NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD APPEL, 

Plaintiff-Appellee/CrossAppellant,

 v. 

ROBERT WOLF, 

Defendant-Appellant/CrossAppellee.

Nos. 19-56131, 19-56184

D.C. No. 3:18-cv-814-L-BGS

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted December 7, 2020

Pasadena, California

Before: GRABER and BEA, Circuit Judges, and DORSEY,** District Judge.

Robert Wolf appeals the district court’s denial of his motion to strike 

Howard Appel’s defamation suit under California’s anti-SLAPP statute, California 

Civil Procedure Code sections 425.16–.18. Wolf argues that the district court erred 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jennifer A. Dorsey, United States District Judge for 

the District of Nevada, sitting by designation.

FILED

DEC 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

when it held that his email seeking to initiate settlement of Appel’s lawsuit against 

Wolf’s client, Concierge Auctions, LLC, was facially defamatory and that it was 

neither protected conduct nor immunized by California’s litigation privilege. We 

have jurisdiction under 28 U.S.C. § 1291 and the collateral-order doctrine. Hilton 

v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir. 2010). Reviewing de novo, 

Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 

832 (9th Cir. 2018), we affirm.1

1. The district court erred when it held that Wolf’s email was not protected 

conduct under section 425.16(e)(2). Courts considering a motion to strike under 

California’s anti-SLAPP statute “must engage in a two-part inquiry.” Vess v. 

Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). First, the defendant 

must show that the plaintiff challenges “an act in furtherance of protected 

expression,” as defined by California statute. Metabolife Int’l, Inc. v. Wornick, 264 

F.3d 832, 840 (9th Cir. 2001); see also Cal. Code Civ. P. § 425.16(e). Once he has 

done so, “the plaintiff must show a ‘reasonable probability’ of prevailing [o]n [his] 

claims for those claims to survive dismissal.” Metabolife Int’l, Inc., 264 F.3d at 

1 Because we affirm the district court’s order, we need not and do not reach 

Appel’s conditional cross-appeal. See Hilton v. Mumaw, 522 F.2d 588, 603 (9th 

Cir. 1975) (dismissing as moot a conditional cross-appeal of a nonfinal order “[a]s 

to issues upon which we affirm” in the district court’s order). 
3

840 (citations omitted). A defendant’s insufficient showing at the first step, or a 

plaintiff’s successful showing at the second, mandates denial of the motion. Id. 

Acts arising from a “defendant’s litigation activity”—which include 

“communicative conduct such as the filing, funding, and prosecuting of a civil 

action”—are generally considered protected conduct falling within section 

425.16(e)(2)’s broad ambit. Rusheen v. Cohen, 128 P.3d 713, 717–18 (Cal. 2006) 

(internal quotation marks omitted). This protection extends to “an attorney’s 

communication with opposing counsel on behalf of a client regarding pending 

litigation” and includes “an offer of settlement to counsel.” GeneThera, Inc. v. 

Troy & Gould Pro. Corp., 171 Cal. App. 4th 901, 905, 908 (2009); see also Seltzer 

v. Barnes, 182 Cal. App. 4th 953, 964 (2010). The district court misapplied 

California law when it reasoned that Wolf’s email—which was sent to Appel’s 

counsel, allegedly “begging for a phone[-]call discussion about possible settlement 

of Appel’s case against Concierge”—was insufficiently concrete to qualify as

protected conduct. Section 425.16(e)(2) has no such “concreteness” requirement. 

2. But that error was harmless, as the district court correctly held that Appel 

was reasonably likely to succeed on the merits of his claim, given that Wolf’s 

email was facially defamatory and not immunized by California’s litigation 

privilege. A claim for defamation under California law involves “a publication” 

that is “false,” “defamatory,” “unprivileged,” and that “has a natural tendency to 
4

injure or that causes special damage.” Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 

2007) (internal quotation marks and citations omitted). A plain reading of both 

Appel’s complaint and Wolf’s email, which erroneously stated that Wolf knew 

Appel and that Appel “had legal issues (securities fraud),” supports the district 

court’s finding that Wolf’s statement “would have negative, injurious ramifications 

on [Appel’s] integrity.” Appel’s allegations are sufficient to establish a reasonable 

likelihood of success on the merits of a claim for libel per se. See Manzari v. 

Associated Newspapers Ltd., 830 F.3d 881, 889 (9th Cir. 2016) (noting that, at the 

second stage of the anti-SLAPP analysis, a plaintiff “need only convince us that 

[his] claim has ‘minimal merit’”) (quoting Overstock.com, Inc. v. Gradient 

Analytics, Inc., 151 Cal. App. 4th 688, 700 (2007)). 

In addition, Wolf’s defamatory statement is not privileged, despite being 

made in the context of settlement negotiations. California’s expansive litigation 

privilege, codified at California Civil Code section 47(b), applies to any 

communication “(1) made in judicial or quasi-judicial proceedings; (2) by litigants 

or other participants authorized by law; (3) to achieve the objects of the litigation; 

and (4) that ha[s] some connection or logical relation to the action.” Rusheen, 128 

P.3d at 718 (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)) (internal 

quotation marks omitted). “To be privileged under section 47, a statement must be 

‘reasonably relevant’ to pending or contemplated litigation.” Neville v. Chudacoff, 
5

160 Cal. App. 4th 1255, 1266 (2008) (emphasis omitted). As the California Court 

of Appeal held in Nguyen v. Proton Technology Corp., the privilege “does not prop 

the barn door wide open” for every defamatory “charge or innuendo,” merely 

because the libelous statement is included in a presumptively privileged 

communication. 69 Cal. App. 4th 140, 150 (1999). Appel established that Wolf’s

false insinuation that he had been involved in securities fraud is not reasonably 

relevant to Appel’s underlying dispute with Concierge. Accordingly, the district 

court properly denied Wolf’s anti-SLAPP motion to strike Appel’s complaint.

AFFIRMED.