Consumer Justice Center v. Trimedica

• Citation: 107 Cal.App.4th 595,132 Cal.Rptr.2d 191
• Decision Date: 27 March 2003
• Docket Number: No. G029800.,G029800.
• Court: California Court of Appeals
• Parties: CONSUMER JUSTICE CENTER et al., Plaintiffs and Respondents, v. TRIMEDICA INTERNATIONAL, INC., et al., Defendants and Appellants.

132 Cal.Rptr.2d 191

107 Cal.App.4th 595

CONSUMER JUSTICE CENTER et al., Plaintiffs and Respondents, v. TRIMEDICA INTERNATIONAL, INC., et al., Defendants and Appellants.

No. G029800.

Court of Appeal, Fourth District, Division 3.

March 27, 2003.

Rehearing Denied April 28, 2003.

Review Denied June 11, 2003.

Law Offices of Carlos F. Negrete and Carlos F. Negrete, San Juan Capistrano, for Defendants and Appellants.

Law Offices of Mark Boling and Mark Boling, Danville, for Plaintiff and Respondent.

OPINION

MOORE, J.

Do claims that a product offers "The All-Natural Way To A Fuller, More Beautiful Bust!" constitute speech on a matter of "public interest" within the meaning of Code of Civil Procedure section 425.16? We hold that they do not.

Trimedica International, Inc., Joseph Christy, Martha Christy, and General Nutrition Corporation (collectively Trimedica) appeal the trial court's order denying a special motion to strike pursuant to Code of Civil Procedure section 425.16 (all statutory references are to the Code of Civil Procedure unless otherwise noted). Trimedica contends the lawsuit filed by Consumer Justice Center and Melanie Mars (collectively CJC or plaintiffs) constitutes a strategic lawsuit against public participation (SLAPP suit). We affirm the trial court's ruling.

I FACTS

Plaintiffs sued Trimedica for false advertising, consumer fraud and related claims with respect to the product Grobust. Trimedica's literature states that Grobust is a pill that "offers a revolutionary breakthrough that provides a 100% natural alternative to breast implants." According to a "doctor" (see Section II.D, post) endorsing Grobust, "Claims of a breast enlargement of one half inch in 45 days have been substantiated."

CJC's complaint alleged that Trimedica's claims about Grobust were false and misleading, in violation of the Consumers Legal Remedies Act (Civ.Code, § 1770, subd. (a)(5)) and the unfair competition law (Bus. & Prof.Code, § 17200, et seq.). Trimedica filed a special motion to strike pursuant to section 425.16 (the anti-SLAPP statute), arguing the CJC complaint constituted a SLAPP suit because the claims arose from acts in furtherance of Trimedica's rights to petition and to engage in free speech under the federal and California Constitutions. CJC countered by arguing the anti-SLAPP statute was not intended to protect allegedly false commercial speech. The trial court denied the motion, stating that Trimedica's commercial speech regarding Grobust did not implicate a public issue within the meaning of the anti-SLAPP statute. Pursuant to section 425.16, subdivision (j), this appeal followed.

II DISCUSSION

A. Standard of Review

We exercise independent judgment to determine whether Trimedica's motion to strike should have been granted. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, 77 Cal.Rptr.2d 1.)

B. Statutory Context

The Legislature adopted the anti-SLAPP statute in 1992, finding that "[I]t is in the public interest to encourage continued participation in matters of public significance, and ... this participation should not be chilled through abuse of the judicial process." (§ 425.16, subd. (a).) Therefore, "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 shall be subject to a 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).) The statute is to be "construed broadly." (§ 425.16, subd. (a).)

An "`act in furtherance of a person's right of petition or free speech ... in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any 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; or (3) 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; (4) or any 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).)

The statute requires a two-part analysis to determine the propriety of granting or denying a motion to strike. First, we decide whether the causes of action arise from acts in furtherance of the defendant's right of free speech or right of petition. If the defendant has made such a showing, then we determine if the plaintiff has demonstrated a reasonable probability of prevailing. (§ 425.16, subd. (b)(1).) We address each issue in turn.

C. Acts in Furtherance of Trimedica's Rights of Free Speech and Petition

When the defendant's alleged acts fall under the first two prongs of section 425.16, subdivision (e) (speech or petitioning before a legislative, executive, judicial, or other official proceeding, or statements made in connection with an issue under review or consideration by an official body), the defendant is not required to independently demonstrate that the matter is a "public issue" within the statute's meaning. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113, 81 Cal.Rptr.2d 471, 969 P.2d 564.) If, however, the defendant's alleged acts fall under the third or fourth prongs of subdivision (e), there is an express "issue of public interest" limitation. (Id. at p. 1117, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

Because Trimedica's alleged acts constitute purely commercial speech and do not involve the rights of speech or petition before any official body, the public interest limitation applies. Therefore, unless Trimedica's speech concerns a matter of public interest within the meaning of the statute, section 425.16 does not apply.

Trimedica argues that "herbal dietary supplements and other forms of complementary medicine are the subject of public interest." As support, Trimedica cites regulations of herbal supplements by the Federal Trade Commission and the Food and Drug Administration pursuant to acts of Congress. Yet Trimedica's speech is not about herbal supplements in general. It is commercial speech about the specific properties and efficacy of a particular product, Grobust. If we were to accept Trimedica's argument that we should examine the nature of the speech in terms of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute.

CJC suggests a hypothetical regarding false statements made in the course of a real property sale. Blackacre sells a house to Whiteacre, and Whiteacre sues, claiming defendant misrepresented the square footage. Blackacre brings a special motion to strike, claiming his speech involves a matter of public interest, because millions of Americans live in houses and buy and sell houses. CJC correctly suggests that applying the anti-SLAPP statute in such a case would be absurd.

This case is no more about the general topic of herbal supplements than the hypothetical above is about the general topic of buying and selling houses. The lawsuit in the hypothetical is about the specific topic of whether Blackacre misrepresented the house's square footage to Whiteacre. The topic of this lawsuit is whether Trimedica misrepresented the specific properties and benefits of Grobust. Neither is a matter of general public interest within the meaning of the statute.

Although Trimedica cites DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 92 Cal.Rptr.2d 755 (hereafter DuPont) in support of its argument, this case supports our conclusion that Trimedica's claims about Grobust are not a matter of public interest. In DuPont, the consumer plaintiffs alleged the defendant pharmaceutical company artificially inflated the price of its product, Coumadin, by disseminating false information regarding the drug's generic equivalent. The complaint alleged the false statements were made before regulatory bodies, to the medical profession, and to the public. (Id, at p. 564, 92 Cal.Rptr.2d 755.) While the statements made before regulatory bodies fell under the first two prongs of section 425.16, subdivision (e), the statements to the public at large fell under the third and fourth prongs, and were therefore required to relate to a public issue.

(Id. at pp. 566-567, 92 Cal. Rptr.2d 755.) The court noted, "We find the answer to this question in the first amended complaint. Plaintiffs allege: `More than 1.8 million Americans have purchased Coumadin, an anti-coagulant medication, for the prevention and treatment of blood clots that can lead to life-threatening conditions such as stroke and pulmonary embolism.' Both the number of persons allegedly affected and the seriousness of the conditions treated establish the issue as one of public interest." (Id, at p. 567, 92 Cal.Rptr.2d 755.)

Like the DuPont court, we look to CJC's complaint, which alleges Trimedica made the following claim, among others, about Grobust: "The All-Natural Way To A Fuller, More Beautiful Bust! When you want a fuller, firmer, more beautiful bust-line, don't resort to traumatic, dangerous surgeries.... Herbal Grobust offers a revolutionary breakthrough that provides a 100% natural alternative to breast implants."

The conclusion that Grobust and Coumadin have little in common should be self-evident. Grobust does not treat life-threatening conditions such as stroke and pulmonary embolism, nor is there evidence it is widely used. Therefore, Grobust does not qualify as a matter of public interest by examining either "the number...