Metropolitan News-Enterprise


Tuesday, May 18, 2010


Page 3


High Court Upholds Dismissal of Lawsuit Over Lawyer’s Advertising


By a MetNews Staff Writer


The California Supreme Court yesterday ruled that a suit over a law firm’s advertisement telling newspaper readers they might have a case if their deck was built with a certain manufacturer’s screws could be dismissed as a strategic lawsuit against public participation.

Affirming a decision by the Sixth District Court of Appeal, the justices unanimously ruled that the manufacturer’s defamation suit did not implicate commercial speech that is exempt from dismissal under the anti-SLAPP suit.

Simpson Strong-Tie, which manufactured galvanized screws used in deck construction, sued Los Gatos attorney Pierce Gore after he published advertisements advising owners of decks built with Simpson’s screws that “you may have certain legal rights and be entitled to monetary compensation, and repair or replacement” and inviting them to contact his firm “if you would like an attorney to investigate whether you have a potential claim.”

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

Santa Clara Superior Court Judge John Herlihy, however, granted Gore’s motion to strike the complaint under the Code of Civil Procedure Sec. 425.16.

On appeal, Simpson argued that the suit was exempt from the law by Sec. 425.17(c), which exempts causes of action arising from a firm’s representations of fact about its business operations, goods or services.

The latter provides that the anti-SLAPP statute “does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person….”

The statement or conduct must consist 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…[or] [t]he 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 buyer or customer.”

Reasoning that Simpson, as the plaintiff, bore the burden to show that its cause of action arose from Gore’s representations of fact about his business operations, goods or services, and reasoning that Simpson failed to meet that burden, Baxter concluded that dismissal was appropriate.

Chief Justice Ronald M. George, and Justices Joyce L. Kennard, Kathryn Mickle Werdegar, Ming W. Chin, Carlos R. Moreno and Carol A. Corrigan joined Baxter in his opinion.

The case is Simpson Strong Tie Company, Inc. v. Gore, 10 S.O.S. 2577.


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