Brenton v. Metabolife Intern., Inc.

• Decision Date: 04 March 2004
• Docket Number: No. D040337.,D040337.
• Citation: 116 Cal.App.4th 679,10 Cal.Rptr.3d 702
• Parties: Ashleigh BRENTON, Plaintiff and Respondent, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

10 Cal.Rptr.3d 702

116 Cal.App.4th 679

Ashleigh BRENTON, Plaintiff and Respondent, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.

No. D040337.

Court of Appeal, Fourth District, Division 1.

March 4, 2004.

Lewis, Brisbois, Bisgaard & Smith, Costa Mesa, R. Gaylord Smith and Jeffrey A. Miller, Menlo Park, for Defendant and Appellant.

Law Offices of Christopher E. Grell, Christopher E. Grell, Oakland, and Ian P. Dillon for Plaintiff and Respondent.

McDONALD, J.

Plaintiff Ashleigh Brenton filed this action against defendant Metabolife International, Inc. (MII) alleging that Brenton used Metabolife 356 (the Product), a product manufactured and marketed by MII, in accordance with the instructions provided by MII, and that she suffered a psychotic breakdown as the result of her use of the Product. MII appeals the order denying its motion to strike Brenton's complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16).¹

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

Brenton's complaint alleged she consumed the Product in accordance with the use instructions for a few months before she suffered a psychotic breakdown in June 2000, and that her injuries were caused by the effects of ingredients (including ephedrine) contained in the Product. Brenton pleaded causes of action for product liability, negligence, breach of express and implied warranty, and fraud, and sought compensatory and punitive damages. She also alleged that MII's false advertising for and misbranding of the Product violated Business and Professions Code sections 17200 and 17500 and sought the remedies provided by those statutes.²

B. The Anti-SLAPP Motion

MII moved to strike the complaint under the anti-SLAPP statute. MII argued Brenton's complaint targeted MII's commercial speech, which can qualify for First Amendment protection (see generally Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 493, 101 Cal.Rptr.2d 470, 12 P.3d 720); MII noted that the complaint was replete with allegations referring to MII's labeling of and marketing for the Product, and each of the discrete causes of action contained at least one express or implied reference to this commercial speech. MII argued that because Brenton's causes of action arose out of protected speech, the burden shifted to Brenton to show a reasonable probability of success on the merits.

Brenton opposed the motion to strike, arguing that MII could not meet the threshold burden to show her claims were within the ambit of the anti-SLAPP statute because her claims were not based on conduct protected by the First Amendment. Brenton also asserted that, even if the court deemed some or all of her claims to be within the ambit of the anti-SLAPP statute, she could show a reasonable probability of success on the merits.³ The trial court denied MII's motion, and we affirm.⁴

II THE ANTI-SLAPP STATUTE

The anti-SLAPP statute was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims "arising from any act" of a defendant "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 ...." (§ 425.16, subd. (b)(1).) To achieve this objective, the Legislature authorized the filing by a defendant of a special motion to strike those claims within 60 days after service of the complaint. (§ 425.16, subds.(b)(1), (f).) An anti-SLAPP motion "requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon).) The trial court's determination of each step is subject to de novo review on appeal. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456, 125 Cal.Rptr.2d 534.)

III

ANALYSIS OF BRENTON'S INDIVIDUAL CLAIMS

A. Ambit of Section 425.16

The anti-SLAPP statute applies only to a "cause of action ... arising from" acts in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue (§ 425.16, subd. (b)(1)), and it is the defendant's burden in an anti-SLAPP motion to initially show the suit is within the class of suits subject to a motion to strike under section 425.16. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304, 106 Cal.Rptr.2d 906 (Fox Searchlight).) "In deciding whether the initial `arising from' requirement is met, a court considers `the pleadings, and supporting and opposing affidavits stating the facts [on] which the liability or defense is based.' "(Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier).)

The courts have struggled to refine the boundaries of a cause of action that arises from protected activity. In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (Cotati), the court explained that "the statutory phrase `cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (Second italics added.) In Navellier, the court cautioned that the "anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703, original italics.) Accordingly, the "arising from" prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Id. at pp. 89-95, 124 Cal.Rptr.2d 530, 52 P.3d 703), regardless of whether the plaintiff's lawsuit was intended to chill (Equilon, supra, 29 Cal.4th at p. 58, 124 Cal.Rptr.2d 507, 52 P.3d 685) or actually chilled (Cotati, supra, 29 Cal.4th at p. 75, 124 Cal.Rptr.2d 519, 52 P.3d 695) the defendant's protected conduct.

B. Brenton's Individual Claims

The specific issue presented here is a recurring one:⁵ whether a claim for physical injury against a manufacturer allegedly caused by use of its product asserting theories of liability sounding in tort, contract and strict liability, is within the ambit of the anti-SLAPP statute merely because the manufacturer also engaged in commercial speech to market that product. Although section 425.16, subdivision (e) specifies four categories of conduct that qualify for anti-SLAPP protection, MII's argument relies on only two of those categories: "any 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" (subd. (e)(3)) and "any other conduct in furtherance of the exercise of ... the constitutional right of free speech in connection with a public issue or an issue of public interest" (subd. (e)(4)). MII asserts its labeling of and advertising for the Product constitute written statements made in a place open to the public in connection with an issue of public interest within the meaning of subdivision (e)(3), and there is widespread public interest in dietary supplements generally and in the Product in particular. MII also asserts that its labeling of and advertising for the Product are within the meaning of subdivision (e)(4) because labels and advertisements are commercial speech entitled to First Amendment protection and concern dietary supplements, an issue of public interest.

In Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 6 Cal.Rptr.3d 494, this court determined, on facts substantively indistinguishable from the facts of this case, that a claim against a manufacturer for personal injuries to a consumer caused by a defective product cannot be characterized as a claim premised on First Amendment-protected speech or conduct by the manufacturer within the meaning of the anti-SLAPP statute. Martinez held that "it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Id. at p. 188, 6 Cal.Rptr.3d 494, original italics.) Martinez concluded protected speech is not the gravamen or principal thrust of claims seeking recovery for personal injuries to a consumer caused by a defective product, even though commercial speech might be mentioned in the complaint, because such speech "is largely unrelated to and entirely distinct from the wrongful, injury-causing conduct ... on which Plaintiffs' claims are premised." (Ibid.)

As in Martinez, the core of the wrongful injury-producing conduct alleged here is that MII manufactured and sold a defective product that caused Brenton's physical injuries, and the theories pleaded here as to Brenton's individual claims mirror those considered in Martinez. Other than its disagreement with the decision in Martinez, MII articulates no principled reason that Martinez should not control our decision on the applicability of the anti-SLAPP statute to Brenton's...