Animal Legal Defense Fund v. LT Napa Partners LLC

• Decision Date: 05 March 2015
• Docket Number: A139625
• Court: California Court of Appeals Court of Appeals
• Parties: ANIMAL LEGAL DEFENSE FUND, Plaintiff and Respondent, v. LT NAPA PARTNERS LLC, et al., Defendants and Appellants.

234 Cal.App.4th 1270

184 Cal.Rptr.3d 759

ANIMAL LEGAL DEFENSE FUND, Plaintiff and Respondent

v.LT NAPA PARTNERS LLC, et al., Defendants and Appellants.

A139625

Court of Appeal, First District, Division 5, California.

Filed March 5, 2015

Greenwald & Hoffman, Santa Ana, Paul A. Hoffman, and Paul Evan Greenwald ; Law Offices of Manuel S. Klausner and Manuel S. Klausner, Los Angeles; and The Michael Tenenbaum Law Firm and Michael Tenenbaum, Santa Monica, for Defendants and Appellants.

Animal Legal Defense Fund, Matthew Liebman, Cotati, and Christopher A. Berry; Fenwick & West, Mountain View, William R. Skinner for Plaintiffs and Respondents.

Drinker Biddle & Reath, Los Angeles, Sheldon Eisenberg and Erin E. McCracken for John L. Burton as Amicus Curiae on behalf of Plaintiffs and Respondents.

Opinion

SIMONS, J.

Plaintiff and respondent Animal Legal Defense Fund (plaintiff) filed an action against defendants and appellants LT Napa Partners LLC and Kenneth Frank (defendants), alleging defendants sold foie gras in their Napa restaurant in violation of section 25982 of the Health and Safety Code (Section 25982 ). Defendants moved to strike plaintiff's claim pursuant to the anti-SLAPP statute,¹ section 425.16 of the Code of Civil Procedure (Section 425.16 ). Defendants appeal from the trial court's denial of the motion. We affirm.²

BACKGROUND

In 2004, the Legislature enacted Section 25982, banning the sale of foie gras effective July 1, 2012. (See Health & Saf. Code §§ 25980, et seq. ) Plaintiff advocated for passage of the ban and has been active in informing the public about the law and its view that production of foie gras involves cruelty to animals.³ Defendant Frank, who is the head chef at Napa restaurant La Toque, has been a vocal opponent of Section 25982. For example, he testified at state Senate hearings preceding passage of the law, publicly debated the merits of the ban, and authored a newspaper opinion article against the ban. La Toque is owned by defendant LT Napa Partners, LLC (“LT Napa”); Frank is the managing member of LT Napa.

After the ban went into effect, plaintiff paid an investigator to dine at La Toque on three occasions in September 2012, October 2012, and March 2013. On each occasion he requested foie gras and was told that if he ordered an expensive tasting menu he would receive foie gras. On two of the occasions it was described as a “gift” from the chef. He ordered the tasting menus and was served foie gras. He was not told he was served foie gras in protest against the foie gras ban and was not provided information about defendant Frank's opposition to the foie gras ban.⁴

Plaintiff brought the results of its investigation to Napa law enforcement authorities. Over the course of three months, plaintiff attempted to persuade the Napa authorities to take action based on the alleged violation of Section 25982 at La Toque, but the city attorney declined. Subsequently, plaintiff initiated the present suit, alleging a cause of action under the unfair competition law (“UCL”) (Bus. & Prof. Code §§ 17200, et seq. ) based on defendants' alleged violation of Section 25982. Plaintiff does not request damages but seeks an injunction prohibiting defendants from “furnishing, preparing, or serving foie gras in any form or manner whatsoever.”

Defendants brought a special motion to strike plaintiff's action as a SLAPP under Section 425.16. The trial court denied the motion, concluding defendants had failed to show plaintiff's cause of actionarose from protected activity and concluding plaintiff had shown a probability of prevailing on the merits. This appeal followed.⁵

DISCUSSION

I. The Anti–SLAPP Law

“In 1992, the Legislature enacted [S]ection 425.16 in an effort to curtail lawsuits brought primarily ‘to chill the valid exercise of ... freedom of speech and petition for redress of grievances' and ‘to encourage continued participation in matters of public significance.’ (§ 425.16, subd. (a).) The section authorizes a special motion to strike ‘[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 [Constitution] or [the] California Constitution in connection with a public issue....’ (§ 425.16, subd. (b)(1).) The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the special motion to strike ‘unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ (§ 425.16, subd. (b)(1).)” (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395–1396, 126 Cal.Rptr.2d 560, fn. omitted (Gallimore ).)

“The statutory language establishes a two-part test. First, it must be determined whether the plaintiff's cause of action arose from acts by the defendant in furtherance of the defendant's right of petition or free speech in connection with a public issue. [Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in [S]ection 425.16, subdivision (e).’ [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a reasonable probability of success on his or her claims at trial.” (Gallimore, supra, 102 Cal.App.4th at p. 1396, 126 Cal.Rptr.2d 560.) “Whether [S]ection 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal.” (Ibid. ) The statute provides that Section 425.16 “shall be construed broadly.” (§ 425.16, subd. (a).)

II. We Assume for Purposes of Appeal That Plaintiff's Lawsuit Arises out of Defendants' Conduct in Furtherance of Protected Speech

A defendant can meet its burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the act underlying the plaintiff's cause of action falls within one of the four categories identified in Section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695.) Among other things, defendants contend plaintiff's UCL claim arises out of “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).) In particular, they contend the serving of foie gras at La Toque was in furtherance of defendant Frank's public opposition to the foie gras ban. For purposes of the present appeal we will assume that conduct is protected activity within the meaning of Section 425.16, subdivision (e). (See Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 56, 117 Cal.Rptr.3d 805 [assuming satisfaction of first step and proceeding to consideration of second step of Section 425.16 analysis].)

III. Plaintiff Has Demonstrated a Probability of Prevailing

In order to establish a probability of prevailing for purposes of Section 425.16, subdivision (b)(1), “ ‘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.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, 124 Cal.Rptr.2d 530, 52 P.3d 703.) However, a defendant that advances an affirmative defense to the plaintiff's claims bears the burden of proof on the defense. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676, 35 Cal.Rptr.3d 31.)

“The UCL prohibits, and provides civil remedies for, unfair competition, which it defines as ‘any unlawful, unfair or fraudulent business act or practice.’ ( [Bus. & Prof. Code] § 17200.) Its purpose ‘is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ [Citations.] In service of that purpose, the Legislature framed the UCL's substantive provisions in ‘ “broad, sweeping language” ’ [citations] and provided ‘courts with broad equitable powers to remedy violations.’ ” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320, 120 Cal.Rptr.3d 741, 246 P.3d 877 (Kwikset ).)

On appeal, defendants contend plaintiff failed to demonstrate a probability of prevailing because plaintiff lacks standing, there is no basis for liability against defendant Frank, and plaintiff's evidence fails to show defendants sold foie gras within the meaning of Section 25982. We disagree.

A. Plaintiff Has Shown a Probability of Prevailing on The Standing Issue

1. Legal Background

In Kwikset, supra, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, the California Supreme Court examined the standing requirements of the UCL in light of the 2004 approval of Proposition 64. The court explained that, “While the substantive reach of [the UCL] remains expansive, the electorate has materially curtailed the universe of those who may enforce [its] provisions.... ‘In 2004, the electorate substantially revised the UCL's standing requirement; where once private suits could be brought by “any person acting for the interests of itself, its members or the general public” [citation], now private standing is limited to any “person who has suffered injury in fact and has lost money or property” as a result of unfair competition. [citations]. The intent of this change was to confine standing to those actually injured by a defendant's business practices and to curtail the prior practice of filing suits on behalf of “ ‘clients who have not used the defendant's product or service, viewed the defendant's advertising, or had any other business dealing with the defendant....’ ” [Citation.] While the voters clearly intended to restrict UCL standing, they just as plainly preserved standing for those who had...