To show how subdivisions (f) and (g) collide with Rule 56, the Court must first consider the standard under which a determination of the "probability" of success is made under section 425.16. As discussed earlier, a special motion to strike may be premised entirely on legal arguments. Lockheed, for example, was such a case. In Lockheed, the qui tam relators attacked Lockheed's counterclaims by way of two motions, a section 425.16 special motion to strike and Rule 12(b)(6) motion to dismiss for failure to state a claim. Lockheed, 171 F.3d at 1216-17; Lockheed I, 1995 WL 470218, at *1. Because a Rule 12(b)(6) motion does not consider matters outside the pleadings, the motion can only test legal issues and not matters of fact. See , 159 F.3d 470, 477 (9th Cir. 1998); Fed. R. Civ. P. 12(b); see also Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial, P 9:211. The district court granted the 12(b)(6) motion, dismissed the counterclaims, and then noted that "because Lockheed's counterclaims have been dismissed, Lockheed cannot show that it has a probability of prevailing on the counterclaims" as required under section 425.16. See Lockheed I, 1995 WL 470218, at *1. Thus, the application of section 425.16 in Lockheed was based only on legal arguments, analogous to a Rule 12(b)(6) motion.

However, section 425.16 is not limited to testing legal theories. As the statute provides, and as discussed earlier, a court presented with a special motion to strike must consider "supporting and opposing affidavits stating the facts upon which the liability or defense is based." Cal. Civ. Proc. Code s. 425.16(b)(2). Indeed, most of the California state court opinions addressing section 425.16 concern issues of fact rather than legal arguments. See, e.g., , 52 Cal. Rptr. 2d at 362-63 (motion to strike granted because plaintiff failed to adequately establish elements of claim by admissible evidence); Church of Scientology, 49 Cal. Rptr. 2d at 636 (same); , 40 Cal. App. 4th 539, 46 Cal. Rptr. 2d 880, 886-87 (App. Div. 1995) (same); Robertson, 36 Cal. App. 4th at 359-60 (same). In all of these cases, the plaintiff stated a claim upon which relief could be granted and which would survive a Rule 12(b)(6) motion. However, the motions to strike were granted because the plaintiffs could not support their claims with adequate evidence. Thus, a special motion to strike can be used as a summary judgment motion.

As held in Lockheed, a special motion to strike premised on legal arguments, similar to a 12(b)(6) motion, is available in federal court. A special motion to strike premised on an alleged lack of evidence, similar to a summary judgment motion, is also available in federal court. However, the manner in which these motions are presented and considered must comport with federal standards.

Rule 56 permits a defending party to move for summary judgment. While summary judgment motions need not be based on evidence outside the pleadings, they are often based on affidavits and other evidence. See Fed. R. Civ. P. 56(c); Wright, et al., , s. 2711, at p.191 (3d ed. 1998). The Federal Rules discourage motions for summary judgment based on evidence outside the record until the nonmoving party has had the opportunity to conduct discovery. Rule 56(f) provides that if the party opposing a motion for summary judgment cannot yet submit evidence supporting its opposition, "the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." Fed. R. Civ. P. 56(f). The Supreme Court has restated this rule as requiring, rather than merely permitting, refusal "where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

Because of the requirement that the nonmoving party be permitted to conduct necessary discovery, summary judgment is often considered inappropriate early in a case. See, e.g., , 821 F.2d 461, 469 (8th Cir. 1987); Schwarzer, et al., supra, at P 14:66. In addition, federal courts take into account difficulties that the nonmoving party may have in developing the evidence he requires to defend the motion. For example, if the information needed to defend the motion is in the moving party's control, as is generally the case when a plaintiff must prove malice, "most courts . . . are lenient in granting further time for discovery . . . ." Wright, et al., supra, at s. 2740, p.409; see also International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3rd Cir. 1990) ("Where the facts are in possession of the moving party a continuance . . . should be granted almost as a matter of course."); Schwarzer, et al., supra, at P 1466. This tendency toward leniency is strengthened when the summary judgment motion raises latent fact issues such as motive, intent, knowledge, or credibility and the moving party has exclusive control over those facts. Wright, et al., supra, s. 2741, at p.422; cf. Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979) (noting that because malice implicates the defendant's state of mind, it "does not readily lend itself to summary disposition").

These rules comport with the purpose of Rule 56(f), which is "to provide an additional safeguard against an improvident or premature grant of summary judgment." Wright, et al., supra, at s. 2740, p.402. Therefore, the provision permitting continuances "should be applied with a spirit of liberality." Id.

Thus, section 425.16 and Rule 56(f) have different objectives. Section 425.16 was designed to allow a party defending a SLAPP action to resolve the matter as early as possible, before extensive discovery is permitted. Rule 56(f), however, was designed to ensure that a nonmoving party will not be forced to defend a summary judgment motion without having an opportunity to marshal supporting evidence. These divergent goals can produce directly conflicting outcomes.

For example, California courts have denied discovery under section 425.16 because the defendant failed to specify "what additional facts he expects to uncover . . . ." Sipple, 83 Cal. Rptr. 2d at 690. Federal courts, however, have "allowed parties with no clear idea of what specific facts they hope to obtain to overcome a summary-judgment motion, at least temporarily." Wright, et al., , s. 2740, at p.399 & n.5 (citing cases). These contradictory outcomes stem directly from the differences between section 425.16 and Rule 56(f): Section 425.16 limits discovery and makes further discovery an exception, rather than the rule. Rule 56 does not limit discovery. On the contrary, it ensures that adequate discovery will occur before summary judgment is considered.

Because the discovery-limiting aspects of section 425.16(f) and (g) collide with the discovery-allowing aspects of Rule 56, these aspects of subsections (f) and (g) cannot apply in federal court. When a state procedural rule conflicts with a Federal Rule of Civil Procedure, the Federal Rule generally controls. See , 446 U.S. at 749-50; Hanna, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136; 28 U.S.C. 2072 (Rules Enabling Act); Wright, et al., supra, at s. 4510. This is consistent with the analysis set out by the Ninth Circuit in Lockheed . See 171 F.3d at 1217. [FN 3]

[FN 3] Two other aspects of subsection (f) do not conflict with any aspect of the federal rules. Subsection (f) permits a special motion to strike to be filed within sixty days of service of the complaint. Rule 56 permits a defendant to file a motion for summary judgment immediately upon service of the complaint. Fed. R. Civ. P. 56(b). Thus, these provisions do not conflict with each other.

Subsection (f) also requires that the hearing on a special motion to strike be held not later than thirty days after the motion is filed unless the court's docket requires a later hearing. Rule 56(c) requires that a summary judgment motion be served not later than ten days and the local rules that apply in any given district should be considered "docket conditions" that would justify a later hearing. Thus, subsection (f) effects no substantive change from the usual procedures pursuant to the Federal Rules.

A correlative outcome is required regarding a special motion alleging legal deficiencies. By this, the Court refers to a motion that only identifies legal defects on the face of the pleading, analogous to a Rule 12(b)(6) motion to dismiss. See, e.g., id. at 1217 (addressing a legal-based special motion to strike). When a federal court is presented with this type of motion, it must decide the motion in a manner that complies with the standards set by Federal Rules 8 and 12. Among others, these standards include the requirements that the complaint be read liberally, see, e.g., Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995), that all well-pleaded allegations be taken as true, see, e.g., NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), and that dismissal generally be with leave to amend, see, e.g., Allen v. Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). [FN 4] Standards that put a more onerous burden on the nonmoving party would conflict with Rules 8 and 12. Therefore, they cannot apply in federal court. Cf., Wright, et al., supra, s. 1245, at p.309-10 (state laws cannot alter pleading standards in federal diversity actions).

[FN 4] Regarding these issues, section 425.16 does not necessarily require standards different from the Federal Rules. However, based on the statutory language and state cases outlined above, one could conclude that the section creates a standard more favorable to the moving party than the standards of the Federal Rules. Compare, e.g., Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (noting that Rule 12(b)(6) motion to dismiss is "viewed with disfavor and is rarely granted") with Cal. Civ. Proc. Code s. 425.16(a) (noting California Legislature's desire to curtail "abuse of the judicial process" and requiring that provisions for special motion to strike "shall be construed broadly"). To the extent these standards differ, the Federal Rules must be followed in federal court.

National Enquirer asserts that this outcome is inconsistent with Lockheed. According to National Enquirer, the standard of the special motion to strike is different from the standard of Rule 12(b)(6) and Lockheed nevertheless endorsed the use of the section 425.16 standard for the special motion to strike. If so, National Enquirer argues, the Court is incorrect in its conclusion that a special motion to strike in this Court must comport with the Federal Rules rather than section 425.16.

National Enquirer points out that Lockheed endorsed the application of section 425.16(b)(1) in federal court. This subsection provides that a suit falling within the SLAPP provisions shall be stricken "unless the court determines that the plaintiff has established there is a probability that the plaintiff will prevail on the claim." See Lockheed, 171 F.3d at 1216 n.10 (quoting s. 425.16(b)(1)). According to National Enquirer, this places on the plaintiff the burden of showing the suit's validity, as opposed to Rule 12(b)(6) which places on the defendant the burden of showing the suit's invalidity. (Def.'s Resp. at 1.) Thus, National Enquirer argues, "Lockheed embraced [the] burden-shifting aspect of subsection (b) even though it differs from the allocation of burdens under Federal Rule of Civil Procedure 12(b)." (Id. (citing Steckman v. Hart Brewing Co., 143 F.3d 1293, 1295 (9th Cir. 1998), for the proposition that defendant must show "beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief").) National Enquirer claims that this shows that Lockheed endorsed anti-SLAPP standards different from the Federal Rules.

As an initial matter, it is not clear that there is any substantive difference between the two standards identified by National Enquirer. More importantly, however, it is incorrect to speak in terms of "burdens" when dealing with legal issues rather than matters of evidence. See, e.g., Black's Law Dictionary, 196 (6th ed. 1990) (defining burdens in regards to evidence). Burdens are relevant when evidence is ambiguous or evenly balanced. The result of a question of law cannot be "ambiguous" or "evenly balanced." While some questions are more difficult than others, eventually the judge must answer the question to the best of his or her ability. Thus, burdens of proof have no place in Rule 12(b)(6) motions or other questions of law. [FN 5] If so Lockheed did not endorse a standard for a special motion to strike different from the standard for a Rule 12(b)(6) motion. [FN 6]

[FN 5] This does not mean that the standards under which a court decides a legal question are unimportant, only that the issue of who bears the "burden of proof" regarding those standards cannot affect the legal question.

[FN 6] Though burdens of proof are important for evidence-based summary judgment motions, section 425.16 does not alter the standard of the Federal Rules. When faced with a Rule 56 motion, a plaintiff bears the burden of proof to establish every fact regarding which he or she would bear the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

In a separate argument, National Enquirer argues that "Lockheed reconciled the state statute with the Federal Rules by recognizing that the hard look required by state law would precede further litigation in federal court, as well as subsequent motion practice under Rule 12 and Rule 56." (Def.'s Resp. at 1 (parenthetical omitted) (emphasis in original).) The Lockheed court noted that there is no conflict because a litigant who unsuccessfully moves to strike "remains free to bring a Rule 12 motion to dismiss, or a Rule 56 motion for summary judgment." Id., 171 F.3d at 1217.

According to National Enquirer, this difference in timing avoids any possible conflict between section 425.16 and the Federal Rules. But if, as asserted by National Enquirer, Lockheed applied a heavier burden on the plaintiff in a special motion to strike than that imposed by the Federal Rules, Lockheed's explanation for the lack of conflict is unsound: If the plaintiff cannot meet the heavier burden of the special motion, the case would be immediately dismissed. If so, the fact that the special motion precedes the Rule 12(b)(6) motion is the source of the conflict, not its solution.

Lockheed's explanation for the lack of conflict makes sense only if one assumes that the standards for a special motion to strike are no different from those of the Federal Rules. If they are no different, allowing a state-created vehicle to test the plaintiff's claim does not conflict with the Federal Rules and the various vehicles coexist peacefully. If, however, the standards are different, they will produce different outcomes, which means they conflict.

While National Enquirer discusses various arguments in favor of the early disposition of libel suits, these are of no moment if the state-created procedure conflicts with the Federal Rules. See, e.g., Hanna, 380 U.S. at 469-471 (analysis of Erie factors unnecessary when Federal Rule is on point). National Enquirer does not explain how these differing standards can exist without conflicting with one another. Therefore, National Enquirer's policy arguments must be disregarded.

In conclusion, in federal court, a special motion to strike must be decided pursuant to the standards of Rule 12(b)(6) or Rule 56.

E. Application to the present case

As discussed earlier, National Enquirer filed a special motion to strike Rogers's complaint. The special motion does not attack Rogers's legal theories. Instead, it claims that Rogers cannot support her claim with appropriate evidence. (See Mot. to Strike at 3-4.) Rogers seeks to continue the hearing on the special motion to strike in order to permit her to conduct discovery. (See Pl.'s Appl. at 5.) National Enquirer opposes a continuance, claiming that such a continuance would defeat the purpose of section 425.16. (See Opp. to Appl. at 1-2.)

Though National Enquirer might be correct were it bringing this special motion in state court, in this Court the motion is governed by the standards of Rule 56, which require a different result. Rogers has identified specific discovery which she must obtain before being able to oppose the special motion. (Pl.'s Appl. at 6-7.) One of the items she seeks to discover is the identity of the alleged confidential source, which relates to National Enquirer's knowledge at the time it published the article at issue. (Id.) Thus Rogers's request to continue the hearing to pursue this discovery must be granted. See Fed. R. Civ. P. 56(f); see also International Raw Materials, 898 F.2d at 949 ("'Where the facts are in possession of the moving party a continuance . . . should be granted almost as a matter of course.'"); Schwarzer, et al., supra, at P 1466 (same); Wright, et al., supra, s. 2741, at p.422 (same when party seeks discovery of latent evidence such as moving party's knowledge or motive).

This conclusion does not rule on any specific discovery request and does not address whether Rogers is entitled to discover the identity of the purported confidential source. The Court merely holds that Rogers has raised a legitimate issue as to discovery and is entitled to present these arguments in the usual manner and in the appropriate forum. Consideration of these arguments must be under the standards provided by the Federal Rules.

The Court continues the hearing on the special motion to strike to allow Rogers time to attempt to conduct discovery. [FN 7] Only after discovery issues are resolved and discovery is complete will it be appropriate for the Court to consider the special motion to strike.

[FN 7] The Court also notes that it is not clear that section 425.16 applies to the present case. A newspaper should not be deemed a "public forum" for purposes of section 425.16. See Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 37 Cal. App. 4th 855, 44 Cal. Rptr. 2d 46, 51 n.5 (App. Div. 1995). Therefore, National Enquirer can invoke the protections of section 425.16 only if its speech falls within the scope of subsection (e)(4). This requires that National Enquirer show that it is being sued for "conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest." Cal. Civ. Proc. Code s. 425.16(e)(4).

It is true that California courts have found the public issue or issue of public interest element to be satisfied by speech on many different subjects. See, e.g., Sipple, 83 Cal. Rptr. 2d at 682-85 (whether nationally known campaign consultant regarding women's issues engaged in wife-beating is public issue); Dove Audio, 54 Cal. Rptr. 2d at 834 ("whether money designated for charities was being received by those charities" is question of public interest); Beilenson, 44 Cal. App. 4th 944, 52 Cal. Rptr. 2d 357 (speech alleging unethical conduct of public official is of public interest); Matson, 46 Cal. Rptr. 2d at 885-86 (speech regarding "qualifications of a declared candidate for public office is a public issue"). However, none of these cases held that celebrity-watching is inherently a public issue. That a celebrity might be a public figure for purposes of the First Amendment should not mean that all speech about that celebrity is necessarily a public issue or an issue of public interest for purposes of section 425.16(e). This is a hurdle National Enquirer must clear when the Court considers the special motion to strike.

IT IS SO ORDERED.

Dated: 7-21-99

DEAN D. PREGERSON
United States District Judge