AND INC v. PUBLISHERS SOLUTIONS INTERNATIONAL (2016)

MEMORANDUM*

I and U, Inc. (“I&U”) appeals a district court order granting a special motion to dismiss filed by Publishers Solutions International (“PSI”) under the California anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, to strike I&U's trade libel claim. We have jurisdiction under 28 U.S.C. § 1291, see Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010), and affirm.

1. After an investigation revealed what PSI believed to be the submission of fraudulent subscriptions by I&U to PSI's publisher clients, PSI sent I&U a letter demanding, on the clients' behalf, that I&U pay $100,000 to resolve the issue. “Ordinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity that is protected under section 425.16.” Malin v. Singer, 159 Cal. Rptr. 3d 292, 299 (Ct. App. 2013). PSI's demand included a reservation of the publishers' legal rights, indicating that potential litigation was more than “a mere possibility” and was “contemplated in good faith and under serious consideration.” Rohde v. Wolf, 64 Cal. Rptr. 3d 348, 354 (Ct. App. 2007) (quoting Edwards v. Centex Real Estate Corp., 61 Cal. Rptr. 2d 518, 528 (Ct. App. 1997)). PSI's communications were therefore protected under the anti-SLAPP statute as pre-litigation petitioning activity. Cabral v. Martin, 99 Cal. Rptr. 3d 394, 404 (Ct. App. 2009).

2. California's litigation privilege, Cal. Civ. Code § 47(b), “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto.” Rusheen v. Cohen, 128 P.3d 713, 719 (Cal. 2006). We conclude that PSI's demand letter was protected under the privilege. See Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564, 569 (Cal. 1999). Thus, I&U cannot establish a likelihood of prevailing on the merits of its trade libel claim, which is premised on PSI's investigation of the publishers' claims and the statements in the demand letter.

AFFIRMED.