Statements in book promoting addiction treatment protected by Cal anti-SLAPP law

Selkirk v. Grasshopper
House, LLC, 2020 WL 1241565, No. B294568 (Cal. Ct. App. Mar. 16, 2020)
Defendants Grasshopper
House and Passages Silver Strand “are luxury facilities that purport to treat
drug and alcohol addiction.” Former patients sued them for allegedly making false
statements about the efficacy of their treatment programs. Under the anti-SLAPP
law, Passages showed that some of its statements were protected speech and
plaintiffs didn’t show enough merit to proceed; remanded with directions issue
a new order striking certain allegations, although the denial of the motion to
strike some other allegations wasn’t appealable.
The Passages
facilities allegedly “are among the most expensive” rehabilitation centers “on
the planet,” charging between $40,000 and $100,000 for a 30-day stay. Neither founder
(including Pax Prentiss) has any education or training in the treatment of substance
abuse. Passages allegedly advertises it discovered a novel treatment approach
that “cured” Pax of his addictions and that can cure others. E.g., the Passages
Malibu website stated: “The program we created for Pax, the one that is now the
Passages program, was primarily based on finding out the ‘why’ behind his
addiction. It worked. Pax finally discovered his ‘why’ and we knew that he was
cured, that he would never again use drugs or alcohol.” The website also stated
that the “treatment method … has cured thousands of people at Passages.” Passages
also claims in its advertising the program can cure addiction within 30 days.
Passages allegedly made
similar statements in Internet, television, and print advertisements, in
“television and other media interviews,” during lectures and personal
appearances by the Prentisses, and in a book: The Alcoholism and Addiction
Cure: A Holistic Approach to Total Recovery.
Passages filed a
special motion to strike. Plaintiffs argued that their claims were based on
Passages’ specific misrepresentations about the efficacy of the Passages
treatment program and that promotional statements by a business about its
services were commercial speech to which California’s anti-SLAPP did not apply.
Plaintiffs submitted evidence that Pax continued to use drugs after the
Prentisses opened Passages Malibu and that since 2004 Passages has not
documented whether its clients remained sober after leaving its facilities. But
they didn’t submit evidence that they were aware of Passages’ alleged
misrepresentations before enrolling at the facilities.
The trial court
ruled that all statements “arising out of television ads, internet advertising,
and Defendants’ website constitute commercial speech which comes within the
exception” to the anti-SLAPP law, but that the statements in the Prentisses’
book weren’t commercial speech under the law, which “specifically exempts from [the
commercial speech rule] claims based upon the dissemination of a literary
work.” Then, the trial court ruled as to the book statements that the
plaintiffs demonstrated a probability of prevailing on each of their causes of
action except their cause of action for negligence.
On appeal, Passages
conceded that the statements about Pax’s personal history of addiction and
abuse (whether those statements were book statements or non-book statements) weren’t
eligible to be struck. They appealed as to the statements about addiction,
treatment, and the Passages facilities, and plaintiffs cross-appealed.
The appeals court
ruled that the trial court correctly held that the book statements were
protected speech. In the book, Chris Prentiss states that he and Pax “use[d]
what [they] learned curing [Pax] to help others discover the roots of their
addiction or alcoholism and break free” and that, “having healed thousands of
people,” Chris “can write with complete certainty that alcoholism and addiction
are not diseases.” The book also tells readers that, if patients “set up …
intense therapy” at Passages, they “should be able to cure [their] addiction in
thirty days or less.” These were statements relating to the public interest and
contributed to public debate about addiction treatment; the purpose of the book
wasn’t solely to advertise Passages but to discuss conventional treatment
methods, why the authors believe addiction is not “incurable,” and why they
believe their “holistic” treatment method is better than other treatment
methods. “To be sure, the statements about the efficacy of the Passages
treatment program and the number of patients the program has successfully
treated may help Passages solicit new clients. But those statements also
provide context and explain the Prentisses’ views on addiction and treatment.
The statements about their views contribute to the public discussion of the
issue.” The book also made claims that it could help readers treat their
addictions on their own, without paying Passages for treatment: “Within the
covers of this book, I will show you how you can cure your alcoholism or
addiction” and “how to put together your own personalized program to achieve
total recovery and optimum health by enlisting the help of several key health
practitioners.”  Their views might be
against the medical consensus, and might even “harm some persons who would
receive better treatment from medical professionals.” But the question is
whether the Prentisses “participated in, or furthered, the discourse,” not “the
social utility of the speech at issue, or the degree to which it propelled the
conversation in any particular direction.”  The book as a whole, and not just the
challenged statements, had to be considered. And even if the challenged
statements were false (or even Central Hudson commercial speech), that
didn’t make them unrelated to an issue of public interest, an issue determined
by the anti-SLAPP law and not by the Constitution.
With that out of the
way, plaintiffs failed to show that their book-based claims had merit. The
standard is like summary judgment: the court “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.” Plaintiffs didn’t submit evidence
that they attended Passages because of the alleged misrepresentations, or that
they heard or read the misrepresentations, or that they relied on these
statements, or that they suffered any economic injury as a result of these
alleged statements.

However, the order denying the special motion to
strike the non-book statements wasn’t reviewable in this appeal, because where
a trial court denies the motion on the grounds that the commercial speech
exemption applies, that’s not immediately appealable, per the anti-SLAPP law
itself, even if other parts of the order are appealable and even if the
district court erred in keeping opinion statements in the case when the
exemption only applies to statements of fact in commercial speech.

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