Metropolitan News-Enterprise


Friday, May 2, 2008


Page 1


Court Upholds Dismissal of Suit Over Lawyer’s Advertising


By SHERRI M. OKAMOTO, Staff Writer


A libel action by a manufacturer against an attorney who published a newspaper advertisement stating that users of that manufacturer’s product “may” have claims to relief constituted a strategic lawsuit against public participation, the Sixth District Court of Appeal has held.

Affirming Santa Clara Superior Court Judge John Herlihy’s decision that the action was not exempt from the state’s anti-SLAPP statute under a provision excluding claims arising from representations of fact about the speaker’s or a competitor’s products or services, or statements made in the course of delivering the speaker’s products or services, the court dismissed the action, concluding that the advertisement could not be reasonably understood to convey a provably false assertion of fact.

Attorney Pierce Gore published newspaper advertisements which stated that certain wood deck owners whose decks were built with galvanized screws manufactured by Simpson Strong Tie “may have certain legal rights and be entitled to monetary compensation.” The advertisments also invited deck owners to contact Gore’s law firm “to investigate whether you have a potential claim.”

Simpson Strong-Tie 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, 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.

Concluding that the anti-SLAPP statute applied, Rushing further opined that Simpson could not show a likelihood of prevailing on its libel claims.

He wrote:

“To the average reader, the advertisement would at most suggest that some of Simpson’s galvanized screws were unsuitable for use in specified applications and that persons who used them might have a remedy against someone.”

Emphasizing that the advertisement “neither states nor implies that Simpson’s products ‘are defective,’ or are anything else,” he said that Gore’s statement did not imply any fact at all, but only addressed a “possible state of fact” contingent upon an investigation and litigation.

Because Simpson could not establish that Gore’s statement was provably false, Rushing continued, Simpson’s remaining causes of action also failed.

Justices Eugene M. Premo and Franklin D. Elia joined Rushing in his opinion.

The case is Simpson Strong-Tie v. Gore, 08 S.O.S. 2581.


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