                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LISA LIBERI; PHILIP J. BERG, Esquire;            No. 13-56250
THE LAW OFFICES OF PHILIP J.
BERG; LISA M. OSTELLA; GO EXCEL                  D.C. No. 8:11-cv-00485-AG-AJW
GLOBAL,

              Plaintiffs - Appellees,            MEMORANDUM*

 v.

ORLY TAITZ, AKA Dr. Orly Taitz;
SANKEY INVESTIGATIONS, INC.;
NEIL SANKEY; LAW OFFICES OF
ORLY TAITZ; ORLY TAITZ, INC.;
REED ELSEVIER, INC.; TODD
SANKEY; LEXISNEXIS GROUP, INC.,
a Division of Reed Elsevier, Inc.;
LEXISNEXIS, INC., a Division of Reed
Elsevier, Inc.; LEXISNEXIS RISK AND
INFORMATION ANALYTICS GROUP,
INC.; LEXISNEXIS RISK SOLUTIONS,
INC., a Division of Reed Elsevier, Inc.;
LEXISNEXIS SEISINT, INC., a Division
of Reed Elsevier, Inc., DBA Accurint;
LEXISNEXIS CHOICEPOINT, INC., a
Division of Reed Elsevier, Inc.;
INTELIUS, INC.; ORACLE
CORPORATION; DAYLIGHT
CHEMICAL INFORMATION


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
SYSTEMS, INC.; YOSEF TAITZ,
Individually and as Owner/CEO of
Daylight Chemical Information Systems,
Inc.; THE SANKEY FIRM,

            Defendants,

 And

DEFEND OUR FREEDOMS
FOUNDATIONS, INC.,

            Defendant - Appellant.



LISA LIBERI; PHILIP J. BERG, Esquire;     No. 13-56253
THE LAW OFFICES OF PHILIP J.
BERG; LISA M. OSTELLA; GO EXCEL           D.C. No. 8:11-cv-00485-AG-AJW
GLOBAL,

            Plaintiffs - Appellees,

v.

ORLY TAITZ, AKA Dr. Orly Taitz,

            Defendant - Appellant,

 And

DEFEND OUR FREEDOMS
FOUNDATIONS, INC.; SANKEY
INVESTIGATIONS, INC.; NEIL
SANKEY; LAW OFFICES OF ORLY
TAITZ; ORLY TAITZ, INC.; REED
ELSEVIER, INC.; TODD SANKEY;


                                      2
LEXISNEXIS GROUP, INC., a Division
of Reed Elsevier, Inc.; LEXISNEXIS,
INC., a Division of Reed Elsevier, Inc.;
LEXISNEXIS RISK AND
INFORMATION ANALYTICS GROUP,
INC.; LEXISNEXIS RISK SOLUTIONS,
INC., a Division of Reed Elsevier, Inc.;
LEXISNEXIS SEISINT, INC., a Division
of Reed Elsevier, Inc., DBA Accurint;
LEXISNEXIS CHOICEPOINT, INC., a
Division of Reed Elsevier, Inc.;
INTELIUS, INC.; ORACLE
CORPORATION; DAYLIGHT
CHEMICAL INFORMATION
SYSTEMS, INC.; YOSEF TAITZ,
Individually and as Owner/CEO of
Daylight Chemical Information Systems,
Inc.; THE SANKEY FIRM,

               Defendants.


                     Appeal from the United States District Court
                        for the Central District of California
                     Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted December 7, 2015
                                Pasadena, California

Before: PREGERSON, D.W. NELSON, and CALLAHAN, Circuit Judges.

       (13-56250) Orly Taitz and Defend our Freedoms Foundations, Inc. (DOFF),

et. al. appeal from the district court’s denial of their request for leave to file a

motion to strike Lisa Liberi and Lisa Ostella, et. al.’s first amended complaint


                                             3
(FAC) under California’s Strategic Lawsuits Against Public Participation statute

(California anti-SLAPP), Cal. Code Civ. Proc. § 425.16. We dismiss appeal No.

13-56250 for lack of jurisdiction.

      (13-56253) Taitz and DOFF et. al appeal from the district court’s denial of

their motion to strike Liberi and Ostella, et. al.’s FAC under California anti-

SLAPP. We have jurisdiction pursuant to 28 U.S.C. § 1291. Batzel v. Smith, 333

F.3d 1018, 1024–26 (9th Cir. 2003). We affirm the district court’s denial of

Appellants’ motion to strike the FAC as to all claims except claim 5 (violation of

California Information Privacy Act § 1798.53), claim 10 (malicious prosecution),

and claim 11 (abuse of process).

1.    The district court’s denial of Appellants’ request to file a motion to strike the

FAC was not a final decision under 28 U.S.C. § 1291. The district court denied

Appellants’ request pending resolution of Appellants’ earlier appeal of the denial

of the motion to strike the original complaint under California anti-SLAPP. Once

this Court ruled on that appeal, the district court granted Appellants’ request to file

a motion to strike the FAC. Appellants did so, and currently before us is the appeal

of the denial of Appellants’ motion to strike the FAC. The denial of Appellants’

request to file a motion to strike the FAC, therefore, was not a final order. See




                                           4
Conway v. Slaughter, 440 F.2d 1278 (9th Cir. 1971) (per curiam). We dismiss

appeal No. 13-56250 for lack of jurisdiction.

2.     Under California anti-SLAPP, a defendant “must make a prima facie

showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s

constitutional right to free speech.” Makaeff v. Trump Univ., LLC, 715 F.3d 254,

261 (9th Cir. 2013).1 If the defendant makes this showing, the burden then shifts to

the plaintiff, who must “establish a reasonable probability that it will prevail on its

claim.” Id.2

       Because Appellants’ speech at issue concerns matters of public importance,

the first prong of California anti-SLAPP is satisfied. Makaeff, 715 F.3d. at 262.

We find that as to a majority of their claims, Appellees have “stated and

substantiated . . . legally sufficient claim[s]” such that they are able to satisfy the

second prong of anti-SLAPP and the claims can continue in their entirety.


       1
        Appellees argue that California law should not apply. Because Appellees
did not raise choice of law before the district court, this issue is waived. Duggan v.
Hobbs, 99 F.3d 307, 313 (9th Cir. 1996).
       2
        We follow the line of California cases holding that if any part of a mixed
cause of action satisfies the second prong of anti-SLAPP, the entire cause of action
continues. See Wallace v. McCubbin, 196 Cal. App. 4th 1169, 1212 (Cal. Ct. App.
2011) as modified on denial of reh’g (July 26, 2011). Although the California
Supreme Court granted certification of this issue for review, Baral v. Schnitt, 233
Cal. App. 4th 1423 (Cal. Ct. App. 2015), cert. granted, 347 P.3d 988 (Cal. 2015),
neither party raised this issue on appeal and it is therefore waived.
                                             5
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal

App. 4th 658, 675 (Cal. Ct. App. 2005) (internal quotations and citations omitted).

      Appellees, however, are unable to satisfy the second prong of anti-SLAPP as

to their claims for violation of California Information Privacy Act § 1798.53,

malicious prosecution, and abuse of process. Regarding Appellees’ claim of a

violation of California Information Privacy Act § 1798.53, Appellees have not

made a prima facie showing that Appellants “intentionally disclose[d] information,

not otherwise public, which they [knew] or should reasonably [have known] was

obtained from personal information maintained by a state agency or from ‘records’

within a ‘system of records’ . . . maintained by a federal government agency.” Cal.

Civ. Code § 1798.53. The claim, therefore, fails. See Jennifer M. v. Redwood

Women’s Health Ctr., 88 Cal. App. 4th 81, 91 (Cal. Ct. App. 2001).

      Nor can Appellees make this showing for their claim of malicious

prosecution. Appellees cite allegedly false filings with the court and the police as

the basis for their malicious prosecution claim. Under California law, however,

“[t]he tort of malicious prosecution requires the initiation of a full-blown action,”

and “subsidiary procedural actions within a lawsuit . . . will not support a claim of

malicious prosecution.” Adams v. Superior Court, 2 Cal. App. 4th 521, 528 (Cal.

Ct. App. 1992). Similarly, Appellees’ claim for abuse of process citing the same


                                           6
allegedly false filings also fails to satisfy the second prong of anti-SLAPP. See

Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1037

(9th Cir. 2008).

      We, therefore, affirm the district court’s denial of Appellants’ motion to

strike the FAC under California anti-SLAPP as to all of Appellees’ claims except

violation of California Information Privacy Act § 1798.53, malicious prosecution,

and abuse of process.

      Appeal No. 13-56250 is DISMISSED. Appeal No. 13-56253 is

AFFIRMED in part and REVERSED in part. All parties shall bear their own

costs on appeal.




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