Agnes BERNARDO et al., Plaintiffs and Appellants
v.
PLANNED PARENTHOOD FEDERATION OF AMERICA et al., Defendants and Respondents
California Court of Appeal, Fourth District, Div. 1
Nos. D040186, D040866
Jan. 28, 2004
(Appeals from Superior Court of San Diego County, Ronald S. Prager, Judge.)
COUNSEL:
Fagan & Fagan, Stuart E. Fagan; Thomas More Law Center, Patrick T. Gillen and John Kindley for Plaintiffs and Appellants.
James E. McElroy and Dara Klassel for Defendants and Respondents.
NARES, Acting P.J.
Agnes Bernardo, Pamela Colip and Saundra Duffy-Hawkins (collectively Bernardo) brought suit for injunctive relief against Planned Parenthood Federation of America (PPFA) and Planned Parenthood of San Diego and Riverside Counties (PPSDRC) (together Planned Parenthood) under California's Unfair Competition Law (Bus. & Prof.Code, § 17200 et seq.) and False Advertising Law (Bus. & Prof.Code, § 17500 et seq.). Bernardo alleged that PPFA's and PPSDRC's Internet Web sites (<http://www.plannedparenthood.org.html> and < http://www.planned.org.html>, respectively) contained "unlawful, unfair, confusing, and misleading statements/advertisements" that caused women to make critical health care decisions without full, complete, and accurate information about (1) the safety of abortion, (2) the safety of abortion vis-à-vis childbirth, and (3) the scientific/medical literature that Bernardo claims establishes a link between induced abortion and breast cancer (hereafter sometimes referred to as the ABC link).
Bernardo sought two types of injunctive relief: (1) an injunction restraining Planned Parenthood from publishing its statements that abortion is safe or safer than childbirth and its position that the weight of credible medical research has failed to establish a link between induced abortion and breast cancer; and (2) a mandatory injunction requiring Planned Parenthood to provide to all of its former and prospective abortion patients information supporting Bernardo's position that medical research has established the existence of the claimed ABC link.
Planned Parenthood filed a special motion to strike Bernardo's complaint under Code of Civil Procedure [FN 1] section 425.16, California's anti-SLAPP (strategic lawsuits against public participation) statute (hereafter referred to as section 425.16 or the anti-SLAPP statute), which was specifically enacted to provide both a summary disposition and mandatory attorney fees and costs to prevailing defendants in such actions. [FN 2] Planned Parenthood argued that Bernardo's action was a strategic lawsuit against public participation (SLAPP) prohibited by California's anti-SLAPP statute.
[FN 2] Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1404 (Dowling ).
The court found that Bernardo's lawsuit was a SLAPP, granted Planned Parenthood's motion, and dismissed the action. The court awarded reasonable attorney fees to Planned Parenthood in the amount of $77,835.25 under the mandatory attorney fees provision of section 425.16, subdivision (c) (hereafter section 425.16(c)).
Bernardo has filed two appeals, which have been consolidated for purposes of disposition. In case No. D040186, Bernardo appeals the court's order dismissing her action as a SLAPP under section 425.16. Bernardo contends that Planned Parenthood's Web site statements constitute commercial speech that may properly be regulated under Business and Professions Code sections 17200 and 17500 and that the court erred when it granted Planned Parenthood's section 425.16 motion to strike because it failed to properly apply the "minimal merit" screening standard provided by the anti-SLAPP statute. In the alternative, Bernardo contends that if the court correctly applied section 425.16, that statute is unconstitutional because (1) it impermissibly chills Bernardo's First Amendment right to petition the government for redress of grievances, which encompasses the right to access the courts by filing litigation, and (2) it violates Bernardo's due process rights because "the 'reasonable probability of success on the merits' standard [under section 425.16] is meaningless in practice."
In her second appeal, case No. D040866, Bernardo seeks reversal of the court's order awarding attorney fees to Planned Parenthood in the amount of $77,835.25 under section 425.16(c). Bernardo contends that section 425.16(c) is unconstitutional on its face and as applied, asserting the attorney fees award levied against her is a "fine," a "draconian penalty" or "strict liability penalty," and an "item of damages" that violates her constitutional rights to petition the government for redress of grievances and to access the courts by filing litigation, as well as her constitutional rights to due process and equal protection of the laws. We reject all of Bernardo's contentions. Accordingly, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. PPFA and PPSDRC
PPFA is a national nonprofit charitable organization. According to its published mission statement, PPFA believes in "the fundamental right of each individual ... to manage his or her fertility." It also believes in voluntary "reproductive self-determination," and preservation of an individual's right to privacy. Based on these beliefs, PPFA's mission is to (1) "provide comprehensive reproductive and complementary health care services in settings which preserve and protect the essential privacy and rights of each individual"; (2) "advocate public policies which guarantee these rights and ensure access to such services"; (3) "provide educational programs which enhance understanding of individual and social implications of human sexuality"; and (4) "promote research and the advancement of technology in reproductive health care and encourage understanding of their inherent bioethical, behavioral, and social implications."
PPFA has also published numerous policy statements indicating that it is the policy of PPFA to "assure that all individuals have the freedom to make reproductive decisions"; to promote "access to information and services related to sexuality, reproduction, methods of contraception, fertility control, and parenthood"; "ensure that women have the right to seek and obtain medically safe, legal abortions under dignified conditions and at reasonable cost"; provide "information on the nature, consequences, and risks of the [abortion] procedure, and counseling on the alternatives available to women, so as to assure an informed and responsible decision concerning the continuation or termination of pregnancy"; "support[ ] a range of activities designed to reduce adolescent pregnancy and childbearing"; and "advance understanding of the interrelationship between population growth and the quality of life."
PPFA does not itself provide health care services. However, its 127 member affiliates do provide such services annually to nearly 4 million people at 875 clinics. In 1999, those clinics served communities in the District of Columbia and every state except Hawaii, North Dakota and Mississippi. The clinics (hereafter also referred to as health centers or Planned Parenthood centers) adhere to national health standards and provide comprehensive reproductive health care services, including pregnancy tests, birth control and counseling, testing and treatment for sexually transmitted infections, and breast examinations. Some of PPFA's affiliates, including PPSDRC, provide abortion services.
The Planned Parenthood centers also provide educational programs in a variety of settings, from universities and social service agencies to religious institutions and civic organizations. The programs focus on numerous topics, such as teenage pregnancy and puberty education, contraception and family planning, sexually transmitted infections, parent-child communication, women's health, and sexual orientation.
In the 1990's, PPFA reported total annual revenues of around $400 to $500 million. For the year ending June 30, 2000, total revenues were $627 million, with clinic revenue accounting for 35 percent.
B. PPFA's Web site and "Fact Sheets"
PPFA maintains an Internet Web site (PPFA's Web site) at <http://www.plannedparenthood.org.html>. PPFA assists the public in contacting its affiliates' health centers by providing on its Web site an interactive dialogue box in which visitors can type in their zip codes and be linked to the Web sites of the health centers closest to them. Once the visitor to PPFA's Web site has been linked to the Web site of a PPFA affiliate, such as PPSDRC, he or she may access a wide array of information on public affairs and health issues, as well as information about specific services the affiliate provides. PPFA's Web site also provides a toll-free telephone number that the Web site visitor may call to ask medical questions or to schedule an appointment with "the nearest Planned Parenthood center."
PPFA publishes on its Web site various "fact sheets" on reproductive health and public affairs issues, including four containing statements that Bernardo sought to enjoin in this matter: (1) "Anti-choice Claims About Abortion and Breast Cancer" (the Anti-Choice Claims Web page); (2) "Choosing Abortion- Questions and Answers" (the Choosing Abortion Web page); (3) "Surgical Abortion-Questions & Answers" (the Surgical Abortion Web page); and (4) "Medical and Social Health Benefits Since Abortion Was Made Legal in the U.S" (the Medical and Social Health Benefits Web page).
PPFA's Anti-Choice Claims Web page stated PPFA's position that the ABC link is a "theory [that] has not been borne out by research," and the principal promoters of this theory oppose abortion. It also explained that "[t]he theory linking pregnancy termination and breast cancer is based on the hormonal disruption that occurs when a woman's pregnancy is interrupted. Pregnancy initiates a surge of sex hormones (estrogen, progesterone, and prolactin), which leads to differentiation of the cells in the breast glands in preparation for lactation.... Adherents of this theory claim that interruption of the first trimester of a first pregnancy causes a cessation of cell differentiation that may result in a subsequent increase in the risk of cancerous growth in these tissues." The Web page also explained the role of a first full-term pregnancy in reducing the long-term risk of breast cancer (hereafter the "protective effect"):
"While researchers do not know what causes breast cancer, reproductive factors have been associated with risk for the disease since the 17th century, when breast cancer was noted to be more prevalent among nuns. It is known that having a full-term pregnancy early in a woman's childbearing years is protective against breast cancer ...." (Italics added.)
The Anti-Choice Claims Web page also contained a review of some of the many studies of the alleged ABC link published during the previous 20 years, including studies that support Bernardo's position that such a link exists. For example, the page stated:
"In 1996, Joel [L.] Brind[, Ph.D.] and his colleagues published a meta- analysis [FN 3] of 28 published reports describing 23 studies on induced abortion and breast cancer. Based on these studies, the authors calculated that induced abortion places women at a slightly increased risk for developing breast cancer." [FN 4]
[FN 4] In the "Works Cited" portion of the Anti-Choice Claims Web page, PPFA provided the following
citation: "Brind, Joel, et al. (1996). 'Induced Abortion as an Independent Risk Factor for Breast Cancer: A Comprehensive Review and Meta-Analysis.' Journal of Epidemiology and Community Health, 50, 481-496."
The Web page also noted that a published 1994 study of 845 women in the State of Washington found that "among women who had been pregnant at least once, the risk of breast cancer in those who had experienced an induced abortion was 50 percent higher than among other women." [FN 5]
The Anti-Choice Claims Web page reviewed other studies that support PPFA's position on the ABC link issue, such as a study of 1.5 million women, published in 1997 in the New England Journal of Medicine, which PPFA asserted found no overall connection between abortion and breast cancer. [FN 6] It also cited a 20-year study of 49,000 women in Sweden, published in 1989, which PPFA stated found no indication of an overall risk of breast cancer after an induced abortion in the first trimester of pregnancy. [FN 7]
PPFA's Anti-Choice Claims Web page also discussed research concerning various factors that can render a study of the ABC link unreliable and asserted that "[c]ancer researchers at the National Cancer Institute, the American Cancer Society, and major universities say that the most reliable studies show no increased risk, and they consider the entire body of research inconclusive." The Web page concluded with a "Works Cited" bibliography that cited 32 published studies on the ABC link issue, including Brind's meta-analysis and others that support Bernardo's position on the ABC link.
In its Choosing Abortion Web page, PPFA answered the question "Does abortion cause breast cancer?" by stating, "No. But abortion does not offer the same protection against breast cancer as a full term pregnancy."
On PPFA's Surgical Abortion Web page, a visitor could select the question "What are the health risks of abortion?", which would connect the visitor to another page that answered the question by stating, "In the first 20 weeks, abortion is much safer than giving birth." This statement, however, was followed by an explanation of eight "[c]omplications from early abortion," including death. PPFA stated that death "occurs in 1 of 100,000 abortions," and "[c]hildbirth carries seven times more risk."
Bernardo also tried to enjoin portions of PPFA's Medical and Social Health Benefits Web page. Bernardo objected to both the use of the phrase "safe, legal abortion" and the following statement:
"Today, abortion is one of the most commonly performed clinical procedures, and the current death rate from abortion at all stages of gestation is 0.6 per 100,000 procedures. This is eleven times safer than carrying a pregnancy to term and nearly twice as safe as a penicillin injection [citations]." [FN 8] (Italics added.)
C. PPSDRC's Web site and "Fact Sheets"
PPSDRC's Internet Web site (PPSDRC's Web site) is found at <http:// www.planned.org.html>. Like PPFA, PPSDRC publishes various Web site pages that address reproductive health and public affairs issues, including some that Bernardo tried to suppress in this matter. For example, PPSDRC's Web site contained a fact sheet titled "Abortion Info: Q & A: Future [Pregnancies]" (the Abortion Info Web page), which answered the question "Does abortion cause breast cancer?" by stating, "No, but abortion does not offer the protection against breast cancer that having several full-term pregnancies does."
D. Terms of Use of Planned Parenthood's Web Sites
Both PPFA and PPSDRC included in their Web sites a terms-of-use page notifying Web site visitors that Planned Parenthood provided the Web sites subject to the visitors' "agreement to comply with the Terms of Use." Each terms-of-use page informed visitors that the information provided on the Web sites was for the visitors' personal education only and that nothing on the Web sites constituted a recommendation for medical care. Each page also advised visitors to "[a]rm yourself with good information about sexual and reproductive health maintenance, and visit a qualified health care provider for personal medical evaluation, counseling, and services." (Italics added.)
E. Bernardo's SLAPP Complaint
In August 2001, Bernardo filed her SLAPP complaint for injunctive relief against Planned Parenthood under California's Unfair Competition Law (Bus. & Prof.Code, § 17200 et seq., hereafter the UCL) and False Advertising Law (Bus. & Prof.Code, § 17500 et seq., hereafter the FAL). Bernardo alleged that PPFA and PPSDRC's Internet Web sites contained "unlawful, unfair, confusing, and misleading statements/advertisements" that caused women to make critical health care decisions without full, complete, and accurate information about the safety of abortion, the safety of abortion vis-à-vis childbirth, and the "scientific/medical literature" that Bernardo believed established the existence of the ABC link.
1. Injunctive relief requested
In her complaint, Bernardo sought an injunction restraining Planned Parenthood from publishing statements that abortion is safe or safer than childbirth and that the weight of credible medical research has failed to establish a link between induced abortion and breast cancer. In effect, Bernardo's action thus sought to enjoin portions of PPFA's Anti-Choice Claims, Choosing Abortion, Surgical Abortion and Medical and Social Health Benefits Web pages, as well as PPSDRC's Abortion Info Web page (all of which are discussed, ante ).
Bernardo also sought a mandatory injunction requiring Planned Parenthood to provide to all of its former and prospective abortion patients a series of statements drafted by Bernardo and her counsel that support Bernardo's view that medical research has established the existence of the claimed ABC link. [FN 9]
2. Brind's affidavit
In support of these allegations, Bernardo attached to her complaint an affidavit of Joel L. Brind, Ph.D. (Brind), a professor of biology in the Department of Natural Sciences of Baruch College of the City University of New York, and the author of a paper titled, "Induced Abortion as an Independent Risk Factor for Breast Cancer: A Comprehensive Review and Meta-Analysis" (hereafter Brind's meta-analysis), [FN 10] which was published in 1996 in the British Medical Association's Journal of Epidemiology and Community Health.
In his affidavit, Brind stated that of 36 independent studies published worldwide that presented specific data on induced abortion and the incidence of breast cancer, 17 had reported a statistically significant increase in the risk of breast cancer overall among women who have one or more induced abortions, and 10 had reported a risk increase that did not achieve statistical significance. He also stated that three of the 36 studies reported no tendency for increased or decreased risk, three reported a decrease in risk that did not achieve statistical significance, and three reported a statistically significant decrease in risk. He explained that, as he discussed in his 1996 meta-analysis, when he compiled the data for all 36 studies, using either a weighted or unweighted average, he calculated that "the risk of breast cancer among those women who had experienced an induced abortion was 30 [percent] higher than among women who had not, independently of the effect due to abortion's delay of first full-term pregnancy," and since the lifetime risk of breast cancer for an average American woman is between 10 and 12 percent, this 30 percent increase "amounts in absolute terms to at least a three percent, or 3 in 100, excess risk of developing breast cancer."
Brind also opined in his affidavit that PPFA's Anti-Choice Claims Web page is "a thoroughly biased and misleading presentation of the scientific literature on this subject," which "creates the untrue and/or misleading impression that the preponderance of the scientific analysis supports the assertion that there is no link between induced abortion and increased risk of breast cancer." He challenged numerous specific statements contained in the Anti-Choice Claims Web page.
Brind opined that Planned Parenthood's answer of "No" to the question "Does abortion cause breast cancer?" was "untrue and/or misleading, because the overwhelming preponderance of the evidence indicates that abortion does cause breast cancer, both by removing the protection against breast cancer to be gained by completing the pregnancy already in progress, and by increasing the risk of breast cancer independently of the loss of this protective effect." He also opined that the Planned Parenthood Web site statements he challenged were "likely to mislead reasonable members of the public as to the safety of abortion, the safety of abortion vis-a-vis childbirth, and the link between inducedabortion and breast cancer."
F. Planned Parenthood's Special Motion To Strike Under the Anti-SLAPP Statute
Planned Parenthood filed a special motion under the anti-SLAPP statute to strike Bernardo's complaint. Planned Parenthood argued that the complaint was a meritless SLAPP intended to use California's consumer protection statutes (Bus. & Prof.Code, §§ 17200 et seq. & 17500 et seq.) to thwart Planned Parenthood from exercising its constitutional right to speak about abortion; stop it from "providing free information on the [W]orld [W]ide [W]eb regarding abortion, an issue of great public concern, and on the related issue of breast cancer and abortion"; force it to adopt Bernardo's view of medicine on Planned Parenthood's own Web sites and tell women that abortion causes breast cancer; and "frighten women into refraining from exercising a constitutional right to reproductive choice" based on "very questionable science" and Bernardo's "anti-abortion agenda."
Planned Parenthood also argued that Bernardo could not meet her burden under the anti-SLAPP statute (§ section 425.16, subd. (b)(1), hereafter § 425.16(b)(1)) [FN 11] of showing a probability that she would prevail on any of her claims because (1) Planned Parenthood advised all visitors to its Web sites in the terms of use (discussed, ante ) that the health information provided on the Web sites was for the visitors' personal education only; (2) the information did not concern any product or service within the meaning of the UCL, nor did it concern or advertise any product or service within the meaning of the FAL, and thus did not fall within the ambit of these consumer protection statutes; and (3) even if it did, the Web site health information was supported by ample peer-reviewed scientific studies as shown by the supporting expert declarations of four health professionals.
In support of the motion to strike, Planned Parenthood submitted the declarations of David B. Preskill, M.D., the Chief of Service for Obstetrics and Gynecology at Southern California Kaiser Permanente in San Diego; Georgia Robbins Sadler, Ph.D., Associate Clinical Professor of Surgery at the University of California, San Diego (UCSD) School of Medicine, and the Associate Director for Outreach at the UCSD Cancer Center; Steven R. Drosman, M.D., the former Chief of the Obstetrics and Gynecology Section of Sharp Memorial Hospital and currently the Chief of Staff for Sharp Mary Birch Hospital for Women, at Sharp Memorial Hospital and Polly A. Newcomb, Ph.D., who is a member of the Fred Hutchinson Cancer Research Center in Seattle, Washington, a professor of epidemiology at the University of Washington School of Public Health, and an associate editor who provides editorial service to 18 peer-review epidemiology journals, including the New England Journal of Medicine and the American Journal of Epidemiology;
Planned Parenthood filed a written request that the court take judicial notice of the fact that abortion is one of the most controversial political issues in our nation.
Bernardo opposed the special motion to strike, asserting that this case is not about the right to abortion. Bernardo contended the motion should be denied on two main grounds: (1) Planned Parenthood's speech was false and misleading, such speech was not entitled to legal protection, and thus Planned Parenthood had failed to make the requisite prima facie showing that they were engaged in protected activity within the meaning of section 425.16; and (2) Bernardo was able to make a prima facie showing of a probability of succeeding on the merits because Planned Parenthood Web site statements were made in connection with their offer of abortion services so as to constitute advertising within the meaning of the UCL and FAL, and Bernardo had "all but conclusive evidence" that those statements misled the public about the safety of abortion, the safety of abortion vis-à-vis childbirth, and the evidence showing that induced abortion increases the risk of breast cancer.
In support of her opposition, Bernardo submitted the declarations of all three individual appellants; Brind's declaration; and the declaration of five medical doctors, "one from each medical specialty required to address the increased risk of breast cancer caused by induced abortion over the life of the woman," who all opined that induced abortion causes increased risk of breast cancer: Elizabeth Shadigian, M.D., a board certified obstetrician/gynecologist engaged in clinical practice and teaching at the University of Michigan, School of Medicine; Jane Anderson, M.D., a board certified pediatrician teaching at the University of California, San Francisco; Chris Kahlenborn, M.D., a board certified physician of internal medicine engaged in clinical practice and epidemiological research who has published on the ABC link; Jose Bufill, M.D. (Bufill), who studied medicine at the University of Navarre in Spain, and is practicing oncology and hematology and teaching at the Indiana University School of Medicine; and Angela Lanfranchi, M.D., a surgeon specializing in breast surgery, and a clinical professor at Robert Wood Johnson Medical School.
G. Order Granting Planned Parenthood's Anti-SLAPP Motion To Strike
The court granted Planned Parenthood's motion to strike Bernardo's complaint under the anti-SLAPP statute on the ground that Bernardo had failed to show the requisite probability of prevailing on the merits of the complaint and obtaining the injunctive relief she sought. Specifically, the court found that the challenged statements in Planned Parenthood's Web pages "[could not] be construed as pure commercial speech or pure advertisement" and, even if they could be so construed, Bernardo had failed to present sufficient evidence to show a probability of prevailing on the UCL and FAL claims that Planned Parenthood's Web site statements were unlawful, that they constituted an unfair or fraudulent business practice, and that they also constituted false or deceptive advertising. The court noted that contrary to Bernardo's argument that Planned Parenthood's Web sites were deceptive by failing to recognize the "protective effect" against breast cancer that a full-term pregnancy provides, Bernardo had acknowledged Planned Parenthood's statement (in the Choosing Abortion and Abortion Info Web pages) that "abortion does not offer the same protection against breast cancer as a full term pregnancy." The court also noted Bernardo's allegation that Planned Parenthood had made a false statement of fact by claiming that abortion is safer than childbirth, but found that this allegation was centered on Bernardo's position that abortion causes breast cancer and that her own evidence showed there were two "camps of thought" and an "on-going debate in the scientific community" on the issue of whether there is link between induced abortion and breast cancer. The court further found that Planned Parenthood had not failed to disclose (in its Anti-Choice Claims Web page) that numerous studies supported Bernardo's position that induced abortions increase a woman's risk of breast cancer. In appeal No. D040186, Bernardo has appealed the order granting Planned Parenthood's section 425.16 motion to strike.
H. Order Awarding Attorney Fees to Planned Parenthood
Planned Parenthood brought a motion for a mandatory award of attorney fees under section 425.16(c) in the amount of $77,835.25. Bernardo opposed the motion, claiming the lawsuit was not a "sham"; that Planned Parenthood was seeking an improper enhancement on a contingency fee basis that would punish Bernardo's counsel in violation of his due process rights to notice; and that an award of fees under section 425.16(c) would violate Bernardo's rights under the United States and California Constitutions to petition the government for redress of grievances and exercise free speech in connection with a public issue, as well as Bernardo's due process right to meaningful notice as to when mandatory costs and fees will be levied, and the guarantee of equal protection in that section 425.16(c) "functions as a content-based penalty for certain suits and creates an invidious distinction between classes of litigants and causes which is not narrowly tailored to achieve any compelling governmental interest."
The court issued an order granting the attorney fees motion and awarding attorney fees to Planned Parenthood in the sum of $77,835.25. In appeal No. D040866, Bernardo has appealed that order.
DISCUSSION
I.
BERNARDO'S APPEAL FROM THE ORDER GRANTING PLANNED PARENTHOOD'S MOTION TO STRIKE THE COMPLAINT UNDER THE ANTI-SLAPP STATUTE
For reasons we shall explain, we independently conclude that Planned Parenthood was entitled to a judgment of dismissal under the anti-SLAPP statute because in opposing Planned Parenthood's motion to strike under section 425.16, Bernardo failed to state and substantiate a legally sufficient claim and thus failed to meet her statutory burden of showing a reasonable probability of prevailing on the claims for injunctive relief asserted in her complaint.
A. Standard of Review
"We review the trial court's rulings on a SLAPP motion independently under a de novo standard of review." (Kajima Engineering & Consruction., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
B. Overview of Section 425.16
In Dowling, supra, 85 Cal.App.4th at page 1414, this court explained that "[a] SLAPP lawsuit is generally defined as a 'meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.' [Citation.] SLAPP suits 'are brought, not to vindicate a legal right, but rather to interfere with the defendant's ability to pursue his or her interests. Characteristically, the SLAPP suit lacks merit; it will achieve its objective if it depletes defendant's resources or energy. The aim is not to win the lawsuit but to detract the defendant from his or her objective, which is adverse to the plaintiff. [Citation.]' [Citation.]"
As we also observed in Dowling, "[s]ection 425.16 was enacted in 1992 to deter and prevent SLAPP suits, and is 'designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition.' [Citation.] The anti-SLAPP statute 'is California's response to the problems created by meritless lawsuits brought to harass those who have exercised these rights.' [Citation.] 'California enacted section 425.16 to provide a procedural remedy to resolve such a suit expeditiously.' [Citation.]" (Dowling, supra, 85 Cal.App.4th at p. 1414, italics omitted.)
The Legislature expressly set forth the intent and purpose underlying the anti-SLAPP statute in section 425.16, subdivision (a), which provides: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly."
We further explained in Dowling that "'the common features of SLAPP suits are their lack of merit and chilling of defendants' valid exercise of free speech and the right to petition the government for a redress of grievances.' [Citation.] 'Section 425.16 was intended to address those features by providing a fast and inexpensive unmasking and dismissal of SLAPP's. [Citations.]' [Citation.]" (Dowling, supra, 85 Cal.App.4th at pp. 1414- 1415.)
1. Special motion to strike SLAPP suits
"[Section 425.16(b)(1) ] authorizes a special motion to strike a SLAPP suit, and expressly makes subject to such a motion '[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue ..., unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.'" (Dowling, supra, 85 Cal.App.4th at p. 1415, italics added by Dowling.)
In Dowling, we noted that "[s]ubdivision (e) of section 425.16 expressly defines the First Amendment activity from which a cause of action must arise within the meaning of section 425.16[ (b)(1)] ... in order to be the proper subject of a special motion to strike under the anti-SLAPP statute. [Citation.] Subdivision (e), as amended in 1997, provides that the phrase '"act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue,"' as used in section 425.16, includes four categories of conduct, which are separately defined in the subdivision's four clauses: [¶] 1) '[A]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law' (§ 425.16, subd. (e)(1)); [¶] 2) '[A]ny written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law' (§ 425.16, subd. (e)(2)); [¶] 3) '[A]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest' (§ 425.16, subd. (e)(3), [italics added by Dowling ] ); or [¶] 4) '[A]ny other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest' (§ 425.16, subd. (e)(4))." (Dowling, supra, 85 Cal.App.4th at pp. 1415-1416, fn. omitted.)
a. Burdens of proof
In Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier ), the California Supreme Court explained the two-step process that a court must follow in determining whether an action is a SLAPP within the meaning of section 425.16. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16[ (b)(1) ].) 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16[ (b)(1) ]; see generally Equilon [Enterprises v. Consumer Cause. Inc. (2002) 29 Cal.4th [53,] 67 [(Equilon ) ].)" (Navellier, supra, 29 Cal.4th at p. 88.)
The Navellier court also explained that "in order to establish the requisite probability of prevailing (§ 425.16[ (b)(1)]), the plaintiff need only have ' "stated and substantiated a legally sufficient claim." ' [Citation.] 'Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.] [¶] Only a cause of action that satisfies both prongs of the anti-SLAPP statute -- i.e., that arises from protected speech or petitioning and lacks even minimal merit -- is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at pp. 88-89.)
"In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) "[T]hough the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. [Citation.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
C. Analysis
The record shows Bernardo did not and cannot meet her statutory burden under the anti-SLAPP statute of showing a reasonable probability of prevailing on the merits of her claims for injunctive relief because (1) Bernardo's own evidence shows that Planned Parenthood's challenged statements about the claimed ABC link were expressions of opinion about an issue of genuine scientific debate, and those statements were noncommercial speech fully protected under the First Amendment to the United States Constitution and not actionable under either the UCL or FAL; (2) Bernardo's challenge to Planned Parenthood's statements regarding the safety of abortion failed as a matter of law because her own evidence showed that this challenge was based on the unsupported premise that the claimed ABC link was an established scientific fact; and (3) were we to assume Planned Parenthood's Web site statements were commercial speech that consisted of or were based on statements of fact, not opinion, Bernardo failed to show a reasonable probability of prevailing on the merits of her claims that the statements were unlawful, unfair or fraudulent within the meaning of Business and Professions Code section 17200 or constituted false advertising within the meaning of Business and Professions Code section 17500. We reject Bernardo's contentions that the court improperly weighed the evidence and improperly applied section 425.16 in violation of Bernardo's constitutional rights.