Daily Journal

LITIGATION • July 10, 2003

Much Activity Highlights This Year for Cases, Legislation on Anti-SLAPP Law

Focus Column

By Mark Goldowitz

Continuing a pattern from last year, much judicial and legislative activity this year has involved California's anti-SLAPP law, Code of Civil Procedure Section 425.16. This law protects against Strategic Lawsuits Against Public Participation, lawsuits that arise from a defendant's petition or speech activity, by providing a mechanism for speedy dismissal of meritless SLAPPs.

This year, state appellate courts have issued 19 published opinions involving the anti-SLAPP law. The state Supreme Court has five cases involving the statute before it. Including unpublished opinions, the appellate courts have issued 80 opinions dealing with the law this year.

The 4th District Court of Appeal, Division 3, issued two opinions that held that the anti-SLAPP law does not apply to lawsuits arising from pure commercial speech.

In Consumer Justice Center v. Trimedica International, 107 Cal.App.4th 595 (4th Dist. 2003), the court held that a lawsuit charging that the defendant published false advertisements about its product, "Grobust," a dietary herbal supplement that it claimed enlarged breasts, was not subject to the anti-SLAPP law. The court ruled that the advertisements did not involve an issue of public interest, in light of the number of people allegedly affected and the seriousness of the conditions treated.

In Nagel v. Twin Laboratories, 109 Cal.App.4th 39 (4th Dist. 2003), the same division held that a lawsuit charging that the defendant published false advertisements about the contents of its weight-loss dietary supplements was not subject to the anti-SLAPP law. The court ruled that the advertisements were merely designed to further the defendant's "private interest of increasing sales for its products" and thus were commercial speech and were not made in connection with a public issue.

Nagel distinguished an earlier opinion by the same division, DuPont Merck v. Superior Court, 78 Cal.App.4th 562 (4th Dist. 2000), which held that the anti-SLAPP statute did apply to a lawsuit challenging allegedly false statements made by DuPont in marketing a drug, on the ground that DuPont's advertising was "inextricably intertwined" with speech providing medical information to consumers and medical doctors and with its lobbying activities.

Roberts v. Los Angeles County Bar Association, 105 Cal.App.4th 604 (2nd Dist. 2003), involved a lawsuit by an unsuccessful candidate for Los Angeles Municipal Court judge in the March 2000 primary election. She sued the Los Angeles County Bar Association for breach of contract and fraud, based on the association rating her "not qualified" for the position.

The 2nd District reversed the trial court's denial of the bar association's anti-SLAPP motion. It held that the lawsuit was subject to the anti-SLAPP law because it arose from the bar association's conduct in furtherance of its petition or speech rights in connection with a public issue or an issue of public interest: its evaluations of judicial candidates.

The court also ruled that the complaint should be dismissed because the plaintiff had not shown that it had any merit: The plaintiff had not shown that she suffered any damages from the bar association's alleged improper actions and had not shown any fraud. The court also held that the plaintiff was not entitled to amend her complaint to avoid dismissal under the anti-SLAPP law.

In Navellier v. Sletten, 29 Cal.4th 82 (2002), the state Supreme Court last year ruled that a lawsuit alleging fraud and breach of contract was subject to the anti-SLAPP law because it arose from the defendant's petition activity: having filed counterclaims in a federal lawsuit. The court ruled that the defendant need not show that a lawsuit was filed with intent to chill the defendant's petition activity or that it, in fact, had a chilling effect.

On remand, the 1st District ruled this year that the complaint must be dismissed because the plaintiff had not shown that it had any merit. Navellier v. Sletten, 106 Cal.App.4th 763 (1st Dist. 2003), The court held that the plaintiff could not proceed on its fraud claim because the defendant's filing of counterclaims was absolutely privileged under the litigation privilege, Civil Code Section 47(b). It also held that the plaintiff had not shown that his breach-of-contract claim had merit because he had shown no damages.

Kids Against Pollution v. California Dental Association, 108 Cal.App.4th 1003 (1st Dist. 2003), involved two lawsuits alleging that the defendant had violated the state unfair-competition law by preventing dental patients from receiving accurate information regarding mercury amalgam fillings.

The 1st District reversed the trial court's denial of the defendant's anti-SLAPP motions. The court held that the anti-SLAPP statute applied to the complaints because they arose, in significant part, from the defendant's public expression of its views concerning the safety of dental amalgam and its issuance of an advisory opinion on the subject to dentists, which involved a public issue or an issue of public interest. The court held that the defendant's anti-SLAPP motion should be granted because the plaintiffs had not demonstrated that their complaints had merit.

In 1-800 Contacts v. Steinberg, 107 Cal.App.4th 568 (2nd Dist. 2003), a company that sold replacement contact lenses directly to consumers sued an optometrist/lawyer for inducing breach of contract and for conspiracy to breach fiduciary duties, based on the defendant's communications with other optometrists, optometric association representatives and former in-house counsel for the plaintiff, regarding possible legislation concerning mail-order contact lens sales.

The 2nd District affirmed the trial court's dismissal of the complaint as a meritless SLAPP. It held that the defendant's activities were covered under the anti-SLAPP law because they were statements made in furtherance of his rights of petition or speech and because they involved a public issue or an issue of public interest.

The court also held that the plaintiff had not submitted any admissible evidence that the defendant had engaged in any actionable conduct and that the defendant's statements were privileged under Civil Code Section 47(b).

In addition to all this judicial activity, the Legislature is considering SB515, by Sen. Sheila Kuehl, which would exempt certain consumer-protection and public-interest lawsuits from the anti-SLAPP law. The bill addresses increasing concerns that corporations are abusing the anti-SLAPP law to frustrate and obstruct legitimate lawsuits based on corporate misconduct, including cases such as Consumer Justice Center and Nagel.

Last year, the Legislature passed a similar bill, SB789 (Kuehl), but the governor, responding to strong opposition from business interests, vetoed it.

Earlier this year, SB515 passed the Senate on a 22-14 vote. On July 7, it passed the Assembly Judiciary Committee on a 9-4 vote.

Mark Goldowitz is a sole practitioner in Berkeley and the director of the California Anti-SLAPP Project. He specializes in defending against SLAPPs.

**********