Court of Appeal Rules That Advertising Amendment to Anti-SLAPP Statute Applies to All Cases Not Final

Wednesday, June 2, 2004

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Court of Appeal Rules That Advertising Amendment to Anti-SLAPP Statute Applies to All Cases Not Final

By DAVID WATSON, Staff Writer

An amendment to the anti-SLAPP statute making it inapplicable to suits based on advertising activity applies to all cases not yet final, not just to those filed after it took effect Jan. 1, the First District Court of Appeal ruled yesterday.

That court’s Div. One joined the Fourth District’s Div. Three, which reached the same result just over a week ago. Both panels said the amendment, Code of Civil Procedure Sec. 425.17, falls under an exception to the general rule that new laws do not apply retroactively.

In his opinion for Div. One yesterday, Justice Douglas E. Swager reasoned that the anti-SLAPP law, Code of Civil Procedure Sec. 425.16, is a remedial statute which was—at least with respect to claims based on commercial speech—repealed by the amendment.

“The repeal of a statutory right or remedy…presents entirely distinct issues from that of the prospective or retroactive application of a statute,” Swager wrote, citing a “well-established line of authority” dating back to Chapman v. Farr (1982) 132 Cal.App.3d 1021.

Under those cases, he explained, where final relief has yet to be granted under a remedial statute which is repealed, the relief becomes unavailable. The anti-SLAPP statute, Swager pointed out, merely “provides a procedure for the early dismissal, before trial or discovery, of meritless cases aimed at chilling first amendment rights.”

Tyson Foods Inc., citing the anti-SLAPP law, sought to strike several causes of action in a suit against it by the Physicians Committee for Responsible Medicine, a nonprofit organization based in Washington D.C. Part of PCRM’s lawsuit claimed the poultry grower’s magazine campaign touting its products as “all natural” was deceptive because the conditions under which the animals were raised were highly artificial.

San Francisco Superior Court Judge Ronald Evans Quidachay granted the motion to strike those allegations.

But Swager said Sec. 425.17, by making the anti-SLAPP remedy unavailable to a seller or leaser of goods and services sued over its representations about those goods or services to potential customers, “clearly deprives Tyson of any basis to strike PCRM’s suit pursuant to the anti-SLAPP statute.”

The justice rejected Tyson’s argument that Sec. 425.16 is not remedial, but rather confers a substantive immunity from suit.

“[T]he fact that the anti-SLAPP statute shields litigants from trial of meritless claims arising from the exercise of first amendment freedoms does not alter the fact that it serves as a mechanism for early adjudication of such claims, in other words, as a statutory remedy,” Swager declared.

He also rejected the defendant’s contention that Sec. 425.17 was unconstitutional.

“The legislative decision to provide a procedure for early adjudication of claims affecting First Amendment freedoms is analogous to a decision to subsidize the exercise of a fundamental right by conferring tax exempt status,” Swager reasoned. “The withdrawal of such an exceptional statutory privilege does not impose a burden on constitutional freedoms.”

The case is Physicians Committee for Responsible Medicine v. Tyson Foods, Inc., A103835.

Presiding Justice David G. Sills reached the same result in his May 24 opinion for the Fourth District panel in Metcalf v. U-Halu International, Inc., 04 S.O.S. 2650.

Sills concluded that Sec. 425.17 did not create “impermissible classifications among those who utter constitutionally protected speech” and could be applied to motions to strike on which the trial court had ruled before Jan. 1. Both jurists also relied on Brenton v. Metabolife International, Inc. (2004) 116 Cal.App.4th 679.

In Brenton, decided in March, the Fourth District’s Div. One characterized Sec. 425.17 as a procedural statute which could be applied to cases still under review at the time it went into effect, but did so only as an alternative ground for finding that the anti-SLAPP motion to strike under consideration had been granted in error.