Anti-SLAPP Motion fails to satisfy the first "arising from" prong under the customary two-part analysis

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I regret that the press of work kept me away from this site for quite some time, other than the podcasts that I've continued to work on.  It looks like I'm going to be able to come up for air, so I am going to get back to posting on a more regular basis.

In Trilogy at Glen Ivy Maintenance Association, et al. v. Shea Homes, Inc., et al. (pub. ord. Mar. 19, 2015), the Court of Appeal (Fourth Appellate District, Division One) affirmed a trial court finding that an anti-SLAPP Motion lacked merit for failure to satisfy even the first prong of the two-part anti-SLAPP analysis.  As summarized by the Court, under the first step, "the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute."  Slip op., at 7-8.

The Court explained that, when evaluating whether a claim arises from protected speech, a trial court must look to the gravamen of the claim:

[W]e disregard the labeling of the claim (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 522) and instead "examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies" and whether the trial court correctly ruled on the anti-SLAPP motion. (Id. at pp. 519-522.) We assess the principal thrust by identifying "the allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189.) If the core injury-causing conduct on which the plaintiff's claim is premised does not rest on protected speech, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. (Ibid.)

Slip op., at 9. Following from this distinction, the Court concluded that the unusual choice of wording in the complaint was irrelevant to the analysis of the actual gravamen of the claim.  Specifically, the plaintiff used the word "repudiation" to describe a species of fiduciary breach, leading the defendant to claim that the complaint was about speech.  The Court was not persuaded, correctly identifying the fiduciary breach "gravamen" of the complaint.

In Simpson Strong-Tie Co. Inc. v. Gore, California Supreme Court strengthens protections surrounding attorney speech

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The California Supreme Court, in Simpson Strong-Tie Co. Inc. v. Gore (May 17, 2010) explicitly examined the narrow issue of the scope of the commercial speech exemption to the anti-SLAPP statute.  (See Code Civ. Proc., §§ 425.16, 425.17, subd. (c).)  Indirectly, the opinion concerns the scope of protection available to attorney communications directed at potential clients, class members or witnesses.  The issue arose when, in February 2006, plaintiff Simpson Strong-Tie Company, Inc. (Simpson) filed an action for defamation and related claims against defendants Pierce Gore and The Gore Law Firm after publication of a newspaper advertisement placed by Gore a few weeks earlier. The advertisement, directed to owners of wood decks constructed after January 1, 2004, advised readers that “you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck” if the deck was built with galvanized screws manufactured by Simpson or other specified entities, and invited those persons to contact Gore “if you would like an attorney to investigate whether you have a potential claim.”

Gore moved successfully in the superior court to have the entire complaint by Simpson stricken under section 425.16, the anti-SLAPP statute, and the Court of Appeal affirmed.  The Supreme Court affirmed as well, though limiting its review exclusively to the applicability of the commercial speech exemption to the anti-SLAPP statute set forth in section 425.17(c)(1).

The ruling offers additional protection to law firms prosecuting class actions.  A defendant will have little recourse against an advertisement that is crafted to satisfy the analysis supplied in this decision.