MEMORANDUM AND ORDER

MORRISON C. ENGLAND, Jr., Chief District Judge.

Through this action, Plaintiffs Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively "Cross-Defendants" or "Farmers") seek relief from Defendants Steele Insurance Agency, Troy Steele ("Steele"), Ted Blalock ("Blalock"), Larry McCarren ("McCarren"), Bill Henton ("Henton"), and Cindy Jo Perkins ("Perkins") (collectively "Cross-Claimants") for the alleged misappropriation of Cross-Defendants' trade secrets, as well as other violations of state and federal law pertaining to the operation of Cross-Defendants' and Cross-Claimants' respective insurance companies. Specifically, the operative Second Amended Complaint ("SAC") alleges the following causes of action: (1) breach of contract against McCarren; (2) misappropriation of trade secrets against all Defendants; (3) violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030(a)(2)(C), against Perkins and Henton; (4) violation of the CFAA, 18 U.S.C. § 1030(a)(4), against Perkins and Henton; and (5) civil conspiracy against all Defendants. SAC, Dec. 16, 2013, ECF No. 48.

Cross-Claimants now bring a claim against Cross-Defendants for interference with prospective business advantage. Presently before the Court is Cross-Defendants' Anti-SLAPP Motion to Strike the cross-claim, ECF No. 60, and Cross-Defendants' Motion to Dismiss the cross-claim for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF No. 61. For the reasons set forth below, the anti-SLAPP motion, ECF No. 60, is GRANTED WITH LEAVE TO AMEND and the Motion to Dismiss, ECF No. 61, is DENIED AS MOOT.

BACKGROUND1

Cross-Defendants are a group of insurance exchanges, each of which sells Farmers Insurance. Cross-Claimants are the Steele Insurance Agency and individuals that were formerly Farmers insurance agents, district managers, or somehow affiliated with Farmers. Troy Steele, a former Farmers District Manager, left Farmers to start the Steele Insurance Agency. Cross-Defendants' Second Amended Complaint generally alleges that former Farmers insurance agents and District Managers misappropriated Farmers' trade secrets by downloading and copying Farmers' customer lists off Farmers' online "dashboard." The lists contain customer information such as when the customer's policy would be up for renewal, and what types of insurance the customer had. Cross-Defendants also allege that Cross-Claimants took advantage of elderly or ill Farmers agents, using those agents' information to gain access to Farmers' customer lists. Cross-Defendants claim that Cross-Claimants have improperly solicited Farmers customers and convinced them to switch to Steele Insurance Agency. Cross-Defendants allege they have lost approximately two hundred customers to Steele Insurance Agency.

In their Cross-Claim, Cross-Claimants Steele and Steele Insurance Agency assert that "Cross-Defendants falsely and fraudulently claimed and communicated that Cross-Claimants misappropriated cross-defendants' trade secrets by improper means in violation of [the UTSA] . . . ." ECF No. 58-1 at 4. Cross-Claimants also allege that Cross-Defendants "[f]alsely and fraudulently claimed and communicated that Cross-[C]laimants misappropriated Cross-[D]efendants' confidential policyholder information for the purpose of soliciting, directing, retaining, or utilizing Cross-[D]efendants' confidential policyholder information to have the policyholder switch their insurance business . . . . " Id. Additionally, Cross-Claimants allege that Cross-Defendants "[f]alsely claimed and communicated that Cross-[C]laimants formed and operated a conspiracy to illegally misappropriate, steal, and use Cross-[D]efendants' trade secret protected policyholder information. . . ." Id. Finally, Cross-Claimants allege that Cross-Defendants "falsely accus[ed] Cross-Claimants of engaging in wrongful conduct including but not limited to falsely claiming Cross-[C]laimants' misappropriation and use of electronic and paper copies of Cross-[D]efendants' trade secret protected policyholder information and through the unauthorized use and access of Cross-[D]efendants' proprietary computer system." Id. According to Cross-Claimants, as a result of this wrongful conduct, their relationship with their customers and various insurance carriers has been disrupted and cross-claimants have lost income.

STANDARD2

California's anti-SLAPP (strategic lawsuit against public participation) statute is designed to discourage suits that "masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). The statute provides:

Cal. Civ. Proc. Code § 425.16(b)(1). The anti-SLAPP statute "was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). In particular, the California Legislature found:

Cal. Civ. Proc. Code § 425.16(a). The Legislature specifically provided that the anti-SLAPP statute should be "construed broadly." Id.; see Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1119 (1999).

The anti-SLAPP motion is available in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206 (9th Cir. 2005) (per curiam). The court must evaluate an anti-SLAPP motion in two steps. First, the defendant moving to strike must make "a threshold showing . . . that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in [subsection (e) of] the statute." Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)).

Second, "[i]f the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim." Navellier v. Sletten, 29 Cal.4th 82 (2002); see also U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 971 (9th Cir. 1999). "Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821 (2002) (internal quotation marks omitted); Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). "[T]hough the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." Wilson, 28 Cal. 4th at 821; Cal. Civ. Proc. Code § 425.16(b)(2). Thus, "[t]he statute `subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim.'" Navellier, 29 Cal. 4th at 92.

"Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." Id. at 89. "These rules apply with equal force to an anti-SLAPP motion brought by a cross-defendant, since section 425.16 `treats complaints identically with cross-complaints.'" Kurz v. Syrus Sys., LLC, 221 Cal.App.4th 748, 758 (2013).

ANALYSIS

In deciding the instant anti-SLAPP motion to strike, the Court must address three major issues. First, the Court must determine whether Plaintiffs have met their burden by making a threshold showing that the acts of which Cross-Claimants complain were taken in furtherance of Plaintiffs' right of free speech in connection with a public issue. Second, the Court must address Cross-Claimants' contention that the First Amended Complaint is exempt from anti-SLAPP motions pursuant to California Civil Procedure Code § 425.17. Finally, the Court must determine whether Cross-Claimants have met their burden of making a threshold showing their Cross-Complaint is legally sufficient and supported by a prima facie showing of facts. Each issue is addressed in turn, below.

A. Cross-Defendants' Burden

First, the activity the plaintiff challenges must have been conducted "in furtherance" of the exercise of free speech rights. Hilton, 599 F.3d at 903. "By its terms, this language includes not merely actual exercises of free speech rights but also conduct that furthers such rights." Id. (citing Cal. Civ. Proc. Code § 425.16(e)(4); Navellier, 29 Cal. 4th at 94 ("The [California] [l]egislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law.")).

As used in the anti-SLAPP statute, an "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. Doe v. Gangland Prods., Inc., 802 F.Supp.2d 1116, 1119-20 (C.D. Cal. 2011) (quoting Cal. Civ. Proc. Code § 425.16(e)).

"A claim for relief filed in federal district court indisputably is a `statement or writing made before a . . . judicial proceeding.'" Navellier, 29 Cal. 4th at 90 (quoting Cal. Civ. Proc. Code § 425.16(e)(1)); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1115 (1999) (constitutional right to petition includes "the basic act of filing litigation or otherwise seeking administrative action"). Thus, the question is whether Cross-Claimants' claim for interference with prospective business advantage `arises from' Cross-Defendants' act in furtherance of this right of petition or free speech.

"Although a party's litigation-related activities constitute `act[s] in furtherance of a person's right of petition or free speech,' it does not follow that any claims associated with those activities are subject to the anti-SLAPP statute. A claim `arises from' an act when the act `forms the basis for the plaintiff's cause of action.' `The "arising from" requirement is not always easily met.' A cause of action may be `triggered by' or associated with a protected act, but it does not necessarily mean the cause of action arises from that act." Freeman v. Schack, 154 Cal.App.4th 719, 729-30 (2007). Thus, "[i]n the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." Navellier, 29 Cal. 4th at 89.

In Navellier, the California Supreme Court stated: "[the defendant] is being sued because of the affirmative counterclaims he filed in federal court. In fact, but for the federal lawsuit and [the defendant's] alleged actions taken in connection with that litigation, plaintiffs' present claims would have no basis. This action therefore falls squarely within the ambit of the anti-SLAPP statute's `arising from' prong." Id. (quoting § 425.16(b)(1)). Other courts have similarly held that because "the filing of lawsuits is an aspect of the First Amendment right of petition, a claim based on actions taken in connection with litigation fall squarely within the ambit of the anti-strategic lawsuit against public participation (SLAPP) statute's `arising from' prong." Kurz, 164 Cal. Rptr. 3d at 759; see also Seltzer v. Barnes, 106 Cal.Rptr.3d 290 (2010) ("A statement is `in connection with' litigation for purposes of an anti-SLAPP . . . motion to strike if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.").

The same is true here—the claim against Cross-Defendants arises from the claims they filed in this action. Cross-Claimants assert no other factual basis for this claim, and but for Cross-Defendants' claims against Cross-Claimants, the claim for interference with prospective business advantage would have no basis. This, Cross-Defendants have met their initial burden to show that the Cross-Complaint arises from conduct "in furtherance of [a] person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." Cal. Civ. Proc. Code § 425.16(b)(1), (e)(4); Navellier, 29 Cal.4th at 87-88.

B. Statutory Exemptions

Cross-Claimants contend that the commercial speech exemption, codified at that section 425.17(c), exempts their claim from an anti-SLAPP motion. This statutory exemption to the anti-SLAPP motion was enacted by the Legislature in 2003 to curb the "disturbing abuse" of the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.17(a). "This exception statute covers both public interest lawsuits, under subdivision (b), and `commercial speech,' under subdivision (c)." Club Members For An Honest Election v. Sierra Club, 45 Cal.4th 309, 316 (2008). Under subsection (c), causes of action arising from commercial speech are exempt from the anti-SLAPP law when:

Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC, 814 F.Supp. 1033, 1037 (S.D. Cal. 2011) (citing Simpson Strong-Tie Co. v. Gore, 49 Cal.4th 12, 30 (2010)).

Here, the first two requirements are met, as both Cross-Defendants and Cross-Claimants are primarily engaged in the business of selling goods and services, and the statements at issue consist of representations of fact about Cross-Claimant's business operations. Insurance is explicitly included as a good or service under the statute. Cal. Civ. Proc. Code 425.17(c). However, Cross-Defendants' statements were not made for "the purpose of obtaining approval for, promoting, or securing . . . commercial transactions" in those services. Weiland Sliding Doors & Windows, Inc., 814 F. Supp. at 1037. Rather, these statements were made in the course of bringing a lawsuit against Cross-Claimants. Thus, Cross-Claimants do not meet the third requirement of the commercial speech exemption. Finally, Cross-Claimants do not meet the fourth statutory requirement, as the intended audience was this Court, rather than an actual or potential buyer or customer. Contrary to Cross-Claimants' assertions in the opposition, the Cross-Complaint contains no allegations that the statements at issue were made to Cross-Claimants' customers, nor are there any allegations that the statements were made for the purpose of obtaining or securing a commercial transaction.

Accordingly, Cross-Claimants have not met their burden of demonstrating that the commercial speech exemption applies. Because Cross-Defendants have met their initial burden under the anti-SLAPP statute, and because the action is not subject to a statutory exemption, the burden shifts to Cross-Claimants to show a reasonable probability of prevailing on their claims

C. Cross-Claimants' Burden

"[T]he [anti-SLAPP] statute does not bar a plaintiff from litigating an action that arises out of the defendant's free speech or petitioning; it subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim." Hilton, 599 F.3d at 908 (quoting Navellier, 29 Cal.4th 82). Accordingly, "[o]nce it is determined that an act in furtherance of protected expression is being challenged, the plaintiff must show a `reasonable probability' of prevailing in its claims for those claims to survive dismissal." Metabolife Int'l, 264 F.3d at 840 (citing § 425.16(b)). "To do this, the plaintiff must demonstrate that `the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Id. (quoting Wilcox, 33 Cal. Rptr. 2d at 454). Thus, a defendant's anti-SLAPP motion should be granted when a plaintiff presents an insufficient legal basis for the claims or "when no evidence of sufficient substantiality exists to support a judgment for the plaintiff." Metabolife Int'l, 264 F.3d at 840 (citing Wilcox, 33 Cal. Rptr.3d at 457). "At this second step of the anti-SLAPP inquiry, the required probability that [Plaintiffs] will prevail need not be high." Hilton, 599 F.3d at 908. "The California Supreme Court has sometimes suggested that suits subject to being stricken at step two are those that `lack even minimal merit.'" Id. (quoting Navellier, 29 Cal.4th 82).

Cross-Defendants contend that the cross-claim is defeated by the litigation privilege, and thus Cross-Claimants cannot show that the claim has even minimal merit. The litigation privilege "grants absolute immunity from tort liability for communications made in relation to judicial proceedings." Jarrow Formulas, 31 Cal. 4th at 737. "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 599 (9th Cir. 2010). "The principal purpose of section 47(2) is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." Silberg v. Anderson, 50 Cal.3d 205, 213 (1990) (citations omitted).

"Because the litigation privilege protects only publications and communications, a `threshold issue in determining the applicability' of the privilege is whether the defendant's conduct was communicative or noncommunicative." Lopez Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158, 1162 (N.D. Cal. 2007) (quoting Jacob B. v. County of Shasta, 40 Cal.4th 948, 957 (2007)). "The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action." Id. (citing Rubin v. Green, 4 Cal.4th 1187, 1195 (1993); Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1132 n. 12 (1990)). "[I]f the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct . . . . Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies." Id.

Here, the gravamen of Cross-Claimants' claim is based on the contents of Cross-Defendants' claims in this lawsuit, and the Cross-Complaint specifically states that Cross-Defendants falsely "claimed and communicated" that Cross-Claimants engaged in certain actions, including misappropriation of trade secrets and conspiracy. Thus, Cross-Claimants fail to demonstrate that Cross-Defendants engaged in any conduct outside of asserting allegations against Cross-Claimants in their Complaint. The conduct at issue is therefore communicative, and protected by the litigation privilege. As such, Cross-Claimants fail to state a claim for interference with a prospective business advantage and fail to meet their burden of demonstrating that the claim is legally sufficient. Plaintiffs' Anti-SLAPP Motion to Strike is GRANTED.

D. Leave to Amend and Attorneys' Fees

The Ninth Circuit has clearly stated that "granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend would directly collide with Federal Rule of Civil Procedure 15(a)'s policy favoring liberal amendment." Verizon Del., Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). Accordingly, Cross-Claimants are granted leave to amend their Cross-Complaint.

Cross-Defendants request attorneys' fees and costs incurred in bringing their respective anti-SLAPP motions. Mot. at 7. California's anti-SLAPP statute provides a mechanism for a defendant to strike civil actions or claims brought primarily to chill the exercise of free speech. Cal. Civ. Proc. Code § 425.16(b)(1). To deter such chilling, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Id. § 425.16(c). However, when a plaintiff is granted leave to amend the complaint, a defendant whose anti-SLAPP motion is granted is not a "prevailing party" for purposes of the anti-SLAPP statutory framework. See Thornbrough v. W. Placer Unified Sch. Dist., 2:09-CV-02613-GEB, 2010 WL 3069321 (E.D. Cal. Aug. 3, 2010) (citing Brown v. Electronic Arts, Inc., 2010 WL 2757774, at *6-8 (C.D. Cal. July 13, 2010) (holding that defendant was not a prevailing party where anti-SLAPP motion was granted but plaintiff was provided leave to amend complaint)).

Accordingly, Cross-Defendants' request for attorneys' fees is DENIED.

CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED THAT:

IT IS SO ORDERED.