Martinez v. Metabolife Intern., Inc.

• Decision Date: 12 November 2003
• Docket Number: No. D040279,D040279
• Citation: 113 Cal.App.4th 181,6 Cal.Rptr.3d 494
• Court: California Court of Appeals Court of Appeals
• Parties: Gloria MARTINEZ et al., Plaintiffs and Respondents, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.

6 Cal.Rptr.3d 494

113 Cal.App.4th 181

Gloria MARTINEZ et al., Plaintiffs and Respondents, v. METABOLIFE INTERNATIONAL, INC., Defendant and Appellant.

No. D040279

Court of Appeal, Fourth District, Division One

November 12, 2003

Review Denied February 24, 2004.

Higgs, Fletcher & Mack, John Morris, William A. Low, Susan M. Hack, San Diego; Akin Gump Strauss Hauer & Feld, Rex S. Heinke and Jonathan Gottlieb, Los Angeles, for Defendant and Appellant.

Law Offices of Christopher E. Grell, Christopher E. Grell, Oakland, and Ian P. Dillon for Plaintiffs and Respondents.

McDONALD, J.

Respondents Gloria and George Martinez (together Plaintiffs) filed this action against appellant Metabolife International, Inc. (MII) alleging that Gloria 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 stroke caused by her use of the Product. MII appeals from the order denying its motion to strike Plaintiffs' complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16).

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

Gloria consumed the Product for approximately three years before she suffered a severe stroke in October 2000. Plaintiffs' complaint, alleging that Gloria's physical injuries were caused by the effects of ingredients (including ephedrine) contained in the Product, pleaded causes of action for product liability, negligence, breach of implied warranty, breach of express warranty and fraud, and sought compensatory and punitive damages.¹

B. The Anti-SLAPP Motion

MII moved to strike the complaint under the anti-SLAPP statute. MII argued Plaintiffs' 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); the complaint was laced with allegations referring to MII's labeling of and advertising for the Product, and each of the discrete causes of action contained at least one express or implied reference to this speech. MII argued that because Plaintiffs' causes of action arose out of protected speech, the burden shifted to Plaintiffs to show a reasonable probability of success on the merits.

Plaintiffs opposed the motion to strike, arguing that MII could not meet the threshold burden to show the claims for product liability, negligence, fraud, and breach of implied warranty were within the ambit of the anti-SLAPP law. Plaintiffs argued those claims were based on conduct not protected by the First Amendment; instead, the claims arose from unprotected conduct, including manufacturing and distributing a defective Product, not testing the Product, knowingly misrepresenting the risks associated with consuming the Product, and implying the Product was suitable for its intended purpose or reasonably fit for human consumption. Plaintiffs also asserted that, even were the claim for breach of express warranty within the ambit of the anti-SLAPP statute, they could show a reasonable probability of success on the merits.² The trial court denied MII's motion, and we affirm.³

II ANALYSIS

A. 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 the 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.)

B. Plaintiffs' Claims and the Ambit of the Anti-SLAPP Statute

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.

The parties cite no cases evaluating the specific issue before us: whether a claim for physical injury allegedly caused by use of a product, asserting theories of liability sounding in tort, contract and strict liability, is within the ambit of the anti-SLAPP statute. 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); it contends 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.

Our Supreme Court has recognized that the anti-SLAPP statute should be broadly construed (Equilon, supra, 29 Cal.4th at p. 60, fn. 3, 124 Cal.Rptr.2d 507, 52 P.3d 685), and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a "garden variety breach of contract [or] fraud claim" when in fact the liability claim is based on protected speech or conduct. (Navellier, supra, 29 Cal.4th at pp. 90-92, 124 Cal.Rptr.2d 530, 52 P.3d 703.) However, no matter how broadly we construe the anti-SLAPP statute, MII's liability (if any) for Plaintiffs' injuries cannot be characterized as being premised on speech or conduct by MII protected by the First Amendment. Dictum in Fox Searchlight suggested "a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one `cause of action.'" (Fox Searchlight, supra, 89 Cal.App.4th at p. 308, 106 Cal.Rptr.2d 906.) Conversely, a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. (See Paul v. Friedman, supra, 95 Cal.App.4th at p. 866, 117 Cal.Rptr.2d 82 ["[t]he statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding"].) We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute a...