NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
P6 LA MF HOLDINGS SPE, LLC, a No. 17-55924
limited liability company; et al.,
D.C. No.
Plaintiffs-Appellees, 2:17-cv-00616-RGK-SS
v.
MEMORANDUM*
NEIL SHEKHTER, as an individual and as and
Trustee of The NMS Family Living Trust ORDER
dated September 3, 1991; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted August 8, 2018
Pasadena, California
Before: GRABER, WARDLAW, and CHRISTEN, Circuit Judges.
Neil Shekhter, Margot Shekhter, NMS Properties, Inc., and NMS Capital
Partners I, LLC (collectively NMS) appeal the district court’s denial of their
special motion to strike under California Civil Procedure Code § 425.16 (the anti-
SLAPP statute). NMS sought to strike tortious interference and slander of title
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claims brought by P6 LA MF Holdings SPE, LLC, et. al. (collectively AEW).
AEW’s complaint alleges several claims against NMS based on a series of letters
NMS sent to dozens of third parties informing them of the dispute surrounding
their Joint Venture Agreement (JVA) and in some cases, threatening litigation.
NMS argues that AEW’s claims are based on a related litigation regarding whether
NMS forged two versions of the JVA. We review de novo a district court’s denial
of a special motion to strike under California’s anti-SLAPP statute. Roberts v.
McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011). We affirm.1
1. AEW contends that we lack jurisdiction to review NMS’s
interlocutory appeal. We disagree. Under the collateral order doctrine, we have
jurisdiction to review the denial of a motion to strike made pursuant to California’s
anti-SLAPP statute. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015
(9th Cir. 2013); see also Batzel v. Smith, 333 F.3d 1018, 1024–25 (9th Cir. 2003)
(stating standards for immediately appealable orders). AEW’s argument that we
lack jurisdiction because our decision will resolve questions “necessarily
intertwined” with the merits of its federal RICO claim is foreclosed by Batzel. Id.
at 1025 (“Denial of an anti-SLAPP motion resolves a question separate from the
merits in that it merely finds that such merits may exist, without evaluating
whether the plaintiff’s claim will succeed.”).
1
NMS’s motion for judicial notice, Dkt. No. 43, is GRANTED.
2
2. Turning to the denial of the special motion to strike, the district court
correctly concluded that AEW’s interference and slander claims were not barred by
California’s anti-SLAPP statute. California’s litigation privilege applies “to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation;
and (4) that has some connection or logical relation to the action.” Action
Apartment Ass’n v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007) (internal
quotation marks and brackets omitted). But the privilege applies to pre-litigation
communications only when they “relate[] to litigation that is contemplated in good
faith and under serious consideration.” Id. at 1251. “[C]ontemplated in good
faith” refers to “a good faith intention to bring a suit,” not “a good faith belief in
the[] truth” of the publication. 2 Id.
NMS failed to submit any declarations supporting an honest belief that they
had a viable legal claim or that they were “seriously contemplating litigation”
2
NMS argues that these letters should be viewed as letters related to
ongoing litigation, rather than pre-litigation letters, and therefore NMS is required
to show only that the letters had “some connection with the proceedings.”
Thornton v. Rhoden, 53 Cal. Rptr. 706, 713 (Ct. App. 1966). However, statements
to third parties can be privileged only if they are addressed to parties with a
“substantial interest” in the proceedings. Costa v. Superior Court, 204 Cal. Rptr.
1, 4 (Ct. App. 1984). Here, NMS sent thousands of letters to different categories
of individuals who were not parties to the litigation. For example, NMS sent
letters to every major title insurer in the United States. NMS has failed to show
how these individuals had any interest in NMS and AEW’s business dispute.
Thus, even if the ongoing litigation standard applied, NMS’s claim would still fail.
3
against the potential buyers, title insurers, and lenders to whom they sent
communications. Aronson v. Kinsella, 68 Cal. Rptr. 2d 305, 314–16 (Ct. App.
1997). As the district court correctly concluded, “filing one lawsuit is not
sufficient to show that NMS in fact contemplated litigation in good faith and under
serious consideration for every letter it sent.”
The district court properly applied California’s anti-SLAPP law. Oasis W.
Realty, LLC v. Goldman, 51 Cal. 4th 811, 820 (2011). First, the district court
correctly concluded that there was a legitimate issue as to whether NMS’s letters
arose from constitutionally protected activity, since the communications were
allegedly based on a forged version of the JVA, and the litigation privilege does
not apply where a defendant’s “assertedly protected activity is illegal as a matter of
law.” City of Montebello v. Vasquez, 1 Cal. 5th 409, 423 (2016) (internal quotation
marks omitted). Second, the district court correctly found that AEW’s claims had
at least minimal merit. AEW’s interference and slander claims were found to be
properly pleaded, and the district court was unable to “determine that none of the
letters were sent [by NMS] as ‘hollow threats of litigation.’” Given the legitimate
issue as to whether NMS’s communications were constitutionally protected, and
AEW’s showing that its claims had at least minimal merit, the district court’s
denial of NMS’s anti-SLAPP motion was proper.
For the foregoing reasons, we affirm the district court’s denial of NMS’s
4
anti-SLAPP motion to strike. 3
AFFIRMED.
3
Because we find that NMS failed to show that the letters were protected by
California’s litigation privilege, we need not reach the remainder of NMS’s and
AEW’s arguments.
5