The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Trespass Claim Stemming from Activists' Blocking Horse Race Track Not Covered by California Anti-SLAPP Law


From Golden Gate Land Holdings LLC v. Direct Action Everywhere, decided today (correctly, I think) by the California Court of Appeal (Presiding Justice Jim Humes, joined by Justice Sandra Margulies and S.F. Superior Court Judge Mary Wiss):

Golden Gate, which operates a horse racing track in Berkeley, filed this suit against Direct Action, an animal rights organization, and four individual defendants who are not parties to this appeal. The complaint's general allegations asserted that the four individuals, who were "affiliated with [Direct Action]," "climbed over [a] fence surrounding the horse racing track at [Golden Gate Fields (GGF)], trespassing on the GGF property," "lit incendiary devices that sent purple smoke into the air," "[lay] down directly on the racing track," and "connected their arms using PVC piping to make it difficult, if not impossible, for them to be physically removed." The "trespassers remained on the track for several hours," preventing scheduled horse races from taking place. Eventually, "the trespassers were removed by the police" and "criminally charged."

The complaint included two causes of action: one for trespass, and the other for intentional interference with prospective economic relations, in that the trespass "proximately caused [Golden Gate] to incur economic harm." The complaint also sought to "enjoin[] Defendants, their agents, officers, directors, employees, and those acting in aid of or in concert with them from trespassing on GGF."

Allegations tying Direct Action to the trespass asserted that the defendants were affiliated with each other and liable under various theories of relationship liability. Specifically, the complaint alleged that "each of the defendants … was … the agent, co-conspirator, aider and abettor, employee, representative, co-venturer, and/or alter ego of each and every other defendant, and in doing the thing hereinafter mentioned was acting within the course and scope of his, her, or its authority as such agent, co-conspirator, aider and abettor, employee, co-venturer, partner, and representative, and with the permission and consent of such other defendants." The complaint did not specify the circumstances upon which Direct Action's alleged vicarious liability was based.

Direct Action responded to the complaint by filing an anti-SLAPP motion, claiming it was sued for engaging in constitutionally protected activity. It maintained it was sued "for opposing [Golden Gate's] horse racing business, gathering signatures on a petition … to close [Golden Gate's] business, and allegedly organizing protests against the horse track." It claimed it "had no involvement in the civil disobedience that unfolded at the track." …

The court held that Direct Action wasn't protected by the anti-SLAPP statute, because it was sued for its agents' illegal trespass, not for any message they may have been trying to express; and it concluded that Direct Action could be vicariously liable for their agents' actions, for the same reasons. And it rejected Direct Action's arguments that, under this rule, "anyone involved in any protest or social movement can be stripped of the anti-SLAPP statute's protection if the plaintiff alleges any one person associated with the protest or movement committed any illegal action":

The concern is exaggerated and inapt. Parties involved in protest and social movements are entitled to the protections of the anti-SLAPP law when they are sued for engaging in protected activities. If they are sued for another's non-protected illegal conduct based on vicarious-liability allegations that are vague, conclusory, or legally insufficient, they can file a demurrer or bring another summary challenge. In such a challenge, the adequacy of the allegations can be reviewed in light of the applicable law, and if appropriate, amendments can be permitted to address pleading deficiencies….

Still, the anti-SLAPP law does not immunize advocacy organizations, including Direct Action, from claims based on vicarious liability for another's non-protected conduct simply because of the nature of their organizational missions. Such claims might sometimes be unsupportable, but they might sometimes be legitimate.

Congratulations to Robert R. Moore, Michael J. Betz, Alexander J. Doherty, and Allen Matkins Leck of Gamble Mallory & Natsis LLP, who represented the plaintiff.