Filed 2/8/18; Certified for Publication 3/8/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CHRISTINE DEAN et al.,
Plaintiffs and Appellants, A149735
v. (Contra Costa County
FRIENDS OF PINE MEADOW et al., Super. Ct. No. MSC16-00601)
Defendants and Respondents.
I. INTRODUCTION
Appellants Christine Dean (Dean), DeNova Homes, Inc. (DeNova), and Civic
Martinez, LLC (collectively, plaintiffs) filed the underlying action for interference with
prospective economic advantage and defamation against respondents Friends of Pine
Meadow and several individuals (collectively, defendants),1 seeking damages and
injunctive relief for allegedly false statements and publications regarding plaintiffs’ plan
to construct a housing development on the Pine Meadow Golf Course in Martinez.
Judgment was entered against plaintiffs after the trial court granted defendants’ special
motion to strike plaintiffs’ complaint pursuant to section 425.16 of the Code of Civil
Procedure (section 425.16 or the anti-SLAPP law).2
1
Defendant Kelly Calhoun was dismissed from this case and is not party on
appeal.
2
Subsequent statutory citations are to the Code of Civil Procedure, unless
otherwise stated.
1
On appeal, plaintiffs contend their claims arise out of commercial speech, which is
not protected activity under the anti-SLAPP law. Our standard of review is de novo.
(Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 681–682.) We affirm.
II. STATUTORY OVERVIEW
“The Legislature enacted section 425.16 in 1992, noting ‘a disturbing increase in
lawsuits brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.’ [Citation.] The statute
authorizes defendants to file a special motion to strike in order to expedite the early
dismissal of unmeritorious claims. [Citation.] ‘[T]o encourage continued participation in
matters of public significance,’ and to ensure ‘that this participation should not be chilled
through abuse of the judicial process,’ the Legislature has specified that the anti-SLAPP
statute ‘shall be construed broadly.’ [Citation.]” (City of Montebello v. Vasquez (2016)
1 Cal.5th 409, 416 (Montebello).)
Section 425.16, subdivision (b) establishes a two-step process for resolving a
special motion to strike.3 “First, the defendant must make a prima facie showing that the
plaintiff’s ‘cause of action . . . aris[es] from’ an act by the defendant ‘in furtherance of the
[defendant’s] right of petition or free speech . . . in connection with a public issue.’
(§ 425.16, subd. (b)(1).) If a defendant meets this threshold showing, the cause of action
shall be stricken unless the plaintiff can establish ‘a probability that the plaintiff will
prevail on the claim.’ (Ibid.)” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th
12, 21, fn. omitted (Simpson).)
“In 2003, concerned about the ‘disturbing abuse’ of the anti-SLAPP statute, the
Legislature enacted section 425.17 to exempt certain actions from it. (§ 425.17,
subd. (a).)” (Simpson, supra, 49 Cal.4th at pp. 21–22.) Pertinent here, section 425.17,
3
Section 425.16, subdivision (b)(1) states: “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 Constitution or the 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.”
2
subdivision (c) creates an exemption for commercial speech, which provides: “Section
425.16 does not apply to any cause of action brought against a person primarily engaged
in the business of selling or leasing goods or services, . . . arising from any statement or
conduct by that person if both of the following conditions exist: [¶] (1) The statement or
conduct consists of representations of fact about that person’s or a business competitor’s
business operations, goods, or services, that is made for the purpose of obtaining approval
for, promoting, or securing sales or leases of, or commercial transactions in, the person’s
goods or services, or the statement or conduct was made in the course of delivering the
person’s goods or services. [¶] (2) The intended audience is an actual or potential buyer
or customer, or a person likely to repeat the statement to, or otherwise influence, an
actual or potential buyer or customer, or the statement or conduct arose out of or within
the context of a regulatory approval process, proceeding, or investigation, except where
the statement or conduct was made by a telephone corporation in the course of a
proceeding before the California Public Utilities Commission and is the subject of a
lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns
an important public issue.”
The commercial speech exemption set forth in section 425.17, subdivision (c) “ ‘is
a statutory exception to section 425.16’ and ‘should be narrowly construed.’ [Citations.]”
(Simpson, supra, 49 Cal.4th at p. 22.) “The burden of proof as to the applicability of the
commercial speech exemption . . . falls on the party seeking the benefit of it—i.e., the
plaintiff.” (Id. at p. 26.)
III. FACTUAL BACKGROUND
A. The Complaint Allegations
Facts alleged in the plaintiffs’ April 2016 complaint include the following: Pine
Meadow Golf Course (the golf course) is owned by individual members of the Dean and
Coward families, including plaintiff Dean. In August 2011, the golf course owners
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 sales contract required the parties to work together to file
3
an application for development with the City of Martinez (the City). In January 2015, the
City approved a development application, which “allowed for the development and
construction of a 99-unit single-family home subdivision, with additional community
benefits, including parklands, walking trails, and other neighborhood improvements.”
Plaintiffs alleged that the individuals named as defendants in their complaint
consistently “opposed any development on the Pine Meadow Golf Course property.”
During the development application process, they “spoke as individuals at the more than
20 neighborhood meetings, Design Review meetings, Planning Commission meetings,
and City Council hearings, always opposing development of the Pine Meadow Golf
Course.” At some point during that period, they formed defendant Friends of Pine
Meadow (Friends). “Immediately” after the development application was approved,
defendants began circulating a petition opposing the planned development. “Using the
name ‘Friends of Pine Meadow’ for the first time,” defendants sought to collect sufficient
signatures to support a referendum to reverse the City’s resolution approving a general
plan amendment to allow for the planned development.
Defendants allegedly used 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. Defendants’ deceptive tactics included using the name Friends of
Pine Meadow to: (1) create multiple websites and media sites, including a Facebook
group page; (2) make “public comments,” and write “letters to the editor and other
similar published editorial pieces”; (3) solicit and accept financial donations; and
(4) solicit signatures for their referendum “in front of local Martinez storefronts and
parking lots.” Dean and the other golf course owners attempted to inform people “about
the true nature of the Friends of Pine Meadow,” but defendants 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.’ ”
Plaintiffs further alleged that defendants made other misrepresentations to the
public, including: (1) telling residents that if they signed the referendum petition, the golf
4
course “would be turned into a park”; (2) publishing a false statement that keeping the
golf course undeveloped “ ‘honors the Coward family . . .’ ”; (3) misrepresenting to
people that keeping the site undeveloped “ ‘continues the historic purpose of the property
as open space/recreation use’ ”; (4) publishing false statements that the golf course is
“ ‘open space’ and ‘no development can occur’ ”; (5) publishing false statements that
DeNova purchased the golf course knowing it was open space and that houses could not
be built on the property. Furthermore, defendants posted a statement on their website that
the golf course owners had “worked diligently to try to find a community supported
outcome for this property” in order to falsely imply that the golf course owners had a
competing interest with DeNova and did not support the development application.
Defendants’ allegedly defamatory statements about plaintiffs and their project
included: (1) that plaintiffs are guilty of “ ‘corruption’ ”; (2) that plaintiffs’ efforts to
inform the public that defendants are not friends of the golf course were “ ‘illegal,’ ” and
included “ ‘hassling’ signature gatherers,” “ ‘intimidation, threats, and obscene,
derogatory name calling,’ ” and “ ‘thuggery’ ”; (3) that the development plan is for a
“288-unit development,” which has never been proposed; (4) that the “development of
288 homes is ‘just the start of their plan’ ”; (5) that the golf course owners “ ‘agreed
with’ ” the idea of designating the golf course as open space; (6) that defendants have
collected more than 4,000 signatures opposing the development, when in truth more than
900 signatures were deemed invalid and more than 150 signatures were withdrawn.
These pleading allegations were incorporated into five (purported) causes of
action, for (1) declaratory and injunctive relief, (2) intentional interference with
plaintiffs’ businesses and development plans, (3) negligent interference with plaintiffs’
businesses and the development plans, (4) defamation, and (5) conspiracy. For these
alleged wrongs, plaintiffs prayed for the following relief: (1) a judicial declaration that
defendants’ use of the name Friends of Pine Meadow is “misleading, interferes with
Plaintiffs’ prospective economic advantage, deceives the public into taking acts against
the financial interests of Plaintiffs, and damages Plaintiffs’ business”; (2) a permanent
injunction preventing defendants from using the name Friends of Pine Meadow, requiring
5
them to delete their Facebook group and websites, requiring them to destroy their
electronic mailings and mailing lists, and ordering them to “cease and desist with the
dissemination of any unverified statements or writings”; (3) general and special damages
according to proof; (4) punitive damages in an unspecified amount; and (5) attorney fees
and litigation expenses.
B. The Special Motion to Strike
In May 2016, defendants filed a special motion to strike the entire complaint,
arguing that every cause of action arose from speech and petitioning activities protected
by section 425.16, and that plaintiffs could not establish a probability of prevailing on the
merits because their claims were barred by the First Amendment, the California
Constitution, and the litigation privilege codified in Civil Code section 47. Defendants
also argued that the challenged statements were not provably false or made with actual
malice.
Plaintiffs opposed the motion on the ground that defendants were not entitled to
the protections of the anti-SLAPP law because the claims against them arose out of (1) a
campaign to spread misinformation about plaintiffs, which was not a “public issue”; and
(2) commercial speech designed to give defendants a commercial advantage by devaluing
the golf course property so that somebody else would purchase it. Plaintiffs also argued
that their claims were not barred by the First Amendment or the litigation privilege
because defendants’ unlawful conduct fell within the “sham exception” to those
doctrines.
On August 29, 2016, the trial court granted defendants’ special motion to strike in
a detailed ruling supported by extensive citations to pertinent authority. Finding that
every cause of action arose from protected petitioning and speech activity, the court
rejected plaintiffs’ narrow conception of what constitutes a public issue. The court also
found that plaintiffs failed to carry their burden of establishing that the commercial
speech exemption applied in this case. On the merits, the court concluded that plaintiffs
failed to establish sufficient facts to support a favorable judgment if their evidence was
credited. In making this determination, the court found that plaintiffs failed to produce
6
evidence that their claims for business interference fell within the sham exception to the
“First Amendment right to petition the government under the Noerr-Pennington
doctrine.” The court also found that plaintiffs’ defamation claim failed because they did
not demonstrate a likelihood that they could (1) establish a prima facie case for relief; and
(2) prove that the absolute privilege set forth in Civil Code section 47 did not apply.4
Judgment was entered against plaintiffs on September 28, 2016. This timely
appeal followed.
IV. DISCUSSION
A. All Causes of Action Arise out of Protected Activity
The first step of our review requires us to decide whether defendants made a
threshold showing that the substantive causes of action in the complaint arose from
protected activity. (§ 425.16, subd. (b)(1).) “ ‘ “A defendant meets this burden by
demonstrating that the act underlying the plaintiff’s cause fits one of the categories
spelled out in section 425.16, subdivision (e)” [citation].’ ” (Thomas v. Quintero (2005)
126 Cal.App.4th 635, 645; see also Montebello, supra, 1 Cal.5th at p. 422.)
Under section 425.16, subdivision (e), an “ ‘act in furtherance of a person’s right
of petition or free speech under the United States or California Constitution in connection
with a public issue’ includes: (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
4
As the trial court also explained, the causes of action for conspiracy and
declaratory and injunctive relief were not independent claims, but were dependent on
plaintiffs’ showing a probability of prevailing on their claims for the underlying torts of
interference with prospective economic advantage and defamation. (See Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1062 [“a civil conspiracy does not give rise to a cause
of action unless an independent civil wrong has been committed.”]; MaJor v. Miraverde
Homeowners Assn. (1992) 7 Cal.App.4th 618, 623 [“a cause of action must exist before
injunctive relief may be granted”].)
7
interest, or (4) any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a public issue or
an issue of public interest.”
As reflected in our summary of the complaint allegations, plaintiffs’ interference
and defamation claims seek to punish and suppress speech and petitioning activity related
to defendants’ opposition to the construction of a housing development on a golf course.
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, thus falling within section
425.16, subdivision (e)(1) and/or (e)(2). Furthermore, since all the challenged conduct
was speech or petitioning activity relating to an issue of public interest, it is protected
activity under section 425.16, subdivision (e)(3) and/or (e)(4).
Plaintiffs’ primary contention below was that defendants’ statements did not
pertain to a public issue or an issue of public interest. This argument was properly
rejected. As the trial court observed, the plaintiffs’ complaint is a paradigm of the
problem that section 425.16 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. (Barker, Common-Law and Statutory Solutions to the Problem
of SLAPPS (1993) 26 Loyola L.A. L.Rev. 395, 396.) SLAPP plaintiffs do not intend to
win their suits; rather, they are filed solely for delay and distraction (id. at p. 397), and to
punish activists by imposing litigation costs on them for exercising their constitutional
right to speak and petition the government for redress of grievances. (See Comment,
SLAPP Suits: Weaknesses in First Amendment Law and in the Court’s Responses to
Frivolous Litigation (1992) 39 UCLA L.Rev. 979.)” (Dixon v. Superior Court (1994)
30 Cal.App.4th 733, 741, italics & fn. omitted.)
On appeal, plaintiffs have abandoned their argument that defendants’ speech and
petitioning activity did not relate to an issue of public interest. Instead, they now contend
8
that defendants did not carry their burden because (1) plaintiffs’ claims arise out of
commercial speech, and (2) commercial speech does not constitute protected activity
under the anti-SLAPP law. We separately address each prong of this argument.
B. Plaintiffs’ Claims Do Not Arise out of Commercial Speech
This entire appeal is premised on plaintiffs’ assumption that the allegedly unlawful
speech attributed to defendants constitutes commercial speech. Remarkably, plaintiffs
never define what they mean by commercial speech.
In another context, our Supreme Court has observed that three elements
distinguish commercial speech from noncommercial speech: the speaker, the intended
audience, and the content of the message. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939,
960 (Kasky).) “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 customers of the speaker’s goods or services,
or persons acting for actual or potential buyers or customers, or persons (such as reporters
or reviewers) likely to repeat the message to or otherwise influence actual or potential
buyers or customers . . . . [¶] . . . [¶] Finally, the factual content of the message should be
commercial in character. In the context of regulation of false or misleading advertising,
this typically means that the speech consists of representations of fact about the business
operations, products, or services of the speaker (or the individual or company that the
speaker represents), made for the purpose of promoting sales of, or other commercial
transactions in, the speaker’s products or services.” (Id. at pp. 960–961, italics omitted.)
Applying the Kasky elements here, we conclude that the speech alleged in the
complaint is not commercial speech. Plaintiffs did not allege facts to show that: any
defendant was engaged in or affiliated with someone engaged in the production
distribution or sale of goods or services, the challenged speech was directed at actual or
potential buyers or customers of some good or service, or that the content of defendants’
speech was commercial in character. To the contrary, the complaint seeks redress for
speech and petitioning activity by individuals who formed a community group in order to
9
oppose an amendment to the City’s general plan. On its face, this type of speech is
political rather than commercial in nature.
Plaintiffs do not cite a single case supporting their characterization of defendants’
alleged statements as commercial speech. Instead, they postulate that (1) defendants
acted like competitors by proposing that the golf course be used for some purpose other
than a housing development, and (2) once defendants “decided to compete” with
DeNova, their “disparaging remarks . . . took on the character of commercial speech.”
We are not persuaded by this reasoning. The fact that defendants opposed an official
government action (i.e., approval of the general plan amendment) by proposing that
someone other than DeNova purchase the golf course did not make them competitors or
transform their political action into commercial speech.
C. All Commercial Speech Is Not Excluded from Anti-SLAPP Protection
Even if there was some commercial element to defendants’ conduct, plaintiffs fail
to support their legal theory that commercial speech is categorically excluded from the
protection of the anti-SLAPP law.
Plaintiffs acknowledge that protected activity is defined in section 425.16,
subdivision (e), but then they proceed to ignore the language of that statute, which makes
no reference to commercial speech. As discussed above, the pleading allegations about
defendants’ speech and petitioning activity fall squarely within all four categories of
section 425.16, subdivision (e) 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.
Insisting that “[m]ultiple cases have recognized that commercial speech is outside
the protections of the anti-SLAPP law,” plaintiffs cite four cases, the facts of which they
do not discuss: Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39 (Nagel);
Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805 (Jewett); Rezec v. Sony Pictures
Entertainment, Inc. (2004) 116 Cal.App.4th 135 (Rezec); L.A. Taxi Cooperative, Inc.
v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918 (L.A.
Taxi).
10
This line of authority does not support the broad rule of exclusion proposed by
plaintiffs here. For one thing, all of these cases involved a very specific form of
commercial speech—false or misleading advertising. (Nagel, supra, 109 Cal.App.4th 39
[class action against manufacturer and seller of diet pills]; Rezec, supra, 116 Cal.App.4th
135 [unfair business practices claims against movie studio]; Jewett, supra,
113 Cal.App.4th 805 [consumer class action against credit card company]; L.A. Taxi,
supra, 239 Cal.App.4th 918 [taxi companies’ suit against competing cab companies for
false internet advertising].) Equally important, in these cases the defendants failed to
carry their burden under section 425.16, subdivision (e) because the plaintiffs’ false
advertising claims arose from purely commercial speech that was not made in connection
with an official proceeding, and that did not relate to an issue of public interest. (Nagel,
at pp. 46–48; Rezec, at pp. 140, 143; Jewett, at pp. 814–816; L.A. Taxi, at p. 926.) Thus,
plaintiffs’ cited authority is consistent with our conclusion that 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. Rather, the
question whether a defendant has met its burden under section 425.16, subdivision (b) is
answered by applying section 425.16, subdivision (e).
Plaintiffs’ theory that all commercial speech is excluded from anti-SLAPP
protection is also inconsistent with section 425.17, subdivision (c). As discussed in our
overview of anti-SLAPP law, this narrow commercial speech exemption applies to
speech or conduct by a person engaged in the business of selling or leasing goods or
services when, among other things, that challenged conduct pertains to the business of the
speaker or his or her competitor. (§ 425.17, subd. (c); see generally Simpson, supra,
49 Cal.4th at p. 21.)
Section 425.17’s legislative history indicates that this statutory exemption was
drafted “to track constitutional principles governing regulation of commercial speech
based upon guidelines discussed in [Kasky, supra, 27 Cal.4th 939].” (JAMS, Inc.
v. Superior Court (2016) 1 Cal.App.5th 984, 994 (JAMS).) “In doing so, it followed
11
‘Kasky’s guidelines on commercial speech, focusing on the speaker, the content of the
message, and the intended audience.’ [Citation.]” (Ibid.)5
Plaintiffs relied on section 425.17, subdivision (c) during the lower court
proceedings, but the trial court found that they failed to carry their burden of proof, or to
even allege facts which could show that any defendant is “primarily engaged in the
business of selling or leasing goods or services.” (§ 425.17, subd. (c).) Indeed, the
speech attributed to defendants in the complaint is not exempt from anti-SLAPP
protections under section 425.17, subdivision (c) for essentially the same reasons that it
does not constitute commercial speech under the Kasky guidelines.
Implicitly conceding that section 425.17, subdivision (c) does not apply in this
case, plaintiffs now argue that “commercial speech not otherwise covered by section
425.17 may still be excluded from anti-SLAPP protection.” They reason that (1) the
Constitution treats commercial speech differently than noncommercial speech, and
therefore (2) the anti-SLAPP law should also be construed to treat commercial speech
differently by categorically excluding it from the protections afforded by section 425.16.
This reasoning is flawed for at least two reasons. First, while “commercial speech
receives a lesser degree of constitutional protection than many other forms of
expression,” (Kasky, supra, 27 Cal.4th at p. 946), commercial speech is not completely
excluded from the realm of First Amendment protection, as plaintiffs intimate. (Id. at
pp. 952–953.)
Second, as our Supreme Court explained in Montebello, “[t]he Legislature did not
limit the scope of the anti-SLAPP statute to activity protected by the constitutional rights
of speech and petition. It went on to include ‘any act . . . in furtherance of’ those rights.
(§ 425.16, subd. (b)(1), italics added.) We must give meaning to this statutory term,
under settled principles of statutory construction. [Citation.] The Legislature’s directive
5
“ ‘The legislative history [also] indicates this legislation is aimed squarely at
false advertising claims and is designed to permit them to proceed without having to
undergo scrutiny under the anti-SLAPP statute . . . .’ [Citation.]” (JAMS, supra,
1 Cal.App.5th at p. 994.)
12
that the anti-SLAPP statute is to be ‘construed broadly’ so as to ‘encourage continued
participation in matters of public significance” supports the view that statutory protection
of acts ‘in furtherance’ of the constitutional rights incorporated by section 425.16 may
extend beyond the contours of the constitutional rights themselves. [Citations.]”
(Montebello, supra, 1 Cal.5th at p. 421.)
In their reply brief, plaintiffs argue that Montebello is irrelevant because it “begs
the question: what speech and petition activities does section 425.16 actually protect?”
We disagree. Montebello precludes plaintiffs from using substantive First Amendment
principles to limit the scope of protection afforded by the anti-SLAPP law: “Requiring
the moving party to make a constitutional case in support of every anti-SLAPP motion
would be inconsistent with the Legislature’s desire to establish an efficient screening
mechanism for ‘disposing of SLAPP’s quickly and at minimal expense to taxpayers and
litigants.’ [Citation.] The statutory categories provided in section 425.16, subdivision (e)
provide objective guidelines that lend themselves to adjudication on pretrial motion.
[Citation.]” (Montebello, supra, 1 Cal.5th at p. 422.)
“[C]ourts determining whether conduct is protected under the anti-SLAPP statute
look not to First Amendment law, but to the statutory definitions in section 425.16,
subdivision (e). [Citations.]” (Montebello, supra, 1 Cal.5th at pp. 422.) “ ‘The only
means specified in section 425.16 by which a moving defendant can satisfy the
requirement is to demonstrate that the defendant’s conduct . . . falls within one of the four
categories described in subdivision (e), defining subdivision (b)’s phrase, “act in
furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue. [Citations.]” ’ ” (Ibid.) As we
have already explained, the conduct alleged in this case falls squarely within all four of
these categories. Plaintiffs cannot avoid this fact by attempting to graft an additional
restriction onto the anti-SLAPP law limiting the protection of that law to strict adherence
to First Amendment analysis.
13
D. Plaintiffs Did Not Establish a Probability of Success
Under the second prong of our review, “the burden shifts to the plaintiff[s] to
demonstrate that each challenged claim based on protected activity is legally sufficient
and factually substantiated. The court, without resolving evidentiary conflicts, must
determine whether the plaintiff[s’] showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.) “In making this assessment, the court must consider both the
legal sufficiency of and evidentiary support for the pleaded claims, and must also
examine whether there are any constitutional or nonconstitutional defenses to the pleaded
claims and, if so, whether there is evidence to negate any such defenses. [Citation.]”
(McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.)
On appeal, plaintiffs contend they carried their burden of establishing that their
causes of action are not barred by either of the two defenses invoked by defendants in the
trial court.
First, plaintiffs argue that defendants are not protected by the litigation privilege,
which states that, subject to exceptions, a “privileged publication” includes statements
made in a “legislative proceeding,” a “judicial proceeding,” “any other official
proceeding authorized by law,” or “in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to” pertinent provisions of the Code of Civil
Procedure. (Civ. Code, § 47, subd. (b).)
“The litigation privilege is absolute; it applies, if at all, regardless whether the
communication was made with malice or the intent to harm. [Citation.] Put another way,
application of the privilege does not depend on the publisher’s ‘motives, morals, ethics or
intent.’ [Citation.] Although originally applied only to defamation actions, the privilege
has been extended to any communication, not just a publication, having ‘some relation’
to a judicial proceeding, and to all torts other than malicious prosecution. [Citations.]
Moreover, ‘[t]he litigation privilege is not limited to the courtroom, but encompasses
actions by administrative bodies and quasi-judicial proceedings. [Citation.] The
privilege extends beyond statements made in the proceedings, and includes statements
14
made to initiate official action. [Citation.]’ ” (Kashian v. Harriman (2002)
98 Cal.App.4th 892, 913, italics omitted.)
Plaintiffs contend that defendants are not protected by this broad litigation
privileged because “commercial speech cannot be privileged speech as it is not subject to
an anti-SLAPP motion.” We reject this argument because, among other things, it
incorporates plaintiffs’ erroneous factual theory that defendants engaged in commercial
speech; it incorporates plaintiffs’ unconvincing legal theory that all commercial speech is
automatically excluded from the anti-SLAPP protection; and it is legally unsupported.
Alternatively, plaintiffs argue that defendants cannot invoke the litigation privilege
because the complaint does not seek to hold defendants liable for their speech, but rather
for an unlawful course of conduct evidenced by that speech. The record shows
otherwise. Every claim in the complaint seeks to punish and/or suppress speech that
relates to an official proceeding about a public issue.
Plaintiffs’ second argument is that the Noerr-Pennington doctrine does not bar
their claims against these defendants. “Under the Noerr-Pennington doctrine, ‘[t]hose
who petition government . . . are generally immune from antitrust liability.’ [Citations.]
‘This doctrine relies on the constitutional right to petition for redress of grievances to
establish that there is no antitrust liability for petitioning any branch of government, even
if the motive is anticompetitive.’ [Citation.] The doctrine further relies on principles of
comity, ‘i.e., noninterference on the part of the courts with governmental bodies that may
validly cause otherwise anticompetitive effects and with efforts intended to influence
such bodies.’ [Citation.]” (People ex rel. Gallegos v. Pacific Lumber Co. (2008)
158 Cal.App.4th 950, 964, fns. omitted (Pacific Lumber).)
“The Noerr-Pennington doctrine has been extended to preclude virtually all civil
liability for a defendant’s petitioning activities before not just courts, but also before
administrative and other governmental agencies. [Citations.]” (Pacific Lumber, supra,
158 Cal.App.4th at pp. 964–965.) “While the Noerr-Pennington doctrine was formulated
in the context of antitrust cases, it has been applied or discussed in cases involving other
types of civil liability [citations], including liability for interference with contractual
15
relations or prospective economic advantage [citations] or unfair competition [citation].
Obviously, the ‘principle of constitutional law that bars litigation arising from injuries
received as a consequence of First Amendment petitioning activity [should be applied],
regardless of the underlying cause of action asserted by the plaintiffs.’ [Citation.] ‘[T]o
hold otherwise would effectively chill the defendants’ First Amendment rights.’
[Citation.]” (Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 577–578 (Hi-Top
Steel).)
“ ‘It is only when efforts to influence government action are a “sham” that they
fall outside the protection of the Noerr-Pennington doctrine . . . . [Citations.] Such
efforts amount to a sham when though “ostensibly directed toward influencing
governmental action, . . . [they are] actually nothing more than an attempt to interfere
directly with the business relationships of a competitor . . . .” [Citation.] Such efforts, by
contrast, do not amount to a sham when, no matter how anticompetitive in purpose or
effect, they constitute a “genuine effort to influence [government action] . . . .”
[Citation.] In other words, efforts to influence government action are a sham only when
the person or persons making such efforts “invok[es] the process of [governmental]
decisionmaking for the injury that the process alone will work on competitors . . . .”
[Citations.]’ ” (Pacific Lumber, supra, 158 Cal.App.4th at p. 965.)
Plaintiffs contend that the “sham” exception to the Noerr-Pennington doctrine
applies to their claims because they have 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. First, plaintiffs fail to demonstrate that these
complaint allegations are supported by evidence. Second, even if there is evidence of
these alleged deceptions, plaintiffs fail to explain how they implicate the sham exception.
Indeed, it appears from this record that plaintiffs conceded from the start that defendants
genuinely opposed the general plan amendment. Thus, defendants’ petitioning activity,
16
no matter how deceptive, was not a sham, but part of a genuine effort to influence
government action. (Pacific Lumber, supra, 158 Cal.App.4th at p. 965.)
Plaintiffs direct us to Hi-Top Steel, supra, 24 Cal.App.4th 570, an unfair
competition case filed by steel corporations against an automobile wrecking company
and its owner. The Hi-Top Steel court found that the plaintiffs stated a cause of action
under the sham exception to the Noerr-Pennington doctrine by alleging the following
material facts: The defendants attempted to prevent the plaintiffs from competing in the
automobile wrecking business by making false statements to public officials and
interested citizens about the design of automobile shredding equipment the plaintiffs
intended to install at their facility. The city unanimously approved the plaintiffs’ plan,
but the defendants appealed, and then offered to withdraw their appeal if the plaintiffs
agreed not to use their equipment to shred automobiles. The defendants also threatened
to cause further delay by demanding an environmental review of the plaintiffs’ design
plans, knowing that such a demand was groundless. Then, during the period of delay that
they caused, the defendants procured their own automobile shredding equipment. (Id. at
pp. 573–574.) The Hi-Top Steel court found these allegations were sufficient to show
that the “defendants undertook petitioning activity solely to delay or prevent plaintiffs’
entry into the shredded automobile body market through use of ‘the governmental
process—as opposed to the outcome of that process—as an anticompetitive weapon’
[citation.]” (Id. at p. 582–583, italics omitted.)
Hi-Top Steel is inapposite. Suffice to say, the issue in this case is not only whether
plaintiffs’ complaint states a cause of action under the sham exception to the Noerr-
Pennington doctrine (it does not), but also whether plaintiffs carried their burden of
showing that their claims were “factually substantiated.” (Baral v. Schnitt, supra,
1 Cal.5th at p. 396.) Plaintiffs do not identify any evidence in this record supportive of
their theory that defendants undertook their petitioning activity as an anti-competitive
weapon.
V. DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
17
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
STREETER, J.
A149735, Dean v. Friends of Pine Meadows
18
CALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT
DIVISION 4
CHRISTINE DEAN et al.,
Plaintiffs and Appellants,
v.
FRIENDS OF PINE MEADOW et al.,
Defendants and Respondents.
A149735
Contra Costa County No. MSC16-00601
BY THE COURT:
The written opinion which was filed on February 8, 2018 has now been certified
for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is
ordered published in the official reports.
Date: _____________________ _____________________________________ P. J.
1
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Judith Craddick
Counsel for Appellant Jenny & Jenny, Scott E. Jenny, Richard K.
Christine Dean: Jenny
Counsel for Appellants DeNova Miller Starr Regalia, George B. Speir, Matthew
Homes, Inc. and Civic C. Henderson
Martinez, LLC:
Counsel for Respondents: Strumwasser & Woocher, Fredric D. Woocher,
Michael J. Strumwasser
Stuart M. Flashman
2