NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN DREXLER, No. 18-55947

Plaintiff-Appellant, D.C. No. 2:17-cv-08552-DMG-JC v.

BRADFORD BILLET, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted November 8, 2019** Pasadena, California

Before: FARRIS and McKEOWN, Circuit Judges, and KENDALL,*** District Judge.

Ryan Drexler appeals the district court’s dismissal, pursuant to California’s

anti-SLAPP statute, of his breach of contract and fraudulent inducement action.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. He argues the district court failed to apply Fed. R. Civ. P. 12(b)(6) when

evaluating his complaint, instead mistakenly applying Rule 56 by considering

extrinsic evidence. Drexler also contends the district court erred in finding he was

not an intended beneficiary of a contract—the breach of which led in part to this

suit—and by determining that Bradford Billet did not contract away his right to

anti-SLAPP protections. The parties are familiar with the facts, so we do not

repeat them here. We have jurisdiction under 28 U.S.C. § 1291. We affirm the

district court.

We review de novo a district court's ruling on a motion to strike under

California's anti-SLAPP statute. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261

(9th Cir. 2013).

Drexler relies on our recent holding that a court evaluating a California anti-

SLAPP motion challenging the legal sufficiency of a claim should apply the Rule

12(b)(6) standard, whereas a motion to strike challenging the factual sufficiency of

a claim is subject to the Rule 56 standard with accompanying discovery. Planned

Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834 (9th

Cir. 2018). This reliance is misplaced, as the district court based its ruling on the

general nature of Drexler’s allegations, only glancingly referenced Billet’s

declaration, and therefore “correctly applied a Rule 12(b)(6) standard to

2 Defendant[’s] Motion to Strike challenging the legal sufficiency of Plaintiff[’s]

complaint.” Planned Parenthood, 890 F.3d at 835.

Drexler’s arguments that the district court mistakenly concluded he was not

an intended beneficiary to the 2014 confidentiality agreement and that Billet

waived anti-SLAPP protection are similarly unavailing. The district court

correctly applied New York law requiring that contracting parties’ intention to

benefit a third party be plain “on the face of the contract.” Synovus Bank of Tampa

Bay v. Valley Nat'l Bank, 487 F. Supp. 2d 360, 368 (S.D.N.Y. 2007). The

confidentiality agreement’s reference to “certain information and documents

concerning [Drexler-Billet’s] former business and personal interests” is insufficient

to conclude that Drexler was an intended beneficiary of the 2014 agreement.

Drexler’s waiver argument is derivative of the beneficiary claim, and therefore also

fails.

AFFIRMED.

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