[00:00:00] Speaker 04:
We'll go ahead and then start with you, Mr. Heinke.

[00:00:12] Speaker 02:
Good afternoon.

[00:00:13] Speaker 02:
May it please the court?

[00:00:15] Speaker 02:
My name is Rex Heinke.

[00:00:16] Speaker 02:
I'm here for the plaintiffs.

[00:00:18] Speaker 02:
The trial court dismissed our secondary boycott claims on one ground alone, and that was the trial court said they were barred by the First Amendment.

[00:00:28] Speaker 02:
We respectfully submit that the trial court was mistaken as to that ruling and that this court should reverse that ruling.

[00:00:37] Speaker 02:
So why do we say that?

[00:00:38] Speaker 02:
Well, as we pointed out in our briefing, the Supreme Court in the IBEW case said that the secondary boycott, there was no First Amendment case.

[00:00:50] Speaker 02:
And this court in the Ironworkers case said the same thing.

[00:00:55] Speaker 02:
We submit that that resolves that issue

[00:00:58] Speaker 02:
and that the trial court was simply mistaken and shouldn't have ruled the way it did.

[00:01:03] Speaker 02:
Now, what explanation did the trial court give?

[00:01:07] Speaker 02:
Not much, but this.

[00:01:09] Speaker 02:
The trial court said, well, the secondary boycott statute has little i and double i. And the cases that I just mentioned were single i cases.

[00:01:20] Speaker 02:
So the trial court said, well, those don't apply because this is a double i case.

[00:01:26] Speaker 02:
We submit, first, there's no case that adopts that.

[00:01:30] Speaker 02:
Second, that that distinction makes no sense at all, because both I and double I are part of the same statute, part of the same sentence, and part of the same goal of Congress.

[00:01:42] Speaker 02:
And that is to prohibit secondary boycotts.

[00:01:48] Speaker 02:
So there's no basis for distinguishing between I and double I. And that should have been the end of it.

[00:01:56] Speaker 02:
Defendants say, well, under the Supreme Court's decision in di Bartola, they're entitled to win.

[00:02:03] Speaker 02:
But in that case, the court first didn't say anything about double I or single I or a secondary boycott, except that it said, well, there's no coercion here.

[00:02:15] Speaker 02:
Why is there no coercion and therefore no violation of the secondary boycott law?

[00:02:19] Speaker 02:
Because all that was done was peacefully passing out leaflets in a shopping center.

[00:02:24] Speaker 02:
There were no threats to anybody

[00:02:26] Speaker 02:
There was no strike.

[00:02:28] Speaker 02:
There was just information being provided.

[00:02:30] Speaker 02:
And that was not even a threat, not that it was protected by the First Amendment.

[00:02:35] Speaker 04:
Can I talk about the threats to SeaWorld?

[00:02:38] Speaker 04:
So I sort of put them in three buckets.

[00:02:43] Speaker 04:
That there was to oppose future projects with CEQA lawsuits, one.

[00:02:49] Speaker 04:
Second, to launch negative campaign saying animal abuse.

[00:02:55] Speaker 04:
and then three to organize SeaWorld's employees.

[00:03:00] Speaker 04:
Are those kind of the three buckets?

[00:03:02] Speaker 02:
Well, I think the first two are the main ones that we're looking to here, because the threat to SeaWorld was you must stop doing any business with plaintiffs.

[00:03:15] Speaker 02:
And if you don't stop, we're now going to do all these three things.

[00:03:20] Speaker 02:
And each of those is a threat, and each of those is barred by the secondary boycott law.

[00:03:25] Speaker 02:
You cannot threaten somebody and say to a third party like SeaWorld, you must do these things, otherwise we're going to take these acts against you, unless you do what we want you to do.

[00:03:38] Speaker 02:
That's not permissible, we submit.

[00:03:42] Speaker 02:
The secondary boycott laws prevent that.

[00:03:46] Speaker 04:
Well, I'm just, I'm kind of looking at things first from a Nora Pennington and then looking at, because obviously it's something petitioning activity and our future threats of lawsuits.

[00:03:58] Speaker 04:
Is that?

[00:03:59] Speaker 02:
Well, Your Honor, let me step back.

[00:04:01] Speaker 02:
The point I was trying to make before was Nora Pennington has no application to the secondary boycott claims, period.

[00:04:08] Speaker 02:
None whatsoever.

[00:04:10] Speaker 02:
If it does apply, we claim that we fall within exemptions under Nora Pennington.

[00:04:15] Speaker 01:
And that's the sham.

[00:04:17] Speaker 02:
The sham.

[00:04:18] Speaker 01:
So why doesn't it apply at all?

[00:04:20] Speaker 01:
I don't understand that argument.

[00:04:22] Speaker 02:
Well, because the Supreme Court in IBEW said it didn't apply to a secondary boycott claim under I in the secondary boycott statute.

[00:04:35] Speaker 02:
And we submit there's no reason that it doesn't apply to double I.

[00:04:42] Speaker 02:
The first one, I, is a strike or a threat of a strike.

[00:04:46] Speaker 02:
And the second, double I, is coercion or threats.

[00:04:51] Speaker 02:
And we submit that neither of those are protected by the First Amendment period, and therefore, nor Pennington doesn't come into operation whatsoever.

[00:04:58] Speaker 04:
So that's your best case that you've just cited.

[00:05:01] Speaker 04:
What's your best case that Nora Pennington doesn't apply to a threat?

[00:05:05] Speaker 02:
I would say two.

[00:05:06] Speaker 02:
IBEW, the Supreme Court case, and this court's decision in the Ironworkers case.

[00:05:13] Speaker 04:
So I also know that you allege that the defendants did not actually intend

[00:05:18] Speaker 04:
to oppose SeaWorld's projects, but you also allege more generally the defendants routinely oppose development projects that, in their view, are not good for unionized labor.

[00:05:29] Speaker 04:
What facts support the allegation that the defendants wouldn't follow through on the threat to SeaWorld?

[00:05:38] Speaker 02:
Oh, well, look at the pattern of conduct here.

[00:05:43] Speaker 02:
The defendants have opposed every

[00:05:46] Speaker 02:
Hotel, the luxury hotel, resort hotel development in San Diego in the last 15 years.

[00:05:51] Speaker 04:
Well, I know they have.

[00:05:52] Speaker 04:
And that's, but when you say they don't actually intend to go through with it, then why doesn't that past behavior say, oh, well, sure they will?

[00:06:02] Speaker 02:
Right.

[00:06:02] Speaker 02:
But we, well, what they do is they threaten to do it.

[00:06:07] Speaker 02:
And if you don't capitulate, then they do oppose.

[00:06:12] Speaker 02:
And then what they want is you to settle.

[00:06:15] Speaker 04:
Well, yeah, I saw that behavior.

[00:06:18] Speaker 04:
But if you're contending they do not actually intend to oppose the projects, how can the other be true, too?

[00:06:26] Speaker 02:
No, no, Your Honor, we're not saying they don't intend to.

[00:06:29] Speaker 02:
When we say anything like that, what we're saying is they're going to oppose it if you don't capitulate.

[00:06:38] Speaker 02:
But then when they oppose it,

[00:06:40] Speaker 02:
What they want you to do is to enter into one of these PLA agreements and neutral card check agreements.

[00:06:46] Speaker 02:
And once you do that, they stop opposing it, and they turn around and support it.

[00:06:52] Speaker 02:
That's what we mean when we say they don't oppose it.

[00:06:54] Speaker 02:
They don't really oppose it.

[00:06:56] Speaker 02:
They don't really care about their objections under secret or anything else.

[00:07:01] Speaker 02:
What they care about is getting these labor agreements.

[00:07:04] Speaker 02:
And if you will agree to them, then bingo, they no longer are opposing it.

[00:07:10] Speaker 01:
Well, is the test whether they care about it or is the test whether they will do it if you don't cooperate?

[00:07:17] Speaker 02:
No, I think the test is, what is their pattern of behavior?

[00:07:21] Speaker 02:
What have they done here regularly?

[00:07:23] Speaker 02:
And what did they threaten to do here?

[00:07:25] Speaker 01:
Because a threat isn't- But my question is, if in fact they would follow through on the threat if you don't cooperate, how can you say, well, they don't intend to do it?

[00:07:36] Speaker 02:
All we mean when we say they don't intend to do it is, yes, they're going to file it if you don't capitulate, but they're not going to pursue it to the end.

[00:07:46] Speaker 01:
Well, they're not going to pursue it to the end if you cooperate.

[00:07:48] Speaker 02:
Right.

[00:07:49] Speaker 02:
But they're not interested in

[00:07:52] Speaker 02:
It's not petitioning activity that's interested in getting the government to do anything for them.

[00:07:57] Speaker 02:
They're not going to follow it through and say, OK, we're going to keep pursuing this, and we want the sequel relief, and so on.

[00:08:05] Speaker 02:
What they do is as soon as they sue you, then they want you, or the city, whatever it is, they want you to capitulate.

[00:08:13] Speaker 02:
And if you do, then bingo.

[00:08:15] Speaker 02:
They're suddenly supporting the project.

[00:08:17] Speaker 03:
Council, I had a question for you.

[00:08:19] Speaker 03:
So according to the complaint, I saw that the unions opposed about seven hotel projects over the course of a decade.

[00:08:26] Speaker 03:
Is that enough to support the serial sham or, yeah, the serial sham exception?

[00:08:32] Speaker 02:
Well, Your Honor, I think it's more than seven.

[00:08:35] Speaker 02:
My recollection, it was more on the order of a dozen or so, not counting the two here, that is, the ones that were directed against

[00:08:46] Speaker 03:
the plaintiffs so So in your mind is that enough or what what's the magic number?

[00:08:52] Speaker 02:
Well, I don't think there's a magic number this court recently said in the relevant decision that four wasn't enough and The Supreme Court I think has once pointed out that something like 20 or 22 or something like that was enough Over what span of time?

[00:09:07] Speaker 02:
I do not remember the span of time your honor.

[00:09:10] Speaker 02:
Okay, I

[00:09:10] Speaker 04:
So in talking about the threats about publicity, a publicity campaign and efforts to organize employees, I'm curious, now, it's your position that is not protected, is that correct?

[00:09:28] Speaker 02:
I'm sorry, what is not protected?

[00:09:30] Speaker 04:
On the SeaWorld threats, you had the negative publicity campaign and to organize SeaWorld employees.

[00:09:35] Speaker 04:
Are the threatened activities

[00:09:38] Speaker 04:
protected.

[00:09:38] Speaker 02:
They can organize SeaWorld's employees.

[00:09:42] Speaker 02:
They're free to do that if they want to.

[00:09:43] Speaker 02:
What they can't do is threaten SeaWorld with organization to force SeaWorld to force the plaintiffs to capitulate.

[00:09:51] Speaker 02:
That's what they can't do.

[00:09:52] Speaker 02:
They're free to organize SeaWorld if they can.

[00:09:56] Speaker 04:
So in Servette, the Supreme Court declined to interpret the NLRA Section 8B for double I to prohibit a threat

[00:10:06] Speaker 04:
to hand-bill because hand-billing is protected.

[00:10:10] Speaker 04:
And then in United Association of Journeymen, we declined to interpret the NRLA same section to prohibit a threat to picket because the picketing could have been done lawfully.

[00:10:22] Speaker 04:
So how can we interpret the NRLA Section 8B4II to prohibit defendants' threats to launch a publicity campaign and to organize employees?

[00:10:32] Speaker 02:
Because what we know from their pattern of conduct is what they're going to do.

[00:10:36] Speaker 02:
They're going to do that, but they're not going to really organize the employees.

[00:10:41] Speaker 02:
They're not going to go forward with these things.

[00:10:43] Speaker 02:
They're going to threaten to do them.

[00:10:45] Speaker 02:
They're going to start these actions.

[00:10:47] Speaker 02:
They're going to go to the government some and complain to force the plaintiffs to give in in a way that is just completely illegal under the secondary boycott laws.

[00:10:58] Speaker 02:
They can't do that.

[00:10:59] Speaker 02:
If they want to come and try and organize plaintiffs' employees, they're free to do that.

[00:11:06] Speaker 02:
That's protected activity.

[00:11:08] Speaker 02:
But they're not free to go to a third party like SeaWorld, threaten it, and say to it, if you don't get the plaintiffs to do what we want them to do, we're going to do all these bad things to you.

[00:11:23] Speaker 02:
That is what a secondary boycott is, and they're not allowed to do that.

[00:11:26] Speaker 01:
When you say, do all these bad things to you, we're going to do all these things that we are legally entitled to do, with an adverse consequence to you.

[00:11:34] Speaker 01:
But we're legally entitled to do them.

[00:11:37] Speaker 02:
You're not legally entitled to threaten a third party.

[00:11:42] Speaker 02:
That is what secondary boycott law prohibits.

[00:11:46] Speaker 02:
That's what they're doing.

[00:11:47] Speaker 02:
They're not entitled to do that.

[00:11:51] Speaker 04:
How much time did you want to save on a rebuttal?

[00:11:53] Speaker 02:
About three minutes, so I think I'm about there unless the court had another question.

[00:11:57] Speaker 04:
Yes, save the time and then we'll get back to frame it.

[00:12:01] Speaker 04:
Thank you.

[00:12:16] Speaker 00:
May it please the court, Paul Moore with McCracken, Stemmerman, and Holesberry on behalf of defendants Unite Here Local 30 and Bridget Browning.

[00:12:23] Speaker 00:
Let me start with this attempt to rewrite the National Labor Relations Act and to ask this court to hold that unions don't have First Amendment rights.

[00:12:36] Speaker 00:
DiBartolo held that peaceful speech conveying of information that was information that was intended to support a boycott

[00:12:46] Speaker 00:
of them all because of a secondary conflict is protected by the First Amendment.

[00:12:52] Speaker 00:
Or at least, it raises significant constitutional problems.

[00:12:57] Speaker 00:
The Supreme Court avoided that constitutional issue by reading the term coerce and threaten, N8B4, double I, as

[00:13:10] Speaker 00:
being narrow and not including threats of potential First Amendment activity.

[00:13:16] Speaker 00:
This court.

[00:13:16] Speaker 04:
So if you focus on SeaWorld, that's where we were, for future development projects.

[00:13:21] Speaker 04:
Plaintiffs allege that defendants, quote, did not actually intend to oppose SeaWorld's projects.

[00:13:27] Speaker 04:
Instead, the threat was merely a strong-arm tactic to coerce SeaWorld to boycott plaintiffs.

[00:13:34] Speaker 04:
Why should Nora Pennington even apply to this threat?

[00:13:38] Speaker 04:
given the allegation that this threat simply was not connected to any effort to petition government officials?

[00:13:44] Speaker 00:
Well, their argument is, in fact, that it is connected to petitioning government officials.

[00:13:49] Speaker 00:
The allegation is that the threat that was conveyed through SeaWorld's consultant was that the defendants would challenge a future local coastal plan amendment.

[00:14:02] Speaker 00:
That's what's being alleged here.

[00:14:04] Speaker 00:
So whether the intent was actually to go all the way or to settle that, this was a threat of future petitioning.

[00:14:16] Speaker 00:
So that was one of the elements of what's alleged here.

[00:14:20] Speaker 01:
But that rationale doesn't cover the threat to publicize animal cruelty.

[00:14:30] Speaker 00:
That may be the case, Judge Fletcher.

[00:14:34] Speaker 01:
But the petitioning rationale doesn't cover that, does it?

[00:14:38] Speaker 00:
Well, it can cover it.

[00:14:40] Speaker 00:
So publicity that is connected to petitioning is, under Nora Pennington, part of petitioning.

[00:14:48] Speaker 01:
So explain to me how a threat to publicize animal cruelty is connected to petitioning or is petitioning.

[00:14:56] Speaker 00:
Yeah, Your Honor, there are two answers to that.

[00:14:59] Speaker 00:
The first is that, in the past, the Coastal Commission, in reviewing SeaWorld's plans for expansion,

[00:15:07] Speaker 00:
has focused on animal cruelty.

[00:15:09] Speaker 00:
They allege in their complaint that the last time that the sea world had been in front of the Coastal Commission, they had to end their orca breeding program based on that.

[00:15:20] Speaker 00:
But even if this is a threat of future speech on a public issue, then DiBartolo applies and Servette applies.

[00:15:29] Speaker 00:
What's being alleged here is that in the future, the union is going to be public

[00:15:35] Speaker 00:
about issues of public interest, then that is not, in AP4, a violation.

[00:15:42] Speaker 00:
That is pure debartalos or that a threat of future speech.

[00:15:46] Speaker 00:
So either it was connected or a threat that was connected with future petitioning, or this is a threat of pure First Amendment activity in the future.

[00:15:55] Speaker 01:
But if it's a threat of pure First Amendment activity, is that in North Pennington, or is there some other rationale?

[00:16:00] Speaker 00:
If it's a threat of pure future speech, which is what they're alleging here, then that is not actionable as coercion under 8B4 double I. That is future speech that's being threatened by the defendants.

[00:16:20] Speaker 00:
And that is not something that the court has held can be part of coercion.

[00:16:24] Speaker 01:
But my question is that does that then I think you're telling me is not right that rationale is not nor pennington It's rather a straight first amendment rationale.

[00:16:34] Speaker 00:
It's either or there.

[00:16:35] Speaker 00:
There's one way of reading that Well your honor they they say that the future petitioning or the future publicity would be about an animal cruelty subject

[00:16:47] Speaker 00:
There are vague allegations about that.

[00:16:49] Speaker 00:
If the expansion in the future that SeaWorld sought, like the past one, involved a program that involved animals, then there might be an issue of animal cruelty.

[00:17:01] Speaker 00:
But either way, if this is pure speech, it's still not actionable.

[00:17:05] Speaker 04:
But even in the future, and you're not even, you don't even file, there's no lawsuit filing.

[00:17:11] Speaker 04:
I don't know how that comes under the petitioning under North Pennington.

[00:17:16] Speaker 00:
Well, yes, if the threat had been, when you bring your new ride forward, we are going to petition against it, a local coastal program, and we're going to talk about issues of animal cruelty tied to that amendment that you're seeking, like the last time they had been in front of them, then the speech would be tied to petitioning.

[00:17:38] Speaker 00:
But otherwise, it's pure First Amendment speech, and it's not actionable under DiBartolo.

[00:17:43] Speaker 01:
I've got a variation on my question.

[00:17:45] Speaker 01:
And that is, what about the threat to organize?

[00:17:48] Speaker 01:
Is that in any way connected to North Pennington?

[00:17:51] Speaker 00:
That idea that the act prohibits what it affirmatively promotes, the right to organize and form a union, is at the heart of the National Labor Relations Act.

[00:18:02] Speaker 01:
That's section seven.

[00:18:04] Speaker 01:
I asked a question, and you didn't answer it.

[00:18:06] Speaker 01:
Is it that in any way connected to North Pennington?

[00:18:08] Speaker 00:
I see.

[00:18:09] Speaker 00:
No, that is not connected to North Pennington.

[00:18:11] Speaker 00:
That is a separate issue.

[00:18:12] Speaker 01:
So your only rationale for that one is that it's simply protected activity irrespective of the motive.

[00:18:18] Speaker 00:
It's protected activity irrespective of the motive, correct.

[00:18:22] Speaker 00:
There is no case that has said that a threat to do something that's affirmatively protected under the act can be a violation of 8b-4.

[00:18:30] Speaker 04:
So the plaintiffs make a lot of allegations about defendants' past petitioning.

[00:18:35] Speaker 04:
Judge Alba asked a little bit.

[00:18:37] Speaker 04:
In opposition to other developments, with respect to the past lawsuits, the district court found that the serial sham exception did not apply because of the seven lawsuits identified, five settled or were at least partially successful.

[00:18:53] Speaker 04:
But why should we treat the settlements as an indication that the lawsuit had merit here?

[00:18:59] Speaker 04:
given that we can infer that the parties settled not because the lawsuits were meritorious, but instead because the lawsuits were a nuisance and they imposed too much delay in cost.

[00:19:11] Speaker 00:
Well, there's several reasons why the serial litigation standard cannot apply here, Your Honor, and I'll answer that particular one.

[00:19:20] Speaker 00:
But I want to first point out that what the defendants are accused of with regard to the Bahia, and in fact, with regard to

[00:19:28] Speaker 00:
The threat against SeaWorld is to engage in lobbying, lobbying against a lease amendment, lobbying the local government not to adopt a local coastal plan amendment.

[00:19:40] Speaker 00:
This is lobbying.

[00:19:41] Speaker 00:
The serial litigation standard does not apply to lobbying.

[00:19:45] Speaker 00:
The lobbying can't be the last link in the chain there.

[00:19:49] Speaker 00:
And the reasons for that.

[00:19:50] Speaker 00:
The reason why the court in USS Pasco adopted the serial litigation standard is because litigation is different from lobbying.

[00:20:00] Speaker 00:
And the court in Cottle recognized this.

[00:20:02] Speaker 00:
It imposes costs that lobbying doesn't impose.

[00:20:06] Speaker 00:
or in the case of cow motor transport, where the adjudicative actions essentially barred access to the forum.

[00:20:14] Speaker 00:
None of that exists in a situation with lobbying, and none of it exists with regard to defendants other than plaintiffs going back more than 10 years.

[00:20:27] Speaker 00:
So the serial litigation standard doesn't apply here for those reasons.

[00:20:32] Speaker 00:
Second, in order to make out a claim of serial litigation sham, you have to prove that some quantum of the past actions were baseless.

[00:20:45] Speaker 00:
Not simply unsuccessful, but baseless.

[00:20:47] Speaker 03:
Can I ask about that, counsel?

[00:20:50] Speaker 03:
So in their complaint, Evans alleges that most of the union's prior environmental opposition to hotel developments settled with no changes to the development.

[00:20:59] Speaker 03:
So wouldn't that

[00:21:01] Speaker 03:
support their position that the unions have a practice of bringing these lawsuits for improper purpose, since there was no changes really made, even with the settlements?

[00:21:09] Speaker 00:
This court recently, in the relevant group case versus Normand, made clear that the fact of settlement is not evidence of objective baselessness.

[00:21:21] Speaker 04:
So there's a subjective element and an objective element, right?

[00:21:27] Speaker 04:
And on the subjective element, like what Judge DeAlba is saying, it sure seems like you file these suits and then voila, they go away when they sign up their employees.

[00:21:41] Speaker 04:
So subjectively, that looks bad for you.

[00:21:45] Speaker 04:
But objectively, maybe they do have merit.

[00:21:49] Speaker 04:
So how did the two go together?

[00:21:52] Speaker 00:
In relevant group versus Normand, this court made clear that it had never understood settlement of a case to go towards the objective reasonableness of that suit.

[00:22:03] Speaker 00:
It goes to, as you're saying, Judge Callahan, it goes to subjective motive in bringing the case.

[00:22:08] Speaker 00:
And there is no allegation, no allegation, that any of the past instances of lawsuits

[00:22:16] Speaker 00:
adjudicative actions were baseless in the sense that no reasonable litigant could have expected success.

[00:22:23] Speaker 04:
So if the plaintiff could show that these lawsuits, let's just hypothetically assume that the union brings these lawsuits to put the arm on them, and then once you give them what they want, they go away.

[00:22:39] Speaker 04:
If those lawsuits were further proved to have no merit, to file meritless lawsuits, then you've got it.

[00:22:47] Speaker 04:
The plaintiffs got it, right?

[00:22:49] Speaker 00:
Correct.

[00:22:49] Speaker 00:
If the lawsuits in the past had even been alleged to be baseless, which they're not.

[00:22:55] Speaker 00:
They're simply alleged that some of them were unsuccessful.

[00:22:58] Speaker 00:
Others either settled, or in several instances, the union prevailed.

[00:23:03] Speaker 04:
So using the plain, they could be just a strong arm, and you could do it for that purpose as long as they weren't frivolous lawsuits, or basics.

[00:23:12] Speaker 00:
That is what PRE stands for.

[00:23:13] Speaker 04:
I mean, it doesn't sound very pleasant.

[00:23:17] Speaker 04:
But apparently, that's true.

[00:23:20] Speaker 00:
Your Honor, the allegations in PRE were not pleasant either.

[00:23:24] Speaker 00:
It was a claim that lawsuits were being used in order to engage in antitrust behavior.

[00:23:31] Speaker 00:
It's always the case that what's being alleged in North Pennington is that the behavior was intended to carry out some sort of unlawful action.

[00:23:39] Speaker 04:
So let me, you're over time, but let me find out if my colleagues have any additional questions.

[00:23:45] Speaker 04:
They do not.

[00:23:46] Speaker 04:
So we'll turn it over to your colleague then.

[00:23:48] Speaker 04:
Thank you.

[00:23:55] Speaker 04:
Good afternoon.

[00:23:56] Speaker 05:
Good afternoon, Your Honor.

[00:23:57] Speaker 05:
Stacy Layton on behalf of the San Diego Building Trades and Mr. Lemon.

[00:24:02] Speaker 05:
I am planning to address the anti-SLAP cross-appeal.

[00:24:06] Speaker 05:
I'd like to start by addressing a couple of the points that Your Honors were just asking about.

[00:24:11] Speaker 05:
One, in terms of the animal cruelty questions and whether

[00:24:14] Speaker 05:
a publicity campaign about animal cruelty that was not connected to petitioning would be protected.

[00:24:20] Speaker 05:
I would just like to point out that a couple of things.

[00:24:23] Speaker 05:
One is that in the case Knorr itself, where the Knorr-Pennington doctrine originated, there was an allegation that the railroad companies had engaged in a negative publicity campaign against the truckers, that they targeted the truckers' customers.

[00:24:36] Speaker 05:
So there was a PR campaign in that case that was not connected to petitioning.

[00:24:41] Speaker 05:
And that is because the origins of the North Pennington doctrine, it's a constitutional avoidance doctrine.

[00:24:47] Speaker 05:
You do not construe statutes to intrude on First Amendment activity unless the statute is very clear, and then you have to reach the First Amendment question.

[00:24:57] Speaker 05:
So while Your Honor Judge Fletcher is correct that it may not technically be a North Pennington concern, if it's only publicity that is unconnected to petitioning,

[00:25:06] Speaker 05:
It is still.

[00:25:07] Speaker 05:
a First Amendment concern, which is what animates the Norm Pennington doctrine.

[00:25:12] Speaker 05:
And I think this court's decision in Sosa explains that very well.

[00:25:15] Speaker 05:
This court in Sosa said that if there is a question whether the First Amendment would protect a particular activity, then the court will make sure to avoid any doubt to construe the statute not to punish that activity.

[00:25:29] Speaker 05:
And so those are the origins.

[00:25:32] Speaker 04:
But I would also like to point out that I think that doesn't mean that every activity

[00:25:36] Speaker 04:
has to be avoided.

[00:25:38] Speaker 04:
I mean, there can be statutes that can be enforced, even with the existence of North Pennington, right?

[00:25:44] Speaker 05:
Yes, of course.

[00:25:45] Speaker 05:
For example, the 8b1, as this court reasoned in Ironworkers, where the objective is unlawful.

[00:25:50] Speaker 05:
You can't encourage somebody to participate in a conspiracy or to commit a crime.

[00:25:55] Speaker 05:
You can't participate in a conspiracy through speech.

[00:25:58] Speaker 05:
But this court avoids considering statutes.

[00:26:00] Speaker 05:
to reach First Amendment activity where that is possible.

[00:26:04] Speaker 05:
And I would also just like to say that plaintiffs' counsel has made clear here that the allegations of the publicity campaign and the allegations of the threat to unionize were very bound up with their allegations that the union intended.

[00:26:17] Speaker 05:
to oppose SeaWorld's expansion and to participate in petitioning activity.

[00:26:22] Speaker 05:
I would also just like to point out in terms of some of the questions about the number of cases and the settlements that in the case of Oregon versus MOLA, this court said that when the petitioning activity is against different entities, that's only relevant to the second part of North Pennington, which asks about motive.

[00:26:41] Speaker 05:
not about the first part, which asks about objective baselessness and whether there is a pattern of bringing suits without regard to merit.

[00:26:49] Speaker 05:
I mean, in relevant group itself, in terms of bad facts or things that are unpleasant, apparently there the developer had said, you know the drill, you write a check and we go away.

[00:27:00] Speaker 05:
And in that case there were allegations and proof that when

[00:27:04] Speaker 05:
the developer who was the plaintiff dropped out, the developer who was the defendant dropped their suits.

[00:27:09] Speaker 05:
And so these things are protected, even if there are a number of lawsuits, and in this case particularly where it's lobbying.

[00:27:17] Speaker 04:
You just have to really have the goods on someone if you're going to threaten them.

[00:27:21] Speaker 05:
You do.

[00:27:21] Speaker 05:
You have to have some of it.

[00:27:23] Speaker 05:
Although it's not a particularly demanding standard.

[00:27:25] Speaker 05:
I mean, in the Sosa case, this court allowed a cable company to fall under North Pennington doctrine when they sent letters to many cable customers threatening them with litigation, even though they didn't know whether the cable customers were actually violating the law.

[00:27:39] Speaker 05:
So it is a very protective standard.

[00:27:41] Speaker 05:
And Sosa says, it's because we need to allow speech that breathing room.

[00:27:45] Speaker 05:
And so we need to make sure.

[00:27:46] Speaker 05:
Just briefly on the cross appeal, I would like to point out that in the Vest case, this court approved of an award of anti-slap fees in a situation that for all relevant purposes is identical to this case.

[00:28:01] Speaker 05:
As here, in the Vest case, the plaintiff had been given leave to amend multiple times.

[00:28:07] Speaker 05:
And in that case, as here, the plaintiff declined to amend to reassert the claims that had been subject to the slap motion.

[00:28:16] Speaker 05:
In that case, the district court held open the slap motion and didn't rule on it until after the plaintiff had voluntarily dismissed other claims.

[00:28:26] Speaker 05:
In our case, instead of holding onto the slap motions, the district courts denied them as moot.

[00:28:32] Speaker 05:
And then in the most recent decision, Judge Robinson said, denying your request for attorney's fees

[00:28:37] Speaker 05:
without prejudice, inviting us to do exactly what the defendant did in the Vest case, which is to then move for fees under the anti-SLAPP statute once the claims had been voluntarily dismissed.

[00:28:50] Speaker 05:
And the California cases that talk about the SLAPP statute make clear that that is essential in order to fulfill SLAPP's purposes, not only of early dismissal of meritless claims, but also

[00:29:02] Speaker 05:
to make sure to deter plaintiffs and to compensate the defendants when these kinds of slap suits are brought.

[00:29:10] Speaker 05:
And if the court has no further questions.

[00:29:13] Speaker 04:
All right.

[00:29:13] Speaker 04:
Do you have a question?

[00:29:15] Speaker 04:
Thank you.

[00:29:15] Speaker 04:
You've gone a little bit into overtime.

[00:29:17] Speaker 04:
And I'll decide after I hear from the other side whether we have any questions.

[00:29:23] Speaker 04:
So we'll give him a 30 seconds extra here.

[00:29:28] Speaker 04:
So we'll kind of even it up.

[00:29:31] Speaker 02:
Thank you, Your Honor.

[00:29:33] Speaker 02:
There's something that I think needs to be clarified.

[00:29:36] Speaker 02:
There are two different standards here.

[00:29:39] Speaker 02:
There's the individual sham exemption, and there's the serial sham exemption.

[00:29:45] Speaker 02:
Defendants talk a lot about objective baselessness.

[00:29:50] Speaker 02:
That does apply to the individual sham exemption.

[00:29:58] Speaker 02:
It does not have any application whatsoever to the serial sham exemption.

[00:30:07] Speaker 02:
To get to the serial sham exemption, we don't have to show that the things were objectively baseless.

[00:30:15] Speaker 02:
That said, we think we can do that.

[00:30:18] Speaker 02:
What are the two things?

[00:30:19] Speaker 02:
First, about the Bahia.

[00:30:21] Speaker 02:
What were the defendants doing?

[00:30:23] Speaker 02:
And what were they saying to the government?

[00:30:25] Speaker 02:
You must have the Gleason Road.

[00:30:27] Speaker 02:
do this project without the Gleason Road.

[00:30:30] Speaker 02:
That got fought out.

[00:30:31] Speaker 02:
It went to the San Diego Superior Court, and the San Diego Superior Court said there's absolutely no basis for that objection.

[00:30:38] Speaker 02:
It was a form of economic blackmail.

[00:30:41] Speaker 02:
If that isn't baseless, then I don't know what is objectively baseless.

[00:30:46] Speaker 02:
And with regard to SeaWorld,

[00:30:48] Speaker 02:
How can they possibly say that what they did wasn't objectively baseless?

[00:30:54] Speaker 02:
They didn't know what SeaWorld was going to do.

[00:30:56] Speaker 02:
There were no proceedings in front of any government entity that they were going to go participate in, or where they were going to make arguments that SeaWorld couldn't do this or anything else.

[00:31:06] Speaker 02:
They said to SeaWorld, we're going to oppose anything you do.

[00:31:11] Speaker 02:
whatever it is.

[00:31:12] Speaker 02:
And we're going to do that in front of the government, and we're going to do that by negative publicity and so on.

[00:31:18] Speaker 02:
That is objectively baseless because they don't know what SeaWorld's going to do.

[00:31:23] Speaker 02:
They therefore cannot possibly know whether they have some basis to go forward.

[00:31:30] Speaker 02:
So we don't think we have to prove that, but we also think that we can and have adequately alleged objective baselessness.

[00:31:41] Speaker 02:
On the question of the SLAP statute, we would simply point to this Court's decision in the Verizon case, where this Court held that under the SLAP statute you were not entitled to recover if you were given leave to amend and you did not amend, and that's what happened here.

[00:32:00] Speaker 02:
So the Verizon case we submit

[00:32:03] Speaker 02:
deals completely with any slap thing here.

[00:32:06] Speaker 02:
The last thing I'd like to say is about the relevant case.

[00:32:09] Speaker 02:
Opposing counsel says, well, relevant said that settlements, if they're settlements, they can't be

[00:32:18] Speaker 02:
There can't be any claim here, right, because they settled.

[00:32:23] Speaker 02:
Look at what Relevance says about the settlements.

[00:32:25] Speaker 02:
Relevance says that the settlements there, they got real substantive relief.

[00:32:30] Speaker 02:
What we alleged here is they never got any real substantive relief, and that's what makes it completely different.

[00:32:38] Speaker 02:
I think I've used my time, unless the Court has any more questions.

[00:32:41] Speaker 04:
We apparently don't.

[00:32:43] Speaker 04:
Thank you.

[00:32:44] Speaker 02:
Thank you.

[00:32:45] Speaker 04:
I guess I just had the one question.

[00:32:47] Speaker 04:
Did you have any additional questions of Ms.

[00:32:49] Speaker 04:
Layton?

[00:32:50] Speaker 04:
I do not.

[00:32:51] Speaker 04:
On the anti-SLAP?

[00:32:52] Speaker 04:
They don't.

[00:32:53] Speaker 04:
I do not.

[00:32:54] Speaker 04:
You have no time.

[00:32:55] Speaker 04:
Oh, OK.

[00:32:56] Speaker 04:
But good try on the way to the podium.

[00:33:00] Speaker 04:
So thank you both for your argument in this matter.

[00:33:04] Speaker 04:
Very complicated case, and we appreciate your argument in this matter to assist us.

[00:33:12] Speaker 04:
This court is now in recess for the week.

[00:33:16] Speaker 04:
Thank you.