Metropolitan News-Enterprise


Thursday, July 31, 2008


Page 1


S.C. to Review Dismissal of Suit Over Lawyer’s Advertising


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether the anti-SLAPP statute protects an advertisement by a lawyer soliciting clients for a contemplated lawsuit.

The justices, at their weekly conference in San Francisco, voted 4-2 to grant limited review in Simpson Strong-Tie Company, Inc. v. Gore, 162 Cal.App.4th 737, decided April 30.

The case deals with Code of Civil Procedure Sec. 425.17(c), which creates an exception to the statute for certain types of commercial actions. The high court said it would consider the question of which party bears the burden of persuasion with regard to a contention that an action is exempt, as well as whether lawsuit solicitations fall within the statutory exceptions.


Lower courts held that a suit by Simpson Strong-Tie, a manufacturer of galvanized screws, against Pierce Gore, an attorney in Santa Clara County, was a strategic lawsuit against public participation.

Justices Carlos Moreno, Joyce L. Kennard, Marvin Baxter, and Kathryn M. Werdegar voted to review the Sixth District Court of Appeal’s ruling, Justices Ming Chin and Carol Corrigan disagreed, and Chief Justice Ronald M. George was absent and did not participate.

Gore published newspaper advertisements asserting that certain wood deck owners whose decks were built Simpson screws “may have certain legal rights and be entitled to monetary compensation.” The ads also invited deck owners to contact Gore’s office “to investigate whether you have a potential claim.”

Simpson filed suit for defamation, trade libel, false advertising, and unfair business practices, and asserted that its claims arose from “Gore’s false assertion that Simpson’s galvanized screws are defective.”

Gore then filed an anti-SLAPP motion, which the trial court granted.

Simpson appealed, arguing that the suit was exempt from the anti-SLAPP law under Code of Civil Procedure Sec. 425.17(c), but the Court of Appeal, in an opinion by Presiding Justice Conral L. Rushing, concluded that the exception did not apply.

Rushing explained that certain causes of action that arise from statements that concern a speaker’s products or services, or a competitor’s products or services and that were made for the purpose of promoting the speaker’s goods or services are exempt from the anti-SLAPP law.

However, he reasoned, because Gore’s statement was about Simpson, not Gore, and since Simpson and Gore were not competitors, the statement did not fall within the exemption, even if it were false.

Alternatively, Rushing turned to a second statutory exemption applying to statements made while the speaker is providing the services he is in the business of selling, and defined “services” in a “purely commercial context” to mean work performed by a person as an occupation.

Accordingly, he concluded, an attorney who is advertising in order to seek business from prospective clients is not delivering any services.

However, Rushing cautioned that the court was not holding “that services can never be delivered to a prospective customer.” For example, he wrote, if an attorney made a phone call on behalf of a prospective client who had not yet formally retained the attorney, the attorney would have delivered services to the potential client.

Accomplice’s Death Case

The court yesterday also agreed to determine whether two Los Angeles men whose accomplice was killed by a man they allegedly tried to rob were properly convicted of first degree murder under the “provocative acts” doctrine, as ruled by Div. Five of this district’s Court of Appeal on March 18 in People v. Concha, 160 Cal.App.4th 1441.

Div. Five affirmed the convictions of Reyas Concha and Julio Hernandez for the murder of Hernandez’s cousin, Max Sanchez, and the attempted murder of Jimmy Lee Harris.

Harris, the owner of a beauty salon at Normandie and Vernon avenues in Los Angeles, said Concha and Hernandez approached him in the parking lot of his shop, demanded money and “smokes,” and threatened to kill him if he didn’t give them any.

When he ran off, he said, the two were joined by Sanchez and another man, and all four them chased him to a house and grabbed him as he tried to scale a five-foot fence. He was stabbed in the back, he said, before he remembered that he had a knife in his pocket and began stabbing his assailants.

He eventually ran to another house, where the occupants noticed blood all over their porch and cuts all over Harris, and called police. Paramedics took Harris to California Hospital Medical Center, where he received 60 switches.

Witnesses Did Nothing

A number of witnesses apparently observed the chase and heard Harris’ cries for help, but did nothing.

Sanchez and Concha both showed up at California Hospital Medical Center that night with stab wounds. A police officer who went to Concha’s residence found bloody clothing in the house and in a van, which matched the description given by a witness who saw it near the scene of the assault.

Police interviewed Concha, who acknowledged having fought with a black man, and admitted that he owned the van and had taken Sanchez to the hospital.

Hernandez told police that he went to the hospital with Sanchez after the two of them fought with “some black fool” and that he learned the next day that his cousin had died.

A deputy medical examiner determined the cause of death as stab wounds to the heart and lung.

A Los Angeles Superior Court jury found both defendants guilty of first murder and attempted murder with premeditation, and found that Hernandez used a deadly weapon, but deadlocked as to robbery charges.

Hernandez admitted a “strike” prior conviction and was sentenced to 81 years to life in prison by Judge Kathleen Kennedy-Powell, who sentenced Concha to 40 years to life in prison.

Justice Richard Mosk, writing for the Court of Appeal, said the trial judge correctly instructed the jury that the defendants were guilty of first degree murder if their “provocative acts” led to the killing of Sanchez by Harris.

Mosk rejected the argument that jurors might have been misled into believing that the defendants could be convicted on the basis of provocative acts by Sanchez. That was not reasonably possible given the evidence, the jury instructions, and the special verdict forms on which jurors found that the defendant’s actions caused Sanchez’s death, Mosk wrote.

The high court voted 6-0, with George absent, to hear the appeal.


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