FILED
NOT FOR PUBLICATION JAN 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DC COMICS, No. 11-56934
Plaintiff - Appellee, D.C. No. 2:10-cv-03633-ODW-RZ
v.
MEMORANDUM *
PACIFIC PICTURES CORPORATION;
IP WORLDWIDE, LLC; IPW, LLC;
MARC TOBEROFF; MARK WARREN
PEARY, as personal representative of the
Estate of Joseph Shuster; LAURA
SIEGEL LARSON, individually and as
personal representative of the Estate of
Joanne Siegel; JEAN ADELE PEAVY,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted November 5, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**
Defendants Pacific Pictures Corporation et al. (“defendants”) bring this
interlocutory appeal challenging the district judge’s denial of their motion to strike,
pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, the
fourth, fifth, and sixth claims brought by plaintiff DC Comics (“DC”) in its First
Amended Complaint. As explained in the contemporaneously-filed opinion, we
have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm.
The district judge properly held that DC’s claims were not “based on”
defendants’ protected activity. In re Episcopal Church Cases, 198 P.3d 66, 73
(Cal. 2009). DC’s fourth and fifth claims arise from the heirs’ repudiation, at
Toberoff’s apparent urging, of their agreements or economic relationships with
DC. Neither the heirs’ repudiation nor Toberoff’s alleged inducement itself
constitutes protected conduct under the anti-SLAPP statute. We reject defendants’
contentions that DC’s claims involve protected conduct simply because (1)
protected conduct may have been the ultimate motivation for, or eventual result of,
**
The Honorable John W. Sedwick, Senior U.S. District Judge for the
District of Alaska, sitting by designation.
2
the repudiation, or (2) an attorney may have induced that repudiation. See id.1
Defendants’ arguments based on the legal sufficiency of DC’s claims are not
relevant to our determination of whether those claims arise from protected conduct;
such arguments are properly directed to the district court in the form of a
dispositive motion. See, e.g., Fed R. Civ. P. 56.
We also agree with DC that its sixth claim does not encompass protected
conduct, even when the heirs’ 2008 “lock-up” agreement is considered as a basis
for that claim. Although the agreement was apparently produced immediately
before settlement negotiations and, allegedly, in anticipation of them, the
settlement negotiations themselves are incidental to the fact that the agreement may
itself constitute unfair competition. Indeed, the lock-up agreement appears to bind
the heirs long after the expiration of any settlement negotiations. Any protected
conduct is thus merely the backdrop to—and not the basis of—the unfair
competition claim. See Episcopal Church Cases, 198 P.3d at 73. Further, the anti-
SLAPP statute does not, as defendants suggest, extend to the protected activities of
the party bringing the underlying claims. See Cal. Civ. Proc. Code § 425.16(b)(1)
(providing a motion to strike for “[a] cause of action against a person arising from
1
Accordingly, we need not decide whether the filing of copyright
termination notices would constitute protected conduct under California’s anti-
SLAPP statute.
3
any act of that person in furtherance of the person’s right of petition or free
speech” (emphasis added)).
AFFIRMED.2
2
Because we need not assess the merits of DC’s claims, its motion for partial
reconsideration of this court’s order denying its motion to supplement the record
(D.E. 29) and its motion for judicial notice (D.E. 28) are denied as moot. For the
same reason, Defendants’ motion for judicial notice (D.E. 58) is denied as moot.
DC is awarded costs on appeal.
4