Animal Legal Defense Fund v. LT Napa Partners LLC, 2015 WL
1004423, No. A139625 (Cal. Ct. App. Mar. 5, 2015
ALDF sued LT Napa alleging that defendants sold foie gras in
their Napa restaurant in violation of California’s law banning such sale; the
trial court denied an anti-SLAPP motion and the court of appeals affirmed. In
early January, a federal district court found the foie gras sale ban preempted,
but the appeals court found that this didn’t moot the case at bar.
Defendant Frank, the head chef at Napa restaurant La Toque
(owned by defendant LT Napa), was a vocal opponent of the ban. After the ban went into effect, ALDF paid an
investigator to dine at La Toque three times: September 2012, October 2012, and
March 2013:
On each occasion he requested foie
gras and was told that if he ordered an expensive tasting menu he would receive
foie gras. On two of the occasions it was described as a “gift” from the chef.
He ordered the tasting menus and was served foie gras. He was not told he was
served foie gras in protest against the foie gras ban and was not provided
information about defendant Frank’s opposition to the foie gras ban.
(Defendants argued that they now presented a protest card
when offering a “gift” of foie gras, and that they did so randomly rather than
systematically, but those were contested facts on which the court refused to
rely.)
ALDF tried to get Napa authorities to act, but the city
attorney declined, so ALDF sued under the UCL. For purposes of appeal, the
court assumed that the lawsuit arose out of defendants’ conduct in furtherance
of speech. Nonetheless, ALDF showed a probability of prevailing, justifying
rejection of the anti-SLAPP motion. First, ALDF showed a probability of
prevailing on standing. The UCL requires
plaintiffs to have lost money or property as the result of the defendant’s
unfair business practices. The evidence
that ALDF “has diverted significant organizational resources to combat
[defendants’] continuing illegal sales of foie gras,” undertaking various
activities that would not have been necessary without defendants’ acts. Kwikset, in which the California Supreme
Court interpreted the UCL, cited a case with favor in which a housing advocacy
organization met its UCL standing requirement by “present[ing] evidence of
actual injury based on the loss of financial resources in investigating [a]
claim and diversion of staff time from other cases to investigate the
allegations here.” Cases applying the
federal standing requirement, which was broader than the UCL standard but still
relevant, also supported finding standing here with an organizational
plaintiff.
A cost incurred simply to initiate litigation is
insufficient, but “funds expended independently of the litigation to investigate
or combat the defendant’s misconduct may establish an injury in fact.” Here, ALDF presented evidence of a genuine
and longstanding interest in the effective enforcement of the statute and in
exposing those who violate it. “Plaintiff’s evidence provides a basis to
conclude that defendants’ alleged violations of the statute tended to frustrate
plaintiff’s advocacy for an effective ban on the sale of foie gras in
California, and tended to impede plaintiff’s ability to shift its focus on
advocacy efforts in, for example, other states and at the federal level.” This
evidence also showed that the defendants’ acts “caused” ALDF’s harms for
purposes of rejecting the anti-SLAPP motion.
ALDF likewise showed a probability of prevailing on its
claim that defendants unlawfully “sold” foie gras. Defendant Frank’s
declaration indicated his personal responsibility for the restaurant’s acts:
“In the exercise of my constitutionally protected right of petition and free
speech, my restaurant, La Toque, is protesting the law, not breaking it, by
giving away foie gras to customers I choose to give it to. … [W]hat I do give
away to customers is my way of dumping tea in the harbor, so to speak.”
Moreover, the court was unpersuaded by defendants’ argument
that there was no “sale” here. Ennabe v. Manosa, 58 Cal.4th 697 (2014), found
that a law imposing liability on a person “who sells, or causes to be sold, any
alcoholic beverage, to any obviously intoxicated minor” applied where the
defendant supplied alcohol to a minor at a party, and the minor was charged a
fee to enter the party. Ennabe favorably cited a California AG
opinion interpreting liquor licensing laws with respect to commercial
enterprises that offer “complimentary” alcoholic beverages to paying customers
who purchase another good or service to be a “sale,” even though there was no
additional charge to customers who elected to consume alcohol. To hold otherwise would undermine the
legislature’s regulatory intent, and the same was true here.
“Plaintiff’s investigator’s decision to order and agreement
to pay the specified price for the tasting menu was the consideration offered
for the entirety of the food served, including the foie gras.” Defendants argued that they didn’t give foie
gras to everyone who bought the tasting menu at that price, but that fact was
irrelevant. “[R]egardless of whether other patrons paid the same amount without
receiving foie gras, the investigator’s averments show the receipt of foie gras
was part of the tasting menu offered to him prior to his decision to order it.
Thus, the foie gras was part of the property he was offered for the price he
agreed to pay.” This was a sale. The “gift”
characterization of the server didn’t matter because the investigator could
only get the “gift” by buying the tasting menu.
1 comment:
This one gets my award for dumbest case of 2015. What is the public interest in enforcing an unconstitutional law? Dismiss and move on.
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