Brenton v. Metabolife International, Inc.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

Brenton’s complaint alleged she consumed the Product in accordance with the use instructions for a few months before she suffered a psychotic breakdown in June 2000, and that her injuries were caused by the effects of ingredients (including ephedrine) contained in the Product. Brenton pleaded causes of action for product liability, negligence, breach of express and implied warranty and fraud, and sought compensatory and punitive damages. She also alleged that Mil’s false advertising for and misbranding of the Product violated Business and Professions Code sections 17200 and 17500 and sought the remedies provided by those statutes.^[2]

B. The Anti-SLAPP Motion

Mil moved to strike the complaint under the anti-SLAPP statute. Mil argued Brenton’s complaint targeted Mil’s commercial speech, which can qualify for First Amendment protection (see generally Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748 , 770 [ 48 L.Ed.2d 346 , 96 S.Ct. 1817 ]; Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468 , 493 [ 101 Cal.Rptr.2d 470 , 12 P.3d 720 ]); Mil noted that the complaint was replete with allegations referring to Mil’s labeling of and marketing for the Product, and each of the discrete causes of action contained at least one express or implied reference to this commercial speech. Mil argued that because Brenton’s causes of action arose out of protected speech, the burden shifted to Brenton to show a reasonable probability of success on the merits.

Brenton opposed the motion to strike, arguing that Mil could not meet the threshold burden to show her claims were within the ambit of the anti-SLAPP statute because her claims were not based on conduct protected by the First Amendment. Brenton also asserted that, even if the court deemed some or all of her claims to be within the ambit of the anti-SLAPP statute, she could

THE ANTI-SLAPP STATUTE

The anti-SLAPP statute was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims “arising from any act” of a defendant “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 . . . .” (§ 425.16, subd. (b)(1).) To achieve this objective, the Legislature authorized the filing by a defendant of a special motion to strike those claims within 60 days after service of the complaint. (§ 425.16, subds. (b)(1), (f).) An anti-SLAPP motion “requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity .... If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 , 67 [ 124 Cal.Rptr.2d 507 , 52 P.3d 685 ] (Equilon).) The trial court’s determination of each step is subject to de novo review on appeal. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 , 456 [ 125 Cal.Rptr.2d 534 ].)

ANALYSIS OF BRENTON’S INDIVIDUAL CLAIMS

A. Ambit of Section 425.16

The anti-SLAPP statute applies only to a “cause of action . . . arising from” acts in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue (§ 425.16, subd. (b)(1)), and it is the defendant’s burden in an anti-SLAPP motion to initially show the suit is within the class of suits subject to a motion to strike under section 425.16. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294 , 304 [ 106 Cal.Rptr.2d 906 ] (Fox Searchlight).) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts [on] which the liability or defense is based.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82 , 89 [ 124 Cal.Rptr.2d 530 , 52 P.3d 703 ] (Navellier).)

The courts have struggled to refine the boundaries of a cause of action that arises from protected activity. In City of Cotati v. Cashman (2002) 29 Cal.4th 69 , 78 [ 124 Cal.Rptr.2d 519 , 52 P.3d 695 ], the court explained that “the statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (Second italics added.) In Navellier, the court cautioned that the “anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier, supra, 29 Cal.4th at p. 92, original italics.) Accordingly, the “arising from” prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Id. at pp. 89-95), regardless of whether the plaintiff’s lawsuit was intended to chill (Equilon, supra, 29 Cal.4th at p. 58) or actually chilled (Cotati, supra, 29 Cal.4th at p. 75) the defendant’s protected conduct.

B. Brenton’s Individual Claims

The specific issue presented here is a recurring one:^[5] whether a claim for physical injury against a manufacturer allegedly caused by use of its product,

Paraphrasing Mann, MII’s authority to seek dismissal under section 425.16 “rests solely on statutory grounds, and thus under the settled common law rule the repeal of the . . . statutory authority [by newly enacted section 425.17] necessarily defeats” the effort to invoke the statute to justify dismissal, “even if a [trial court] judgment has been entered and the cause is pending on appeal.”

MII argues that applying section 425.17 in this case would change the legal consequences of past conduct because its authorized past conduct— filing a section 425.16 motion at trial—would become unauthorized conduct.^[6] However, the fact that a party acted in an authorized manner at the time he or she invoked the former version of a procedural or remedial statute at trial is no impediment to the appellate court applying the current version of that procedural or remedial statute when evaluating the appeal from the trial court’s ruling. (Governing Board v. Mann, supra, 18 Cal.3d at pp. 829-831; Chapman v. Farr, supra, 132 Cal.App.3d at pp. 1024-1025 [collecting cases].)

Accordingly, the provisions of section 425.17, subdivision (c) properly apply to the present action and provide an independent basis for affirming the trial court’s order denying MII’s anti-SLAPP motion as to Brenton’s individual claims and unfair practices claim. (Tippett v. Terich, supra, 37 Cal.App.4th at p. 1539.)

C. The Constitutional Issue

Mil asserts section 425.17, subdivision (c) cannot be applied to this or any other action because it is a regulation of or restriction on commercial speech

MII’s attempt to subject section 425.17, subdivision (c) to the Central Hudson Gas analysis is unpersuasive because that statute does not purport to regulate, restrict, condition or penalize Mil’s ability as a speaker to engage freely in commercial speech; it merely regulates or restricts Mil’s ability as a litigant to seek dismissal of certain lawsuits at a particular stage of the litigation. Mil cites no authority holding a speaker has a First Amendment right to specialized procedural remedies against a private lawsuit seeking to impose liability for unprotected commercial speech,^[7] and we are unaware of any case law holding there is a constitutional imperative that a legislature must make procedural screening devices available to preempt those private lawsuits. (Cf. Watson v. Fair Political Practices Com. (1990) 217 Cal.App.3d 1059 , 1072 [ 266 Cal.Rptr. 408 ] [“so long as a legislative act is not aimed primarily at suppression of speech the failure ‘to subsidize the exercise of [such] right does not infringe [that] right’ ”; accord, Student Government v. Bd. of Tr. of Univ. of Mass. (1st Cir. 1989) 868 F.2d 473 , 479 [“although the government may not place obstacles in the path of the exercise of constitutionally protected activity, it need not remove obstacles not of its own creation”].) Because the legislative determination to withdraw the benefits conferred by section 425.16 from commercial speakers does not violate any protection embodied in the First Amendment (Watson v. Fair Political Practices Com., supra, 217 Cal.App.3d 1059 ; see also Tex. Dept. of Human Resources v. Tex. St. Emp. (Tex. 1985) 696 S.W.2d 164 , 171 [“there is no constitutional mandate that government supply the means necessary for the enjoyment of a right, even a constitutional right, although the government may as a matter of policy elect to give such assistance in some circumstances, making distinctions as to the recipients upon grounds valid under the equal-protection clause of the Fourteenth Amendment”]), we need not test the validity of section 425.17, subdivision (c) under the Central Hudson Gas analysis.