Cal’s anti-SLAPP law protects some commercial speech, especially when it’s not really commercial

Dean v. Friends of Pine Meadow, 2018 WL 774065, No. A149735
(Cal. Ct. App. Feb. 8, 2018)
Dean (shorthand here for Dean & other plaintiffs) sued
defendants for allegedly false statements and publications regarding Dean’s
plan to construct a housing development on the Pine Meadow Golf Course in
Martinez. The trial court granted defendants’ special motion to strike under
the anti-SLAPP law and the court of appeals affirmed.
Pine Meadow Golf Course was owned by individual members of
the Dean and Coward families, who executed a contract to sell the golf course
to plaintiff DeNova, a “leading community-oriented, family-owned private
homebuilder with deep-seeded roots in local philanthropy and community
service.” The city of Martinez then approved a development application, which
“allowed for the development and construction of a 99-unit single-family home
subdivision.”  Dean alleged that the
named defendants consistently “opposed any development on the Pine Meadow
Golf Course property.” “Using the name ‘Friends of Pine Meadow’ for the first
time,” defendants circulated a petition for a referendum to reverse the City’s
resolution approving a general plan amendment to allow for the planned
development.

The alleged deception was using the name “Friends of Pine Meadow” “in order to
deceive fellow citizens into believing they were friends with the golf course
owners, including Dean who is a prominent citizen, and that they represented
the interests of these owners and the golf course.”  [Wow, all else aside, that doesn’t even pass
the laugh test, inasmuch as I snorted when I read that.  The “Friends of” formulation is widely used
to identify people who support keeping a place in a particular condition.]  When Dean and the other golf course owners
attempted to inform people “about the true nature of the Friends of Pine
Meadow,” defendants allegedly responded by publishing allegedly false
accusations that some or all of the plaintiffs were “ ‘hassling’ the signature
gatherers” and using “ ‘intimidation, threats, and obscene, derogatory name
calling.’ ”  There were further alleged
misrepresentations, including ones related to the idea that without development
the golf course would be kept as open space, ones about the scope of the development
plan, and ones about the scope of opposition.
The court of appeals first agreed with the trial court that
all Dean’s causes of action arose from protected activity. “Most, if not all,
the material allegations pertain to statements that were made during or in
connection with proceedings to amend the City’s general plan,” which made it
petitioning activity, and all the challenged conduct was “speech or petitioning
activity relating to an issue of public interest.”  Indeed, “the plaintiffs’ complaint is a
paradigm of the problem that [the anti-SLAPP law] was designed to address. ‘The
typical SLAPP suit involves citizens opposed to a particular real estate
development. The group opposed to the project, usually a local neighborhood,
protests by distributing flyers, writing letters to local newspapers, and
speaking at planning commission or city council meetings. The developer
responds by filing a SLAPP suit against the citizen group alleging defamation
or various business torts’” [citing a law review article about SLAPPs].
On appeal, Dean argued that defendants’ claims were
commercial speech, which couldn’t constitute protected activity.  First, no. The complaint targeted “individuals
who formed a community group in order to oppose an amendment to the City’s
general plan. On its face, this type of speech is political rather than
commercial in nature.”  Dean argued that defendants
acted like competitors by proposing
that the golf course be used for some purpose other than a housing development/be
bought by someone else.  That’s not what
competition means. 
Second, not all commercial speech is categorically excluded
from anti-SLAPP protection.  Defendants’ speech
and petitioning activity were covered “because the challenged statements were
made during or in connection with an official City proceeding authorized by
law, in public forums, and in connection with a matter that was both a public
issue and an issue of public interest.” 
That’s different from excluded commercial speech, which occurs in false
or misleading advertising pertaining to the business of the speaker or his or
her competitor, as delineated by Nike v.
Kasky
.  “[A] plaintiff cannot
preclude a defendant from establishing that a cause of action arises out of
protected activity simply by alleging there is some commercial element to the
parties’ dispute.”  [As I read this, the
court is saying that Nike’s statements to legislators and regulators would thus
have been protected by the anti-SLAPP law.] 
Even if the constitutional definition of commercial speech is broader
than advertising about the speaker or its competitor, the anti-SLAPP law does
not limit its protections to the contours of the First Amendment commercial
speech doctrine.  As the California
Supreme Court explained, “the anti-SLAPP statute is to be ‘construed broadly’
so as to ‘encourage continued participation in matters of public significance,’”
so statutory protection “may extend beyond the contours of the constitutional
rights themselves.”  The statute itself
provides “objective guidelines that lend themselves to adjudication on pretrial
motion.”
After that, the court of appeals found that Dean didn’t meet
the burden of showing that the claims were legally sufficient and factually
substantiated. The absolute litigation privilege in California extends to any
communication with some relation to a “legislative proceeding,” a “judicial
proceeding,” or “any other official proceeding authorized by law.”  Dean argued that the litigation privilege
didn’t apply because the complaint was seeking to hold defendants liable for an
unlawful course of conduct evidenced by their speech, but the record showed
otherwise: “Every claim in the complaint seeks to punish and/or suppress speech
that relates to an official proceeding about a public issue.” 
Nor did the Noerr-Pennington
exception to immunity for petitioning activities for sham petitions aid
Dean.  Dean argued that they’d alleged
facts to show that defendants’ petitioning activity was part of a misleading
campaign, pursuant to which they “deliberately” chose a deceptive name for
their group, mischaracterized the “current status” of the golf course property
and the plaintiffs’ development plan, and falsely accused plaintiffs of misconduct.
 Given defendants’ concededly genuine
opposition to the general plan amendment, their petitioning activity, no matter
how deceptive, wasn’t a sham. 

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