Plaintiff Has Burden of Proving Applicability of Commercial Speech Exemption to Anti-SLAPP Motion

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In Simpson Strong-Tie Co. v. Gore (2010) 49 C.4th 12, ___ C.R.3d ___, ___ P.3d ___, 2010 WL 1948283, plaintiff manufacturer brought an action against defendant attorney for defamation relating to defendant’s newspaper advertisement seeking potential plaintiffs for a class action against plaintiff. The advertisement advised readers who had constructed wood decks after January 1, 2004, that they might “have certain legal rights or be entitled to monetary compensation, and repair or replacement” of their decks if the decks were built with plaintiff’s galvanized screws. Readers were invited to contact defendant to have an attorney investigate potential claims. The trial court granted defendant’s anti-SLAPP motion under C.C.P. 425.16, and the Court of Appeal affirmed. Held, affirmed. The commercial speech exception did not apply to exempt plaintiff’s complaint from dismissal under the anti-SLAPP statute.

(a) Burden of establishing applicability of exemption. Plaintiff, as the one claiming an exemption from a general statute, bore the burden of establishing that defendant’s advertisement fell within the commercial speech exemption from the anti-SLAPP statute. (2010 WL 1948283, p. 10.) Generally, the party seeking a court’s action in his or her favor bears the burden of persuasion. (2010 WL 1948283, p. 12.) The enactment of Ev.C. 500 did not abrogate that rule. (2010 WL 1948283, p. 11.) To the extent Brill Media Co., LLC v. TCW Group (2005) 132 C.A.4th 324, 33 C.R.3d 371, 5 Cal. Proc. (5th), Pleading, §1027, places the burden on the defendant, it is disapproved. (2010 WL 1948283, p. 13, footnote 3.)

(b) Commercial speech exemption. As relevant here, C.C.P. 425.17(c) would provide an exception to the anti-SLAPP statute if (1) the defendant was engaged primarily in the business of selling services; (2) the action arose from a statement or conduct by defendant consisting of representations of fact about defendant’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made for the purpose of obtaining approval for, promoting, or securing sales or commercial transactions in defendant’s services, or in the course of delivering defendant’s services, and (4) 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 prospective customer.” (2010 WL 1948283, pp. 9, 20.) The commercial speech exemption is a statutory exception to C.C.P. 425.16, and it should be narrowly construed. (2010 WL 1948283, p. 9.)

(c) Exemption is not applicable. Defendant was in the business of selling legal services, and plaintiff’s action arose from defendant’s advertisement, which was used to promote defendant’s legal services. However, plaintiff’s action did not arise from representations of fact about defendant’s business operations or services. Plaintiff’s action was founded on the premise that defendant’s advertisement communicated that plaintiff’s screws were defective. (2010 WL 1948283, p. 20.) This implication is not about defendant’s or a business competitor’s business operations, goods, or services; rather, it is a statement about plaintiff’s products. (2010 WL 1948283, p. 21.)

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See 5 Cal. Proc. (5th), Pleading, §§1026, 1027.