record” and Kearney’s complaint
was not legally sufficient to sustain a favorable judgment on
the claim for spoliation of evidence, see Navellier v. Sletten,
29 Cal. 4th 82, 88-89 (2002), we affirm the district court’s
decision to strike this claim.7

On page 5674, paragraph one: attach this sentence to the
previous paragraph, place a period after “we affirm the district
court,” and delete the remainder of the sentence.

With these changes, Appellees’ petition for rehearing is
DENIED.

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
(“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.
7
The district court rested its holding on the fact that the tort is not recog-
nized when “the spoliation was or should have been discovered before the
conclusion of the litigation.” Given that there was some factual dispute as
to whether Kearney discovered or should have discovered the evidence
prior to or during the valuation trial, we do not affirm the district court’s
reasoning.
13558 KEARNEY v. FOLEY & LARDNER
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.

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,
 KEARNEY v. FOLEY & LARDNER 13559
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
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
13560 KEARNEY v. FOLEY & LARDNER
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
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.
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).
 KEARNEY v. FOLEY & LARDNER 13561
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-
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
13562 KEARNEY v. FOLEY & LARDNER
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,
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-
 KEARNEY v. FOLEY & LARDNER 13563
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.

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
13564 KEARNEY v. FOLEY & LARDNER
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-
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).
 KEARNEY v. FOLEY & LARDNER 13565
[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.

[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
13566 KEARNEY v. FOLEY & LARDNER
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-
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.
 KEARNEY v. FOLEY & LARDNER 13567
[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.

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,
13568 KEARNEY v. FOLEY & LARDNER
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-
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.
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 13569
[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

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-
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).
13570 KEARNEY v. FOLEY & LARDNER
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
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-
 KEARNEY v. FOLEY & LARDNER 13571
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.

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
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
13572 KEARNEY v. FOLEY & LARDNER
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.”5
Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (Ct. App.
1998). However, Kearney’s claims do not allege the destruc-
tion of or failure to preserve evidence, but instead contend
that Appellants delayed in creating a written version of the
evidence.

California courts have historically tried to limit the scope
of this tort (to the point of nearly eradicating it), looking to
policy concerns as well as the existence of other remedies to
support those limits. See Cedars-Sinai Med. Ctr. v. Sup. Ct.,
74 Cal. Rptr. 2d 248, 252, 254-56. To the extent the tort con-
tinues to exist in California to address spoliation a party did
not or could not have known about prior to the end of litigation,6
reading Hernandez’s description of spoliation broadly enough
to include this case would be out of step with that limiting
principle. Furthermore, other remedies are available. The Cal-
ifornia Penal Code better describes the kind of conduct here,
punishing criminally anyone who knows that a thing is about
to be produced in evidence for a trial and then conceals it to
keep it from being produced. See Cal. Penal Code § 135; see
Cedars-Sinai, 74 Cal. Rptr. 2d at 254 (describing § 135 as an
effective deterrent against wrongful conduct). The State Bar
of California also could impose sanctions on Appellants. See

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).
6
We take no position on this point.
 KEARNEY v. FOLEY & LARDNER 13573
Cedars-Sinai, 74 Cal. Rptr. 2d at 255. Finally, we note that
this opinion leaves Kearney with another avenue for relief:
her federal RICO claims against Appellants based on roughly
the same conduct. Because “[w]e may affirm the dismissal on
any ground supported by the record” and Kearney’s complaint
was not legally sufficient to sustain a favorable judgment on
the claim for spoliation of evidence, see Navellier v. Sletten,
29 Cal. 4th 82, 88-89 (2002), we affirm the district court’s
decision to strike this claim.7

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
7
The district court rested its holding on the fact that the tort is not recog-
nized when “the spoliation was or should have been discovered before the
conclusion of the litigation.” Given that there was some factual dispute as
to whether Kearney discovered or should have discovered the evidence
prior to or during the valuation trial, we do not affirm the district court’s
reasoning.
13574 KEARNEY v. FOLEY & LARDNER
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.
As to Kearney’s state law claims, we affirm the district court.

Affirmed in part and vacated and remanded in part.