Opinion
D040166.
10-24-2003
AntiCancer, INC., Plaintiff and Respondent, v. NOVARTIS PHARMACEUTICALS CORPORATION et al., Defendants and Appellants.
AntiCancer, Inc. (AntiCancer) sued Novartis Pharmaceuticals Corporation, Novartis Corporation, Genetic Therapy, Inc., Peter Lassota, Ph.D. (collectively Novartis or the Novartis defendants) and Xenogen Corporation (Xenogen), alleging certain persons made false and disparaging statements about AntiCancers product, a type of imaging used in screening for cancer drugs. Novartis and Xenogen brought special motions to strike AntiCancers complaint under Code of Civil Procedure section 425.16. The superior court denied the motions, concluding Novartis and Xenogen failed to demonstrate AntiCancers lawsuit arose from an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue. (§ 425.16, subd. (b)(1).)
The statute is commonly referred to as the anti-SLAPP statute. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).) The acronym "SLAPP" stands for "strategic lawsuits against public participation." (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.) All statutory references are to the Code of Civil Procedure unless otherwise indicated.
As to Novartis, we conclude the trial court erred in denying its section 425.16 motion to strike, and accordingly reverse that portion of the order and direct the trial court to enter an order granting the motion. As to Xenogen, we reverse the order as to Xenogens defamation cause of action based on the alleged statement that AntiCancer was engaged in patent infringement because the trial court was without subject matter jurisdiction to consider the motion as to that claim, but otherwise affirm the order denying the motion.
FACTUAL AND PROCEDURAL BACKGROUND
AntiCancer is a biotechnology company that has developed imaging technologies useful in discovering and developing drugs, including drugs intended to affect cancer tumor growth. AntiCancer incorporates a fluorescent protein from jellyfish (green fluorescent protein, or GFP) into cancer cells that are then implanted into live mice and viewed by illuminating the animal with blue light, causing the tumor cells to fluoresce bright green. Xenogen is also involved in the development of imaging technologies used to discover and develop cancer-fighting drugs. Xenogen incorporates a light-generating protein from fireflies, D-Luciferin, into cancer cells that, after implantation into living laboratory animals, are studied using cameras and other noninvasive imaging methods. Novartis Corporation, Novartis Pharmaceutical Corporation, and Genetic Therapy, Inc. (GTI) are companies that are in various ways involved in cancer research. Peter Lassota, Ph.D. is head of Novartis Pharmaceutical Corporations Oncology In Vivo Pharmacology Laboratory.
The latin phrase "in vivo" literally translated means "in life." This generally refers to tests or reactions taking place in a living organism. (PDR Medical Dictionary (2d ed. 2000) p. 919, col. 2.)
In November 1996, AntiCancer and GTI entered into the first of several laboratory service agreements by which AntiCancer performed testing on animals for GTI. In September 2000, GTI notified AntiCancer of its intent to terminate the agreement, expressing dissatisfaction with AntiCancers performance.
In May 2001, Dr. Lassota gave a presentation at a preclinical trials/pharmaceutical workshop (the workshop) held by the National Cancer Institute (NCI) Mouse Models of Human Cancers Consortium. The workshop, which was attended by invitation only, had 58 participants, including representatives from the biotech and pharmaceutical industries, and 25 staff members from NCI. Each participant was required to execute a nondisclosure agreement to protect information relating to inventions and potential patent rights, as well as confidential business information.
In part, the nondisclosure agreement provides: "This document is executed with the intent to maintain the potential for patenting the products that arise from the individual efforts put into this collaborative effort while still enabling investigators to share the results from their undisclosed and unpublished work. Open discussion is fundamental to the attainment of the goals of this collaborative effort. [¶] In order to protect certain information relating to inventions and potential and/or present patent rights, and to research, development, business plans, and other technology, including materials (Information) which may be disclosed between them, the members of the Mouse Models of Human Cancer Consortium (MMHCC) Pre-Clinical Standing Committee and their designated associates, as identified on the Meeting Roster form signed by all participants, agree that all discussions and exchanges occurring in the closed Committee sessions will be considered proprietary and confidential."
In his presentation, Dr. Lassota addressed various types of noninvasive imaging techniques in mice as they applied to cancer research in his laboratory, including those techniques using "`visible light" to determine the impact of cancer therapies on tumor growth. In visible light imaging, luminescent material is incorporated into cancerous cells, which are then implanted into live mice. Dr. Lassota discussed two of the luminescent materials used in that type of imaging: D-Luciferin and GFP. Robert Hoffman, Ph.D., AntiCancers president, was present at the workshop.
Following the workshop, AntiCancer sued Xenogen and the Novartis defendants for trade libel and defamation. AntiCancer also asserted causes of action against Xenogen for intentional interference with contract, interference with prospective economic advantage, and unfair competition under Business and Professions Code section 17200 et seq. As to Novartis, AntiCancer alleged Dr. Lassota falsely disparaged AntiCancers patented technology at the workshop, which was attended by influential members of the pharmaceutical industry and cancer research community, including representatives from the National Institutes of Health. AntiCancer alleged Dr. Lassota made the statements with actual malice, intending to disparage the quality of AntiCancers technology and knew the false nature of his statements or had serious doubts about their truth. AntiCancer alleged it lost anticipated licensing fees as a result of Dr. Lassotas wrongful statements.
As to Xenogen, AntiCancer alleged that in the last quarter of 2000 or earlier, "Xenogen" had made false statements about AntiCancer and its technology, including statements that AntiCancer was infringing Xenogens patent and patents held by others; AntiCancers technology was ineffective; and AntiCancer was unable to license its technology. It alleged Xenogen made false statements to Bristol-Myers Squibb representatives, which played a material part in inducing Bristol-Myers Squibb and others to avoid dealing with AntiCancer. AntiCancer alleged these statements interfered with its prospective business relationships with GTI, Novartis and the attendees at the workshop; interfered with its contract with GTI because the statements caused GTI and Novartis to terminate an October 26, 1999 laboratory services agreement; and constituted unfair business practices under the unfair competition law.
The Novartis defendants and Xenogen filed special motions to strike AntiCancers complaint under section 425.16. Novartis argued Dr. Lassotas statements at the workshop, attended by government scientists and members of the pharmaceutical and biotech communities, fell within section 425.16 subdivisions (e)(3) and (e)(4) because they were made in a place open to the public or a public forum in connection with an issue of public interest, and because they involved cancer research, a matter of public health, they also were made in furtherance of the exercise of his right to free speech in connection with a public issue or an issue of public interest. Xenogen argued: (1) its statements constituted constitutionally protected speech and AntiCancer could not establish a probability of prevailing on the merits because it had not pleaded any actionable statements; (2) any statements made by Xenogen would be subject to various privileges, including the common interest privilege of section 47, subdivision (c), the common law fair comment privilege, and the common law fair competition privilege; (3) any statements made by Xenogen would be true or would be protected opinion; and (4) AntiCancer could not prove any statements were made with constitutional malice.
The superior court denied the motions, finding the Novartis defendants and Xenogen had not met their burden to prove any of the alleged statements were made in furtherance of their right of petition or free speech under the United States or California Constitution in connection with a public issue under section 425.16, subdivision (e). As a consequence, the court did not reach the question of whether AntiCancer met its burden of establishing a probability that it would prevail on its claims. (Id., subd. (b).)
DISCUSSION
I. Section 425.16: Standards and Burdens
Under section 425.16, a defendant may move to strike any "cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue." (Id., subd. (b)(1).) Such causes of action are subject to such a motion "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Ibid.) The statute provides that an act in furtherance of a persons right of petition or free speech includes: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Id ., subd. (e).)
The California Supreme Court has summarized a trial courts task in ruling on an anti-SLAPP motion to strike: "Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. " (Equilon, supra, 29 Cal.4th at p. 67; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 (Navellier).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute." (Navellier, at p. 89.)
"Whether section 425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 (ComputerXpress).) In undertaking this analysis, we are mindful that "an appellate court, whenever possible, should interpret the First Amendment and section 425.16 in a manner `favorable to the exercise of freedom of speech, not its curtailment. " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119 (Briggs ); Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114, fn. 3.)
We separately address Novartiss and Xenogens motions.
II. Novartiss Motion
A. Application of Section 425.16 to AntiCancers Causes of Action for Trade Libel and Defamation
As for the first inquiry of the section 425.16 analysis, we begin with Novartiss contention that Dr. Lassotas statements, which form the basis for AntiCancers trade libel and defamation causes of action, fall within the category of section 425.16, subdivision (e)(2): "[A]ny written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law." "In the anti-SLAPP context, the critical consideration [for the defendants initial burden] is whether the cause of action is based on the defendants protected free speech or petitioning activity." (Navellier, supra, 29 Cal.4th at p. 89.) The statutes definitional focus is not on the form of the plaintiffs cause of action but rather the defendants activity giving rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning. (Id. at p. 92.) To decide whether this initial "arising from" requirement is met, we consider not only the pleadings, but also the supporting and opposing affidavits stating the facts on which the liability or defense is based. (Id. at p. 89; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 (Cotati); Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District (2003) 106 Cal.App.4th 1219, 1232 (Tuchscher).)
Novartis maintains Dr. Lassotas statements at the workshop were made in connection with cancer research or funding for such research, an issue under consideration or review by NCI, and that the workshop was an official proceeding within the meaning of section 425.16. It bases this contention on evidence from Dr. Hoffman, AntiCancers president, presented by AntiCancer in opposition to its motion. In his sworn declaration, Dr. Hoffman asserted that the workshop was attended by NCI staff members involved in funding matters: "There were 58 participants [at the workshop] including potential corporate customers as well as 25 staff from the National Cancer Institute involved in funding matters, evaluating the products and potential products." Dr. Hoffman further stated: "Dr. Lassotas untrue statements highly damaged AntiCancers ability to further commercialize its GFP imaging technology among its most important potential world-wide pharmaceutical company clientele and also had funding opportunities highly damaged by Dr. Lassota due to his statements in front of NCI personnel involved in funding." Novartis contends this evidence, combined with the judicially noticeable fact that NCI is an executive body as a component of the National Institutes of Health, an agency of the United States Department of Health and Human Services, is direct evidence that Dr. Lassotas statements meet this criteria.
We need not reach the separate question of whether the workshop was an official proceeding within the meaning of section 425.16, subdivision (e)(2), because we agree Dr. Lassotas overview of and comments concerning in vivo imaging methods used to screen for cancer drugs, including his comments relating specifically to GFP, were made "in connection with" with NCIs efforts — through its Mouse Models of Human Cancers Consortium — to bring together representatives of the government, pharmaceutical and biotech industries to advance cancer research and potential therapies, issues under consideration or review by NCI. We judicially notice the fact that NCI is an agency of the National Institutes of Health, which itself is an agency of the United States Public Health Service. (§§ 452, subd. (h), 459; 42 U.S.C. §§ 281(b)(1)(A), 203.) NCIs general purpose is codified in the United States Code: "The general purpose of the National Cancer Institute . . . is the conduct and support of research, training, health information dissemination, and other programs with respect to the cause, diagnosis, prevention, and treatment of cancer, rehabilitation from cancer, and the continuing care of cancer patients and the families of cancer patients." (42 U.S.C. § 285.) Broadly speaking, the battle against cancer and effective research methods to fight cancer is always within the purview of NCIs consideration. Under the pertinent language of section 425.16, subdivision (e)(2), NCI need not be specifically considering or reviewing the efficacy of visible-light imaging of cancer cells in mice; it is enough that the challenged statements about the technology are sufficiently connected to an issue or issues under NCIs consideration that it becomes a matter of protected speech under the First Amendment. The result we reach follows the Legislatures mandate that section 425.16 be construed broadly. (Id., subd. (a); see also Briggs, supra, 19 Cal.4th at p. 1119.)
In reaching this conclusion, we reject AntiCancers argument that Novartis waived this contention by failing to raise it in the trial court below. AntiCancers waiver argument appears to be based on its misunderstanding of Novartiss citations to the joint appendix. Novartiss citations (e.g., "JA 44:6-7") are not to the page and lines of the joint appendix, but to the tab number and page of the document under the tab. In any event, AntiCancers assertion that Novartis did not make the argument before the trial court is simply incorrect. Novartis made its argument as to section 425.16, subdivision (e)(2) to the trial court in its reply papers after AntiCancer, through Dr. Hoffmans declaration, acknowledged the workshops attendees included NCI members involved in funding decisions and suggested those attendees were considering the products discussed in the workshop for possible NCI funding. Novartis also submitted a request for judicial notice that NIC was part of the executive branch of the United States government. The fact the superior court did not consider, or implicitly rejected, both the request and Novartiss contention is of no moment on our de novo review of the matter.
Given our conclusion that Dr. Lassotas statements fall within the ambit of subdivision (e)(2) of section 425.16, we need not decide whether they were made in a public forum in connection with an issue of public interest, or whether they constitute conduct in furtherance of the exercise of Novartiss right to free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(3) & (4).)
B. AntiCancers Probability of Prevailing on the Merits on its Claims Against Novartis
Having found Novartis met its burden to show its challenged conduct arises from protected activity, we turn to the second prong of the inquiry: whether AntiCancer met its burden to prove a probability of prevailing on its claims. "In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must `"state [] and substantiate [] a legally sufficient claim." [Citations.] Put another way, the plaintiff `must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submission of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; Tuchscher, supra, 106 Cal.App.4th at p. 1235.)
1. Trade Libel
"Trade libel is the publication of matter disparaging the quality of anothers property, which the publisher should recognize is likely to cause pecuniary loss to the owner. [Citation.] The tort encompasses all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so. " (ComputerXpress, supra, 93 Cal.App.4th at p. 1010, citing Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 572.) To prevail on a cause of action for trade libel, the plaintiff must prove special damages, typically consisting of lost prospective customer contracts. (See Erlich v. Etner (1964) 224 Cal.App.2d 69, 73 (Erlich); see also Nichols v. Great American Ins. Companies (1985) 169 Cal.App.3d 766, 773 ["A cause of action for trade libel thus requires (at a minimum): (1) a publication; (2) which induces others not to deal with plaintiff; and (3) special damages"].) It is not sufficient to prove a general decline in business arising from the falsehood; the plaintiff must instead identify particular customers and the particular transactions of which the plaintiff was deprived as a result of the libel. (Erlich, at pp. 73-74.)
AntiCancer alleged Dr. Lassota (1) falsely stated at the workshop that AntiCancers technology could not be licensed and that its use was restricted to AntiCancer, and (2) falsely implied that AntiCancers technology could be used only with high resolution ex vivo (i.e., in non-living tissue). In opposing Novartiss motion, AntiCancer presented Dr. Hoffmans declaration in which he stated Dr. Lassota falsely claimed GFP was "not suitable for whole-body imaging" and used the following slide that he maintained disparaged AntiCancers technology:
WHY FIREFLY LUCIFERASE/D-LUCIFERIN? GREEN FLUORESCENCE PROTEIN (GFP) CAN BE USED IN VIVO AND EX VIVO POTENTIAL HIGH RESOLUTION EX VIVO NOT QUANTITATIVE BLUE EXCITATION LIGHT REQUIRED TO GET GREEN FLUORESCENCE BLUE LIGHT HIGHLY ABSORBED BY MOST TISSUES GFP REPORTED TO BE IMMUNOGENIC GFP-LABELED TUMORS DIDNT GROW IN SYNGENETIC MODELS HIGH-YIELD GFP REQUIRED USE RESTRICTED TO ANTICANCER, INC. (PATENT)
Dr. Hoffman averred: "Dr. Lassotas untrue statements highly damaged AntiCancers ability to further commercialize its GFP imaging technology among its most important potential world-wide pharmaceutical company clientele and also had funding opportunities highly damaged by Dr. Lassota due to his statements in front of NCI personnel involved in funding."
Novartis contends AntiCancer failed to show a probability of prevailing on its trade libel claim for three reasons: (1) it did not submit evidence that Dr. Lassota acted with actual malice; (2) it did not offer evidence of special damages; and (3) it did not present evidence rebutting Novartiss common interest privilege defense under Civil Code section 47, subdivision (c).
We agree AntiCancer has not made a prima facie showing of facts on the issue of special damages to sustain a favorable judgment, even crediting all the evidence submitted by AntiCancer. (Navellier, supra, 29 Cal.4th at p. 89.) In OHara v. Storer Communications, Inc. (1991) 231 Cal.App.3d 1101, this court evaluated a claim for special damages in a defamation action and explained the concept of special damages and the legal requirements for recovering such damages: "General damages are damages that courts believe generally flow from the kind of substantive wrong done by the defendant. Special damages, on the other hand, include items of loss that are more or less peculiar to the particular plaintiff in that the plaintiff actually suffered the loss in the specific amount. Two limitations apply to special damages: (1) they must be proved to a reasonable certainty; and (2) no special damages are recoverable if they are deemed remote." (Id. at p. 1113.)
AntiCancer argues it provided sufficient evidence of special damages by establishing, through Dr. Hoffmans declaration, it lost its contract with GTI and lost prospective licenses with companies including Chiron Corp., Lilly Corp., Sugen, Inc., Onyx Pharmaceuticals, Pfizer, Organon, SmithKline Beecham, AstraZenica, Cubist Pharmaceuticals, DuPont Pharmaceuticals, Bausch & Lomb, and Hoffman La-Roche. However, as Novartis points out, there are fatal flaws in this claim. First, in his declaration Dr. Hoffman specifically attributed the loss of the GTI contract to statements made by Xenogen, not Novartis. Further, the GTI/AntiCancer agreement was cancelled in September 2000, some six months before Dr. Lassotas presentation at the workshop in May 2001. The alleged special damage of the lost GTI contract could not have flowed from statements made by Dr. Lassota six months later. We disagree with AntiCancers argument that "Novartiss signing of a $10 million license agreement close in time to GTIs termination of AntiCancer gives rise to a strong inference of wrongful inducement by Novartis (to Novartiss ensuing profit and AntiCancers damages)." Even if the premise of the argument were factually supported (it is not) such an inference does not logically follow from those facts.
We cannot conclude that the loss of the named companies as potential licensees amounts to prima facie evidence of special damages. As with AntiCancers claim of the lost GTI contract above, Dr. Hoffman attributed the loss of prospective customers to statements made by Xenogen, not Novartis. Equally fatal to this particular item of special damages is the speculative nature of the loss. Setting aside the fact the damages are not claimed to have stemmed from Novartiss statements, Dr. Hoffman avers that AntiCancer "estimates it has lost at least one hundred potential license clients among the pharmaceutical, biopharmaceutical, and biotechnology companies." (Italics added.) He continues: "AntiCancers losses are estimated to be in the hundreds of millions of dollars due to Xenogens activities. . . . AntiCancer has estimated its losses by multiplying the number of these lost customers by the license fees such as those paid by Novartis to Xenogen (approximately $10 million). . . . Despite AntiCancer being able to demonstrate clear superiority of its GFP technology, which the world has acknowledged, AntiCancer has been unable to license its technology in the U.S. Would-be U.S. clients have declined to license AntiCancers GFP technology, since Xenogen has told potential clients that AntiCancers GFP technology is ineffective, unlicensable, and infringes the 135 patent."
Hoffmans statements are not sufficient to make a prima facie showing of special damages to survive Novartiss motion under section 425.16. Explaining the requirement that a plaintiff prove special damages in a trade libel case, the court of appeal in Erlich said: " [T]he plaintiff [in a trade libel case] must prove in all cases that the publication has played a material and substantial part in inducing others not to deal with him, and that as a result he has suffered special damages. . . . Usually, . . . the damages claimed have consisted of loss of prospective contracts with the plaintiffs customers. Here the remedy has been so hedged about with limitations that its usefulness to the plaintiff has been seriously impaired. It is nearly always held that it is not enough to show a general decline in his business resulting from the falsehood, even where no other cause for it is apparent, and that it is only the loss of specific sales that can be recovered. This means, in the usual case, that the plaintiff must identify the particular purchasers who have refrained from dealing with him, and specify the transactions of which he claims to have been deprived. " (Erlich, supra, 224 Cal.App.2d at pp. 73-74.)
In Erlich, the plaintiff, an owner of a poultry business, obtained a jury verdict for trade libel on proof one of the defendants fabricated an incident involving the violation of kosher laws, disparaging his business as a result. (Erlich, supra, 224 Cal.App.2d at pp. 71-73.) On appeal, the defendant contended the plaintiff had not met the stringent requirements of proof of actual damage. (Id. at p. 73.) The court of appeal agreed. "Although [the plaintiff] testified as to his gross business, both in general and with certain customers, at times before and after the publications involved, he at no time offered any proof as to the profit made at any of these times, nor whether his net profits had been greater or less after than before the publications. Consequently, there was no showing of damage, either in any specific sum or at all . . . ." (Id. at pp. 74-75.) Except as to one particular hotel account, the court found "there was a total failure to show that any loss, even of gross business, was attributable to the publications for which [the defendant] was responsible." (Id. at p. 75.) This was so even though the plaintiff himself testified he had lost over-the-counter trade and named some customers including the Ambassador Hotel and other accounts, because the testimony "was a mere conclusion on his part." (Ibid.) "[The plaintiff] did not testify that any customer had ever assigned the publicity as a reason for ceasing to trade with him, nor, although the purchasing agents of his commercial accounts were available, were any called to give their own version of why they ceased dealing with plaintiff. While . . . plaintiff may allege causation in general terms, he must still prove that fact by something more than his own guess as to what had gone on in his former customers minds, where that mental operation was entirely uncommunicated to him or (so far as here appears) to anyone else." (Ibid.) As to the one named hotel account, the testimony of the supervising rabbi — that he no longer dealt with the plaintiff because of the incident at issue — was held insufficient because it was not buttressed by proof of a loss in a specific sum. (Ibid.)
We recognize a plaintiff opposing a motion under section 425.16 need not conclusively prove it is entitled to prevail on its causes of action; the plaintiffs burden is only to make a prima facie showing of facts which, if proven at trial, would support a judgment in the plaintiffs favor. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-824, overruled on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) However, guided by Erlich, Hoffmans testimony, in which he "estimated" AntiCancers losses suffered because "would-be" clients have declined to license its GFP technology, does not support even a prima facie case of special damages to sustain AntiCancers cause of action for trade libel, even though Hoffman named particular companies as the lost customers. Apart from Hoffmans inadmissible conclusions, there is no competent evidence any particular customer refused to deal with AntiCancer because it was influenced by any statement made by Dr. Lassota.
We reject AntiCancers attempt to apply the principle that the law does not require mathematical certainty in the calculation of damages. To be applicable, that principle requires that the fact of damage be certain. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873.) Here, we have concluded for the reasons set forth above it is not. Because AntiCancer cannot meet its section 425.16 burden on the essential element of special damages, its trade libel cause of action must be stricken.
2. Defamation
Our conclusion that AntiCancer has not made a prima facie case of special damages likewise prevents its ability to maintain a defamation cause of action, unless AntiCancer can establish Dr. Lassotas statements were defamatory per se, i.e., they had a natural tendency to injure. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; Civ. Code, §§ 45, 46; Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 577, quoting 33 Am.Jur. (1941) Libel and Slander, p. 263; Contento v. Mitchell (1972) 28 Cal.App.3d 356, 358.) As AntiCancer observes, in the context of a statement defamatory on its face against a corporation, such a statement would " reasonably and naturally appear . . . that it was of such a nature as to deprive [the corporation] of the patronage or trade it enjoyed in a business way, or to render it so odious and contemptible in the estimation of those with whom it did have or might reasonably expect to have business dealings or connections as to injuriously affect its business. . . . " (Di Giorgio Fruit Corp. v. AFL-CIO, supra, at p. 571.)
We cannot say Dr. Lassotas alleged statements concerning AntiCancer are, as a threshold matter, defamatory in character. His statements are directed solely to AntiCancers products, and they are not reasonably susceptible to an interpretation that AntiCancer as a company was dishonest, lacking in integrity or perpetrating a fraud upon the public. "If [a] statement reflects merely upon the quality of what the plaintiff has to sell or solely on the character of his business, then it is injurious falsehood [also referred to as trade libel] alone. Although it might be possible to imply some accusation of personal incompetence or inefficiency in nearly every imputation directed against a business or a product, the courts have insisted that something more direct than this is required for defamation. On the other hand, if the imputation fairly implied is that the plaintiff is dishonest or lacking in integrity or that he is perpetrating a fraud upon the public by selling something that he knows to be defective, the personal defamation may be found." (Rest.2d Torts, § 623A, com. g, p. 341.) Thus, "statements simply indicating that plaintiffs business goods were of inferior quality, though conceivably tortious as injurious falsehoods, do not accuse plaintiff of dishonesty, lack of integrity or incompetence nor even imply any reprehensible personal characteristic, and are therefore not defamatory." (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 550.)
AntiCancer, however, contends Dr. Lassotas statements are defamatory per se; that they went beyond disparaging AntiCancers technology to assert AntiCancer is "purveying to would-be licensees technology which it lacks the right to license, something which amounts to fraud." AntiCancer points to Dr. Lassotas slide on GFP providing: "USE RESTRICTED TO ANTICANCER (PATENT)." It also points to Dr. Lassotas verbal statement at the conference that GFP cannot be used for whole-body imaging. Finally, AntiCancer relies upon the following statement made by "DOE 1," who is alleged by AntiCancer in its complaint to have written a document purporting to critique AntiCancers technology: "The authors present the transition from surface fluorescence imaging to deep tissue imaging as a linear process where indeed it is non-linear." This AntiCancer maintains is a straightforward accusation of dishonesty on AntiCancers part by Dr. Lassota. AntiCancer concludes: "What Dr. Lassota said, by any reasonable interpretation, was that AntiCancer is peddling for license inferior technology — when it lacks the legal ability to do so."
These arguments are unavailing. First, AntiCancers reliance on its allegations as to DOE 1 must fail because in meeting its burden under section 425.16, a plaintiff must present competent and admissible evidence (§ 425.16, subd. (b); Cotati, supra, 29 Cal.4th at p. 76); it may not simply rely on the allegations of its complaint. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656, disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn. 5; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.) AntiCancer has presented no evidence establishing DOE 1 is in fact Dr. Lassota, but only the argument in its brief that Dr. Lassotas declaration "omits any denial that he is DOE 1." Second, we simply do not agree that the phrase "USE RESTRICTED TO ANTICANCER (PATENT)" makes any negative insinuation about AntiCancers licensing practices, especially when viewed in context of Dr. Lassotas statements and presentation as a whole. Those familiar with patent laws understand that under them a patent holder is granted the right to exclude others from making, using, selling or offering to sell an invention. (See Arachnid, Inc. v. Merit Industries, Inc. (Fed.Cir. 1991) 939 F.2d 1574, 1578, citing Six Wheel Corp. v. Sterling Motor Truck Co., (9th Cir. 1931) 50 F.2d 568, 571.) Thus, one who makes, uses or sells a product incorporating a patented invention is guilty of direct patent infringement. (35 U.S.C. § 271(a).) The statement simply refers to AntiCancers exclusive use of its own patented technology; it cannot be reasonably interpreted as suggesting anything about AntiCancers ability to license the technology or its licensing practices.
In a footnote appearing later in its brief, AntiCancer explains it has not been able to learn the identity of DOE 1 through discovery because the section 425.16 motions stayed discovery. This does not excuse AntiCancers failure of proof, for section 425.16 authorizes parties to conduct discovery as permitted by the trial court for good cause shown notwithstanding the pendency of an anti-SLAPP motion. (Id ., subd. (g).)
Nor can we agree Dr. Lassotas statement that GFP cannot be used for whole-body imaging is one that on its face suggests dishonesty or fraudulent practices on AntiCancers part. In order to ascertain the defamatory meaning ascribed by AntiCancer, one must resort to extrinsic evidence, for example, evidence demonstrating that GFP is in fact used for such imaging. A publication is libelous on its face only if there is no need to have explanatory matter introduced. (Civ. Code, § 45a; MacLeod v. Tribune Pub. Co. (1959) 52 Cal.2d 536, 549; Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5; Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 384-387.) "If . . . the defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se . . . ." (Palm Springs Tennis Club v. Rangel, supra, 73 Cal.App.4th at p. 5.)
Dr. Lassota states Dr. Hoffmans recollection of this statement is incorrect, implicitly denying making the statement. These assertions are irrelevant to our consideration of Novartiss motion. When reviewing a section 425.16 motion, we do not weigh the evidence or judge credibility (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907-908); rather, we take AntiCancers competent and admissible evidence to be true. (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 906.)
C. Claims Against Novartis Corporation and GTI
Our conclusion that Dr. Lassotas statements fall within the ambit of section 425.16 apply equally to AntiCancers causes of action against Novartis Corporation, which can only be based on Dr. Lassotas statements at the workshop. In support of its section 425.16 burden, AntiCancer argues it has demonstrated a probability of prevailing on its claims against Novartis Corporation because Dr. Lassota is an agent of that entity. In addition to its pleadings alleging that Novartis Corporation is a parent company to Novartis Pharmaceutical Corporation, which cannot sustain its burden because it is merely an allegation and not evidence (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1497-1498), AntiCancer relies on omissions from Dr. Lassotas declaration and those from Novartis Corporations president and CEO Terry Barnett, and GTIs chief operating officer Edward Otto. AntiCancer argues the declarations either did not deny or were silent on whether Dr. Lassota was an agent of Novartis Corporation or GTI.
We disagree that this purported evidence — more accurately, an absence of evidence — makes a prima facie case to support AntiCancers claims. But even if we were to conclude otherwise, AntiCancers showing suffers from the same failings we have outlined above as to special damages. AntiCancer has not sustained its burden to overcome the section 425.16 motion as to Novartis Corporation.
As for GTI, AntiCancer concedes the record contains no direct evidence linking Dr. Lassota to GTI. It nonetheless contends the trial courts order need not be reversed because (1) GTIs termination of its contract with AntiCancer establishes its liability; (2) Dr. Lassotas silence as to his relationship with GTI strongly suggests Dr. Lassota is an agent of GTI; and (3) the evidence also suggests GTI conspired with Dr. Lassota in some unexplained way to harm AntiCancer.
These arguments are meritless. We fail to see (and AntiCancer does not explain) how GTIs act of terminating its own agreement with AntiCancer supports the elements of the trade libel or defamation causes of action. And we disagree Dr. Lassotas silence as to his relationship with GTI (even assuming AntiCancer could establish damages, which it does not) constitutes evidence supporting AntiCancers burden. Finally, as to its claim of conspiracy, AntiCancer maintains a strong inference of conspiracy may be drawn from the timing of GTIs termination of its contracts in September 2000, Dr. Lassotas statements at the workshop in May 2001, and DOE 1s anonymous report of July 2001. No such inference appears in our view. The record is simply devoid of evidence from which one may reasonably infer the formation and operation of any conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) AntiCancer has not sustained its burden to overcome the section 425.16 motion as to GTI.
III. Xenogens Motion
A. AntiCancers Claims Against Xenogen
AntiCancers causes of action against Xenogen (trade libel, defamation, intentional interference with contract, intentional interference with prospective economic advantage and unfair competition) are each based entirely upon pure speech: statements alleged to have been made by unidentified Xenogen representatives. A single paragraph of AntiCancers complaint purports to relate these statements. It reads: "Xenogen, for its part, and on an ongoing basis beginning in the last quarter of 2000 or earlier, also published false, libelous, defamatory and unprivileged statements about AntiCancer and its technology. These statements were to the effect AntiCancer has been and is engaged in the infringement of patents held by others (including Xenogen), that AntiCancers technology is ineffective, and that AntiCancer is unable to license that technology. These statements are devastating to AntiCancers business because they create aversion and fear in the minds of those companies and other entities that otherwise would do business with AntiCancer. Xenogen published these false, libelous, defamatory and unprivileged comments to Bristol-Myers, among others."
In our discussion of Xenogens motion and related issues, we adopt the parties nomenclature and refer to the above-referenced statements respectively as the "infringement statements," the "efficacy statements" and the "licensing statements."
B. Subject Matter Jurisdiction
Before reaching the merits of Xenogens section 425.16 motion, we address Xenogens challenge to state court subject matter jurisdiction, an argument that has been rejected by both the federal district court in remanding the case back to state court, and the superior court below on Xenogens demurrer to and motion to strike the infringement statements. Those prior rulings do not bind us or otherwise prohibit our consideration of jurisdictional arguments. (SeePeople v. Shuey (1975) 13 Cal.3d 835, 842 [law of the case limited to appellate rulings], disapproved on other grounds in People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5; In re Marriage of Oddino (1997) 16 Cal.4th 67, 73; Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721; Keifer v. Bechtel (1998) 65 Cal.App.4th 893, 896 [adequacy of the courts subject matter jurisdiction must be addressed whenever that issue comes to the courts attention].)
Xenogen argues the federal court has exclusive jurisdiction over the infringement statements because adjudicating those statements requires the resolution of a substantial question of federal patent law, namely, whether or not AntiCancer is infringing Xenogens patent. Because each of the infringing, efficacy and licensing statements is alleged as a basis for all of AntiCancers causes of action, we understand Xenogens challenge to be directed at the causes of action to the extent they are based on Xenogens alleged statements that AntiCancer is infringing Xenogens patent and those of others.
Title 28 United States Code section 1331 provides that federal courts may entertain any civil action based on a claim or right arising under the Constitution, treaties or laws of the United States. Federal district courts have exclusive jurisdiction over "any civil action arising under any Act of Congress relating to patents." (28 U.S.C. § 1338(a); Durgom v. Janowiak (1999) 74 Cal.App.4th 178, 182; Miller v. Lucas (1975) 51 Cal.App.3d 774, 776.)
AntiCancer concedes, and we agree, that a cause of action based necessarily on the theory that Xenogens infringement statements were false — in turn requiring Xenogen to prove the statements true — would fall exclusively within federal question jurisdiction. (See Hunter Douglas, Inc. v. Harmonic Design, Inc. (Fed. Cir. 1998) 153 F.3d 1318, 1324 (Hunter Douglas), overruled on other grounds in Midwest Industries, Inc. v. Karavan Trailers, Inc. (Fed.Cir. 1999) 175 F.3d 1356, 1358-1359; Additive Controls & Measurement Systems, Inc. v. Flowdata, Inc. (Fed. Cir. 1993) 986 F.2d 476, 478-479.) It points out, however, that its causes of action are not only based on the infringement statements, but also alternatively on its allegations that Xenogen made the false efficacy statements and licensing statements. AntiCancer argues that because its claims are supported by alternative theories, some of which do not depend on a determination of patent law, the federal court does not have exclusive jurisdiction over them. (Christianson v. Colt Industries Operating Corp. (1988) 486 U.S. 800, 810 (Christianson); Hunter Douglas, at p. 1325.) Xenogen, on the other hand, argues Christianson does not govern because each of Xenogens statements gives rise to a separate cause of action and separate damages.
To evaluate whether any of AntiCancers causes of action necessarily depend on a question of federal patent law, we look at the elements of the claims appearing on the face of the complaint and "ascertain whether all the theories by which [AntiCancer] could prevail on a claim rely solely on resolving a substantial question of federal patent law." (Hunter Douglas, at pp. 1328-1329.) In Christianson, supra, the United States Supreme Court explained that one of the doctrines restricting the reach of federal jurisdiction under title 28 United States Code sections 1331 and 1338 is that "a claim supported by alternative theories in the complaint may not form the basis for [section] 1338(a) jurisdiction unless patent law is essential to each of those theories." (Christianson , at p. 810, italics added; see also Hunter Douglas, supra, 153 F.3d at pp. 1328-1329.)
Applying these principles, we agree with AntiCancer that, with the exception of its cause of action for defamation, its causes of action are alternatively based on the efficacy and licensing statements, which do not implicate the patent laws. The only cause of action in which patent law is necessarily implicated within the meaning of Christianson is AntiCancers defamation cause of action based on the infringement statements, for it is settled that, except insofar as the Uniform Single Publication Act applies, each publication of a defamatory statement is a " separate and distinct tort. " (See Behrendt v. Times-Mirror Co. (1938) 30 Cal.App.2d 77, 82-83, disapproved on other grounds in Fuentes v. Tucker (1947) 31 Cal.2d 1, 7; Neary v. Regents of Univ. of Calif. (1986) 185 Cal.App.3d 1136.) Thus, the theory that Xenogen defamed AntiCancer by claiming it is engaging in patent infringement gives rise to a separate cause of action. And, in order to prevail on that claim, AntiCancer must prove as an essential element that Xenogens statement was false, i.e., that AntiCancers technology does not infringe Xenogens patent or any other patent. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601, disapproved on other grounds by Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19; Metaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1353; Smith v. Maldonado, supra, 72 Cal.App.4th 637, 645.) Because AntiCancers right to relief necessarily depends upon resolution of a substantial question of patent law, the claim falls exclusively within the jurisdiction of the federal courts. (Cf. Additive Controls & Measurement Systems, Inc. v. Flowdata, supra, 986 F.2d at p. 478.)
Xenogen has not provided, and we are not aware of, any authority to extend this publication rule to AntiCancers remaining causes of action, including its cause of action for trade libel. The cases relied upon by Xenogen for the proposition that each publication gives rise to a separate cause of action — Neary v. Regents of Univ. of Calif., supra, 185 Cal.App.3d 1136, and DiGiorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268 — involve suits for personal defamation, not trade libel. The torts are different and protect distinct interests. (See Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 549; Leonardini v. Shell Oil Co., supra, 216 Cal.App.3d at p. 573; Truck Insurance Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84-85 (Truck Insurance).) The gravaman of trade libel is invasion or injury to a property right. "Disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss. . . . What makes conduct actionable is not whether a defendant succeeds in casting a legal cloud on plaintiffs title, but whether the defendant could reasonably foresee that the false publication might determine the conduct of a third person buyer or lessee. [Citations.] The thrust of the tort of disparagement or slander of title is protection from injury to the salability of property." (Truck Insurance , at p. 84.) Because AntiCancer has alternative theories — via Xenogens efficacy and licensing statements — to prove injury to its property interest in its technology, the trade libel claim is not subject to exclusive federal jurisdiction.
In sum, we conclude the superior court lacks subject matter jurisdiction over AntiCancers defamation cause of action against Xenogen based on Xenogens patent infringement statements. For that reason, we reverse the courts order denying Xenogens motion only as to that cause of action.
B. Application of Section 425.16 to AntiCancers Causes of Action against Xenogen
Turning to AntiCancers remaining causes of action against Xenogen, we decide whether Xenogen has made a threshold showing that the causes of action against it arise from protected activity. (§ 425.16, subd. (b)(1); Cotati, supra, 29 Cal.4th at p. 76; Equilon, supra, 29 Cal.4th at p. 67.) Again, we look to the pleadings and supporting and opposing affidavits that state the facts upon which the liability or defense is based. (Cotati, at p. 79; Consumer Justice Center v. Trimedica International Inc. (2003) 107 Cal.App.4th 595, 602 (Consumer Justice).) Xenogen is not required to establish that its actions are constitutionally protected under the First Amendment as a matter of law. (Navellier, supra, 29 Cal.4th at pp. 94-95.)
In a declaration submitted in opposition to Xenogens motion, Dr. Hoffman stated that Xenogens cofounder and now Stanford professor Christopher Contag, Ph.D. and Xenogens president and co-CEO Pamela Contag, Ph.D. stated to "numerous potential customers" of AntiCancer that "GFP technology cannot be used for whole-body imaging, is nonquantitative, causes immunological reactions, is not licensable, and infringes Xenogens 135 patent." He attributed other statements about the effectiveness of AntiCancers technology to "Xenogen" in general.
In his declaration submitted in opposition to the section 425.16 motions, Dr. Hoffman further asserted that Dr. Christopher Contag and Dr. Pamela Contag began making these statements in February 2000. Dr. Hoffman continued: "These statements were repeated to me by multiple persons, including Dr. D. Bruce Rowley of Bristol-Myers Squibb Pharmaceutical Research Institute (who repeated to me Xenogens false accusation of patent infringement by AntiCancer) and Dr. Brian J. Arey. [& para;] . . . Dr. Arey has told me that `Chris Contag of Xenogen tells everybody that AntiCancer infringes their patent and Xenogen scares everyone (potential customers) away from AntiCancer. Arey mentioned that Xenogen even has this on their website. Arey said Xenogens motive for the lies is `all about money. This statement was made to me on August 24, 2001. In addition, Xenogen has published statements to Sam Gambhir, Director of the UCLA Crump Institute for Molecular Imaging, that GFP imaging technology doesnt work. Xenogen has also published statements to George McNamara of Childrens Hospital in Los Angeles to the effect that you `cant image internal objects with GFP in mice. These statements are patently false. Others who have heard Xenogens false statements include Thomas Grist, M.D.; John Kurhanewicz; Bonnie Sloane; and Joanne Whatton."
Addressing this prong, Xenogen first argues AntiCancer failed to plead with specificity, or produce admissible evidence, that any Xenogen employee made any actionable statement. But such an argument does not assist our inquiry on the "arising from" component of section 425.16. We are confined to the question of whether the pleaded statements forming the basis for AntiCancers causes of action arise from protected first amendment speech or petitioning activity. (Navellier, supra, 29 Cal.4th at p. 89.) Here, we review the complaints allegations and ask whether Xenogen has shown the statements that (1) AntiCancers technology is ineffective; and (2) AntiCancer is unable to license its technology, arise from any act in furtherance of the speakers right of petition or free speech under the United States or California Constitution in connection with a public issue. (§ 425.16, subd.(b)(1).) Xenogens assertions that AntiCancer has not adequately alleged or proven any actionable statement by an Xenogen employee are more properly the subject of a demurrer or motion to strike sham or facially meritless allegations. (§ 430.10, subd. (f); Khoury v. Malys of Calif. Inc. (1993) 14 Cal.App.4th 612, 616; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [distinguishing between demurrers and motions to strike faulty allegations on the one hand and SLAPP motions on the other hand].)
If some of these challenged statements are subject to section 425.16, subdivision (e), the statute applies to AntiCancers claims even if other challenged conduct is not within its purview. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [plaintiffs cannot avoid application of section 425.16 by combining allegations of protected and nonprotected activity under one cause of action].)
More to the point, Xenogen contends it proved that any purported or actual statements made by the Contags constituted "scientific debate on the effectiveness of cancer research technologies" and are either statements made "in a place open to the public or a public forum in connection with an issue of public interest" (& sect; 425.16, subd. (e)(3)) or "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Id., subd. (e)(4).) It argues the matters involved in the statements "pertain directly to the effectiveness and availability of testing regimens for cancer drugs that may be used by thousands of individuals, and thus are indisputably of public interest." As support, Xenogen points to evidence it produced in reply to AntiCancers opposition to its motions. Specifically, it submitted Dr. Pamela Contags declaration in which she asserted: "[T]o the extent I have discussed the immunological effects of GFP or luciferase, or the degree to which these technologies in general are quantitative, I did so in good faith to further the scientific discourse on these topics based on my research and that of other scientists." She further averred "such statements were discussed in the context of GFP imaging technology itself, and not in the context of Anticancer [sic] specifically." Dr. Pamela Contag then denied making the statements alleged in Xenogens complaint. Dr. Christopher Contag also denied making the specific statements alleged in Xenogens complaint. He attached a list of several "scientific talks" he had given in which he discussed in vivo imaging. He further averred: "The use of fluorescence for in vivo imaging studies is an important area of scientific investigation and one that has been broadly researched and discussed." Xenogen argues AntiCancer failed to offer admissible evidence to contradict these declarations.
We disregard the Contags assertions to the extent they deny making the statements attributed to Xenogen in AntiCancers complaint. As stated, in ruling on a section 425.16 motion to strike we do not make credibility determinations, nor do we weigh the evidence. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907-908; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) Looking to the remaining evidence, we conclude Xenogen has not met its burden to demonstrate the alleged statements fall within subdivision (e)(3) of section 425.16, because nothing in the cited evidence indicates any of the Contags statements were made in a place open to the public or a public forum. Neither of the Contags explains in what context they made statements about AntiCancer, or GFP in general, other than to say the statements were made in connection with scientific debate or discourse. The fact that the statements were part of a scientific discussion, however, does not establish they were made in a public forum or place open to the public. More is required to make a prima facie showing that the acts underlying AntiCancers causes of action fall within the ambit of section 425.16, subdivision (e)(3). (See, e.g., ComputerXpress, supra, 93 Cal.App.4th at p. 1007 [defendants declaration stating that the Web site on which alleged defamatory postings were placed was accessible free of charge and allowed members of the public to read posts and post their own opinion was sufficient to make prima facie showing that the Web sites were public forums].)
We turn then to whether Xenogen has shown that the statements were made in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(4).) The critical inquiry is whether the speech pertains to a public issue or a matter of public interest within the meaning of the statute. (E.g., Consumer Justice, supra, 107 Cal.App.4th at pp. 600-601; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567 (DuPont ); Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1602 (Ericsson), disapproved on another point in Briggs, supra, 19 Cal.4th at p. 1123, fn. 10.) Each statement pertains to GFP technology. About it, AntiCancer alleges: "AntiCancer is engaged in anti-cancer research. It has developed unique technological means of non-invasive imaging of cancerous tumor cells in animal models using fluorescence and illumination. . . . This new technology enables the rapid screening of new anticancer drugs in vivo and determination of whether a new cancer drug is effective against tumor growth, metastasis, and vascularization or angiogenesis. AntiCancer is the holder of four patents with respect to this technology, which it uses to help pharmaceutical and biopharmaceutical companies and others in cancer drug discovery programs. The relevant market in which AntiCancer competes is that of pharmaceutical companies engaged in the testing of anticancer drugs. Many of these companies need the ability to screen and evaluate anticancer drugs rapidly and in vivo — an ability conferred by the patented technology developed and owned by AntiCancer."
Cases applying the public interest requirements of section 425.16 were recently reviewed by the court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero). After surveying the decisions, the court observed: "None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citation], or a topic of widespread, public interest [citation]." (Id. at p. 924.) Xenogen does not argue, and there is no record evidence suggesting, AntiCancer is an entity in the public eye. As to AntiCancers GFP screening method, as stated, Xenogen attempts to impute public importance to the technology by emphasizing its link to cancer research, and also to the alleged statements by characterizing them as "pertain[ing] directly to the effectiveness and availability of testing regimens for cancer drugs that may be used by thousands of individuals . . . ."
Both subdivisions (e)(3) and (e)(4) of section 425.16 contain the requirement that the speech or conduct be "in connection with an issue of public interest."
We are compelled to conclude the alleged efficacy and licensability statements regarding AntiCancers GFP technology (or even bioluminescent imaging technology in general) do not meet the subdivision (e)(4) criteria that the statements pertain to a public issue or matter of public interest. Xenogen proffers an overly broad characterization of the technology and the alleged statements for purposes of applying section 425.16. The alleged statements do not pertain to cancer, nor do they pertain to drugs that are used to combat cancer; they concern a particular highly specialized method of imaging tumor cells in live animals. While the subject matter of the efficacy and licensability statements may be of interest to those pharmaceutical companies interested in developing effective cancer-fighting drugs, it is not subject matter that directly affects or impacts a large number of people beyond Xenogen and AntiCancer (Rivero , supra, 105 Cal.App.4th at p. 924), although it may do so indirectly. The fact the unique technology is used for drug discovery, and as used in this way may result in the discovery of drugs that may be effective in reducing cancer tumors, does not make the technology a matter of widespread public interest.
Thus, this case is unlike DuPont, supra, 78 Cal.App.4th 562, in which the defendant, the manufacturer of the drug Coumadin, was alleged to have made false and misleading statements to doctors and the public through press releases and Internet bulletins about the use and effectiveness of the proposed generic version of that drug in order to artificially inflate the price of its own drug and delay introduction of the generic version. (Id. at pp. 564-565.) In reviewing the defendants writ petition challenging the trial courts denial of its section 425.16 motion as to those statements, the court of appeal focused on whether "the issue of the equivalence of Coumadin and its generic counterpart" pertained to a public issue or an issue of public interest. (DuPont, at p. 567.) It looked to the plaintiffs allegations that more than 1.8 million Americans had purchased Coumadin for the prevention and treatment of blood clots that could lead to life-threatening conditions such as stroke and pulmonary embolism. (Ibid .) The court found that both the number and persons allegedly affected and the seriousness of the conditions treated established the issue as one of public interest. (Ibid.) Here, unlike Dupont, the alleged statements did not directly pertain to drugs used to treat cancer or any other widespread medical condition.
This case is closer to Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39 (Nagel), in which the plaintiffs sued a dietary supplement manufacturer under the unfair competition and other laws for making false and misleading statements about the ephedrine content in one of the manufacturers products. (Id . at pp. 43-44.) The defendant had argued its list of ingredients should be protected by section 425.16 because it was speech in connection with the public health issue of weight management. (Nagel, at p. 47.) The trial court denied the defendants section 425.16 motion, and on appeal the court held its listing of the ingredients of its product did not satisfy the first prong of section 425.16: "[W]hile matters of health and weight management are undeniably of interest to the public, it does not necessarily follow that all lists of ingredients on labels of food products or on the manufacturers Web sites are fully protected from legal challenges by virtue of section 425.16. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. [Citation.] Here, the list of [the products] ingredients on the bottle labels and on Twin Labs Web site was not participation in the public dialogue on weight management issues; the labeling on its face was designed to further Twin Labs private interest of increasing sales for its products." (Nagel, at pp. 47-48.) In the present case, Xenogen has not shown that the alleged statements attributed to it or to the Contags took place as part of participation in any public dialogue about cancer research.
Our conclusion is also supported by Consumer Justice, supra, 107 Cal.App.4th 595. There, the court of appeal held advertising claims made on behalf of an herbal supplement promising breast enlargement did not invoke a public issue or an issue of public interest. (Consumer Justice, at pp. 600-603.) The defendant had argued that "`herbal dietary supplements and other forms of complementary medicine are the subject of public interest. " (Id. at p. 601.) The court rejected this argument, looking to the specific nature of the speech: "[Defendants] speech is not about herbal supplements in general. It is commercial speech about the specific properties and efficacy of a particular product . . . . If we were to accept [defendants] argument that we should examine the nature of the speech in terms of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute." (Ibid.) Similarly here, the alleged statements are not about cancer or cancer research in general, only AntiCancers highly specialized imaging technology.
The Consumer Justice court also touched on whether the defendants acts constituted commercial speech, as did the court of appeal in Nagel v. Twin Laboratories, Inc., supra, 109 Cal.App.4th at pages 46-48. Regardless of the commercial versus noncommercial distinction, for purposes of applying subdivisions (e)(3) and (e)(4) of section 425.16, if the speech at issue does not concern a matter of public interest within the meaning of those subdivisions, the statute does not apply. (E.g., Consumer Justice, supra, 107 Cal.App.4th at pp. 600-601.)
We therefore conclude the alleged statements do not qualify under the first prong of section 425.16; that AntiCancers causes of action against Xenogen do not arise from acts in furtherance of the right of petition or free speech under the United States or California Constitution in connection with a public issue. Having reached this conclusion, we need not address the second prong of the statute: whether AntiCancer has established a probability of prevailing on its claims.
DISPOSITION
The order denying the Code of Civil Procedure section 425.16 motion of Novartis Pharmaceuticals Corporation, Novartis Corporation and Genetic Therapy, Inc. is reversed and the superior court is directed to enter an order granting the motion and awarding attorney fees under Code of Civil Procedure section 425.16, subdivision (c). The order denying the Code of Civil Procedure section 425.16 motion of Xenogen Corporation as to AntiCancer, Inc.s causes of action for trade libel, defamation based on the efficacy and licensing statements, intentional interference with contract, intentional interference with prospective economic advantage, and unfair competition is affirmed; the order as to AntiCancers cause of action against Xenogen Corporation for defamation based on the patent infringement statements is reversed for lack of subject matter jurisdiction. The superior court is directed to give effect to and rule upon Xenogens motions (1) for failure to state a claim on which relief can be granted; (2) for more definite statement; and (3) to strike the damage allegations and prayers as if they had been equivalent responsive pleadings filed in state court. Novartis Pharmaceuticals Corporation, Novartis Corporation and Genetic Therapy, Inc. are entitled to attorney fees on appeal in an amount to be determined by the superior court and they shall have costs on appeal. As to Xenogen Corporations Code of Civil Procedure 425.16 motion, the parties shall bear their own costs on appeal.
WE CONCUR: McCONNELL, P. J., and McINTYRE, J.