Kids against Pollution v. California Dental

• Decision Date: 21 May 2003
• Docket Number: No. A098396.,A098396.
• Citation: 134 Cal.Rptr.2d 373,108 Cal.App.4th 1003
• Court: California Court of Appeals Court of Appeals
• Parties: KIDS AGAINST POLLUTION et al., Plaintiffs and Respondents, v. CALIFORNIA DENTAL ASSOCIATION, Defendant and Appellant.

134 Cal.Rptr.2d 373

108 Cal.App.4th 1003

KIDS AGAINST POLLUTION et al., Plaintiffs and Respondents, v. CALIFORNIA DENTAL ASSOCIATION, Defendant and Appellant.

No. A098396.

Court of Appeal, First District, Division 3.

May 21, 2003.

Rehearing Denied June 18, 2003.

Review Granted September 17, 2003.

Law Offices of Shawn Khorrami, Shawn Khorrami, Matt C. Bailey, for plaintiffs and respondents.

Gordon & Rees, LLP, Jewel Rolling Basse, Fletcher C. Alford, San Francisco, Joel K. Liberson, Los Angeles, California Dental Association, Linda J. Seifert, for defendant and appellant.

Fred J. Hiestand, Sacramento, for The Civil Justice Association of California (CJAC), Amicus Curiae on behalf of defendant and appellant.

POLLAK, J.

Defendant California Dental Association (CDA) appeals from the denial of its motion under Code of Civil Procedure section 425.16,¹ commonly known as the anti-SLAPP (strategic lawsuit against public participation) statute, to strike two virtually identical complaints brought against it by several individuals and nonprofit organizations. The complaints allege four causes of action under California's unfair competition law, Business and Professions Code section 17200 et seq. (UCL), each predicated on a different legal theory, challenging an alleged "course of conduct and a business practice spanning over many decades in order to assure that patients do not receive accurate information regarding mercury amalgam fillings."² The trial court denied the motion, finding that although the actions arise out of CDA's acts in furtherance of its right of free speech or right of petition, plaintiffs made a prima facie showing that they were likely to prevail in the actions. For the reasons explained below, we conclude that the motion should have been granted.

I. Plaintiffs' Complaints and the Motion to Strike

A. The Complaints

Plaintiffs' complaints allege that mercury is conclusively known to cause adverse health effects in humans, that mercury is the major component of amalgam dental fillings, that mercury vapors constantly emit from amalgam fillings, and that according to the United States Public Health Service, the major cause of mercury toxicity for most people is amalgam fillings. Yet, the complaints allege, the American Dental Association (ADA) and CDA "have, for years, sent out literature, informational materials, advertisements, and other written correspondence, and also made oral representations, all of which were deliberately intended to disguise mercury amalgam fillings as silver. The ADA and CDA have concealed and provided false information to their members and the general public regarding the significant risk of harm and toxic injury from such fillings to consumers, and dental practitioners.... [¶] ... This deception takes the form of concealment, openly false representations, and an outward aggression toward those who do not agree with the Defendants. It is layer upon layer of actions by the Defendants from their pamphlets and other written and oral materials, to accreditation of dental schools, to revocation of licenses of those dentists who oppose the Defendants' position."

More specifically, the complaints allege deceptive conduct "in at least seven distinct categories," namely: falsely representing that amalgam is silver in brochures distributed to the public, hiding the existence of mercury in dental fillings from the public by telling dentists to avoid using the word "mercury" in their disclosures to patients, hiding the ADA's economic stake in amalgam sales by failing to disclose the revenues ADA receives from manufacturers for issuing its "Seal of Acceptance" for amalgam products, hiding the controversy about the health effects of mercury, "gag[ging] dentists who believe amalgam is dangerous" "through the guise of so-called `ethical' rules" which prevent dentists "from informing patients of the dangers of mercury by pronouncing as `unethical' the practice of even suggesting the removal of amalgam due to their toxicity," hiding the dangerous environmental impact of amalgam from the public by using a "powerful lobbying presence" to secure administrative orders freeing dentists from accountability for the environmental impact of amalgam, and creating a third-party reimbursement program (Delta Dental Plans) which favors the use of amalgam. While many of these allegations relate primarily if not exclusively to ADA, which did not join in the anti-SLAPP motion and is not a party to the appeal, CDA is alleged to be directly responsible for the public distribution of false information concerning amalgam and for the enforcement of the rule of ethics that plaintiffs challenge.

The complaints allege that "Defendants, and each of them, have undertaken ... a policy and practice, as manifested in their so-called `ethical' rules, to prevent warnings and information regarding mercury from reaching the exposed population, namely the patients," and have "retaliated against dentists who disclose to their patients the toxicity of mercury by causing the enforcement of their gag rules." One cause of action, the second, alleges that this conduct violates the UCL because it contravenes Business and Professions Code section 510, which is designed to "provide protection against retaliation for health care practitioners who advocate for appropriate health care for their patients" (id., subd. (a)) and declares it to be a violation of the public policy of this state to "penalize a health care practitioner principally for advocating for appropriate health care consistent with that degree of learning and skill ordinarily possessed" by qualified reputable practitioners (id., subd. (c))³. The third cause of action, also under the UCL, alleges that these same practices violate Business and Professions Code section 2056, which is similar to section 510 except that it applies specifically to physicians and surgeons.⁴

The fourth cause of action bases the asserted UCL violation upon the allegation that all of the practices described in the complaints violate the public policy expressed in the Health and Safety Code "that the public should be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm ... and that such exposures must be eliminated wherever and whenever possible."⁵ Finally, the fifth cause of action alleges that defendants'"representations through their correspondence, brochures, literature, their so-called `ethical' rules, and actions, both express and implied, that amalgam is safe for use and that there is no health concern related thereto" are false and that such public deception constitutes an unfair and deceptive practice within the meaning of the UCL.

The prayer of both complaints seeks restitution and attorney fees, and an injunction prohibiting CDA from "[disseminating false, misleading, and inaccurate information as set forth in Defendants' written materials regarding the existence and toxicity of mercury in dental amalgam without first providing, to consumers and users, and other individuals who come into contact with such amalgams," and from "[referring to mercury amalgam fillings as `silver.'" The prayers also request an order requiring CDA "to provide clear and reasonable warnings to consumers and dental professionals, that the amalgam causefs] exposure to Mercury and Mercury Compounds, chemicals known to the State of California to be reproductive and/or developmental toxins, and which are neurotoxins, and are associated with a host of other adverse health effects" and requiring it to remove from its "ethical rules any rule that prohibits a dental professional from discussing with his or her patients the risks and efficacies of mercury amalgam fillings...."⁶

B. The Special Motion to Strike

Within the time limits prescribed by section 425.16, subdivision (f), CDA moved to strike the consolidated complaints under the anti-SLAPP statute. CDA argued that it is a nonprofit professional organization that has no financial interest in the manufacture or sale of dental amalgam, and that it was being sued solely for disseminating information "to the public and to dentists regarding an important public health issue within its area of expertise— the safety of dental amalgam." Based in part upon studies conducted by the Dental Board of California and the United States Department of Health and Human Services, its position as reflected in the literature it distributed "is that no valid scientific evidence exists that dental amalgam poses any health risks—other than rare, localized allergic reactions. Thus no medical reason exists for dental patients to spend thousands of dollars to have functional dental amalgam removed or to avoid having the material placed in their mouths as part of normal dental treatment." CDA argued that the complaints should be stricken because they arise from the exercise of its constitutional right of free speech in connection with an issue of public interest. Further, it argued that plaintiffs could not satisfy their burden of demonstrating a probability they would prevail because all of CDA's communications were privileged under Civil Code section 47, subdivision (c) and because its conduct in distributing literature concerning dental amalgam "constitutes classic, non-commercial free speech, and cannot in any way be characterized as a `business act or practice' " within the meaning of Business and Professions Code section 17200.

In opposition, plaintiffs contended that their complaints do not address "the CDA's advocacy of its position on amalgam, unsupportable as it may be," but are directed only to CDA's alleged suppression of dentists' ability to discuss the risks of amalgam with their patients, and most specifically the enforcement of advisory opinion No. 5.A.1 of the "Principles of Ethics and Code of Professional Conduct" (hereafter, the advisory opinion) adopted by the ADA.⁷ Section 5.A of these principles states simply...