Attacking Conspiracy Claims Through The Anti-SLAPP Framework



On March 24, 2020, the Second Appellate District of California issued a decision for publication in the matter Spencer v. Mowat* concerning a "beach gang" that harassed non-local, outsiders surfing the Lunada Bay waves in the Palos Verdes Estates. The beach gang would throw rocks and otherwise antagonize, assault and batter outsiders. The outsiders filed suit alleging causes of action including, public nuisance, assault and battery. The outsiders also alleged a claim of conspiracy in support of their theory of vicarious liability which would find all persons who were part of the conspiracy liable for the acts of their co-conspirators.

The beach gang had a long history of conduct they categorized as protected speech and protest of non-local surfers in the area. The beach gang in fact petitioned and appeared at local City Council to address the issue of outsiders. But the Court was not convinced about the protected activity occurring on the beach--the activity of which plaintiffs complained. For example, one plaintiff was harassed by a member of the beach gang when a man "wearing blackface and sporting an afro wig told him, 'You don’t pay enough taxes to be here.'” (Spencer v. Mowat, slip opinion, at 6.)

The court narrowly discussed whether the act of the underlying tort or the act of conspiracy is analyzed under the first prong of the anti-SLAPP statute, i.e., whether the complaint seeks to impose liability based on protected activity. (Id. at 17.) The Court held the underlying tortious acts in which the defendants are alleged to have conspired must be the focus of inquiry in the first prong of the anti-SLAPP framework.

Even though the beach gang had done some petitioning at the City Council, which is protected under the anti-SLAPP statute, the activities which the plaintiffs complained of were illegal and tortious. "[W]e focus on the tortious acts in which they are alleged to have conspired – the harassment of non-locals, the trail-obstructing, the rock-throwing, the running over with surfboards, the punching, the theft, the vandalism, the sexual harassment, the threats, and the intimidation. None of this is protected speech or petitioning activity." (Id. at 21-22.)

*The Slip Opinion is available at: https://www.courts.ca.gov/opinions/documents/B295738.PDF

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