Pcrm v. Tyson Foods, Inc.

• Decision Date: 01 June 2004
• Docket Number: No. A103835.,A103835.
• Citation: 119 Cal.App.4th 120,13 Cal.Rptr.3d 926
• Court: California Court of Appeals Court of Appeals
• Parties: PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, Plaintiff and Appellant, v. TYSON FOODS, INC., Defendant and Respondent.

13 Cal.Rptr.3d 926

119 Cal.App.4th 120

PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, Plaintiff and Appellant, v. TYSON FOODS, INC., Defendant and Respondent.

No. A103835.

Court of Appeal, First District, Division 1.

June 1, 2004.

Review Denied September 22, 2004.^*

Animal Law Associates, David Blatte, Esq., Daniel Kinburn, Esq., Mindy Kursban, Esq., for Plaintiff and Appellant.

Sidley, Austin, Brown and Wood LLP, Timothy T. Scott, Esq., Geoffrey M. Ezgar, Esq., San Francisco, James M. Harris, Esq., Los Angeles, for Respondent.

SWAGER, J.

Physicians Committee for Responsible Medicine (hereafter PCRM) appeals an order granting the motion of defendant and respondent Tyson Foods, Inc. (hereafter Tyson) pursuant to Code of Civil Procedure section 425.16 to strike four causes of action of PCRM's complaint. We reverse.

PROCEDURAL BACKGROUND

In a suit for injunctive relief, PCRM alleges that Tyson made false and deceptive representations about chicken products that it sold to consumers in California. PCRM alleges it is a nonprofit health-advocacy organization, which claims to have 24,000 members in the state. Tyson is the world's largest poultry producer and sells more than 25 percent of the total chicken meat products consumed by Americans.

The complaint alleges that Tyson engaged in two advertising campaigns, which disseminated false and deceptive statements about its products in violation of Business and Professions Code section 17500. The first and second causes of action concern advertisements carried on the allrecipes.com Web site, in which Tyson allegedly portrayed chicken meat as a "heart-healthy" food and advised consumers to serve chicken "as often as you like." The advertisement then lists Tyson's chicken products that have been certified by the American Heart Association as being low in saturated fats and cholesterol. PCRM alleges that the advertisement creates "the false and misleading impression" that chicken "is a health food that can protect against the risk of developing heart disease." It alleges further that "the majority of Tyson chicken products contain substantial levels of fat and cholesterol, the consumption of which will not only fail to reduce the risk of heart disease, but is actually likely to increase such risk."

A second advertising campaign, alleged in the third through sixth causes of action, appeared in high-circulation magazines in California and was broadcast on television programs. PCRM alleges that "[e]ach advertisement claims that Tyson chicken products are `all natural.' In particular, the ads state, `You given them [referring to the reader's children] quality chicken that's all natural because you can.' In smaller print, the ads state, `Every Tyson chicken product begins with all natural chicken. That means there are no additives, and it's minimally processed. And that means a lot.'" PCRM alleges that, in fact, "Tyson raises its chickens in a `factory farm' system in which the chickens are genetic mutations that do not exist in nature, the chickens are vaccinated, the chickens are medicated immediately after being hatched, the chickens are crowded together by the tens of thousands under one roof, and the chickens are routinely and regularly fed antibiotics at therapeutic and sub-therapeutic levels to combat and prevent diseases facilitated by the unnatural overcrowding and to stimulate an unnatural growth rate." PCRM claims that the representations in this campaign not only constitute false advertising within the terms of Business and Professions Code section 17500 but also an "unfair and fraudulent" business practice proscribed by Business and Professions Code section 17200.

The complaint prays for injunctive relief enjoining Tyson from making the alleged false and deceptive representations regarding its chicken products; requiring Tyson to undertake a public information campaign "to correct and remedy its current and prior false and deceptive advertising" and requiring Tyson "to place appropriate warnings on its chicken products and on any advertising for its chicken products indicating the possible health consequences of consuming those products."

Tyson responded by filing a demurrer, a motion to strike portions of the complaint pursuant to Code of Civil Procedure section 436, and a motion to strike the complaint in its entirety pursuant to Code of Civil Procedure section 425.16, commonly know as the anti-SLAPP statute (an acronym referring to strategic lawsuits against public participation). We are concerned here only with the anti-SLAPP motion, which attacks the complaint as alleging causes of action arising from Tyson's exercise of its right of free speech "in connection with a public issue."

In an order filed on June 10, 2003, the trial court found that Tyson met its burden under the anti-SLAPP statute "of demonstrating that all of plaintiff's claims arise from acts done by Tyson in furtherance of its right of free speech in connection with a public issue." Under the anti-SLAPP statute, the burden then shifted to PCRM to show a probability that it would prevail on these claims. In this respect, the court distinguished between the advertisements promoting chicken as a "heart-healthy" food and those claiming chicken products to be "natural." It found that PCRM satisfied its burden of demonstrating a probability of success with respect to the advertisement representing Tyson products to be beneficial to a healthy heart but "failed to meet its burden of presenting evidence sufficient to demonstrate a probability of success" with respect to the third through sixth causes of action, involving representation that Tyson's products are a "natural" food. Accordingly, the court granted Tyson's anti-SLAPP motion to strike with respect to the third through sixth causes of action.

PCRM moved for reconsideration of the order granting in part the motion to strike. The trial court granted the motion for reconsideration but affirmed its earlier order. Pursuant to Code of Civil Procedure section 425.16, subdivision (j), PCRM filed a notice of appeal from the portion of the order granting the anti-SLAPP motion with respect to the third through sixth causes of action.

DISCUSSION

A. Application of Senate Bill No. 515

The appeal presents the initial, and dispositive, issue of whether reversal is required by the enactment during the pendency of the appeal of Senate Bill No. 515 (2003-2004 Reg. Sess.), codified as Code of Civil Procedure section 425.17. The statute was intended to curb abuse of the anti-SLAPP statute (the anti-SLAPP statute). It was signed into law on September 6, 2003, shortly after filing of the notice of appeal, and became effective on January 1, 2004.¹

As stated in the seminal decision, Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159, "[i]t is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent." (See Code Civ. Proc. § 3; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686, 91 Cal.Rptr. 585, 478 P.2d 17.) "`A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.' [Citations.]" (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, at p. 391, 182 P.2d 159; see Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839, 123 Cal.Rptr.2d 40, 50 P.3d 751.) As stated somewhat more succinctly in Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243, 62 Cal.Rptr.2d 243, 933 P.2d 507, "A statute has retrospective effect when it substantially changes the legal consequences of past events." (See Kizer v. Hanna (1989) 48 Cal.3d 1, 7, 255 Cal.Rptr. 412, 767 P.2d 679.)

The repeal of a statutory right or remedy, however, presents entirely distinct issues from that of the prospective or retroactive application of a statute. A well-established line of authority holds: "`"The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered."' [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 397 75 Cal.Rptr.2d 244; People v. Acosta (1996) 48 Cal.App.4th 411, 419, 55 Cal.Rptr.2d 675; People v. $31,500 United States Currency (1995) 32 Cal.App.4th 1442, 1452, 38 Cal.Rptr.2d 836; Chapman v. Farr (1982) 132 Cal.App.3d 1021, 1024, 183 Cal.Rptr. 606.)

In Beckman v. Thompson (1992) 4 Cal.App.4th 481, 6 Cal.Rptr.2d 60, this principle was applied to a statutory power to dismiss a civil action. A line of California Supreme Court cases held that a civil action could not be dismissed under the doctrine of forum non conveniens if the plaintiff was a California resident. In 1986 the Legislature enacted a statute, with a five-year sunset provision, that made the residence of the plaintiff immaterial to a forum non conveniens motion, thereby permitting dismissal of actions filed by California residents. Relying on this statute, the trial court granted a motion to dismiss an action brought by a California resident on ground of forum non conveniens. While the case was pending on appeal, the amendment expired, restoring the previous common law rule barring dismissal. The court treated the expiration of the statute as equivalent to repeal of a statutory power of dismissal and reversed: "Where a right or remedy did not exist at common law but is dependent on a statute, the repeal of the statute without a savings clause destroys such right unless it has been reduced to a final...