Monday, February 12, 2018

Cal's anti-SLAPP law protects some commercial speech, especially when it's not really commercial

Dean v. Friends of Pine Meadow, 2018 WL 774065, No. A149735 (Cal. Ct. App. Feb. 8, 2018)

Dean (shorthand here for Dean & other plaintiffs) sued defendants for allegedly false statements and publications regarding Dean’s plan to construct a housing development on the Pine Meadow Golf Course in Martinez. The trial court granted defendants’ special motion to strike under the anti-SLAPP law and the court of appeals affirmed.

Pine Meadow Golf Course was owned by individual members of the Dean and Coward families, who executed a contract to sell the golf course to plaintiff DeNova, a “leading community-oriented, family-owned private homebuilder with deep-seeded roots in local philanthropy and community service.” The city of Martinez then approved a development application, which “allowed for the development and construction of a 99-unit single-family home subdivision.”  Dean alleged that the named defendants consistently “opposed any development on the Pine Meadow Golf Course property.” “Using the name ‘Friends of Pine Meadow’ for the first time,” defendants circulated a petition for a referendum to reverse the City’s resolution approving a general plan amendment to allow for the planned development.

The alleged deception was using the name “Friends of Pine Meadow” “in order to deceive fellow citizens into believing they were friends with the golf course owners, including Dean who is a prominent citizen, and that they represented the interests of these owners and the golf course.”  [Wow, all else aside, that doesn’t even pass the laugh test, inasmuch as I snorted when I read that.  The “Friends of” formulation is widely used to identify people who support keeping a place in a particular condition.]  When Dean and the other golf course owners attempted to inform people “about the true nature of the Friends of Pine Meadow,” defendants allegedly responded by publishing allegedly false accusations that some or all of the plaintiffs were “ ‘hassling’ the signature gatherers” and using “ ‘intimidation, threats, and obscene, derogatory name calling.’ ”  There were further alleged misrepresentations, including ones related to the idea that without development the golf course would be kept as open space, ones about the scope of the development plan, and ones about the scope of opposition.

The court of appeals first agreed with the trial court that all Dean’s causes of action arose from protected activity. “Most, if not all, the material allegations pertain to statements that were made during or in connection with proceedings to amend the City’s general plan,” which made it petitioning activity, and all the challenged conduct was “speech or petitioning activity relating to an issue of public interest.”  Indeed, “the plaintiffs’ complaint is a paradigm of the problem that [the anti-SLAPP law] was designed to address. ‘The typical SLAPP suit involves citizens opposed to a particular real estate development. The group opposed to the project, usually a local neighborhood, protests by distributing flyers, writing letters to local newspapers, and speaking at planning commission or city council meetings. The developer responds by filing a SLAPP suit against the citizen group alleging defamation or various business torts’” [citing a law review article about SLAPPs].

On appeal, Dean argued that defendants’ claims were commercial speech, which couldn’t constitute protected activity.  First, no. The complaint targeted “individuals who formed a community group in order to oppose an amendment to the City’s general plan. On its face, this type of speech is political rather than commercial in nature.”  Dean argued that defendants acted like competitors by proposing that the golf course be used for some purpose other than a housing development/be bought by someone else.  That’s not what competition means. 

Second, not all commercial speech is categorically excluded from anti-SLAPP protection.  Defendants’ speech and petitioning activity were covered “because the challenged statements were made during or in connection with an official City proceeding authorized by law, in public forums, and in connection with a matter that was both a public issue and an issue of public interest.”  That’s different from excluded commercial speech, which occurs in false or misleading advertising pertaining to the business of the speaker or his or her competitor, as delineated by Nike v. Kasky.  “[A] plaintiff cannot preclude a defendant from establishing that a cause of action arises out of protected activity simply by alleging there is some commercial element to the parties’ dispute.”  [As I read this, the court is saying that Nike’s statements to legislators and regulators would thus have been protected by the anti-SLAPP law.]  Even if the constitutional definition of commercial speech is broader than advertising about the speaker or its competitor, the anti-SLAPP law does not limit its protections to the contours of the First Amendment commercial speech doctrine.  As the California Supreme Court explained, “the anti-SLAPP statute is to be ‘construed broadly’ so as to ‘encourage continued participation in matters of public significance,’” so statutory protection “may extend beyond the contours of the constitutional rights themselves.”  The statute itself provides “objective guidelines that lend themselves to adjudication on pretrial motion.”

After that, the court of appeals found that Dean didn’t meet the burden of showing that the claims were legally sufficient and factually substantiated. The absolute litigation privilege in California extends to any communication with some relation to a “legislative proceeding,” a “judicial proceeding,” or “any other official proceeding authorized by law.”  Dean argued that the litigation privilege didn’t apply because the complaint was seeking to hold defendants liable for an unlawful course of conduct evidenced by their speech, but the record showed otherwise: “Every claim in the complaint seeks to punish and/or suppress speech that relates to an official proceeding about a public issue.” 

Nor did the Noerr-Pennington exception to immunity for petitioning activities for sham petitions aid Dean.  Dean argued that they’d alleged facts to show that defendants’ petitioning activity was part of a misleading campaign, pursuant to which they “deliberately” chose a deceptive name for their group, mischaracterized the “current status” of the golf course property and the plaintiffs’ development plan, and falsely accused plaintiffs of misconduct.  Given defendants’ concededly genuine opposition to the general plan amendment, their petitioning activity, no matter how deceptive, wasn’t a sham. 

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