This case arises from the publication of an article regarding the safety of a cannabidiol (CBD) product, Real Scientific Hemp Oil (RSHO), sold by plaintiffs Medical Marijuana, Inc. (MMI) and HempMeds PX, LLC (HempMeds) (jointly the plaintiffs).
The plaintiffs contend that the article contains false information about RSHO and that the named defendants who were involved in the publication of the article, including ProjectCBD.com (Project CBD), the website entity on which the article was published, Martin Lee, the founder of ProjectCBD.com, and Aaron Miguel Cantu, the author of the article (jointly “the Project CBD defendants”), should be held liable for libel, false light, and unfair competition due to their publication of the article.
The Project CBD defendants appeal from the trial court’s order denying their special motion to strike the three causes of action asserted in the second amended complaint. The Project CBD defendants contend that the trial court erred in denying their motion because the plaintiffs failed to demonstrate a probability of prevailing on their claims.
A SLAPP suit is “a meritless lawsuit ‘filed primarily to chill the defendant’s exercise of First Amendment rights.’ ” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 861, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.)
California’s anti-SLAPP statute allows a defendant to move to dismiss “certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420–1421.) The anti-SLAPP statute provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
A court’s consideration of an anti-SLAPP motion involves a two-pronged analysis. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) T
The Supreme Court has expounded on the standards to be applied in this two-pronged analysis:
“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)
To make a showing under the first prong, the defendant need not show that the actions it is alleged to have taken were protected as a matter of law, but need only establish a prima facie case that its alleged actions fell into one of the categories listed in section 425.16, subdivision (e). (See Flatley v. Mauro (2006) 39 Cal.4th 299, 314.) If the court finds that the defendant has made the required showing, the burden shifts to the plaintiff to demonstrate that “there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567–568.) T
he second step of the antiSLAPP analysis consists of “a ‘summary-judgment-like procedure.’ ” (Baral, supra, 1 Cal.5th at p. 384.) At this stage, “[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., [one] that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to be stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted.) “As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672 (Paulus); Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655 [the pleadings “frame the issues to be decided”].)
Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations. (Baral, supra, 1 Cal.5th at p. 396.) Because the issues to be determined in an antiSLAPP motion are framed by the pleadings, we will not “insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified . . . . It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.” (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 621, fn. omitted, italics added.)
Libel is one form of defamation. (Civ. Code, § 44 [defamation occurs either through libel or slander].) Libel is defamation that is based on a publication in writing or other fixed representation that can be seen. (Id., § 45.) To establish defamation, a plaintiff must show a publication that was false, defamatory, unprivileged, and that has a natural tendency to injure or cause special damages. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259 (Jackson).) “Because [a defamatory] statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 155.)
Publication occurs when a defamatory statement is made to at least one third person. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 307.) ” ‘The sine qua non of recovery for defamation . . . is the existence of a falsehood.’ [Citation.]” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259 (Baker), italics omitted.) As a result, truth is a defense to a libel action. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581–582.) “[T]he defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the ‘gist or sting’ of the remark. [Citation.]” (Ibid.)
The statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” [Citations.]’ [Citation.]” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021, italics omitted.)
“A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.” (M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 636.)
“a practice may violate the UCL even if it is not prohibited by another statute. Unfair and fraudulent practices are alternate grounds for relief. [Citation.]” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)
[” ‘[a] plaintiff . . . may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint . . . in response to the motion’ “]; Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547 [“A plaintiff cannot avoid [an anti-]SLAPP motion by amending the complaint”]
The California Court of Appeal concluded that the trial court erred in determining that the plaintiffs have demonstrated a probability of prevailing on the merits of their claims. The California Court of Appeal therefore reversed the trial court’s order and remanded the matter with directions to enter an order granting the Project CBD defendants’ anti-SLAPP motion.
If you are faced with California’s Anti-SLAPP issues and dispicable defamation, 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. The Law Office of Robert Rodriguez does not represent guarantees.