Rezec v. Sony Pictures Entertainment, Inc.

• Decision Date: 27 January 2004
• Docket Number: No. B160586.,B160586.
• Citation: 10 Cal.Rptr.3d 333,116 Cal.App.4th 135
• Court: California Court of Appeals Court of Appeals
• Parties: Omar REZEC et al., Plaintiffs and Respondents, v. SONY PICTURES ENTERTAINMENT, INC., Defendant and Appellant.

10 Cal.Rptr.3d 333

116 Cal.App.4th 135

Omar REZEC et al., Plaintiffs and Respondents, v. SONY PICTURES ENTERTAINMENT, INC., Defendant and Appellant.

No. B160586.

Court of Appeal, Second District, Division 1.

January 27, 2004.

As Modified February 26, 2004.

O'Melveny & Myers, Robert M. Schwartz, Marvin S. Putnam and Ruth M. Moore, Los Angeles, for Defendant and Appellant.

Blumental & Markham, Norman B. Blumenthal, David R. Markham, San Diego, Kyle R. Nordrehaug; Prongay & Borderud, Kevin M. Prongay, Los Angeles, Jon W. Borderud; Philip C. Cifarelli; Alan Himmelfarb, Vernon; and Henry A. Koransky for Plaintiffs and Respondents.

MALLANO, J.

In marketing its films, a motion picture studio advertised films by falsely portraying a person as a film critic for a newspaper and attributing to him laudatory reviews about the films. Certain film viewers filed this lawsuit under the California Unfair Competition Law (Bus. & Prof.Code, § 17200 et seq.), the False Advertising Law (id., § 17500 et seq.) and the Consumers Legal Remedies Act (Civ.Code, § 1750 et seq.) seeking injunctive relief, restitution and disgorgement.

The studio filed a special motion to strike the complaint, claiming it was a SLAPP suit (Civ.Code, § 425.16). The trial court denied the motion and the studio has appealed. We conclude that this is not a SLAPP suit because, although the films themselves enjoy full First Amendment protection, the film advertisements do not.

I BACKGROUND

Defendant Sony Pictures Entertainment, Inc. (Sony), released four motion pictures in 2000 and 2001 entitled "Vertical Limit," "The Animal," "A Knight's Tale," and "Hollow Man." Without the knowledge of senior management, one of Sony's employees, who created advertisements for these films, inserted quotations attributed to David Manning, who, according to the ad, worked for the Ridgefield Press in Ridgefield, Connecticut, as a film critic. But no one by that name worked at the Ridgefield Press, and the quoted material had not appeared in that newspaper.

An advertisement for the March 2001 release of "A Knight's Tale" noted accurately that Roger Ebert and Richard Roeper gave the film "Two Thumbs Up" and that Peter Travers of Rolling Stone said, "Forget the hard-sell generic blockbusters heading for the multiplexes. The Real Deal is coming in under the radar." The advertisement noted falsely that David Manning of the Ridgefield Press said, "Heath Ledger is this year's Hottest New Star."

Similarly, a May 2001 advertisement for "The Animal" included an accurate quotation from a Fox-TV reviewer that the film was "[t]he comedy hit of the summer" and another critic characterized it as "[u]proariously funny. A laugh riot." It noted falsely that David Manning of the Ridgefield Press said, "The producing team of Big Daddy has delivered another winner."

An August 2000 advertisement for "Hollow Man" quoted a genuine television critic as stating, "Grab your jaw and hold on tight because it will drop when you see the special effects in Hollow Man," as well as another genuine critic's assessment that the "[s]pectacular visual effects take the invisible man concept to a whole new level." The advertisement noted falsely that David Manning of the Ridgefield Press said, "One hell of a scary ride! The summer's best special effects."

Sony's senior management learned of the false advertising in May 2001 when Newsweek magazine discovered that David Manning was not a reviewer for the Ridgefield Press. The Newsweek article called upon Sony to "apologize and pull the ads." Sony apologized and withdrew the advertisements, suspended the responsible employee and his immediate supervisor, and adopted stringent policies to prevent a recurrence of such conduct.

II DISCUSSION

The threshold issue on appeal is whether this is a SLAPP suit, arising out of free speech protected by the United States Constitution (U.S. Const., 1st Amend.) and the California Constitution (Cal. Const., art. I, § 2, subd. (a)).¹ Code of Civil Procedure section 425.16, subdivision (b), provides: "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.

"... In making its determination, the court shall consider the pleadings, and the supporting and opposing affidavits stating the facts upon which the liability or defense is based...." (Hereafter section 425.16.)

This statute extends to "(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; (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 free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)

Section 425.16 is directed against suits known as "strategic lawsuits against public participation," or SLAPP suits. These are"' "civil lawsuits ... aimed at preventing citizens from exercising their political rights or punishing those who have done so." [Citation.]' [Citation.]" (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 645, 49 Cal.Rptr.2d 620, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Such suits "are brought, not to vindicate a legal right, but rather to interfere with the defendant's ability to pursue his or her interests." (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 645, 49 Cal.Rptr.2d 620.) The aim is to force the defendants to devote time, energy and money to combat the lawsuit long enough for the plaintiff to accomplish his underlying objectives. (Ibid.)

Section 425.16 "shall be construed broadly." (Subd. (a).) The party making a special motion to strike must make a prima facie showing that the plaintiff's cause of action arises from the defendant's free speech or petition activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703; Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 646, 49 Cal.Rptr.2d 620.) Once the defendant makes a prima facie showing, "the burden shifts to the plaintiff to ... `make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.'" (Church of Scientology, supra, 42 Cal.App.4th at p. 646, 49 Cal.Rptr.2d 620, italics added; accord, Navellier, supra, 29 Cal.4th at p. 88, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

In making these determinations, the trial court considers the pleadings and the supporting and opposing affidavits setting forth the facts upon which liability or defense is predicated. (§ 425.16, subd. (b)(2); Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 646, 49 Cal.Rptr.2d 620.) On appeal, we review the trial court's determinations de novo. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 845, 111 Cal.Rptr.2d 582.)

California's consumer protection laws, like the Unfair Competition Law, govern only commercial speech. (See Kasky v. Nike, Inc., supra, 27 Cal.4th at pp. 953-956, 962, 969-970, 119 Cal.Rptr.2d 296, 45 P.3d 243; Keimer v. Buena Vista Books, Inc. (1999) 75 Cal.App.4th 1220, 1230-1231, 89 Cal.Rptr.2d 781; O'Connor v. Superior Court (1986) 177 Cal.App.3d 1013, 1018-1020, 223 Cal.Rptr. 357.) Noncommercial speech is beyond their reach. (Ibid.)

For purposes of the anti-SLAPP statute, if Sony's film advertisements constitute commercial speech, the statute does not apply because the ads did not "further[ ] ... [Sony's] right of petition or free speech [arising] under the United States or California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1); see Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 46-51, 134 Cal.Rptr.2d 420.) The trial court found that the ads were commercial speech. We agree.

When a communication takes the form of an advertisement, refers to a specific product, and the communicator has an economic motivation in publishing the advertisement, there is "strong support" for the conclusion that the advertisement is commercial speech. (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 66-67, 103 S.Ct. 2875, 77 L.Ed.2d 469.) This is true even though the communication also discusses important public issues. (Id. at pp. 67-68, 103 S.Ct. 2875.) "[A]dvertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.... Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues." (Id. at p. 68, 103 S.Ct. 2875.)

As our Supreme Court has explained: "[W]hen a court must decide whether particular speech may be subjected to laws aimed at preventing false advertising or other forms of commercial deception, categorizing a particular statement as commercial or noncommercial speech requires consideration of three elements: the speaker, the intended audience, and the content of the message.

"In typical commercial speech cases, the speaker is likely to be someone engaged in commerce — that is, generally, the production, distribution, or sale of goods or services — or someone acting on behalf of a person so engaged and the intended audience is likely to be actual or potential buyers or...