Daily Journal

LITIGATION • July 9, 2004

Published Opinions About Anti-SLAPP Matters Surge

Focus Column

By Mark Goldowitz

This year, the courts have continued and accelerated a trend of issuing a large number of published opinions - 21 in the first six months of this year - arising from the California anti-SLAPP law. This law, Code of Civil Procedure Section 425.16, protects against Strategic Lawsuits Against Public Participation, lawsuits that arise from a defendant's petition or speech activity, by providing speedy dismissal of such suits.

The most significant developments relate to a new law which took effect Jan. 1. This law, Code of Civil Procedure Section 425.17, was enacted to prevent corporate abuse of the anti-SLAPP law. It exempts from the anti-SLAPP law public interest lawsuits which are brought solely for the benefit of the general public and also exempts claims involving false representations by a business directed at potential customers regarding the business's products or services or the products or services of a competing business. (Section 425.17(b) and (c).)

Three published opinions this year held the exemption in Section 425.17 applicable to the lawsuit before the court and upheld the constitutionality of the new law.

In the first such opinion, Brenton v. Metabolife International, 116 Cal.App.4th 679 (2004), the plaintiff sued for personal injuries, claiming that she suffered a psychotic breakdown as a result of taking the defendant's product, a dietary supplement containing ephedrine which was marketed as a weight-loss product. Metabolife filed an anti-SLAPP motion, claiming that the lawsuit arose from its advertising and labeling of its product, and that such commercial speech involved a matter of public interest and therefore was covered by the anti-SLAPP law.

The trial court denied Metabolife's motion and the 4th District Court of Appeal affirmed. The court held that the core of the wrongful injury-producing conduct alleged was that the defendant manufactured and sold a defective product, which did not involve petition or speech activity protected by the anti-SLAPP law.

The court also held, as an alternative ground, that the plaintiff's claims were exempt from the anti-SLAPP law under new Section 425.17(c), the commercial speech exemption. The court rejected Metabolife's argument that the application of Section 425.17 to the lawsuit would be an improper retroactive application of the statute. It held that Section 425.17 was a procedural statute which was applicable to pending actions. The court also rejected Metabolife's argument that Section 425.17 was an unconstitutional regulation or restriction on commercial speech, holding that the Legislature was not constitutionally required to make the anti-SLAPP remedy available to defendants in private lawsuits arising from commercial speech.

In Metcalf v. U-Haul International, 192 Cal.App.4th 694 (2004), the plaintiff filed a class action, alleging that the defendant systematically overstated the size of its self-storage rental units. U-Haul filed an anti-SLAPP motion, claiming that the lawsuit arose from its exercise of its right of free speech. The trial court denied the motion, and the 4th District Court of Appeal affirmed.

The court held that under Section 425.17(c), the lawsuit was not subject to the anti-SLAPP law because it arose from statements made in connection with commercial transactions.

Citing Brenton, the Metcalf court held that the new statute properly applied to pending actions. It also rejected the defendant's argument that Section 425.17 violated its constitutional right to equal protection by exempting from the scope of the anti-SLAPP law commercial speech by corporate defendants, holding that Section 425.17 created a classification which was rationally related to a legitimate state interest.

In Physicians Committee for Responsible Medicine v. Tyson Foods, 119 Cal.App.4th 120 (2004), plaintiff sued the defendant for engaging in false and deceptive advertising of its chicken products. The trial court granted Tyson's anti-SLAPP motion as to four causes of action. The 1st District Court of Appeal reversed. Citing Brenton, it held that under Section 425.17(c), the lawsuit was not subject to the anti-SLAPP law. It also rejected Tyson's argument that Section 425.17 was unconstitutional.

Other opinions this year also indicate the type of cases where the anti-SLAPP law does apply.

In Zamos v. Stroud, 32 Cal.4th 958 (2004), the California Supreme Court, following its previous opinion in Jarrow Formulas v. LaMarche, 31 Cal.4th 728 (2003), ruled that the anti-SLAPP law applies to a complaint for malicious prosecution. However, it held, on an issue of first impression, that the anti-SLAPP motion by defendant Stroud should have been denied because the tort of malicious prosecution includes continuing to prosecute a lawsuit after discovery that it lacks probable cause, and the plaintiff's evidence supported a finding that Stroud had done that.

In Bernardo v. Planned Parenthood Federation of America, 115 Cal.App.4th 322 (2004), the plaintiffs' suit claimed that statements on Planned Parenthood Web sites and fact sheets that abortion is safe or safer than childbirth and that medical research has failed to establish a link between induced abortion and cancer constituted false advertising and unfair business practices. The trial court granted Planned Parenthood's anti-SLAPP motion, dismissing the complaint and awarding Planned Parenthood $77,835 in fees.

The 4th District Court of Appeal affirmed. The court held that the challenged statements were fully protected noncommercial speech, that the statements about the abortion-cancer issue were expressions of opinion about an issue of genuine scientific debate, that the plaintiff had not shown that the claimed link between abortion and cancer was an established scientific fact, and that the plaintiff had not shown the statements were false advertising or unfair business practices.

The court also affirmed the fee award, rejecting plaintiffs' arguments that the application of the fee provision of the anti-SLAPP law (which provides for mandatory fees for prevailing defendants) violated plaintiffs' constitutional rights of petition, due process, and equal protection.

In Garment Workers Center v. Superior Court, 117 Cal.App.4th 1156 (2004), the defendants filed an anti-SLAPP motion challenging a libel claim, and the trial court granted plaintiffs' motion to conduct discovery on the issue of actual malice before the hearing on defendants' motion to strike plaintiffs' libel claim as a SLAPP. Defendants challenged this ruling with a petition for writ of mandate in the 2nd District Court of Appeal.

That court ruled that the trial court had abused its discretion in permitting discovery on the issue of actual malice before first determining, after briefing and argument, whether plaintiffs had shown a probability of establishing the other elements of their libel cause of action (whether the complaint stated a cause of action for libel and whether the statements giving rise to the claim were false). The court held that this improperly deprived the defendants of the protections afforded by the statutory freeze on discovery while the anti-SLAPP motion is pending.

In The Traditional Cat Association v. Gilbreath, 118 Cal.App.4th 392 (2004), the plaintiffs sued the defendants for defamation, based on Web site statements which were highly critical of plaintiffs. The 4th District Court of Appeal found that the anti-SLAPP law applied, because, given the controversy surrounding the parties' dispute and its evident notoriety in the cat breeding community, the Web site statements concerned matters of public interest in the cat breeding community.

The court also held that defendant's anti-SLAPP motion should have been granted, based on the statute of limitations defense and the single-publication rule, because the plaintiff's complaint was filed more than one year after the challenged statements first appeared on the Web site. In so ruling, the court rejected the argument by the plaintiffs and the ruling by the trial court that only constitutional defenses could be considered in support of defendants' anti-SLAPP motion.

Finally, the California Supreme Court unanimously voted to grant review in Barrett v. Rosenthal, S122953, which raises the issue of whether those who repost the words of another on the Internet are immune from civil liability under Section 230 of the Communications Decency Act, 47 U.S.C. Section 230.

Mark Goldowitz, a sole practitioner in Berkeley, is the director of the California Anti-SLAPP Project, which co-sponsored the legislation leading to the enactment of Section 425.17. He is co-counsel in Barrett v. Rosenthal.

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