Monday, March 23, 2020

Statements in book promoting addiction treatment protected by Cal anti-SLAPP law

Selkirk v. Grasshopper House, LLC, 2020 WL 1241565, No. B294568 (Cal. Ct. App. Mar. 16, 2020)

Defendants Grasshopper House and Passages Silver Strand “are luxury facilities that purport to treat drug and alcohol addiction.” Former patients sued them for allegedly making false statements about the efficacy of their treatment programs. Under the anti-SLAPP law, Passages showed that some of its statements were protected speech and plaintiffs didn’t show enough merit to proceed; remanded with directions issue a new order striking certain allegations, although the denial of the motion to strike some other allegations wasn’t appealable.

The Passages facilities allegedly “are among the most expensive” rehabilitation centers “on the planet,” charging between $40,000 and $100,000 for a 30-day stay. Neither founder (including Pax Prentiss) has any education or training in the treatment of substance abuse. Passages allegedly advertises it discovered a novel treatment approach that “cured” Pax of his addictions and that can cure others. E.g., the Passages Malibu website stated: “The program we created for Pax, the one that is now the Passages program, was primarily based on finding out the ‘why’ behind his addiction. It worked. Pax finally discovered his ‘why’ and we knew that he was cured, that he would never again use drugs or alcohol.” The website also stated that the “treatment method ... has cured thousands of people at Passages.” Passages also claims in its advertising the program can cure addiction within 30 days.

Passages allegedly made similar statements in Internet, television, and print advertisements, in “television and other media interviews,” during lectures and personal appearances by the Prentisses, and in a book: The Alcoholism and Addiction Cure: A Holistic Approach to Total Recovery.

Passages filed a special motion to strike. Plaintiffs argued that their claims were based on Passages’ specific misrepresentations about the efficacy of the Passages treatment program and that promotional statements by a business about its services were commercial speech to which California’s anti-SLAPP did not apply. Plaintiffs submitted evidence that Pax continued to use drugs after the Prentisses opened Passages Malibu and that since 2004 Passages has not documented whether its clients remained sober after leaving its facilities. But they didn’t submit evidence that they were aware of Passages’ alleged misrepresentations before enrolling at the facilities.

The trial court ruled that all statements “arising out of television ads, internet advertising, and Defendants’ website constitute commercial speech which comes within the exception” to the anti-SLAPP law, but that the statements in the Prentisses’ book weren’t commercial speech under the law, which “specifically exempts from [the commercial speech rule] claims based upon the dissemination of a literary work.” Then, the trial court ruled as to the book statements that the plaintiffs demonstrated a probability of prevailing on each of their causes of action except their cause of action for negligence.

On appeal, Passages conceded that the statements about Pax’s personal history of addiction and abuse (whether those statements were book statements or non-book statements) weren’t eligible to be struck. They appealed as to the statements about addiction, treatment, and the Passages facilities, and plaintiffs cross-appealed.

The appeals court ruled that the trial court correctly held that the book statements were protected speech. In the book, Chris Prentiss states that he and Pax “use[d] what [they] learned curing [Pax] to help others discover the roots of their addiction or alcoholism and break free” and that, “having healed thousands of people,” Chris “can write with complete certainty that alcoholism and addiction are not diseases.” The book also tells readers that, if patients “set up ... intense therapy” at Passages, they “should be able to cure [their] addiction in thirty days or less.” These were statements relating to the public interest and contributed to public debate about addiction treatment; the purpose of the book wasn’t solely to advertise Passages but to discuss conventional treatment methods, why the authors believe addiction is not “incurable,” and why they believe their “holistic” treatment method is better than other treatment methods. “To be sure, the statements about the efficacy of the Passages treatment program and the number of patients the program has successfully treated may help Passages solicit new clients. But those statements also provide context and explain the Prentisses’ views on addiction and treatment. The statements about their views contribute to the public discussion of the issue.” The book also made claims that it could help readers treat their addictions on their own, without paying Passages for treatment: “Within the covers of this book, I will show you how you can cure your alcoholism or addiction” and “how to put together your own personalized program to achieve total recovery and optimum health by enlisting the help of several key health practitioners.”  Their views might be against the medical consensus, and might even “harm some persons who would receive better treatment from medical professionals.” But the question is whether the Prentisses “participated in, or furthered, the discourse,” not “the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction.”  The book as a whole, and not just the challenged statements, had to be considered. And even if the challenged statements were false (or even Central Hudson commercial speech), that didn’t make them unrelated to an issue of public interest, an issue determined by the anti-SLAPP law and not by the Constitution.

With that out of the way, plaintiffs failed to show that their book-based claims had merit. The standard is like summary judgment: the court “accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” Plaintiffs didn’t submit evidence that they attended Passages because of the alleged misrepresentations, or that they heard or read the misrepresentations, or that they relied on these statements, or that they suffered any economic injury as a result of these alleged statements.

However, the order denying the special motion to strike the non-book statements wasn’t reviewable in this appeal, because where a trial court denies the motion on the grounds that the commercial speech exemption applies, that’s not immediately appealable, per the anti-SLAPP law itself, even if other parts of the order are appealable and even if the district court erred in keeping opinion statements in the case when the exemption only applies to statements of fact in commercial speech.

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