FILED

NOT FOR PUBLICATION

AUG 25 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. SANSOE and ERIC No. 14-16124 FRAZER, dba DE Landscaping, D.C. No. 4:13-cv-05043-PJH Plaintiffs - Appellees,

v. MEMORANDUM*

FORD MOTOR COMPANY,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, Chief District Judge, Presiding

Argued and Submitted July 19, 2016 San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and EDMUNDS,** Senior District Judge.

Ford Motor Company (“Ford”) appeals the district court’s denial of its

special motion to strike pursuant to California’s anti-SLAPP statute, Cal. Civ.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Nancy G. Edmunds, Senior United States District Judge for the Eastern District of Michigan, sitting by designation. Proc. Code § 425.16. We review the denial of this motion de novo, and we affirm.

Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010).

Strategic lawsuits against public participation (“SLAPP”) masquerade as

ordinary lawsuits but are “aimed at chilling expression through costly, time-

consuming litigation.” Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010) (quoting

Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001)). The

California legislature has attempted to discourage this practice by providing a

procedural mechanism “for the early dismissal of unmeritorious claims filed to

interfere with the valid exercise of the constitutional rights of freedom of speech

and petition. ” Club Members for an Honest Election v. Sierra Club, 196 P.3d

1094, 1098 (Cal. 2008).

We hold that Ford has failed to make the threshold showing that Plaintiffs’

causes of action are “based on an act in furtherance of [Ford’s] right of petition or

free speech.” City of Cotati v. Cashman, 52 P.3d 695, 701 (Cal. 2002). As the

district court correctly held, this question is dispositive of Ford’s motion.

We need not look beyond the opening paragraph of Plaintiffs’ complaint to

determine the impetus for this action. Each of Plaintiffs’ claims are premised on

the allegedly “unlawful, unfair and deceptive practices of Ford Motor Company in

reacquiring defective vehicles.” (Emphasis added.) Ford’s practices, as alleged in

2 the operative complaint, fall into two categories: first, “Ford routinely takes a

deduction for excessive damage and/or wear and tear . . . based on the condition of

the Lemon Car when it is reacquired”; second, “Ford requires the Lemon Car

owner to make certain improvements to the car at their own expense before it is

reacquired.” We therefore hold that the “act forming the basis for [Plaintiffs’]

cause[s] of action” is Ford’s purportedly illegal business practice of taking

excessive deductions in violation of California’s lemon laws. Feldman v. 1100

Park Lane Assocs., 74 Cal. Rptr. 3d 1, 13 (Ct. App. 2008).

Ford argues that Plaintiffs’ claims “arise from” protected conduct—i.e., a

number of allegedly fraudulent statements made during the settlement process. We

disagree. California law is clear that “a defendant in an ordinary private dispute

cannot take advantage of the anti-SLAPP statute simply because the complaint

contains some references to speech or petitioning activity by the defendant.”

People ex rel. Fire Ins. Exch. v. Anapol, 150 Cal. Rptr. 3d 224, 235 (Ct. App.

2012) (quoting Martinez v. Metabolife Int’l, Inc., 6 Cal. Rptr. 3d 494, 499 (Ct.

App. 2003)). Rather, “it is the principal thrust or gravamen of the plaintiff's cause

of action that determines whether the anti-SLAPP statute applies.” Martinez, 6

Cal. Rptr. 3d at 499.

3 Here, there is seemingly no question that but for Ford’s allegedly illegal

deductions (i.e., unprotected activity) Plaintiffs’ fraud claims would have no basis.

Accordingly, we hold that the principal thrust of Plaintiffs’ claims are a challenge

to Ford’s reimbursement methodology, i.e., unprotected conduct.

AFFIRMED.

4