COMMERCIAL SPEECH THE BASIS FOR DENIAL OF AN ANTI-SLAPP MOTION?
COMMERCIAL SPEECH THE BASIS FOR DENIAL OF AN ANTI-SLAPP MOTION?
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COMMERCIAL SPEECH THE BASIS FOR DENIAL OF AN ANTI-SLAPP MOTION?

| Aug 29, 2019 | Firm News

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In this matter, the trial court denied the defendants’ anti-SLAPP motion for two reasons, one of which was that the commercial speech exemption found in Code of Civil Procedure section 425.17 applies to the conduct underlying the operative complaint. Although most trial court orders resolving an anti-SLAPP motion are subject to interlocutory appeal, the Legislature has precluded interlocutory appellate jurisdiction over an appeal from an  order denying an anti-SLAPP motion on the ground that the commercial speech exemption applies.

A trial court’s order is appealable when made so by statute. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) In civil matters, section 904.1 is the main statute that identifies appealable judgments and orders. Under that statute, final judgments are appealable. (§ 904.1, subd. (a)(1).) Interlocutory orders generally are not. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 754 [“The right to appeal in California is generally governed by the ‘one final judgment’ rule, under which most interlocutory orders are not appealable.”].)

An appeal from an order granting or denying an anti-SLAPP motion is an exception to the nonappealability of interlocutory orders. (§§ 904.1, subd. (a)(13), 425.16, subd. (i).) Such orders generally are appealable immediately, rather than as part of an appeal from a final judgment.

However, in 2003 the Legislature enacted section 425.17, which “categorically exempts certain expressive actions from the scope” of anti-SLAPP protection (FilmOn.com Inc. v. Double Verify Inc. (2019) 7 Cal.5th 133, 147) and makes immediate appeal of an order applying the exemption unavailable. The exempted speech has been referred to as “comparative advertising.” (Ibid.).

The exemption applies where a speaker who is part of a business makes factual representations to potential customers about the business or a competitor’s business, for the purpose of gaining sales. Our Supreme Court has stated, “[i]n creating this exemption, the Legislature expressly made the denial of an anti-SLAPP motion based on the section 425.17 exemption not appealable.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 195.) The Legislature did so through section 425.17, subdivision (e), which states:

“If any trial court denies a special motion to strike on the grounds that the action or cause of action is exempt pursuant to this section, the appeal provisions in subdivision (i) of Section 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply . . . .” (§ 425.17, subd. (e).) This decision to preclude interlocutory appellate jurisdiction for one category of anti-SLAPP rulings was within the Legislature’s authority. (In re Taya C. (1991) 2 Cal.App.4th 1, 7 [“Because the Legislature has complete control over the right to appeal, it can restrict, change, withhold or even abolish that right.”].)

See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1001 [recognizing that § 425.17, subdivision (e) expressly states that if a motion is denied based on section 425.17, the anti-SLAPP appellate provisions do not apply]; All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1197 [stating that if the trial court based its denial of the anti-SLAPP motion on § 425.17, the order was not appealable]; Doe v. Luster (2006) 145 Cal.App.4th 139, 145 [recognizing that an immediate appeal is not available from a denial pursuant to § 425.17].) The case law confirms that the Legislature precluded immediate appellate jurisdiction where a trial court denied an anti-SLAPP motion due to the commercial speech exemption.

Defendants requested that the California Court of Appeal exercise its discretion to treat this appeal as a writ proceeding. While the California Court of Appeal has such discretion, it woud not exercise it here, as they did not see sufficient reason to do so. (See Olson v. Cory (1983) 35 Cal.3d 390, 401 [appellate court should treat purported appeal as petition for writ of mandate only in “unusual circumstances”].) “The interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders.” (Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1455-1456.)

The California Court of Appeal therefore dismissed this appeal.

See Benton v. Moreno-Benton.

If you are faced with California’s Anti-SLAPP issues, you need a highly skilled and tenacious attorney as your advocate!  Contact the Law Office of Robert Rodriguez! (209) 596-4263.

Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts.  Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the California Court of Appeal.

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