Case 2:19-cv-01862-GW-PJW Document 54 Filed 09/19/19 Page 1 of 16 Page ID #:916

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 19-1862-GW(PJWx)

Title

Optimum Productions et al v. Home Box Office, et al.

Present: The Honorable

Date

September 19, 2019

GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez

Terri A. Hourigan

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Bryan J. Freedman
Jonathan P. Steinsapir
Howard Weitzman
Zachary T. Elsea

Daniel M. Petrocelli
Drew E. Breuder
Patrick McNally

PROCEEDINGS:

HOME BOX OFFICE, INC.'S MOTION TO STRIKE PLAINTIFFS'
PETITION (CAL. CODE CIV. PROC. § 425.16) [46]

The Court’s Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons
stated on the record, Defendant’s Motion is TAKEN UNDER SUBMISSION. Court to issue ruling.

:
Initials of Preparer
CV-90 (06/04)

CIVIL MINUTES - GENERAL

30

JG
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Optimum Productions et al v. Home Box Office et al; Case No. 2:19-cv-01862-GW-(PJWx)
Tentative Ruling on Motion to Strike Plaintiffs’ Petition

I.

Background
Plaintiffs Optimum Productions and the Estate filed a petition to compel arbitration against

HBO1 in Los Angeles County Superior Court. See generally Petition, Docket No. 1-1. The
Petition seeks to arbitrate claims for breach of contract (disparagement clause) and breach of the
covenant of good faith and fair dealing. See generally id. HBO removed the action claiming
diversity jurisdiction. See Notice of Removal, Docket No. 1, ¶ 4. Plaintiffs then moved this Court
to remand the action to the Superior Court or, alternatively, to compel arbitration. See Motion to
Remand, Docket No. 17; Arbitration Motion, Docket No. 18.
On May 23, 2019, the Court denied Plaintiffs’ Motion to Remand and denied in part
Plaintiffs’ Arbitration Motion. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to
Remand, Docket No. 28; Minutes of Plaintiffs’ Motion to Remand (“Partial Ruling”), Docket No.
27. Specifically, the Court denied Plaintiffs’ Arbitration Motion to the extent it argued that the
Agreement delegated the arbitrability question to the arbitrator. See Partial Ruling at 12; Minutes
in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket No. 28 (making the Partial Ruling
final and emphasizing that the Court would decide arbitrability). The Court reserved judgment on
whether Plaintiffs’ claims were arbitrable and ordered supplemental briefing from the parties on
the matter. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket No. 28.
After considering the supplemental briefing on the Motion to Compel, the Court issued a tentative
ruling. See Minutes of Plaintiffs’ Motion to Compel (“Tentative Ruling”), Docket No. 40. In the
Tentative Ruling, the Court generally indicated that Plaintiffs’ claims were arbitrable, but that the
Court still had questions relating to Defendants’ First Amendment challenge. See generally id. At
the hearing, the parties and the Court discussed the matter and Defendants stated that they would
file an anti-SLAPP motion.2 Defendants so filed. See Motion to Strike Plaintiffs’ Petition
(“Motion”), Docket No. 46. Plaintiffs opposed. See Opposition to Motion (“Opp’n”), Docket No.

1

Unless otherwise noted, the defined terms herein have the same meaning as those in the Court’s Partial and Tentative
Rulings.

2
The Court will not repeat the factual background here. The parties should refer to the description in the Partial
Ruling. To the extent different facts are relevant, the Court includes those in the body of this ruling.

1

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48. And Defendants filed a reply. See Reply in Support of Motion (“Reply”), Docket No. 49.3
II.

Legal Standard
California’s anti-SLAPP procedure – which applies, at least in part, in federal court – is

designed to prevent “cause[s] of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech.” Cal. Code Civ. Proc. § 425.16(b)(1).
In a motion to strike under section 425.16, the court engages in a two-part analysis: (1) the court
decides whether the moving party has made a threshold showing that the challenged causes of
action arise from a protected activity; and (2) if such a showing has been made, the burden then
shifts to the opposing party to demonstrate a probability of prevailing on the merits of their claims.
See Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002).
As the foregoing suggests, the moving party bears the initial burden of establishing a prima
facie showing that the opposing party’s cause of action arises from the defendant’s free speech or
petition activity. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013); Zamani v.
Carnes, 491 F.3d 990, 994 (9th Cir. 2007). “A defendant meets [its burden under section
425.16(b)(1)] by demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e)….” City of Cotati v. Cashman, 29 Cal.4th
69, 78 (2002) (quotation marks omitted). The statute includes four categories of protected conduct:
(1)
any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
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 public forum in connection with an issue of public interest; or

3
After Defendants’ Reply, Plaintiffs filed an Ex Parte Application for Leave to file a Sur-Reply in Opposition to the
Motion (“Application”). See Docket No. 50. They argue that there is good cause to allow the sur-reply because
Defendants stated at the hearing on the Tentative Ruling that they would respond to Plaintiffs’ preemption argument
in an anti-SLAPP motion, but then Defendants failed to raise the issue in their Motion. Id. at 2. Thus, Defendants
only stated their position on preemption in Reply, meaning that Plaintiffs had no opportunity to respond. Id. at 2-3.
Defendants opposed the Application, stating that the issue of federal preemption was raised in Plaintiff’s Opposition
as a defense to the Motion. See id. Ex. 1; Opposition re: Application, Docket No. 51. The Court granted the
Application and also permitted Defendants to file a response. See Order Granting the Application, Docket No. 52.
Thus, the Court accepted Plaintiffs’ “Sur-Reply,” see Docket No. 50-2, and Defendants’ “Response,” see Docket No.
53.

2

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(4)
any other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in connection with
a public issue or an issue of public interest.
Cal. Code Civ. Proc. § 425.16(e).
The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action
but, rather, the defendant’s activity that gives rise to its asserted liability – and whether that activity
constitutes protected speech or petitioning.” Navellier v. Sletten, 29 Cal.4th 82, 92 (2002). Thus,
the critical question is whether the plaintiff’s claim is based on an act or acts in furtherance of the
right of petition or free speech. See City of Cotati, 29 Cal.4th at 78. Whether the anti-SLAPP
statute applies is determined by the “principal thrust or gravamen” of the plaintiff’s claim. See
Martinez v. Metabolife Int’l, Inc., 113 Cal.App.4th 181, 188 (2003); Weil & Brown, Calif. Prac.
Guide: Civ. Proc. Before Trial (“Weil & Brown”) (The Rutter Group 2019), § 7:876, at 7(II)-36.
Where the moving party satisfies its prima facie burden at the first step, “[t]he burden then
shifts to the plaintiff . . . to establish a reasonable probability that it will prevail on its claim in
order for that claim to survive dismissal.” Makaeff, 715 F.3d at 261. At the second step of the
anti-SLAPP process, a plaintiff must demonstrate that the complaint is “both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.” Hilton v. Hallmark Cards, 599 F.3d 894, 902 (9th
Cir. 2009); see also Makaeff, 715 F.3d at 261. The required probability of prevailing “need not be
high.” Hilton, 599 F.3d at 908. However, “a defendant’s anti-SLAPP motion should be granted
when a plaintiff presents an insufficient legal basis for the claims or ‘when no evidence of
sufficient substantiality exists to support a judgment for the plaintiff.’” Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 840 (9th Cir. 2001).
III.

Discussion
The parties frame the relevant issues in this Motion quite differently. Assuming that the

anti-SLAPP law applies to petitions to compel arbitration, Defendants jump headlong into the antiSLAPP two-part process and argue that the Court must analyze the claims underlying the
Plaintiffs’ Motion to Compel; i.e., the claims for breach of contract (disparagement clause) and
breach of the covenant of good faith and fair dealing. See Motion at 8-10. Plaintiffs meanwhile
assert that the anti-SLAPP law cannot apply to the Petition because the Petition is governed by the
Federal Arbitration Act (“FAA”), the FAA preempts the anti-SLAPP law, or California courts
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have held under California law that the anti-SLAPP law does not apply to petitions to compel
arbitration. See Opp’n at 3-10. Alternatively, Plaintiffs argue that the Petition survives the twostep process because the Court should analyze the Petition itself – and Defendants’ refusal to
submit to arbitration – rather than the underlying breach claims as the challenged conduct. See
Opp’n at 12-19.4
A. Is the Anti-SLAPP Law Applicable?
1. Claims Based on Federal Law?
Federal courts in the Ninth Circuit apply California’s anti-SLAPP statute to state-law but
not to federal-law claims. See, e.g., Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)
(“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with
state law claims.”).5 Recognizing this distinction, Plaintiffs first argue that their Petition sounds
in federal law because the only question it raises to the Court is whether the underlying claims are
arbitrable pursuant to the FAA. See Opp’n at 3-6. Defendants contend that the underlying claims
in the Petition are simple state law causes of action, Motion at 8-10, that Plaintiffs initially asserted
their action under the California Arbitration Act, and that the FAA does not create a private right
of action or provide an independent basis for federal question jurisdiction, see Reply at 2-3.
First of all, there is no question that the FAA governs whether the Petition’s claims are
arbitrable.6 Section 2 of the FAA provides that “[a] written provision in. . . a contract evidencing
a transaction involving commerce to settle by arbitration a controversy thereafter arising out of
such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such
4

Complicating matters, as Plaintiffs point out, Plaintiffs’ breach claims are not causes of action per se. In other words,
Plaintiffs are not asking this Court to consider whether there was a breach of the Agreement or a breach of the covenant
of good faith and fair dealing; rather, they assert “cause[s] of action to be arbitrated.” See Petition at 21 (Docket 1-1
at 22 of 54); see also Opp’n at 13 n.5. As the Plaintiffs put it “the only relief sought in this Court is an order compelling
arbitration.” Id. at 1.

5

Some Ninth Circuit judges disagree with the court’s precedent regarding the applicability of anti-SLAPP laws in
federal court. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1183-86 (9th Cir. 2016) (Kozinski, J.,
concurring) (arguing that anti-SLAPP provisions conflict with the Federal Rules of Civil Procedure); id. at 1186
(Gould, J., concurring); Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford, J.,
dissenting from denial of rehearing en banc); see also Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1356
(11th Cir. 2018) (discussing circuit split on issue and holding that anti-SLAPP statutes do not apply in federal court);
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (holding that anti-SLAPP law does not
apply in federal court). For what it is worth, the Court would agree with those Ninth Circuit judges that have objected
to the application of anti-SLAPP motions in federal courts. Nevertheless, this Court must and will apply the
established law of the circuit unless and until such time that it is overruled.
6

On the other hand, whether a valid arbitration agreement exists is made by reference to ordinary state law contract
principles. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

4

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grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “The effect
of the section is to create a body of federal substantive law of arbitrability, applicable to any
arbitration agreement within the coverage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983); see also Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 626 (1985). Neither party suggests that the Agreement is not a
“contract evidencing a transaction involving commerce,” and thus it falls within the FAA’s
purview. Further, while parties may bargain for the application of non-federal arbitrability law,
see Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489
U.S. 468, 479 (1989), the parties did not clearly and unmistakably provide for non-federal
arbitration law in the Agreement, see Cape Flattery Ltd. v. Titan Maritime, 647 F.3d 914, 921 (9th
Cir. 2011) (holding that a general choice of law provision does not override presumption of federal
arbitrability law under FAA). That Plaintiffs initially sought to compel arbitration pursuant to the
California Arbitration Act seems irrelevant as to whether the FAA would in fact apply.
While it is true that the FAA does not create jurisdiction or establish a private cause of
action, see Southland Corp. v. Keating, 465 U.S. 1, 15 n.9 (1984), there is no doubt that federal
arbitrability law dictates the answer to the primary question Plaintiffs raised to the Court: whether
to compel Defendants to arbitrate. In short, the Court agrees that the only question before the
Court right now – whether it must grant the Petition – sounds under the FAA. And,
By its terms, the Act leaves no place for the exercise of discretion
by a district court, but instead mandates that district
courts shall direct the parties to proceed to arbitration on issues as
to which an arbitration agreement has been signed. §§ 3, 4. Thus,
insofar as the language of the Act guides our disposition of this case,
we would conclude that agreements to arbitrate must be enforced,
absent a ground for revocation of the contractual agreement.
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).
Thus, the arbitrability inquiry is a federal one, but it does not follow that a petition to
compel arbitration is necessarily a federal claim like those discussed in Ninth Circuit cases
applying anti-SLAPP to the state causes of action. In short, the Court is not entirely satisfied that
the federal nature of the inquiry ends the anti-SLAPP analysis. As such, the Court will address
Plaintiffs’ preemption argument.
2. Does the FAA Preempt the Anti-SLAPP Law?
Plaintiffs next argue that the FAA preempts the anti-SLAPP law in cases seeking to compel
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arbitration under the FAA because it acts as an obstacle to enforcing arbitration agreements
governed by the FAA. See Opp’n at 6-9. Defendants assert that the anti-SLAPP law is compatible
with the FAA, that state laws are only preempted if they specifically target arbitration agreements,
and that a California Court of Appeal has rejected Plaintiffs’ preemption argument. See Reply at
3-6.
As the Supreme Court has explained,
The FAA contains no express pre-emptive provision, nor does it
reflect a congressional intent to occupy the entire field of arbitration.
See Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100
L.Ed. 199 (1956) (upholding application of state arbitration law to
arbitration provision in contract not covered by the FAA). But even
when Congress has not completely displaced state regulation in an
area, state law may nonetheless be pre-empted to the extent that it
actually conflicts with federal law—that is, to the extent that
it “stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Hines v. Davidowitz, 312
U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
Volt, 489 U.S. at 477.
The Supreme Court further discussed FAA preemption at length in AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339-46 (2010). In setting forth its preemption analysis, the Supreme
Court stated that “[w]hen state law prohibits outright the arbitration of a particular type of claim,
the analysis is straightforward: The conflicting rule is displaced by the FAA.” Id. at 341 (citing
Preston v. Ferrer, 552 U.S. 346, 353 (2008)). It further noted that “the inquiry becomes more
complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant
here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration.” Id.
Finally, the Supreme Court explained that

FAA “§ 2’s saving clause preserves generally

applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand
as an obstacle to the accomplishment of the FAA’s objectives.” Id. at 343.7 Of course, “[t]he

7
Defendants citation to the quote, “defenses that apply only to arbitration or that derive their meaning from the fact
that an agreement to arbitrate is at issue” for the premise that such defenses are preempted is somewhat imprecise.
See Reply at 4-5 (quoting Concepcion, 563 U.S. at 339). The full quote from Concepcion is: “The final phrase of §
2, however, permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in
equity for the revocation of any contract.’ This saving clause permits agreements to arbitrate to be invalidated by
‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ but not by defenses that apply
only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion,
563 U.S. at 339 (quoting Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). Thus, the Supreme Court
was discussing when arbitration agreements could be invalidated; not what types of laws § 2 preempts.

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‘principal purpose’ of the FAA is to ‘ensur[e] that private arbitration agreements are enforced
according to their terms.’ ” Id. at 344 (quoting Volt, 489 U.S. at 478).
An argument can be made that applying California’s anti-SLAPP law to Plaintiffs’ Petition
“stands as an obstacle” to “Congress’ principal purpose of ensuring that private arbitration
agreements are enforced according to their terms.” Volt, 489 U.S. at 478. Allowing anti-SLAPP
motions against petitions to compel arbitration would add a preliminary step to the federal court’s
analysis regarding the gateway issues of arbitrability. Such a step counteracts the FAA’s intent to
enforce arbitration agreements by their terms and provide the parties the efficiencies that
arbitration allows. In this regard, the Court would briefly provide an overview of the relevant
Supreme Court law on FAA preemption, and a description of the California Court of Appeal case
that addressed the issue in the anti-SLAPP context.
In Volt, the Supreme Court held that the FAA did not preempt a California statute that
allowed a court to stay an arbitration pending resolution of related litigation between a party to the
arbitration agreement and third parties not bound by the agreement. Volt, 489 U.S. at 470. In
reaching that conclusion, the Supreme Court assumed that the parties had incorporated California
arbitration rules into their agreement. See id. at 476. The Court then reasoned that it would be
“inimical to the FAA’s primary purpose” for the Court to disregard the parties’ selection of
California arbitration procedure. Id. at 479. Thus, the Court concluded that there was no conflict
between the California statute the parties’ incorporated and the FAA. Id.
Conversely, the Supreme Court has held that state laws that require judicial resolution of
certain issues must fall in light of the FAA. See Perry v. Thomas, 482 U.S. 483, 490-92 (1987);
Southland Corp., 465 U.S. at 11-12. In essence, the Supreme Court has stated the obvious in
concluding that States’ attempts to require a judicial forum for certain disputes conflicts with the
federal policy of enforcing private arbitration agreements. Perry, 482 U.S. at 490-91.
Likewise, in Preston the Supreme Court extended the reasoning in Perry and Southland to
proceedings in front of a state administrative body. Specifically, the Supreme Court held that the
FAA preempted a California law providing that the Labor Commissioner must first exercise
“exclusive jurisdiction” to determine whether a contract was invalid under the California Talent
Agencies Act (“TAA”), Cal. Lab. Code §§ 1700, et seq., before a claim arising under such a
contract could be arbitrated. Preston, 552 U.S. at 354-56. The Court explained:
Procedural prescriptions of the TAA thus conflict with the FAA’s
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dispute resolution regime in two basic respects: First, the TAA, in §
1700.44(a), grants the Labor Commissioner exclusive jurisdiction to
decide an issue that the parties agreed to arbitrate, see Buckeye, 546
U.S., at 446, 126 S.Ct. 1204; second, the TAA, in § 1700.45,
imposes prerequisites to enforcement of an arbitration agreement
that are not applicable to contracts generally, see Doctor’s
Associates, Inc., 517 U.S., at 687, 116 S.Ct. 1652.
Id. at 356.8 Therefore, the Supreme Court concluded that applying the TAA to arbitration
agreements conflicted with the FAA’s mandate by thwarting the will of the parties and
extinguishing the efficiencies of bargained-for arbitration. Id. at 357-59.
In Concepcion, the Supreme Court held that the FAA preempted California’s “Discover
Bank” rule, which provided that class action waivers in arbitration agreements in consumer
contracts of adhesion were unconscionable and, therefore, unenforceable. Id. at 340 (citing
Discover Bank v. Superior Court, 36 Cal.4th 148, 162-63 (2005)). The Court reasoned that even
though the Discover Bank rule relied on unconscionability – a ground that exists in law or equity
to revoke a contract – it in effect allowed “any party to a consumer contract to demand [classwide
arbitration] ex post.” Concepcion 563 U.S. at 346. In reaching its decision the Supreme Court
examined the purposes of the FAA and considered whether requiring the availability of classwide
arbitration frustrated those goals. See id. at 344-52. Delineating the purposes of the FAA, the
Court explained “that the FAA was designed to promote arbitration,” id. at 346, and recognized
the “two goals” of enforcing private arbitration agreements by their terms and “allow[ing] for
efficient, streamlined procedures,” id. at 344. Then, examining the nature of classwide arbitration,
the Supreme Court articulated that classwide arbitration increased the formality of arbitration
proceedings and that “[a]rbitration is poorly suited to the higher stakes of class litigation.” In sum,
the Supreme Court concluded that “[r]equiring the availability of classwide arbitration interferes
with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”
Id. at 344.9
As should be obvious from the previous discussion, the Supreme Court – and, to the Court’s
and the parties’ knowledge, no federal court – has ever considered whether an anti-SLAPP motion
8

Section 1700.45 of the TAA provided that notwithstanding the Labor Commissioner’s exclusive jurisdiction,
arbitration agreements were valid if, among other conditions, the Labor Commissioner had the right to attend all
arbitration hearings. See Cal. Labor Code § 1700.45(d).

9

That is not to say that parties are precluded from bargaining for the availability of classwide arbitration. See id. at
351.

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may be brought against a petition to compel arbitration governed by the FAA. Although not
decided in federal court, the closest case is Moss Bros. Toy, Inc. v. Ruiz, in which the California
Court of appeal granted an anti-SLAPP motion against Plaintiff’s first amended complaint and, in
an unpublished portion of the opinion, concluded that the FAA does not preempt California’s antiSLAPP law. See Moss Bros., No. E067240, at *22 (Cal. Ct. App. Sept. 20, 2018) available at
https://www.courts.ca.gov/opinions/archive/E067240.PDF. Moss Bros. has a long and convoluted
procedural history that the Court describes in some detail to provide context. Ruiz (the defendant
in Moss Bros.) had previously sued Moss Bros.’ agent, MBAG, for employment-related claims.
See id. at *2. In the first suit, MBAG twice sought to compel Ruiz to arbitrate his individual
claims. Id. at *3-*6. After MBAG filed its second motion to compel arbitration, Moss Bros. filed
an application to intervene in the action. Id. at *6. The court denied the application to intervene
and MBAG’s second motion to compel arbitration. Id. at *6-*7. Thereafter, Moss Bros. filed a
new lawsuit asserting that Ruiz breached the arbitration agreements. Id. at *7. Moss Bros. also
filed a motion to compel arbitration. Id. *8. The court sustained a demurrer as to the initial
complaint and denied the motion to compel. Id. After the demurrer, Moss Bros. filed its first
amended complaint, which asserted the breach causes of action and sought specific performance
of the arbitration agreements. Id. at *8-*9. In response, Ruiz moved pursuant to California’s antiSLAPP law to strike the entire first amended complaint. Id. at *9. The trial court granted the
motion, id., and the Court of Appeal affirmed, id. at *22.
In an unpublished section of its opinion, the Court of Appeal rejected Moss Bros.’
argument that the FAA preempted the anti-SLAPP law to the extent the California statute could
“be applied to an action to compel performance of an arbitration agreement.” Id. The Court of
Appeal relied on the same quote from Concepcion that this Court finds somewhat imprecise. Id.
(“Section 2 of the FAA preempts ‘defenses that apply only to arbitration or that derive their
meaning from the fact that an agreement to arbitrate is at issue.’ ” (quoting Concepcion, 563 U.S.
at 339)); see also supra at 6-7 n.7. The Court of Appeal then reasoned that “Code of Civil
Procedure section 425.16 does not provide a defense to arbitration, and does not derive its meaning
from the fact an arbitration agreement may be in issue. Rather, the anti-SLAPP statute applies to
all claims that are based on acts in furtherance of protected rights of petition and free speech.” Id.
Further, the Court commented that the anti-SLAPP statute did not prevent Moss Bros. from
seeking to enforce the arbitration agreements because “the statute does not bar a plaintiff from
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litigating an action that arises out of the defendant’s free speech” as long as the suit “possess[es]
minimal merit.” Id. at *23 (internal quotation marks and citations omitted).
This Court would decline to rely on Moss Bros. for several reasons. First, the opinion is
unpublished and thus only valuable to the extent it is persuasive. See Employers Ins. of Wausau
v. Granite State Ins. Co., 330 F.3d 1214, 1220 (9th Cir. 2003). Next, the opinion fails to confront
the intricacies of the matter and lacks a thorough examination of the issue. In other words, its
reasoning is bare and conclusory. Third, as alluded to above, Moss Bros. takes the quote from
Concepcion out of context. Relying solely on that quote does not support the weight of the
conclusion. In Concepcion, the Supreme Court was merely noting that generally applicable
contract defenses could invalidate an arbitration, while arbitration-specific contract defenses could
not. Concepcion, 563 U.S. at 339. Lastly, Moss Bros.’ final justification for finding preemption
contradicts Supreme Court precedent on the matter. The Moss Bros. court reasoned that Moss
Bros. could still attempt to enforce arbitration if it survived an anti-SLAPP motion. Moss Bros.,
No. E067240, at *23. However, in Preston the Supreme Court rejected a similar argument.
Preston, 552 U.S. at 357-59. There, the party arguing against preemption asserted that the TAA
merely postponed arbitration and was therefore compatible with the FAA. Id. at 357. The Court
concluded that even if arbitration were still eventually available, any delay would frustrate one of
the primary goals of arbitration – “to achieve streamlined proceedings and expeditious results.”
Id. (internal quotation marks and citations omitted). Thus, the Supreme Court held that the FAA
preempted the TAA as applied to contracts with arbitration agreements. Id. at 359. This Court
would reject Moss Bros.’ justification for the same reason.
Therefore, in the absence of persuasive direct precedent, the Court must read the Supreme
Court’s tea leaves to render a decision. The Court is inclined to conclude that the FAA preempts
California’s anti-SLAPP law as applied to Plaintiffs’ Petition. Concepcion and Preston, while
factually distinguishable, are instructive and convince this Court that the anti-SLAPP law cannot
stand in the way of parties’ agreements to arbitrate disputes. Allowing an anti-SLAPP inquiry to
proceed before the court engages in the arbitrability analysis adds an extra step to the process that
Congress, in enacting the FAA, did not envision. That analysis would frustrate the FAA’s dual
goals of enforcing arbitration agreements by their terms and allowing for streamlined dispute
resolution. And, as the Concepcion opinion remarks, “States cannot require a procedure that is
inconsistent with the FAA, even if it is desirable for unrelated reasons.” Concepcion, 563 U.S. at
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351. The Court recognizes that a preemption analysis may not be a perfect fit for the issues
presented in this novel motion, but would find that it is the most analogous framework to capture
the concerns between respecting California’s anti-SLAPP law and the FAA.
Moreover, while Concepcion addressed a state rule that specifically targeted arbitration,
Defendants’ argument that the FAA only preempts such rules is unconvincing. See Reply at 4-6.
In short, the Court does not believe that the Supreme Court has ever articulated such a hard and
fast rule. While laws that specifically target arbitration are suspect and may be susceptible to a
preemption challenge, generally applicable laws can raise concerns as well. In fact, Concepcion
and Volt framed the preemption rule in broader terms, noting that nothing in the FAA “suggests
an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s
objectives.” Concepcion, 563 U.S. at 343; see also Volt, 489 U.S. at 477 (employing the “obstacle”
language). By using language about laws being an “obstacle” to the goals of the FAA, the Supreme
Court suggested that state law hindrances must bow before the federal law on arbitrability.
Concepcion itself seemed to recognize that the FAA may preempt generally applicable laws when
applied in a way that hinders the FAA. Concepcion, 563 U.S. at 341 (“[T]he [preemption] inquiry
becomes more complex when a doctrine normally thought to be generally applicable, such as
duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that
disfavors arbitration.”). Further, the TAA – addressed in Preston – only partially targeted
arbitration. Preston, 552 U.S. at 355-56. Section 1700.44(a) of the TAA set forth that parties to
a controversy under that law must refer the dispute to the Labor Commissioner. Id. at 355. In
Preston the issue involved an arbitration agreement, but presumably, that provision from the TAA
would also have affected the parties’ right to litigate a dispute. Thus, granting the Labor
Commissioner exclusive jurisdiction was not solely an attack on arbitration, and was more
generally applicable. Still, because of the TAA’s effect on arbitration agreements, the Supreme
Court held that the FAA overruled the state law in those situations. Id. at 356.
Here, it is unquestionable that California’s anti-SLAPP law is generally applicable and
does not target arbitration. But, as evidenced by the instant dispute, it may affect and frustrate the
goals of the FAA. To demonstrate the Court’s point, it imagines a cleaner scenario where two
contracting parties entered into an agreement with a broad arbitration provision requiring the
arbitration of any dispute between the parties. The imaginary parties do not really challenge
existence of the contract or the applicability of the arbitration provision. Assuming those facts,
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say a dispute arises and plaintiff files a claim to compel arbitration. Believing that plaintiff’s claim
is frivolous and affects its speech, defendant files an anti-SLAPP motion. Clearly, a court’s
consideration of that motion would frustrate the agreed-upon intent of the parties and delay any
reference to arbitration. Thus, the anti-SLAPP law would act as a state procedural barrier to what
would otherwise be a straightforward motion to compel arbitration.10
Unlike the Court’s hypothetical, the issues here are messy. Defendants vigorously dispute
the applicability of the Agreement, whether the Agreement has expired, and whether the
Agreement as a whole is void based on First Amendment concerns. But the Court has addressed
the first two issues in its Tentative Ruling, and Defendants may argue the third in front of the
arbitrator. If the Court were also to analyze whether the Petition runs afoul of the anti-SLAPP
law, it believes it would be contravening the intent of congress as set forth in the FAA and shaped
by the federal courts. And, considering that no federal court has ever applied an anti-SLAPP law
to a petition to compel arbitration, the Court would decline to do so here. Therefore, the Court
would deny Defendants’ Motion.
3. Under California Law, Does the Anti-SLAPP Statute Apply to Petitions to Compel
Arbitration?
Because the Court is inclined to conclude that the FAA preempts the anti-SLAPP law as
applied to the Petition, it need not discuss in too much depth the parties’ arguments about Century
21 Chamberlain & Assocs. v. Haberman, 173 Cal. App. 4th 1 (2009), Sheppard v. Lightpost
Museum Fund, 146 Cal. App. 4th 315 (2006), and Sahlolbei v. Montgomery, No. E047099, 2010
WL 197298 (Cal. Ct. App. Jan. 21, 2010). Nonetheless, the Court will describe the cases in order
to be comprehensive.

Suffice it to say, the Court would not find any of the state cases

determinative on the precise issue here.
Sheppard held that the anti-SLAPP law did “not authorize a superior court to grant a motion
to strike an arbitration claim filed only in an agreed arbitral forum and not asserted by the claimant
in any complaint, cross-complaint or petition filed in court.” 146 Cal. App. 4th at 318. As the
arbitration demand was only filed in the arbitral forum, the California Court of Appeal reasoned
that the demand was not within the anti-SLAPP law’s purview. Id. at 324. Sheppard is
distinguishable from the instant case, however, because Plaintiffs filed the Petition in court rather

10
The Court recognizes that its hypothetical is not exact, so the parties should not quibble about it too much at the
hearing.

12

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than in an arbitral forum.11
In Century 21, defendant demanded the plaintiff arbitrate a dispute, but had not filed a
petition to compel arbitration in court. Plaintiff responded by filing a cause of action seeking
declaratory relief that no arbitration agreement existed between the parties. Century 21, 173 Cal.
App. 4th at 5. Once in court, defendant filed an anti-SLAPP motion and a motion to compel
arbitration. Id. at 6. The trial court denied the anti-SLAPP motion and the Court of Appeal
affirmed. Id. at 6-8. The Court of Appeal concluded that defendant’s demand for arbitration did
not fall within one of the anti-SLAPP law’s categories, meaning that defendant’s motion failed on
the first step of the anti-SLAPP analysis. Id. at 7-9. Specifically, the court reasoned that arbitration
is not a judicial proceeding or any other official proceeding authorized by law because arbitration
is a private and contractual proceeding. Id. at 8-9. Further, the court held that defendant’s “alleged
demand to arbitrate a negligence claim against plaintiffs is neither a public issue nor an issue of
public interest.” Id. at 9.
Unlike the situation in this Court, the party seeking arbitration in Century 21 was the one
that filed the anti-SLAPP motion. Thus, the situation in Century 21 was a “mirror image” of the
instant case. The parties dispute whether that distinction matters. Plaintiffs contend that the
Century 21 holding that a demand for arbitration cannot support an anti-SLAPP motion applies
regardless of which party is seeking arbitration. See Opp’n at 10-11. Defendants respond that
because Plaintiffs first filed its Petition in Court rather than in an arbitral forum, the Petition is
subject to an anti-SLAPP motion. See Reply at 6-7. The Court notes that it does not find Century
21 particularly supportive of either sides’ argument. To a certain extent it is noteworthy that the
demand for arbitration was not a protected activity under the anti-SLAPP law, but it is also
interesting that the Court of Appeal would ask whether the underlying negligence that defendant
wanted to arbitrate was a matter of public interest. Century 21, 173 Cal. App. 4th at 9. As such,

11
The focus on whether a demand for arbitration is initially filed with the arbitrator or with a court seems like
something of a red herring to the Court. Here, it is clear from the record of the parties’ communications that HBO
would have resisted arbitration even if Plaintiffs had gone straight to an arbitrator. Defendants could then have filed
an action in court trying to avoid arbitration, and Plaintiffs could have responded with a motion to compel. Could
Defendants then file an anti-SLAPP motion against the motion to compel? It would be anomalous if Defendants could
drag Plaintiffs to Court to determine arbitrability and then assert an anti-SLAPP motion. Conversely, if Defendants
could not file an anti-SLAPP motion, the Court’s inquiry would be limited to the arbitrability threshold questions.
This would suggest to the Court that the actual conduct being challenged is merely the filing of the Petition in Court.
But, as described below, the seeking of arbitration does not necessarily fall within one of the four anti-SLAPP
categories.

13

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Century 21 could cut both ways, or be distinguished on a number of different facts.
In Sahlolbei, Montgomery was an elected board member for the Palo Verde Healthcare
District and Sahlolbei was a surgeon at Palo Verde Hospital. Id. at * 1. Sahlolbei and Montgomery
had previously entered into a settlement agreement that included non-disparagement and
arbitration clauses. Sahlolbei, 2010 WL 197298, at *1-*2. Years after the settlement, “Sahlolbei
filed a combined complaint for breach of contract and petition to compel arbitration against
Montgomery,” alleging that Montgomery breached the non-disparagement clause of the settlement
agreement. Id. at * 1. Montgomery allegedly told a reporter that Sahlolbei was verbally abusive
toward nurses and other staff at the hospital and that his departure would do much to solve the
hospital’s problems. Id. The California Court of Appeal affirmed the denial of the anti-SLAPP
motion against the petition to compel arbitration primarily because “Sahlolbei’s cause of action is
the demand for arbitration,” and a “demand for commencing private, contractual arbitration does
not fit any of the four anti-SLAPP categories.” Id. at *4 (internal quotation marks, citations, and
alterations omitted).12 Thus, Montgomery’s anti-SLAPP motion failed the first step of the antiSLAPP inquiry. See id. at *4-*6.
However, it bears mentioning that Sahlolbei also concluded that petitions to compel
arbitration may be subject to an anti-SLAPP motion if the movant demonstrates how the demand
for arbitration affects her right of free speech. Id. at *5. The California Court of Appeal,
nonetheless, found that Montgomery failed to explain how the arbitration would affect his free
speech rights. Id. The court’s reasoning on that issue is strange considering that the underlying
conduct in Sahlolbei – making allegedly disparaging remarks to a reporter – obviously related to
free speech. Id. Perhaps the court was trying to say that the arbitration demand itself must be an
attempt to restrict speech, rather than the underlying breach claim, but it is unclear from the
decision. Nevertheless, the confusion about which conduct to address demonstrates one of the
issues with considering an anti-SLAPP motion against a petition to compel arbitration.13
12

It bears mentioning that Sahlholbei also concludes that petitions to compel arbitration may be subject to an antiSLAPP motion if the movant demonstrates how the demand for arbitration affects her right of free speech. Id. at *5.
The California Court of Appeal, nonetheless, concluded that Montgomery failed to explain how the arbitration would
affect his free speech rights. Id. The court’s reasoning on that issue is strange considering that the underlying conduct
in Sahlolbei – making allegedly disparaging remarks to a reporter – obviously relates to free speech. Perhaps the court
was trying to say that the arbitration demand itself must be an attempt to restrict speech, rather than the underlying
breach claim, but it is unclear from the decision. Nevertheless, the confusion about which conduct to address
demonstrates one of the issues with considering an anti-SLAPP motion as against a petition to compel arbitration.

13

For example, as discussed above in footnote 12, if the underlying conduct is the seeking of arbitration, it is not a

14

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Like Century 21, therefore, Sahlolbei could be read to support either sides’ position. To
some extent, Sahlolbei is both factually and procedurally analogous to the situation in front of this
Court. There, as here, the party resisting arbitration utilized the anti-SLAPP law to challenge a
petition to compel arbitration. Id. at *1-*2. And, like here, the alleged underlying breach was the
making of disparaging remarks about a matter of arguable public interest. But, even though
Sahlolbei denied Montgomery’s anti-SLAPP motion, the court’s comment about granting such a
motion when the petition to compel arbitration affected speech renders the court’s decision
somewhat narrow.
As such, even if the Court were to apply California law, it would not find any of the
foregoing cases determinative.
B. Anti-SLAPP Two-Step Process
Because the Court is inclined to conclude that the FAA preempts the anti-SLAPP law as
applied to the Petition, the Court will not engage in the two-step analysis.
IV.

Conclusion
Therefore, for the foregoing reasons, the Court would DENY Defendants’ anti-SLAPP

Motion.14 In addition, the Court would GRANT Plaintiffs’ Petition for the reasons set forth in the
Tentative Ruling at Docket Entry No. 40.15

foregone conclusion that that conduct would constitute a matter of public interest. Though the documentary that
kicked off this fight is inarguably a matter of public interest, the parties’ disputing interpretations of the Agreement
may not be.
14

To echo the sentiment that the Court has expressed throughout its consideration of the Petition, the Court repeats
that Defendants may raise First Amendment and contract validity questions to the arbitrator. Nothing in any of the
Court’s rulings is meant to foreclose or suggest different veins of argumentation for the parties before the arbitrator.

15

The Court takes no position on whether the arbitration must be “public.” As Plaintiffs concede, that is a question
for the arbitrator. Opp’n at 17.

15