FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LEZLIE J. GUNN, Nos. 20-16046 21-15005 Plaintiff-Appellant, 21-15442 21-15549 v. D.C. No. CHRISTINE E. DRAGE, 2:19-cv-02102- JCM-EJY Defendant-Appellee. OPINION Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted March 15, 2022 Las Vegas, Nevada Filed April 21, 2023 Before: Johnnie B. Rawlinson and Mark J. Bennett, Circuit Judges, and Brian M. Cogan, * District Judge. Opinion by Judge Cogan * The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. 2 GUNN V. DRAGE SUMMARY ** California Anti-SLAPP Statute The panel vacated the district court’s order denying Lezlie Gunn’s motion for an extension of time to file her notice of appeal, and affirmed the district court’s order granting Christine Drage’s motion to strike Gunn’s complaint in its entirety pursuant to California’s Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute and dismissing the action. Gunn alleged that Drage had interfered with a release and settlement agreement (“RSA”) entered into by Gunn and non-party Dr. Hans Peter Wild, establishing the terms of the breakup of their personal and professional relationship. Subsequently, Wild and Drage began a personal relationship. In this action, Gunn claimed that Wild breached the RSA, and that Drage persuaded Wild to breach the RSA. Gunn sought recovery of $150 million in damages, as well as punitive damages. On April 10, 2020, the district court granted Drage’s anti-SLAPP motion. The panel held that the notice of appeal was timely. Fed. R. Civ. P. 58(a) required a separate document to implement the district court’s April 10 Order on Gunn’s anti-SLAPP motion. But judgment was not “set forth on a separate document” until May 1, 2020. Therefore, Gunn’s notice of appeal was timely when filed on May 28, 2020. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GUNN V. DRAGE 3 Turning to the merits of Gunn’s appeal, the panel applied the California burden-shifting framework to answer whether the claim called for the anti-SLAPP statute’s protections, and, if so, whether the claim had sufficient merit. At the first step, the moving defendant must make a prima facie showing that the plaintiff’s suit arose from an act in furtherance of the defendant’s right to free speech. The panel rejected Gunn’s argument that the district court erred by considering evidence in the first prong of its anti-SLAPP analysis. The panel held that where an anti-SLAPP defendant lodges a factual challenge, district courts may properly consider extrinsic evidence in evaluating whether a defendant has met her prima facie burden under step one. Here, the district court correctly evaluated Drage’s challenge as a factual one based on her own statements in her anti-SLAPP motion and her reliance on extrinsic evidence at both steps. The court was therefore entitled to consider evidence at both steps. Next, the panel considered …
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