Lawzilla Note: Here is another ruling involving Michael Glintzer

Case Name:   Glintzer v. CDNetworks, Inc., et al.

Case No.:       1-13-CV-246314

After full consideration of the evidence and authorities submitted by each party, the Court makes the following rulings:

Plaintiff/cross-defendant Michael Glintzer (“Glintzer”) moves to strike each cause of action in the cross-complaint (“XC”) the ground that they arise from his protected activity of petitioning for judicial redress.  (See Code Civ. Proc. [“CCP”], § 425.16, subd. (e)(1)-(2).)

The procedural arguments asserted by defendant/cross-complainant CDNetworks, Inc. (“CDN”) in the opposing papers are not well-taken.

Glintzer bears the initial burden to make a threshold showing that the challenged cause of action arises from acts that were taken in furtherance of his right of petition or free speech under the U.S. Constitution or the California Constitution in connection with a public issue.  (See CCP, § 425.16, subd. (b); see also Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  If such a showing is made, the anti-SLAPP motion will be granted only where CDN fails to demonstrate a probability of prevailing on the claim.  (See CCP, § 425.16, subd. (b)(1).)

Glintzer argues that the seven causes of action asserted against him the XC are based on his protected activity in furtherance of petitioning for judicial redress.  (See CCP, § 425.16, subd. (e)(1)-(2).)  Glintzer insists that CDN filed the XC in retaliation for his lawsuit against it and other defendants (collectively, “Defendants”), and that CDN asserts causes of action against him as an attempt to thwart his ability to obtain discovery in support of the claims he asserts against Defendants in the third amended complaint (“TAC”).

Merely filing a lawsuit after a defendant engages in a protected activity does not establish that the action “arose from” a protected activity within the scope of the anti-SLAPP statute, even if the claim “may be viewed as an oppressive litigation tactic.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924 [“Kajima”].)  “Only those cross-complaints alleging a cause of action arising from the plaintiff’s act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action.”  (Kajima, supra, at p. 934.)  Courts have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of CCP section 425.16.  (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)

The principal thrust or gravamen of the misappropriation of trade secrets, violation of the unfair competition law (“UCL”), breach of contract, injunctive relief, and unjust enrichment claims is that Glintzer obtained CDN’s allegedly confidential information to use as evidence in support of his claims against Defendants, and misappropriated that confidential information by disclosing it to potential witnesses.  Glintzer does not articulate how disclosing alleged trade secrets and confidential information to third parties—even if those third parties are potential witnesses—falls within the scope of the anti-SLAPP statute.  Accordingly, Glintzer fails to meet its initial burden with respect to the misappropriation of trade secrets, violation of the UCL, breach of contract, injunctive relief, and unjust enrichment causes of action, and the motions is DENIED as to the first, second, third, fourth and seventh causes of action.[1]

The principal thrust or gravamen of the intentional interference with contractual relations and defamation (trade libel) claims (fifth and sixth causes of action) is that Glintzer made “untrue” statements to CDN’s current and former employees about the allegedly unlawful conduct which Glintzer alleges Defendants engaged in to support the claims he asserts against them in the TAC.  Moreover, CDN alleges that Glintzer performed these actions for the purpose of harming Defendants and to create “leverage” against them in furtherance of the claims he asserts against them in the TAC.  (XC, ¶ 14.)  Glintzer persuasively argues that these causes of action arise from his protected activity of communicating with potential witnesses and attempting to acquire evidence in connection with the claims he asserts against Defendants in the TAC.  Accordingly, Glintzer has met his initial burden with respect to the intentional interference with contractual relations and defamation causes of action.

The burden now shifts to CDN to demonstrate a probability of prevailing on the merits of its intentional interference with contractual relations and defamation claims.  (See CCP, § 425.16, subd. (b).)  To establish a “probability” of prevailing, CDN must demonstrate that the XC is legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by CDN is credited (see Navellier v. Sletten (2002) 29 Cal.4th 82, 89), and CDN must present evidence to overcome any privilege or defense that has been raised.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)

Glintzer asserts the litigation privilege as a defense.  The litigation privilege is an absolute bar to the intentional interference with contractual relations and defamation claims because they are based on Glintzer’s alleged communications with potential witnesses in an effort to obtain discovery.  (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912-913 [litigation privilege is an absolute privilege that bars any tort claim other than a claim for malicious prosecution]; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [privilege applies “even though the publication is made outside the courtroom and no function of the court or its officers is involved”]; see also Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778 [privilege “extends to preliminary conversations and interviews [with] a prospective witness . . . if they are some way related to or connected with a pending or contemplated action”].)  Thus, CDN cannot demonstrate a probability of prevailing with respect to those claims.

In sum, Glintzer has not met his initial burden as to the misappropriation of trade secrets, violation of the UCL, breach of contract, injunctive relief, and unjust enrichment causes of action.  That being said, he has met his initial burden as to the intentional interference with contractual relations and defamation claims, and CDN failed to demonstrate a probability of prevailing on the merits of those claims.

In light of the foregoing, Glintzer’s anti-SLAPP motion is GRANTED IN PART and DENIED IN PART.  The motion is GRANTED as to the fifth and sixth causes of action for intentional interference with contractual relations and defamation.  The motion is DENIED as to the first, second, third, fourth and seventh causes of action for misappropriation of trade secrets, violation of the UCL, breach of contract, injunctive relief, and unjust enrichment.

Glintzer’s request for an award of fees and costs is DENIED, since he did not prevail entirely on his motion.  (See CCP, § 452.16, subd. (c)(1).)

CDN’s request for an award of fees and costs is DENIED because the motion was not frivolous or solely intended to cause unnecessary delay.  (See CCP, § 452.16, subd. (c)(1).)