NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD PICK, an individual; et al.,

Plaintiffs

- Appellants,

v. JAMES A. KAY, Jr., an individual; et al.,

Defendants

- Appellees. No. 20

- 55804
D.C. No. 2:19

- cv - 07137

- DMG

- FFM

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted January 11, 2022 Pasadena, California Before: CLIFTON, M. SMITH, and WATFORD, Circuit Judges. Appellants Harold Pick , Jay Francis, and Wireless US, LC appeal from the district court’s dismissal of their action against appellees James Kay and Lucky’s
Two

- Way Radios, Inc. (Kay appellee s) and Motorola Solutions, Inc. and Peter Carlson (Motorola appellee s) under the Racketeer Influenced and Corrupt Organizations Act (RICO) , 18 U.S.C. § 1961 et seq

. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JAN 21 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSPage 2 of 5

1. The district court did not err in dismissing appellants’ complaint under the Noerr

- Penning ton doctrine. Petitioning conduct is immunized from statutory liability under Noerr

- Pennington if: (1) the lawsuit at issue imposes a burden on petitioning rights; (2) the alleged conduct forming the basis of the law suit constitute s protected petitioning activity; and (3) the relevant statute can be construed to preclude the burden on protected activity. See Sosa v. DIRECTV,
Inc. , 437 F.3d 923, 930 (9th Cir. 2006). A ll three prongs are satisfied here

. First, appellants’ RICO action alleges that three lawsuits pursued by appellees constituted RICO predicate acts because they violated the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 1512 et seq

. These lawsuits sought
to enforce a valid $1.2 million jud gment that Motorola obtained against Pick , such that imposing RICO liability would burden appellees’ right to seek redress from
the courts

. See Ad Visor, Inc. v. Pacific Telephone & Telegraph Co. , 640 F.2d 1107, 1110 (9th Cir. 1981) ; Sosa , 437 F.3d at 932

. Second, the filing of the three lawsuits by the Motorola appellees , and any
conduct incidental to filing , are quintessential protected petitioning activities. Se e Freeman v. Lasky, Haas & Cohler , 410 F.3d 1180, 1184 (9th Cir. 2005); Kearney v. Foley & Lardner, LLP , 590 F.3d 638, 646 (9th Cir. 2009)

. F unding of the litigation by the Kay appellees also constitutes protected activity in our circuit

. See
Sosa , 437 F.3d at 937 ; Liberty Lake Invs

. , I nc. v. Magnuson , 12 F.3d 155 , 158

– 59Page 3 of 5

(9th Cir. 1993)

. Third, the statute on which appellants predicate their RICO action , the VWPA, can be construed to preclude th is burden on protected petitioning activity. The VWPA imposes liability for actions “harmful” to any person , undertaken knowingly and “with the intent to retaliate” for providing law enforcement with truthful information relating to the commission of a federal crime. 18 U.S.C. § 1513(e) . Because the statute does not “clearly” require th e imposition of liability for the protected petitioning conduct at issue , “ w e must construe [the statute] so as to avoid burdening ” that conduct. Sosa , 437 F.3d at 931. Th us, th e underlying lawsuits cannot constitute RICO predicate acts unless Noerr

- Penn ington ’s sham litigation exception appl ies

. 2. The district court correctly determined that appellants failed to adequately plead the sham litigation exception to Noerr

- Pennington , under either an objective ly baseless or serial litigation theory

. Under th e sham litigation exception, the Noerr

- Pennington doctrine does not protect either an i ndividual
lawsuit that is “objectively baseless , ” or a series of lawsuits “ ‘ brought pursuant to a policy of starting legal proceedings without regard to the merits ’ a nd for an unlawful purpose

. ” Id. at 938 ( quoting Kottle v. Nw. Kidney Ctrs. , 146 F.3d 1056, 1060 (9th Cir. 1998) ). First, appellants cannot adequately plead that any of the three lawsuits atPage 4 of 5

issue were “objectively baseless

. ” A lawsuit is not objective ly baseless when it is “arguably warranted by existing law” or “based on an objectively good faith argument.” International Longshore & Warehouse Union v. ICTSI Oregon , Inc. , 863 F.3d 1178, 11 88 (9th Cir. 2017) (quoting Pro. Real Estate Invs., Inc. v. Col umbia Pictures Indus. , Inc. , 508 U.S. 49, 65 (1993))

. The California lawsuit resulted in a jury finding that Pick had fraudulently transferred property to evade judgment , so far from being objectively baseless, it was judicially determined to be meritorious . The first Nevada lawsuit was dismissed for lack of standing based on reasoning that our circuit later rejected and thus cannot be deemed objectively
baseless either. T he second Nevada lawsuit presents a closer question. As Pick points out, that lawsuit resulted in a n adverse finding against Motorola, but the court there determined that the action lacked merit with respect to an individual who is not a party to the RICO action before us. As none of the lawsuits were objectively baseles s , app ellees’ motive for bringing the m is immaterial. See Liberty Lake Invs

. , 12 F.3d at 159.
Nor does the sham litigation exception apply under a serial litigation theory

. Even assuming that one of the suits at issue here was meritless, a single meritless

su it cannot support the application of the sham litigation exception based on a serial litigation theory

. See International Longshore , 863 F.3d at 118 7

. Because, as a matter of law, appellants cannot plead the sham litigationPage 5 of 5

exception, the district court did not abuse its discretion in denying leave to amend.
3. We need not address whether appellants adequately alleged an alternative RICO theory of corporate bribery under Ca lifornia Penal Code § 641.3

. B ecause the Noerr

- Pennington doctrine bars a RICO claim based on appellees’ three
lawsuits , appellants have failed to allege at least two predicate acts as required to establish a claim under RICO. 18 U.S.C. § 1962 (c). Appellees’ unopposed request for judicial notice (Dkt. 33) is GRANTED

. AFFIRMED.