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In response
to Kearney’s
March 2001
discovery
request,
RUSD
produced no
test results...

Spoliation of Evidence case will continue
KEARNEY v. FOLEY & LARDNER

Joan Kearney appeals the district court’s dismissal of
claims she filed against the Ramona Unified School District
(“RUSD”) and the law firm that represented RUSD in an earlier eminent domain proceeding
regarding her property.

Affirmed in part and vacated in part...

Court remands spoliation of evidence claim, for a
determination of when Kearney discovered the evidence...

San Diego
Education Report

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOAN BROWN KEARNEY,
Plaintiff-Appellant,

v.

FOLEY & LARDNER, LLP; GREGORY
V. MOSER; LARRY L. MARSHALL MICHAEL MCCARTY,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California
M. James Lorenz, District Judge, Presiding
Filed May 12, 2009
Before: Harry Pregerson and Cynthia Holcomb Hall, Circuit Judges, and David Alan Ezra,* District Judge.
Opinion by Judge David Alan Ezra United States District Judge for the District of Hawaii, sitting by designation.

COUNSEL

Joseph J. Wheeler, Jill M. Sullivan, Chapin Wheeler LLP, San Diego, California, for the appellant.

Seth M. Galanter, Michael V. Sachdev, Morrison & Foerster LLP, Washington, D.C., Mark C. Zebrowski,
Morrison & Foerster LLP, San Diego, California, for appellees Foley &
Lardner LLP, Larry L. Marshall, and Gregory V. Moser.

Daniel R. Shinoff, Paul V. Carelli, IV, Stutz Artiano Shinoff
& Holtz, APC, San Diego, California, for appellee Michael T. McCarty.

OPINION

Joan Kearney (“Kearney”) appeals the district court’s dismissal
of the Ramona Unified School District KEARNEY v. FOLEY & LARDNER

(“RUSD”) and the law firm that represented RUSD (collectively “Defendants”) in an earlier
eminent domain proceeding regarding her property.

As to Kearney’s federal law claims, we vacate
the district court’s judgment and remand so that those claims
may be heard. As to Kearney’s state law claims, we affirm the
district court on all but the spoliation of evidence claim,
which we instead remand.

I. Background
A. Events Leading Up to the State Valuation Trial
We must begin, not with the case at hand, but with the earlier
eminent domain proceedings from which Kearney’s current
claims arose.
Kearney is the former owner of a 52.06-acre parcel of property
in Ramona, California. In June of 2000, RUSD initiated
the condemnation process for that property. Pursuant to that,
it hired Construction Testing & Engineering, Inc. (“CTE”) to
conduct a septic system assessment, including percolation
testing, of Kearney’s land and then issue a report with the
results. Those results would reveal the number of residential
lots the land could support, and thus determine the land’s
value.

CTE entered the property on December 12, 2000. On
December 13, Kearney wrote RUSD that it must obtain her
approval first. Two days later, Gregory Moser, of Foley &
Lardner, LLP, replied on behalf of RUSD, requesting consent
to enter to conduct percolation testing in exchange for a copy
of the report generated. On December 26, Kearney’s attorney
responded, making disclosure of the report a condition of
Kearney’s consent. In late January and early February 2001,
CTE completed its percolation testing. It did not prepare a
formal report of the results.

In response to Kearney’s March 2001 discovery request,
RUSD produced no test results. Other documents produced
suggested testing had been done. In his October 2001 deposition,
Michael McCarty, RUSD’s then-Business Manager, told
Kearney’s attorney that he thought testing had been done.
Nonetheless, no results were produced.
B. The Valuation Trial and Subsequent Appeals
The trial to determine the property’s value lasted from
April 29 to May 9, 2002. Kearney’s expert testified that,
based on the percolation tests performed on the property in
1996, the parcel could support up to sixteen residential lots,
giving it a total value of $1.4 million. RUSD’s expert
appraised the property at $850,000, based on her understanding
that it could support six to eight lots. Larry Marshall
(“Marshall”), one of RUSD’s attorneys, said in trial that no
new percolation testing had been performed. The jury
awarded Kearney $953,000 in compensation.
It was only after the trial that Kearney learned from a
school expense itemization report that percolation testing had
actually been performed. But even then, her May 2002 California
Public Records Act (“CPRA”) request for documents
obtained no results. RUSD said it did not possess anything
that had not been provided during discovery. It also said that,
to the extent any documents existed in the offices of professionals
it employed, the documents were exempt from CPRA.
Kearney moved for a new trial based on the itemization
report. The state trial court denied the motion. Kearney
appealed.
While that appeal was pending, Kearney made another
CPRA request and exchanged letters with Marshall. In one of
these, Marshall said RUSD would waive its CPRA exemption.
On November 12, 2002, it produced a copy of the testing
results, saying the document had never been in RUSD’s possession
and was obtained after the trial. Kearney had RUSD’s
KEARNEY v. FOLEY & LARDNER 5659
experts review the results, and they determined that the results
were significant to valuation and supported a higher value for
the property.
Kearney filed more motions for a new trial, but both were
denied on jurisdictional grounds. Kearney appealed these as
well. On March 3, 2004, the California Court of Appeal
issued three opinions. One affirmed the trial court’s dismissal
of Kearney’s motion for new trial, finding that Kearney failed
to show that RUSD’s assertions about the absence of testing
denied her a fair trial and that she should have instead pursued
the evidence suggesting testing had been completed. The
other two opinions affirmed the trial court’s orders on the
grounds that it lacked jurisdiction. The California Supreme
Court denied review.
C. The Current Action
Having thus received no relief on valuation in state court,
Kearney commenced the present action in federal court
against RUSD’s representative, the law firm that represented
RUSD in the state proceedings, and two of that firm’s lawyers,
seeking relief for the conduct that led to that valuation.
Her complaint alleged federal causes of action under RICO,
conspiracy to violate RICO, and 42 U.S.C. § 1983. Her state
causes of action included false promise, fraud and deceit, spoliation
of evidence, and prima facie tort.
Defendants filed motions to dismiss. The district court
granted them, dismissing Kearney’s federal claims under the
Noerr-Pennington doctrine because the conduct on which
Kearney relied to establish liability was incidental to First
Amendment-protected petitioning activity. The court further
held that the complaint did not fit into the “sham exception”
to that doctrine because Kearney had not supported the position
that defendants’ alleged intentional misrepresentations to
the court “depriv[ed] the condemnation proceeding of its
legitimacy.” The court also dismissed Kearney’s state claims
5660 KEARNEY v. FOLEY & LARDNER
under California’s anti-SLAPP statute,1 finding that defendants
acted in furtherance of their rights to petition and that
Kearney had not showed a probability of prevailing on the
merits.
II. Standard of Review
This Court reviews de novo: (1) a district court’s dismissal
of a complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), Pack v. United States, 992
F.2d 955, 957 (9th Cir. 1993); (2) a district court’s dismissal
based on the Noerr-Pennington doctrine, Sosa v. DIRECTV,
Inc., 437 F.3d 923, 929 (9th Cir. 2006); and (3) a district
court’s grant of a motion to strike under California’s anti-
SLAPP statute, Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1102 (9th Cir. 2003).
III. Discussion
A. The Noerr-Pennington Doctrine
On appeal, Kearney argues that the Noerr-Pennington doctrine
should not apply in this case because (1) this is not one
of the limited situations in which government officials may
receive immunity, and (2) Defendants’ conduct was not petitioning
conduct. Although we find both of these arguments
unavailing, we are persuaded that the doctrine’s sham litigation
exception applies to her claims and prevents the immunization
of Defendants’ petitioning conduct.
[1] The Noerr-Pennington doctrine derives from the Petition
Clause of the First Amendment and provides that “those
who petition any department of the government for redress
are generally immune from statutory liability for their peti-
1“SLAPP is an acronym for ‘strategic lawsuit against public participation.’
” Jarrow Formulas, Inc. v. La Marche, 31 Cal. 4th 728, 732 n.1
(2003).
KEARNEY v. FOLEY & LARDNER 5661
tioning conduct.” Sosa, 437 F.3d at 929. It initially emerged
in the antitrust context. See E. R.R. Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine
Workers v. Pennington, 381 U.S. 657 (1965). Recognizing
that the “ ‘right to petition extends to all departments of the
government’ ” and includes access to courts, the Supreme
Court extended the doctrine to provide immunity for the use
of “ ‘the channels and procedures’ ” of state and federal
courts to advocate causes. Sosa, 437 F.3d at 929-30 (quoting
Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,
510-11 (1972)).
The Supreme Court has since held that Noerr-Pennington
principles “apply with full force in other statutory contexts”
outside antitrust. Id. at 930 (discussing BE & K Constr. Co.
v. NLRB, 536 U.S. 516, 525 (2002)). In BE & K, the Court
held that the National Labor Relations Act (“NLRA”) did not
permit holding an employer liable for unsuccessfully prosecuting
retaliatory lawsuits against employees who were exercising
rights the NLRA protects. 536 U.S. 516. In doing so,
the Court adopted a three-part test to determine whether the
defendant’s conduct is immunized: (1) identify whether the
lawsuit imposes a burden on petitioning rights, (2) decide
whether the alleged activities constitute protected petitioning
activity, and (3) analyze whether the statutes at issue may be
construed to preclude that burden on the protected petitioning
activity. See id. at 530-33, 535-37.
[2] Not all petitioning activity is immunized, however. A
“sham” exception to the doctrine developed to prevent the
immunization of conduct that used “governmental process . . .
as an anticompetitive weapon.” Kottle v. Nw. Kidney Ctrs.,
146 F.3d 1056, 1060 (9th Cir. 1998). The Ninth Circuit has
held that a defendant’s activities may fall into this exception
if they include making intentional misrepresentations to the
court that then “deprive[s] the litigation of its legitimacy.” Id.
As an initial matter, Kearney claims that the doctrine was
meant to protect a citizen’s right to petition the government,
5662 KEARNEY v. FOLEY & LARDNER
and never intended to bar suit by a private citizen against government
officials. In support of her argument, she cites Manistee
Town Ctr. v. City of Glendale, 227 F.3d 1090 (9th Cir.
2000), for the principle that the immunization of government
officials or entities has been limited to cases in which those
officials are lobbying other government officials on behalf of
their constituents. She argues that a case of government initiated
litigation against a citizen does not fit within the rationale
supporting immunity for lobbying.
[3] As a matter of first impression, the Manistee court held
that Noerr-Pennington could apply to government entities or
officials because the city officials’ lobbying efforts amounted
to a petition on behalf of citizens. See id. at 1093. There is no
reason, however, to limit Manistee’s holding to lobbying
efforts. In a representative democracy, the court recognized
that branches of government often “act on behalf of the people”
and “intercede” to “advance their constituents’ goals,
both expressed and perceived.” Id. Such intercession is just as
likely to be accomplished through lawsuits—the very act of
petitioning—as through lobbying. See Theofel v. Farey-Jones,
359 F.3d 1066, 1078 (9th Cir. 2004). Furthermore, an eminent
domain proceeding is consistent with the principles laid out in
Manistee: a governmental entity acts on behalf of the public
it represents when it seeks to take private property and convert
it to public use. Cf. New West, L.P. v. City of Joliet, 491
F.3d 717, 721-22 (7th Cir. 2007) (holding that Noerr-
Pennington applies to a municipality’s condemnation action).
[4] We find that a governmental entity or official may
receive Noerr-Pennington immunity for the petitioning
involved in an eminent domain proceeding. The agents of that
litigation—employees and law firms and lawyers—may benefit
from the immunity as well. Freeman v. Lasky, Haas &
Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005). Noerr-
Pennington may therefore protect Defendants here.
We now apply the doctrine and its sham exception to the
case at hand.
KEARNEY v. FOLEY & LARDNER 5663
1. Does Kearney’s lawsuit burden Defendants’
petitioning rights?
Though the district court did not address this issue explicitly,
Kearney argues that her federal claims do not burden
Defendants’ right to prosecute an eminent domain proceeding,
but instead just challenge abuse of the process. She thus contends
that, if her lawsuit were successful, it would not discourage
future eminent domain proceedings, just fraudulent
behavior in those lawsuits.
[5] However, the question at this stage is not whether the
conduct at issue is fraudulent and abusive, but instead whether
the success of Kearney’s lawsuit would constitute a burden on
petitioning rights. As Sosa v. DIRECTV, Inc., 437 F.3d 923
(9th Cir. 2006), illustrates, the lawsuit may burden conduct
incidental to litigation. Even though the prelitigation settlement
demands at issue there were not themselves litigation,
they were part of the “breathing space required” for the effective
exercise of petitioning rights. Id. at 933. Imposing liability
for that conduct burdened DIRECTV’s ability to avoid
... Instead, it suggested that the question
of whether there would be absolute immunity for conduct
including intentional misrepresentations or fraud should be
analyzed under the sham exception. ... cf. Freeman v. Lasky, Haas &
Cohler, 410 F.3d 1180 (9th Cir. 2005) (finding that defendants
who allegedly committed discovery misconduct in an
earlier suit were protected by the Noerr-Pennington doctrine
because the sham exception did not apply).
[6] Kearney alleges misconduct in events that occurred in
the course of Defendants’ petition on RUSD’s behalf in eminent
domain proceedings. It is undisputed that those proceedings
represent a petition to the government. Her challenge to
the discovery communications, interactions with expert witnesses
and contractors, and statements to the court by
RUSD’s agents pursuant to those proceedings places a burden
on RUSD’s ability to bring such actions.
2. Do Defendants’ alleged acts constitute protected
petitioning activity?
Kearney alleges that Defendants suppressed the percolation
test results, instructed CTE’s engineers not to prepare a formal
report of those results, and repeatedly misrepresented
during trial that RUSD had not conducted percolation testing.
None of these actions are petitions in and of themselves; they
are not complaints, answers, counterclaims, or pleadings
which make representations to the court. See Freeman, 410
F.3d at 1184.
[7] However, in order to “preserve the breathing space
required for the effective exercise of the rights [the Petition
Clause] protects,” “conduct incidental to the prosecution of
the suit” may also be immunized under the Noerr-Pennington
doctrine. Sosa v. DIRECTV, Inc., 437 F.3d 923, 933-34 (9th
Cir. 2004) (internal quotation marks omitted). As the district
court noted, this court has held that discovery is incidental to
litigation and comes within the Noerr-Pennington doctrine if
the underlying litigation is protected by the Petition Clause.
See Freeman, 410 F.3d at 1185.
KEARNEY v. FOLEY & LARDNER 5665
[8] Since we have already determined above that the underlying
litigation here was protected, it follows that the misconduct
Kearney alleges in the discovery communications
surrounding that litigation and the trial advocacy of that litigation
likewise comes within Noerr-Pennington. Kearney
argues that, in so saying, we would be broadening the notion
of what conduct is “incidental” beyond what our precedents
have recognized. We disagree and do not find “incidental” so
narrow. Discovery communications have already been recognized
as “incidental,” see Freeman, 410 F.3d at 1185, and,
like trial advocacy, are a “common . . . feature of modern litigation.”
Sosa, 437 F.3d at 936. Defendants’ alleged instruction
to CTE not to prepare a report with the test results is
perhaps more far afield. However, the testing was completed
in preparation for the valuation trial, and so statements to
those completing the testing would be incidental to that litigation
as well. See id. at 935-36 (discussing the protection of
prelitigation communications).
Kearney presses further that misconduct could not be petitioning
conduct or conduct incidental because misconduct is
not essential to the petition. In so doing, she collapses the
question of petitioning conduct with that of the sham exception’s
application. See id. at 938 (“Finding that the protections
of the Petition Clause extend to [conduct] does not mean that
the [conduct is] absolutely protected from liability.”). We
instead find the misconduct she alleges to be petitioning conduct
and now turn to the sham exception to determine whether
it might nonetheless be subject to liability.
3. Does the sham exception apply to Defendants’
conduct?
[9] In Kottle v. Northwest Kidney Centers, 146 F.3d 1056,
1060 (9th Cir. 1998), the Ninth Circuit identified three circumstances
in which the sham litigation exception might
apply. Kearney argues for the third here: where the allegedly
unlawful conduct “consists of making intentional misrepre-
5666 KEARNEY v. FOLEY & LARDNER
sentations to the court” and those misrepresentations or the
“party’s knowing fraud upon . . . the court deprive the litigation
of its legitimacy.” Id. We are persuaded that Defendants’
alleged misconduct here was precisely the sort the sham
exception was created to address.
[10] Since this matter arose on a motion to dismiss, Kearney’s
allegations must be assumed true. Kearney has alleged
intentional misrepresentations to the court, and fraud upon the
court through the suppression of evidence, that ultimately led
to her property being valued lower than it should have been.
In Sosa v. DIRECTV, Inc., the court described a similar situation
of a RICO suit predicated on “fraudulent discovery conduct
in prior litigation that induced the plaintiffs to settle the
suit for a lower amount than they would have in the absence
of the fraud.” 437 F.3d 923, 940 (9th Cir. 2006) (discussing
Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431
F.3d 353 (9th Cir. 2005)). Although Living Designs was not
considered under Noerr-Pennington, the Sosa court said “the
conduct alleged quite clearly fell within the third prong of
Kottle’s sham litigation exception, in that it amounted to a
‘knowing fraud . . . upon the court depriv[ing] the litigation
of its legitimacy.’ ” Id. (quoting Kottle, 146 F.3d at 1060).
Kearney’s allegations are very similar to those described by
the Sosa court in Living Designs and so should also fall within
the third prong of the sham litigation exception. See also
Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th
Cir. 2005) (“Had [the discovery misconduct] not been brought
to light in time, it is entirely possible that [it] would so have
infected the defense of the lawsuit as to make it a sham.”).
The district court found that the exception did not apply
because Kearney did not “support[ ] her position that defendants
made intentional misrepresentations to the court thereby
depriving the court of its legitimacy.” The requirement of
“support” suggests the court was not taking her allegations as
true. At the motion to dismiss stage, it was error to require
such support.
KEARNEY v. FOLEY & LARDNER 5667
If, however, the court was actually faulting Kearney for
insufficiently specific allegations, this could be a proper basis
for denying the sham litigation exception. See Kottle, 146
F.3d at 1063 (“[W]hen a plaintiff seeks damages . . . for conduct
which is prima facie protected by the First Amendment,
the danger that the mere pendency of the action will chill the
exercise of First Amendment rights requires more specific
allegations than would otherwise be required.” (internal quotation
marks omitted)). In Kottle, the court suggested the
required specifics would include such things as “exactly what
representations [defendant] made, or to whom; with whom
[defendant] conspired; [and] what exactly its ‘improper and/or
unlawful’ methods of advocacy were.” Id. The district court
did not indicate that it found any of these specifics lacking.
Kearney’s complaint includes the required specifics with
extensive factual descriptions.2 Thus, Kearney’s allegations
are appropriate under Kottle.
Instead of looking to Kearney’s allegations, the district
court’s ruling seems based in large part on its belief that Kearney
did not do enough to discover the test results she sought
from Defendants. It is unclear why Kearney’s behavior on this
point should matter since the Noerr-Pennington doctrine is
concerned with the immunization of petitioning conduct and
strips immunization in certain cases where a sham is perpetrated
by that petitioner. See Clipper Exxpress v. Rocky Mountain
Motor Tariff Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir.
1982) (holding there is “no first amendment protection for
furnishing with predatory intent false information to an . . .
adjudicative body”). Thus, the concerns behind the doctrine
have everything to do with the petitioner and little to do with
the other party’s conduct. Even if, as the court found, Kearney
could have done more to discover the test results, the suffi-
2The specificity of these, as well as the fact that the misrepresentations
alleged go to the central issue of the valuation litigation, make Defendants’
argument that Kearney alleged insufficient “isolated” instances
unpersuasive.
5668 KEARNEY v. FOLEY & LARDNER
ciency of Kearney’s efforts is a question of fact not properly
dealt with at the pleading stage, and does nothing to negate
allegations of Defendants’ misrepresentations to the court and
jury on the central issue in the litigation.
[11] We therefore find that the district court erred in holding
the sham litigation exception did not apply to Kearney’s
allegations, and remand for consideration of her federal
claims.
B. The Anti-SLAPP Statute
[12] The anti-SLAPP statute establishes a procedure to
expose and dismiss meritless and harassing claims that seek
to chill the exercise of petitioning or free speech rights in connection
with a public issue. See Bosley Med. Inst., Inc. v.
Kremer, 403 F.3d 672, 682 (9th Cir. 2005). Analysis of an
anti-SLAPP motion to strike involves a two-step process.
First, the defendant must show that the cause of action arises
from “any act of that person in furtherance of the person’s
right of petition or free speech under the United States or California
Constitution in connection with a public issue . . . . ”
Cal. Code Civ. P. § 425.16(b)(1).3
3Such an act is defined within the same statute to mean:
(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.
Cal. Code Civ. P. § 425.16(e).
KEARNEY v. FOLEY & LARDNER 5669
If the court determines that the defendant has met this burden,
it must then determine whether the plaintiff has demonstrated
a probability of prevailing on the merits. DuPont
Merck Pharm. Co. v. Superior Court, 78 Cal. App. 4th. 562,
567 (Ct. App. 2000). To establish a probability of prevailing,
the plaintiff must show 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.” Navellier v. Sletten, 29 Cal.
4th 82, 88-89 (2002) (internal quotation marks omitted).
Kearney initially argues that applying the anti-SLAPP statute
to her claims goes against the purpose of that statute. Her
contentions here are similar to those she made regarding the
application of the Noerr-Pennington doctrine to government
officials. For similar reasons we find her arguments unpersuasive:
Kearney’s arguments ignore the fact that Defendants, as
agents of RUSD, were petitioning on behalf of the citizenry
by seeking to take private land for public use. See Bradbury
v. Superior Court, 57 Cal. Rptr. 2d 207, 211 (Ct. App. 1996)
(holding that governmental entities and their representatives
are included in the anti-SLAPP statute’s protection of petitioning
rights).
We thus proceed to the analysis of the anti-SLAPP motion
to strike.
1. An Act in Furtherance of Petitioning or Free Speech
Rights
As to the first inquiry, Kearney contends that her state
claims are not based on conduct either in a judicial proceeding
or in connection with an issue under consideration by a judicial
body. The state claims are based on the same conduct as
the federal claims, and, just as we found above in relation to
the federal claims, we here hold that Kearney’s state claims
are based on conduct “in furtherance of the exercise of the
5670 KEARNEY v. FOLEY & LARDNER
constitutional right of petition.” Cal. Code Civ. P.
§ 425.16(e)(4).
Kearney’s arguments to the contrary are not persuasive.
The fact that some claims are based on events which took
place prior to the initiation of the condemnation action does
not prevent that conduct from being protected by the anti-
SLAPP statute. See Briggs v. Eden Council for Hope &
Opportunity, 19 Cal. 4th 1106, 1115 (1999) (finding that
§ 425.16’s definition includes “communications preparatory
to or in anticipation of the bringing of an action or other official
proceeding” (internal quotation marks omitted)). The fact
that the claims allege misconduct also does not keep Defendants’
acts from being in furtherance of petitioning. See
Taheri Law Group v. Evans, 72 Cal. Rptr. 3d 847, 852-53 (Ct.
App. 2008) (finding that the cause of action arose from protected
activity when it concerned an improper solicitation of
another attorney’s client).
The “critical point is whether the plaintiff’s cause of action
was itself based on an act in furtherance of the defendant’s
right of petition . . . .” Peregrine Funding, Inc. v. Sheppard,
Mullin, Richter & Hampton LLP, 35 Cal. Rptr. 3d 31, 38 (Ct.
App. 2005). Kearney’s state claims are based on Defendants’
communications with Kearney regarding the testing that
would be done in preparation for the eminent domain proceeding
and disclosures in an ongoing lawsuit, as well as its
communications with its expert witnesses and testing contractor.
All of these actions were in furtherance of the condemnation
proceeding. See id. at 40 (finding conduct including
refusing to allow a witness to testify, making threats, and
withholding documents to be in furtherance as “litigation tactics
. . . employed to benefit [the client’s] position in an ongoing
lawsuit”). The district court therefore did not err in
finding that Defendants had met their burden on this issue.
KEARNEY v. FOLEY & LARDNER 5671
2. Probability of Prevailing on the Merits
Because we find the first requirement of an anti-SLAPP
motion met, we now turn to the second requirement. Kearney
argues that she stated valid claims as to spoliation of evidence
and prima facie tort.4
a. Spoliation of Evidence
Spoliation of evidence is the “destruction or significant
alteration of evidence, or the failure to preserve property for
another’s use as evidence, in pending or future litigation.”
Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680 (Ct. App.
1998). The district court rests its holding on the fact that the
tort is not recognized when “the spoliation was or should have
been discovered before the conclusion of the litigation.” It
held that, because the state trial and appellate courts found
Defendants did not withhold evidence and Kearney could
have discovered evidence during discovery or trial, Kearney
had not showed a probability of prevailing on the merits.
Kearney argues that her spoliation claim was based on the
evidence that Defendants told the testing company not to prepare
a formal report, and notes that this evidence was not
mentioned by either state court. Kearney’s allegations do not
indicate when she discovered this evidence, only that she
believed the event occurred in 2001, which was prior to the
valuation trial. Because Kearney may be able to show a probability
of prevailing on the merits here,5 we vacate the district
4It is not clear whether Kearney contests the district court’s finding that
she did not show a probability of prevailing on her fraud claim. She does
not discuss her likelihood of prevailing on the merits, but does discuss the
application of the Noerr-Pennington doctrine and the California litigation
privilege to bar that fraud claim. To the extent she is contesting the disposition
of the fraud claim, we find that the district court properly found that
the California litigation privilege barred the claim, as described under the
prima facie tort section.
5Spoliation claims are exempted from the litigation privilege. Cal. Civ.
Code § 47(b)(2).

court’s holding on this issue and remand to determine whether
she discovered or should have discovered the evidence prior
to or during the valuation trial.
b. Prima Facie Tort
The district court found Kearney had not showed a probability
of success on the merits here because it found the claim
barred by both the Noerr-Pennington doctrine and California’s
litigation privilege and because it was unpersuaded to
apply the prima facie tort claim as had been done in the case
law cited by Kearney.
As analyzed above, the Noerr-Pennington doctrine does not
bar this suit because, even if the doctrine applied, the sham
exception would also apply.
Nonetheless, we find that the district court did not err when
it held that California’s litigation privilege would bar Kearney’s
claims. Though Kearney argues that her claims are
based on conduct prior to the litigation, the district court was
correct that even allegations of such conduct may be privileged
if reasonably related to the action. See People ex rel.
Gallegos v. Pacific Lumber Co., 158 Cal. App. 4th 950, 958
(Ct. App. 2008) (“[T]he privilege is not limited to statements
made during a trial or other proceedings, but may extend to
steps taken prior thereto, or afterwards.” (internal quotation
marks omitted)). Because the alleged misconduct is all reasonably
related to the eminent domain proceeding, it is subject
to the litigation privilege bar.
IV. Conclusion
For the foregoing reasons, we vacate the district court’s
judgment as to Kearney’s federal law claims. Because Noerr-
Pennington immunity does not apply to Defendants’ actions,
we remand so that the court may consider Kearney’s claims.
KEARNEY v. FOLEY & LARDNER 5673
As to Kearney’s state law claims, we affirm the district
court on all but the spoliation of evidence claim, which we
remand for a determination of when Kearney discovered the
evidence.
Affirmed in part and vacated and remanded in part

CV-05-02112-L