Hudacko v. The Regents of the University of California

Background

Defendants Bigger and Underhill filed separate special motions to strike under California’s anti-SLAPP statute. “Anti-SLAPP” refers to a procedure designed to protect speech and petitioning activity from lawsuits intended to chill those rights. Hudacko opposed both motions. The opinion states that the facts were set out in an earlier order on defendants’ motions to dismiss and incorporates that order by reference.

Hudacko’s state-law claims included allegations that Bigger and Underhill participated in or helped conceal actions involving a minor’s implant procedure and alleged violations of Hudacko’s parental rights. The defendants argued that the claims arose from oral and written statements made during marriage-dissolution proceedings and from activity connected to a state-court child-custody order. Hudacko responded that the claims were based on the alleged violation of the custody order, rather than on statements made during those proceedings.

Judicial Notice

Underhill and Bigger asked the court to take judicial notice of a March 29, 2023 judgment and a February 25, 2022 order from the marriage-dissolution proceedings in Contra Costa Superior Court Case No. D-19-05641 and Case No. MSD 19-05641. The court granted both requests under Federal Rule of Evidence 201.

Anti-SLAPP Analysis

California’s anti-SLAPP statute uses a two-step process. First, the moving defendants must make an initial showing that the conduct underlying the claims qualifies as protected speech or petitioning activity. If they do, the burden shifts to the plaintiff to show a probability of prevailing on the challenged claims.

The court concluded that Bigger and Underhill did not make the required initial showing. The defendants argued that Hudacko’s claims were based on statements made during the marriage-dissolution proceedings or on the custody order. But the court explained that a claim does not become an anti-SLAPP claim merely because it challenges an action or decision reached after speech or petitioning activity. The defendants had to show that the protected speech or petitioning activity itself was the conduct forming the basis for liability.

The court also noted that Hudacko alleged the challenged conduct occurred in 2021, after the custody order had been issued. The court stated that, at that point, the order was no longer under consideration or review by the state court for purposes of the statutory category relied on by defendants.

Litigation Privilege

The defendants separately argued that California Civil Code section 47(b), known as the litigation privilege, protected the statements at issue. That privilege generally applies to qualifying communications made in judicial or related proceedings by authorized participants, to achieve the purposes of the litigation, and with a connection or logical relationship to the proceeding. The privilege applies to communicative acts, not noncommunicative conduct.

The court found that defendants had not adequately explained how the cited authorities applied to the facts. They also had not shown how the statements were reasonably relevant to pending or contemplated litigation or how the communications satisfied the requirements for the privilege. The court further found that the defendants’ citation to one sentence from a prior case did not establish that communications covered by the litigation privilege would necessarily qualify as protected activity under the anti-SLAPP statute.

Because the defendants did not carry their burden of showing protected activity under the statute, the court did not reach whether Hudacko had demonstrated a likelihood of success on his state-law claims.

Attorney’s Fees and Disposition

Hudacko requested attorney’s fees, arguing that the motions were frivolous or intended solely to cause unnecessary delay. The court disagreed. Although the court found that defendants had not adequately shown protected activity, it did not find that their motions were frivolous or solely intended to cause unnecessary delay. The court therefore denied Hudacko’s fee request.

Judge Susan Illston denied Underhill’s and Bigger’s special motions to strike under California’s anti-SLAPP statute. The court ordered each side to bear its own costs.