Kelly Crowe v. RAMA GOGINENI; BULLIVANT, HOUSER, BAILEY, P.C., an Oregon corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY CROWE,
Plaintiff-Appellant,
v.
RAMA GOGINENI; BULLIVANT,
HOUSER, BAILEY, P.C., an Oregon
corporation,
Defendants-Appellees.
No. 17-17231
D.C. No. 2:11-cv-03438-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted June 5, 2019**
Before: Wallace, Farris, and Trott, Circuit Judges.
Kelly Crowe appeals pro se from the district court’s order, in Crowe’s
diversity action, granting defendant Bullivant, Houser, and Bailey, P.C.’s (“BHB”)
special motion to strike under California’s anti-Strategic Litigation Against Public
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Policy (“anti-SLAPP”) statute. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Manufactured Home Cmtys., Inc. v. County of San Diego, 655
F.3d 1171, 1176 (9th Cir. 2011). We affirm.
The district court properly granted BHB’s special motion to strike because
BHB met its prima facie burden of showing that each cause of action arose out of
BHB’s protected petitioning activity and Crowe failed to show a probability of
prevailing on the merits. See Cal. Civ. Proc. Code § 425.16(e); Roberts v. McAfee,
Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (once a defendant makes a prima facie
showing that plaintiff’s suit arises from the defendant’s protected activity, the
burden shifts to plaintiff to establish a reasonable probability of prevailing on the
claim); see also Finton Constr., Inc. v. Bidna & Keys, APLC, 190 Cal. Rptr. 3d 1, 9
(Ct. App. 2015) (“[A]ll communicative acts performed by attorneys as part of their
representation of a client in judicial proceedings or other petitioning context are
per se protected as petitioning activity by the anti-SLAPP statute.” (citation
omitted)). Crowe’s allegations against BHB were based entirely on BHB’s legal
representation, or communications on behalf of, its client, Cosmic.
Contrary to Crowe’s contentions, the district court did not commit reversible
error by failing to provide Crowe with an opportunity to conduct discovery. See
Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“A district
court is vested with broad discretion to permit or deny discovery, and a decision to

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deny discovery will not be disturbed except upon the clearest showing that the
denial of discovery results in actual and substantial prejudice to the complaining
litigant. Prejudice is established if there is a reasonable probability that the
outcome would have been different had discovery been allowed.” (internal
quotation and citation omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Because Crowe does not raise any challenges to the district court’s rulings
relating to defendant Rama Gogineni, the Clerk shall edit the docket to reflect that
Gogineni is not an appellee in this appeal.
AFFIRMED.

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