Opinion
A127544
01-26-2012
BRAIN RESEARCH LABS, LLC et al., Plaintiffs and Appellants, v. THOMAS HOWARD CLARKE, JR. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC-09-491932)
Plaintiffs Brain Research Labs, LLC and Medhealth Direct, Inc. (collectively, plaintiffs or BRL) sued attorney Thomas Clarke and his law firm Ropers, Majeski, Kohn & Bentley (Clarke and RMKB; collectively, defendants), alleging Clarke made false and defamatory statements about Procera AVH (Procera), a product manufactured and sold by BRL and apparently marketed as a dietary or nutritional supplement. Defendants moved to strike BRL's complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. The trial court denied the motion, concluding that, although the anti-SLAPP statute applied to the challenged causes of action, BRL had shown a probability of prevailing on those claims.
All undesignated statutory references are to the Code of Civil Procedure.
Defendants appealed (see §§ 425.16, subd. (i), 904.1, subd. (a)(13)); they contend in part that BRL cannot prevail because Clarke's statements are protected by the litigation, common interest and fair report privileges (see Civ. Code, § 47, subds. (b)-(d)). BRL cross-appealed, only as to the portion of the trial court's order in which it assumed, without deciding, that the fair report privilege applied to some of Clarke's statements. We conclude the trial court correctly determined that BRL established a likelihood of prevailing on the merits, that the litigation and common interest privileges did not apply, and that it was not necessary to determine the applicability of the fair report privilege. We therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Rotenberg Action
BRL contends Procera helps people who experience "forgetfulness, fuzzy focus and attention, mood swings and mental fatigue brought on by stress, sleep loss, poor diet and aging."
In March 2009, consumer Joseph Rotenberg purchased Procera. In May 2009, Clarke and RMKB filed a class action complaint in Marin County Superior Court against BRL and others, with Rotenberg as the sole named plaintiff (the Rotenberg action). The complaint in the Rotenberg action alleges that (1) BRL's claims about the benefits of Procera are false and misleading, (2) BRL fails to disclose that Procera is dangerous because it has harmful side effects and interferes with prescription drugs, and (3) Procera is an unapproved drug marketed in violation of Food and Drug Administration (FDA) regulations and the California Health and Safety Code.
B. The YouTube Video
In June 2009, Clarke posted a nine-minute video on the YouTube website. In the video, Clarke asserts Procera does not work; BRL's claims about its efficacy are false and illegal; and the ingredients in Procera cause harmful side effects and interactions with prescription drugs. Clarke also includes a number of general statements about the makers of "so-called dietary supplements," calling them "crooks and cheats" and "scam artists," who "do not care if you live or die." Clarke states he is very concerned about the viewer's health. At the end of the video, Clarke invites viewers to contact him if they want an attorney to help them recover money "and to put out of business those who have cheated you."
C. The KTVU Segment
In July 2009, the KTVU television station broadcast a segment about Procera. Reporter John Fowler interviewed Clarke and Rotenberg. The segment included three on-camera statements by Clarke.
D. The Present Action
1. BRL's Complaint
BRL filed suit against Clarke, RMKB and Rotenberg, asserting in its complaint that a number of statements in the YouTube video and in the KTVU segment were false and defamatory. As to the YouTube video, BRL contends several of Clarke's statements about the alleged dangers of Procera are false and/or misleading, including the following:
BRL also named KTVU and other media entities as defendants. BRL voluntarily dismissed its claims against those parties.
1. " 'I [Clarke] do not want you to die or suffer long term injury or disability because you forsake medical treatment for the false promises that are made by so many so-called dietary supplements. These scam artists do not care if you live or die. They only want you to live long enough to give them your money. Today I want to talk to you about a so-called dietary supplement known as Procera AVH.' "
2. " 'As you can tell, Procera contains dangerous drugs with the potential to cause extensive harm or even death.' "
3. " 'This product is not an alternative to proper medical attention for your illness [or] disease. Do not fool yourself. If you're not getting medical treatment, you may die or suffer serious permanent injury or disability.' "
4. " 'Remember, the life you save [may] not only be your own, but those of your friends, family, [neighbors] and fellow residents and citizens of this great country.' "
Also in connection with the YouTube video, BRL alleges some of Clarke's statements about BRL's advertising claims are false and/or misleading, because BRL has not actually made the specified claims about Procera. For example, BRL challenges the following passage from the video: " 'What type of illnesses, diseases or symptoms is Procera claiming it can address? . . . I thought you'd never ask. I will mention just a few. Depression and other forms of mental illness, mini-strokes in the brain, the early stages of dementia, the plaques associated with Alzheimer's disease, . . . genetic diseases such as Parkinson's or Lou Gehrig's disease . . . [¶] So what Procera claims is that if you are suffering from symptoms of these types, the solution is, what a surprise—this product. Just send money and all your problems will disappear like so much snow on a sunny day.' " BRL further contends that, contrary to Clarke's statements in the video, BRL has not advertised Procera for use in treating the effects of a stroke or head injury, depression, or Alzheimer's disease, or for the protection of the liver from the adverse effects of alcohol.
As to the KTVU segment, BRL contends the following three statements by Clarke are false:
1. " 'Unadulterated theft. You sell a fake product that doesn't do anything, with all kinds of promises, and you get people to give you lots of money for it. It's a nice, profitable scam.' "
2. " 'They [the FDA and Federal Trade Commission] just don't view this as a high-priority item, even though people are dying from some of these products.' "
3. " 'Absolutely ineffective. Matter of fact, there have actually been trials with humans that have shown that it doesn't work.' " BRL contends it has not committed "theft," no one has died from Procera, and there have been no trials showing it does not work.
BRL's complaint includes six causes of action against Clarke and/or RMKB: (1) defamation per se (first cause of action); (2) defamation per quod (second cause of action); (3) intentional interference with contractual relationships (fourth cause of action); (4) intentional interference with prospective economic advantage (fifth cause of action); (5) unlawful and unfair business practices (Bus. & Prof. Code, § 17200 et seq.) (sixth cause of action); and (6) false advertising (Bus. & Prof. Code, § 17500 et seq.) (seventh cause of action). Most of these causes of action appear to arise both from statements in the YouTube video and statements in the KTVU segment; the second cause of action, however, focuses only on specific statements in the YouTube video.
2. Defendants' Anti-SLAPP Motion
Clarke and RMKB filed a motion to strike the complaint under section 425.16, the anti-SLAPP statute; Rotenberg also filed an anti-SLAPP motion. In their motion, Clarke and RMKB contended (1) the anti-SLAPP statute applied to the statements challenged by BRL, and (2) BRL could not show a probability of prevailing on its claims, in part because they were barred by the fair report, litigation and common interest privileges. After briefing and argument, the trial court issued a detailed written order denying Clarke's and RMKB's motion.
The court granted Rotenberg's motion to strike. BRL did not appeal that ruling.
II. DISCUSSION
A. The Anti-SLAPP Framework
Resolving an anti-SLAPP motion is "[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 defendant's 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. (§ 425.16, subd. (b)(1).) 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. . . ." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Rulings on these issues are subject to de novo appellate review. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).)
B. Protected Activity
1. The Trial Court's Ruling
Applying the first step of the anti-SLAPP analysis, the trial court ruled Clarke's statements in the YouTube video and the KTVU segment constituted protected activity— specifically, the statements were " '[c]onsumer information' " and thus related to an issue of public interest under section 425.16, subdivision (e)(4). The court then found the statements in the YouTube video fell within the commercial speech exemption to the anti-SLAPP statute (see § 425.17, subd. (c)). The court concluded, however, that the anti-SLAPP statute applied to all the challenged causes of action because they were " 'mixed cause[s] of action,' " i.e., they included allegations relating to both the protected KTVU statements and the unprotected YouTube statements. We conclude both groups of statements constitute protected activity, and the commercial speech exemption does not apply.
2. Issue of Public Interest
Under section 425.16, subdivision (e)(4), protected activity includes conduct in furtherance of the constitutional right of free speech or petition "in connection with a public issue or an issue of public interest." As the trial court correctly ruled, Clarke's statements in the YouTube video and in the KTVU segment meet this standard. "[C]onsumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366 (Wong) [online review of dentist involved issue of public interest, i.e., an ongoing controversy surrounding the use of silver amalgam containing mercury]; accord, e.g., Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 889, 898-900 (Wilbanks)[online statements by " 'consumer watchdog' " about insurance broker involved issue of public interest because they constituted a warning to consumers choosing among brokers]; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566-567 (DuPont)[alleged false statements about effectiveness of drug concerned issue of public interest].) Clarke's statements that Procera is ineffective and dangerous, and that BRL has made false and illegal claims about its benefits, involve an issue of public interest.
In its appeal brief, BRL presents a short argument that Clarke's statements do not relate to a matter of public interest under section 425.16, subdivision (e)(4), because (1) they go beyond the allegations in the Rotenberg complaint, and (2) they are false and defamatory. We note BRL's notice of cross-appeal specified BRL was appealing only the trial court's determination as to the applicability of the fair report privilege to the KTVU statements (an issue relevant to the second step of the anti-SLAPP analysis); BRL did not purport to appeal the trial court's conclusion the anti-SLAPP statute applied to Clarke's statements. In any event, BRL's contentions fail. As to BRL's first argument, section 425.16, subdivision (e)(4) imposes no requirement that a communication have a connection with a judicial or other official proceeding (in contrast to § 425.16, subds. (e)(1) and (e)(2)). As to the second argument, to make the threshold showing under the first prong of the anti-SLAPP analysis, defendants need not prove the targeted activity is in fact constitutionally protected. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1548-1549; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 911 (Kashian) ["conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical"].) Accordingly, BRL's assertion that Clarke's statements are false and defamatory does not undercut defendants' threshold showing that the challenged statements constitute the type of activity covered by the anti-SLAPP statute.
BRL made a similar argument in the trial court.
Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), cited by BRL, is inapposite. In Du Charme, the court held that, to satisfy the public interest requirement in section 425.16, subdivisions (e)(3) and (e)(4), "in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Id. at p. 119, italics added.) The Du Charme court did not hold this requirement applies to a communication about an issue that is of interest to the broader public (see Cross v. Cooper (2011) 197 Cal.App.4th 357, 379-382 & fn. 15), such as consumer protection information affecting a large number of persons (see Wong, supra, 189 Cal.App.4th at pp. 1366-1367).
Because we conclude the challenged statements concerned an issue of public interest under section 425.16, subdivision (e)(4), we need not address defendants' alternative argument that the statements constitute protected activity because they were "made in connection with an issue under consideration or review by a . . . judicial body," within the meaning of section 425.16, subdivision (e)(2).
3. Commercial Speech
The commercial speech exemption set forth in section 425.17, subdivision (c) provides: "Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist: [¶] (1) The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services. [¶] (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, . . ." The commercial speech exemption is a statutory exception to section 425.16 and should be narrowly construed. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 22 (Simpson).)BRL, the plaintiff and the party seeking the benefit of the commercial speech exemption, bears the burden of proof as to its applicability. (Id. at p. 26.)
An order granting or denying an anti-SLAPP motion ordinarily is immediately appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Under section 425.17, subdivision (e), however, if a trial court "denies [an anti-SLAPP motion] on the grounds that the action or cause of action is exempt pursuant to" section 425.17, the order is not immediately appealable. This exception to the rule of immediate appealability does not apply here, because the trial court did not "deny [defendants' motion] on the grounds that" the challenged causes of action fell within the commercial speech exemption in section 425.17. Instead, the trial court, after concluding the commercial speech exemption applied to the YouTube statements, held the challenged causes of action were nevertheless subject to the anti-SLAPP statute because they were mixed causes of action. The court then proceeded to the second step of the anti-SLAPP analysis, and ultimately denied the motion on the grounds that BRL had established a probability of prevailing on the merits. The order is thus appealable.
The trial court ruled the commercial speech exemption applied to Clarke's statements in the YouTube video, because the video constituted an advertising campaign and included statements about Clarke's legal services. We agree with defendants that, under Simpson, which was decided after the trial court ruled in this case, the commercial speech exemption does not apply to the YouTube statements.
In Simpson, our Supreme Court held the commercial speech exemption applies only to a cause of action that "arises from" a defendant's "statement or conduct . . . consisting of representations of fact about that person's or a business competitor's business operations, goods, or services[.]" (Simpson, supra, 49 Cal.4th at p. 30.) Applying this standard, the court held the commercial speech exemption did not apply to an attorney's advertisement containing allegedly defamatory statements about a galvanized screw manufacturer's products. (Ibid.) The court held any implication in the advertisement that the screws were defective " 'is not "about" [the attorney's] or a competitor's "business operations, goods, or services . . . ." (§ 425.17(c)(1).) It is, rather, a statement "about" [the manufacturer]—or, more precisely, [the manufacturer's] products.' It therefore falls squarely outside section 425.17(c)'s exemption for commercial speech." (Ibid.)To the extent the advertisement included statements about the attorney's own services, including an offer to investigate potential claims, and (allegedly) an implication that the attorney had discovered the alleged defect, these statements did not trigger the commercial speech exemption, in part because the manufacturer's defamation claims did not arise from those statements; instead, the claims arose from the attorney's statements about the alleged defects in the manufacturer's products. (Id. at pp. 30-32.)
Similarly, here, BRL's claims arise from Clarke's allegedly defamatory statements about Procera and BRL in the YouTube video, such as his statements that Procera does not work and is dangerous, and that BRL's claims about its efficacy are false and illegal. These statements are not "about" Clarke's or his competitors' operations or services, so they do not fall within the commercial speech exemption.
BRL notes, as did the trial court, that the YouTube video includes statements about the legal services Clarke could provide to Procera users, such as his statements that he is concerned about viewers' health, has prepared an informative booklet about dietary supplements, and is willing to represent viewers who wish to assert claims. BRL also contends Clarke implies he has discovered the alleged problems with Procera. Under Simpson, however, even if one were to draw this inference from the YouTube video, neither it nor Clarke's express statements about his services would trigger application of the commercial speech exemption. (See Simpson, supra, 49 Cal.4th at pp. 30-32.)
BRL's reliance on Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482 (Taheri), is misplaced. In Taheri, the Court of Appeal found the commercial speech exemption did not apply to an attorney's individualized legal advice to a potential client, but suggested in dictum that the exemption "conceivably" might apply if an attorney conducted "a 'massive advertising campaign' divorced from individualized legal advice[.]" (Taheri, supra, 160 Cal.App.4th at pp. 490-492.) The Supreme Court's subsequent decision in Simpson clarifies that the exemption applies only to a cause of action that arises from a defendant's statements about the defendant's or a competitor's operations, goods, or services. (Simpson, supra, 49 Cal.4th at p. 30.)
Because all the challenged causes of action arise from protected activity and do not fall within the commercial speech exemption, BRL had the burden to demonstrate a probability of prevailing on the merits of its claims.
C. Probability of Prevailing on the Merits
1. BRL Must Show a Probability of Prevailing on Any Part of a Challenged Cause of Action
Under the second step of the anti-SLAPP analysis, if a plaintiff " 'can show a probability of prevailing on any part of its claim, the cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis),quoting Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106 (Mann).) All the challenged causes of action include allegations about the YouTube statements. Accordingly, if BRL shows a probability of prevailing as to the YouTube statements, all the challenged causes of action will stand.
In their opening and reply briefs, defendants criticize the above rule (which was first announced by the appellate court in Mann). Defendants argue this court should reject Mann and treat BRL's allegations about the YouTube video and the KTVU segment—even when contained in a single cause of action or count in BRL's complaint—as separate and distinct causes of action for purposes of dismissal under the anti-SLAPP statute. In Oasis, however, which was decided after the parties submitted their briefs, our Supreme Court cited Mann with approval and adopted its approach to the second step of the anti-SLAPP analysis. (Oasis, supra, 51 Cal.4th at pp. 820-821.)
In Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 (Wallace), Division Five of this court questioned the wisdom of the Mann rule, arguing it permits a plaintiff to shield meritless allegations of protected activity by combining them in a single count with meritorious allegations of unprotected activity. (See Wallace, supra, 196 Cal.App.4th at pp. 1195-1212; but see id. at pp. 1216-1220 (conc. opn. of Jones, P.J.) [disagreeing with majority's criticism of Mann].) The Wallace majority argued a plaintiff instead should have to show a probability it would prevail based solely on its allegations of protected activity. (Id. at p. 1210.) The Wallace majority stated this result would be consistent with the statutory language, legislative history, public policy, and Taus v. Loftus (2007) 40 Cal.4th 683 (Taus), in which the Supreme Court, in the anti-SLAPP context, separately examined the merit of individual acts or bases of liability that were combined in larger causes of action. (See Wallace, supra, 196 Cal.App.4th at pp. 1208-1210, citing Taus, supra, 40 Cal.4th at pp. 711-712, 714-715, 742-743.)
The Wallace majority acknowledged, however, that in Oasis (decided after Taus), the Supreme Court cited Mann with approval and held a cause of action based on protected activity may proceed if the plaintiff shows a probability of prevailing on at least one of the asserted bases for liability. (Wallace, supra, 196 Cal.App.4th at p. 1211, citing Oasis, supra, 51 Cal.4th at pp. 820-821.) The Wallace court followed the rule pronounced in Oasis. (Wallace, supra, 196 Cal.App.4th at p. 1212.)
We offered the parties the opportunity to submit supplemental briefs addressing Oasis. In their supplemental brief, defendants contend Oasis does not permit BRL to meet its burden by proving a probability of prevailing on any part of a challenged cause of action. Defendants' arguments on this point are unpersuasive. First, defendants assert Mann does not apply because all aspects of BRL's causes of action (i.e., BRL's allegations as to both the YouTube video and the KTVU segment) are without merit. But that is just defendants' conclusion—as we discuss below, BRL has shown a probability of prevailing as to the YouTube statements.
For its part, BRL argues in its supplemental brief that, when an anti-SLAPP motion involves an attorney's speech, courts should apply "a heightened standard of review" in light of statutes and rules governing the professional conduct of attorneys. We decline to consider this argument, which BRL did not raise in the trial court or in its principal brief on appeal. In any event, as we discuss below, we affirm on other grounds the trial court's ruling denying defendants' anti-SLAPP motion to strike BRL's complaint.
Second, defendants argue (as they did in their opening and reply briefs) that this court should treat BRL's allegations about the KTVU and YouTube statements as separate causes of action for purposes of the anti-SLAPP statute. Defendants assert BRL should not be able to "craftily limit" the court's ability to strike allegations as to one of these sets of statements by combining the two sets in the same count or cause of action in its complaint. But these arguments simply restate defendants' objections to the Mann rule, which provides a court need not "parse" a cause of action in a plaintiff's complaint in this manner. (See Mann, supra, 120 Cal.App.4th at p. 106 ["Stated differently, the anti-SLAPP procedure may not be used like a motion to strike under section 436, eliminating those parts of a cause of action that a plaintiff cannot substantiate. . . . [A] court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it has determined have merit"].) Because the Supreme Court adopted the Mann approach in Oasis, we apply it here. (See Oasis, supra, 51 Cal.4th at pp. 820-821; Wallace, supra, 196 Cal.App.4th at p. 1212.)
Third, defendants contend the Oasis court's quotation from Mann was nonbinding dictum. We disagree. In Oasis, an attorney represented Oasis West Realty (Oasis) in its effort to obtain city council approval of a development project. (Oasis, supra, 51 Cal.4th at p. 816.) The attorney later terminated his representation and became involved in a campaign opposing the project. (Id. at pp. 816-818.) Oasis sued the attorney and his law firm for breach of fiduciary duty, professional negligence, and breach of contract. (Id. at p. 818.) The defendants filed an anti-SLAPP motion to strike, contending all the causes of action arose from protected activity. (Id. at pp. 818-819.) The trial court denied the motion, and the Court of Appeal reversed. (Id. at pp. 818-819.)
The Supreme Court did not address the first prong of the anti-SLAPP analysis and proceeded to the second, i.e., whether Oasis had shown a probability of prevailing on the merits. (Oasis, supra, 51 Cal.4th at p. 820.) As noted above, the court quoted the passage from Mann stating that, if a plaintiff " 'can show a probability of prevailing on any part of its claim, the cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.' " (Oasis, supra, 51 Cal.4th at p. 820, quoting Mann, supra, 120 Cal.App.4th at p. 106.) The Oasis court considered all the causes of action together, because all were based on the attorney's breach of his duties as former counsel to his client. (Oasis, supra, 51 Cal.4th at pp. 820-821.) The court applied the approach outlined in Mann, stating: "The complaint identifies a number of acts of alleged misconduct and theories of recovery, but for purposes of reviewing the ruling on an anti-SLAPP motion, it is sufficient to focus on just one." (Id. at p. 821, italics added; see also id. at p. 825 ["Our task is solely to determine whether any portion of Oasis's causes of action have even minimal merit within the meaning of the anti-SLAPP statute"], italics added.) Specifically, because the attorney had agreed to represent Oasis in obtaining approvals for the project, acquired confidential information during the representation, and later decided to publicly oppose the project, the court concluded "Oasis has demonstrated a likelihood of prevailing on each of its three causes of action." (Id. at p. 822.) The Supreme Court thus applied the Mann approach in deciding the case before it; contrary to defendants' assertion, the court did not simply quote the passage from Mann as a general proposition of law unrelated to the issues before the court. As our colleagues in Division Five recently noted, "Oasis clearly holds that, where a cause of action (count) is based on protected activity, the entire cause of action may proceed as long as the plaintiff shows a probability of prevailing on at least one of the asserted bases for liability." (Wallace, supra, 196 Cal.App.4th at p. 1211.)
In a footnote in their supplemental brief, defendants assert the Oasis court's adoption of Mann "would conflict with" prior Supreme Court decisions, including Taus. While we need not address this undeveloped argument, an arguable inconsistency between Oasis and the language or analysis in prior Supreme Court decisions would not provide a basis for this court to disregard the Oasis court's explicit approval of the Mann rule. (See Wallace, supra, 196 Cal.App.4th at pp. 1211-1212 [arguing Taus "would dictate a different result" than that reached by the Oasis court, but following the rule pronounced in Oasis].)
2. The YouTube Statements are Not Privileged
On appeal, defendants do not challenge the trial court's determination that BRL made a prima facie showing as to the substantive elements of its claims, such as the falsity of certain statements in the YouTube video and the resulting harm to BRL's business. Instead, defendants contend plaintiffs cannot prevail on their claims about the YouTube statements because those statements were made as part of a communication that is protected by the litigation and common interest privileges codified in Civil Code section 47. We disagree.
a. The Litigation Privilege
"The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged. This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' [Citation.] 'The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' " (Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment Association).)If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. (Kashian, supra, 98 Cal.App.4th at p. 913; Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1139-1140 (Rothman); Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93 (Susan A.).)
"The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 (Silberg).)To achieve this purpose, courts have interpreted the privilege broadly. (Action Apartment Association, supra, 41 Cal.4th at p. 1241.) The litigation privilege applies to defamation and to most other torts, including interference with economic relationships (see Silberg, supra, 50 Cal.3d at p. 215; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784-785 (Dove)), as well as to claims under the unfair competition laws (see Rubin v. Green (1993) 4 Cal.4th 1187, 1201-1202 (Rubin)).Application of the privilege does not depend on a speaker's "motives, morals, ethics, or intent." (Silberg, supra, 50 Cal.3d at p. 220.)
To be protected by the litigation privilege, a communication must "function intrinsically, and apart from any consideration of the speaker's intent, to advance a litigant's case," i.e., the litigant's ability to obtain "the remedies which can be awarded by courts." (Rothman, supra, 49 Cal.App.4th at pp. 1147-1148.) The parties agree (BRL in its brief, and defendants' counsel at oral argument) that a communication must satisfy this requirement to fall within the ambit of the privilege. The parties disagree, however, as to whether this standard has been met in this case. After considering the content of the YouTube video as a whole, we conclude it does not have the requisite functional connection to the Rotenberg action to fall within the absolute litigation privilege.
In their opening brief on appeal, defendants note the litigation privilege encompasses communications related to anticipated, as well as pending, litigation; they suggest the YouTube video therefore is privileged if it is related to "future litigation," rather than to the Rotenberg action. (See Rubin, supra, 4 Cal.4th at pp. 1191, 1194.) A prelitigation communication, however, is "privileged only when it relates to litigation that is contemplated in good faith and under serious consideration." (Action Apartment Association, supra, 41 Cal.4th at p. 1251; accord, Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 889 (Digerati Holdings).)Here, there is no evidence in the record that defendants contemplated in good faith, and seriously considered filing, any litigation other than the Rotenberg action. (See Action Apartment Association, supra, 41 Cal.4th at p. 1251 [whether prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is a question of fact]; Digerati Holdings, supra, 194 Cal.App.4th at p. 889 [same].) Accordingly, whether the YouTube video is privileged depends solely on its functional connection to the Rotenberg action.
Defendants, relying on Rubin (which we discuss in greater detail below), contend that the challenged YouTube statements are privileged because the YouTube video is an attorney solicitation of potential plaintiffs for the Rotenberg action. (See Rubin, supra, 4 Cal.4th at pp. 1194-1195 [litigation privilege protected communications by mobile home park resident and her attorney at meeting with park residents about a potential lawsuit against park owners]; Dove, supra, 47 Cal.App.4th at pp. 780-782, 784-785 [letter from law firm to individuals with potential claims fell within litigation privilege]; Rothman, supra, 49 Cal.App.4th at p. 1148 [stating generally that, under Rubin, privilege protects "communications between a law firm and persons with potential claims seeking support for the filing of a claim or action"].) In making this argument, defendants do not claim that each specific statement challenged by BRL constitutes an attorney solicitation and therefore is individually protected by the litigation privilege. Instead, defendants contend that the challenged statements are privileged because they "were made as part of," or "in the course of," a larger communication—the YouTube video—that was an attorney solicitation.
As noted above, the statements challenged by BRL include, among other things, Clarke's assertions about (1) the alleged dangers of Procera, and (2) the types of advertising claims BRL has allegedly made about Procera. Defendants do not argue, and we see no basis for concluding, that such assertions, viewed individually, constitute solicitations of potential plaintiffs for the Rotenberg action.
Defendants thus appear to assert that, if the YouTube video is categorized as an attorney solicitation, both the video as a whole and any individual statements made in the video are absolutely privileged. Although we need not address this point, we note that categorizing a communication as a type that may be protected by the litigation privilege does not automatically establish that each individual statement in the communication is privileged. (See Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 142-143, 148, 150-152 [although prelitigation demand letter may be protected by litigation privilege, defamatory statement in demand letter that was extraneous to the threatened litigation was not protected].)
In characterizing the video as an attorney solicitation, defendants contend that BRL has alleged (in its complaint and briefs) that the video constituted an effort by defendants to solicit plaintiffs for the Rotenberg action. Such allegations are not dispositive. To the extent BRL has alleged defendants' intent in making the video was (in whole or in part) to solicit plaintiffs, we note that application of the privilege does not depend on a speaker's "motives, morals, ethics, or intent." (Silberg, supra, 50 Cal.3d at p. 220.) Moreover, as noted above, where the underlying facts (such as the content of the video) are undisputed, application of the privilege is a question of law (Kashian, supra, 98 Cal.App.4th at p. 913; Rothman, 49 Cal.App.4th at pp. 1139-1140; Susan A., supra, 2 Cal.App.4th at p. 93), and the parties' characterizations of the video do not control our determination of that question. In any event, as we discuss further below, characterizing a communication as an effort to solicit clients does not automatically establish it is privileged, without any consideration of its content or other circumstances.
Here, the content of the video establishes that it does not have the necessary functional connection to the Rotenberg action to support application of the privilege. As noted above, the allegations in the Rotenberg complaint relate to one product—Procera. The Rotenberg complaint alleges that BRL has made improper and inaccurate claims about Procera in its advertising and labeling, and that BRL has failed to disclose the product's risks. Indeed, all six causes of action in the Rotenberg complaint allege BRL has made improper claims about Procera and/or has failed to disclose its dangers. The Rotenberg complaint seeks injunctive relief (including "curing" the allegedly misleading advertising and labeling), restitution and attorney fees.
The YouTube video, in contrast to the Rotenberg complaint's exclusive focus on Procera, includes broad statements addressing "so-called dietary supplements" generally, outlining the types of advertising claims allegedly made by the manufacturers of such products, and cautioning consumers about the risks of using them instead of obtaining proper medical treatment. Clarke begins the video by giving his name and stating: "You probably know me as the attorney who's very concerned about your health. I do not want you to die or suffer long term injury or disability because you forsake medical treatment for the false promises that are made by many so-called dietary supplements. These scam artists do not care if you live or die. They only want you to live long enough to give them your money."
After making these general statements, Clarke says, "Today I want to talk to you about a so-called dietary supplement known as Procera AVH"; he then discusses some of the claims allegedly made by BRL about Procera. Throughout the remainder of the video, however, Clarke continues to intersperse his statements about Procera with more general assertions about "so-called dietary supplements" and their manufacturers. For example, Clarke says of BRL: "Like all scam artists to achieve their goal of getting their hands on your money they will say, they will promise you anything." He later asserts that a failure to disclose potential side effects and interactions with prescription drugs is "standard operating procedure for most dietary supplements. Extravagant claims combined with silence about dangers and harm." And, after stating that Procera is not an alternative to proper medical attention, Clarke states: "Do not fool yourself. If you're not getting proper medical treatment, you may die or suffer serious permanent injury or disability. That is the simple blunt truth."
Clarke also asserts that BRL is making illegal claims, and, in keeping with the video's coverage of both Procera and dietary supplements generally, states: "It's also important for you to be aware that all of these claims are illegal. Let me say that again so that you understand the fundamentals of these bogus claims. They are all illegal, no exceptions, no ifs, buts or maybes. So if a dietary supplement like Procera AVH claims that it can cure an illness or disease or the symptoms of an illness or disease then it is making an illegal claim. So all these claims made by Procera are illegal." Later in the video, Clarke repeats this general point: "Again, let me be absolutely clear. If a dietary supplement claims even subt[ly], even indirectly that it can cure an illness or disease or the symptoms of an illness or disease, they are making an illegal claim." Clarke also offers to provide an "informative booklet" about the "rules" that govern "[w]hat claims can and cannot be made by the sellers of dietary supplements"; the booklet "also tells you how to protect yourself from these crooks and cheats." Clarke does not state that the booklet is about Procera specifically. Finally, Clarke invites the viewer to call with any questions about the booklet, and to contact Clarke if "you want an attorney to help you recover your money and to put out of business those that have cheated you," again without referring specifically to Procera.
As argued by defendants, many statements in the video do relate specifically to Procera, including Clarke's discussion of the claims allegedly made by BRL, the product's alleged ineffectiveness and the potential dangers allegedly posed by some of its ingredients. However, it is also undeniably true that the video includes statements, as discussed above, addressing misrepresentations associated with dietary supplements in general, and presents broad warnings about the alleged risks of dietary supplements, as well as statements of "concern[]" about the viewer's health and the importance of the viewer's obtaining proper medical treatment. As the court emphasized in Nguyen, "an important point for both litigants and attorneys" is that Civil Code section 47, subdivision (b) "does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals." (Nguyen, supra, 69 Cal.App.4th at p. 150.) Based upon our review of the YouTube video, including its generalized statements pertaining to the medical risks associated with the use of "so-called dietary supplements," we conclude the video as a whole does not function intrinsically to assist in obtaining judicial relief in the Rotenberg action. (See Rothman, supra, 49 Cal.App.4th at pp. 1147-1148.)
We find ample support for this conclusion in the content of the video itself. However, the manner in which Clarke disseminated it, i.e., by making it available to the general public on the Internet, provides additional support, in accord with California case law, for the conclusion we reach here. The litigation privilege generally does not cover statements made "to nonparticipants in the action . . . [which] are thus actionable unless privileged on some other basis." (Silberg, supra, 50 Cal.3d at p. 219; TSMC North America v. Semiconductor Manufacturing Internat. Corp. (2008) 161 Cal.App.4th 581, 599 (TSMC); Rothman, supra, 49 Cal.App.4th at p. 1141; Susan A., supra, 2 Cal.App.4th at pp. 93-94.) In particular, "the litigation privilege should not be extended to 'litigating in the press.' " (Rothman, supra, 49 Cal.App.4th at p. 1149; accord, Susan A., supra, 2 Cal.App.4th at p. 95.)
Defendants contend the YouTube video is "narrowly targeted," because an Internet user could access the YouTube video "only by conducting a search using descriptive words," such as " 'Procera AVH.' " But defendants do not dispute that the video was made generally available and could be accessed by anyone, regardless of whether he or she had a potential claim or an interest in participating in the litigation.
For example, in Rothman, the appellate court held that statements by a celebrity and his attorney at a press conference and in other communications to the media, although made in anticipation of litigation, did not have "the requisite 'logical relation' with the subsequent litigation" to fall within the litigation privilege. (Rothman, supra, 49 Cal.App.4th at pp. 1138-1139, 1145.) Similarly, in Susan A. and TSMC, we held statements to the press and the general public were not protected by the litigation privilege. (Susan A., supra, 2 Cal.App.4th at pp. 92-96; TSMC, supra, 161 Cal.App.4th at p. 599.) Under these cases, communications that convey a party's general views to a broad audience do not have the requisite functional connection to litigation and do not advance the purposes of the litigation privilege. (See Rothman, supra, 49 Cal.App.4th at pp. 1147-1149.) Here, defendants disseminated their views, not only about Procera but also about dietary supplements generally, to a potentially worldwide audience over the Internet. This type of communication does not serve the underlying purpose of the privilege, i.e., to afford litigants access to the courts without fear of derivative tort actions. (See Silberg, supra, 50 Cal.3d at p. 213.)
We do not hold that the medium of communication chosen by defendants is dispositive in determining the applicability of the litigation privilege, but it is relevant to that determination, as the above cases establish. We conclude that the circumstances of the video's dissemination, considered in conjunction with its content, support the conclusion that it lacks the requisite functional connection to the Rotenberg action and that the privilege therefore does not apply.
As noted above, defendants contend that, under the Supreme Court's decision in Rubin, the litigation privilege applies to the YouTube statements because "the challenged statements were made as part of an attorney solicitation of clients and witnesses for pending or anticipated litigation[.]" In Rubin, an owner of a mobile home park sued a park resident and her attorneys for allegedly improperly soliciting other park residents to participate in a lawsuit against the owners for failing to maintain facilities and services at the park. (Rubin, supra, 4 Cal.4th at pp. 1191-1192.) The Supreme Court held the litigation privilege protected the challenged communications by the resident and her attorneys, i.e., "meeting and discussing with [park] residents park conditions and the merits of the proposed failure-to-maintain lawsuit, and filing the complaint and subsequent pleadings in the litigation." (Id. at pp. 1194-1195; see Dove, supra, 47 Cal.App.4th at pp. 780-782, 784-785.)
Rubin and Dove are distinguishable, and they do not support application of the litigation privilege here. As the trial court noted, those cases involved communications about potential litigation to specific individuals believed to have potential claims—in Rubin, the communications apparently occurred during in-person meetings or discussions with some of the 450 residents of the mobile home park(Rubin, supra, 4 Cal.4th at pp. 1191-1192, 1195-1196); in Dove, a law firm sent letters to approximately 13 celebrities believed to have an interest in the distribution of royalties from a recording (Dove, supra, 47 Cal.App.4th at pp. 779-780, 781-782). The Rubin and Dove courts did not hold that any communication intended wholly or in part to solicit potential clients for litigation is protected by the absolute litigation privilege, regardless of the contents of the communication and the manner in which it is disseminated. Here, as discussed above, although the video ends with an invitation to the viewer to contact Clarke, much of the content is more in the nature of a broad public service announcement than a targeted solicitation of plaintiffs for a specific lawsuit. Moreover, as the trial court noted, while the YouTube video may reach some people who have an interest in suing BRL or assisting with the litigation against it, the video is available to anyone, and "will inevitably be viewed by many who will never participate in the litigation." Under these circumstances, the privilege does not apply.
The other cases cited by defendants on this point—Rusheen, supra, 37 Cal.4th 1048, and Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009 (Drum),disapproved on other grounds by Rusheen, supra, 37 Cal.4th at p. 1065—also do not include any such broad holding. The Rusheen and Drum courts, in the course of discussing the scope of the litigation privilege, noted Rubin's holding about attorney solicitation activities. (Rusheen, supra, 37 Cal.4th at p. 1058; Drum, supra, 107 Cal.App.4th at p. 1024.) Rusheen and Drum did not involve attorney solicitation; they involved application of the litigation privilege to postjudgment collection activities. (See Rusheen, supra, 37 Cal.4th at pp. 1052, 1059, 1065; Drum, supra, 107 Cal.App.4th at pp. 1021-1028.)
We reject defendants' contention that a refusal to apply the litigation privilege here would "prohibit" defendants or other attorneys from using the Internet in any manner to solicit clients. We do not "prohibit" defendants from speaking; we hold only that, under the circumstances of this case, the absolute immunity conferred by the litigation privilege does not apply. (Rothman, supra, 49 Cal.App.4th at pp. 1148-1149; accord, TSMC, supra, 161 Cal.App.4th at p. 599.)
b. The Common Interest Privilege
Civil Code section 47, subdivision (c) provides a conditional privilege for a communication made "without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." Application of the common interest privilege generally involves a two-step analysis: a defendant has the initial burden to show the statement in question was made on a privileged occasion, and the burden then shifts to the plaintiff to establish the statement was made with malice. (Taus, supra, 40 Cal.4th at pp. 720-721; Mann, supra, 120 Cal.App.4th at p. 108.) The existence of the privilege ordinarily is a question of law for the court. (Kashian, supra, 98 Cal.App.4th at p. 915; Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, 13, fn. 5 (Institute of Athletic Motivation).)
In light of the undisputed facts in the record and the case law construing the scope of the common interest privilege, Clarke's statements in the YouTube video were not made on a privileged occasion. Civil Code section 47, subdivision (c) codified the common law privilege of common interest, which was limited in scope and "protected communications made in good faith on a subject in which the speaker and the hearer shared an interest or duty." (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727-729 (Brown).)The privilege generally protects statements between parties who share a direct and immediate interest in the information, such as a pecuniary or proprietary interest; a reader's general curiosity is not the type of interest that will trigger the privilege. (See id. at pp. 727-729; Kashian, supra, 98 Cal.App.4th at p. 914; Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 664-665 (Rancho La Costa); 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 594, p. 872.) While the scope of the common interest privilege may not be "capable of precise or categorical definition" (see Institute of Athletic Motivation, supra, 114 Cal.App.3d at p. 11), the privilege does not protect broadcasts or other communications to the general public. (See Brown, supra, 48 Cal.3d at p. 738 [broadcast by news media to general public]; Rancho La Costa, supra, 106 Cal.App.3d at pp. 664-665 [article in national magazine]; Kashian, supra, 98 Cal.App.4th at p. 914; 5 Witkin, Summary of Cal. Law, supra, § 594, p. 872.)
Defendants note BRL did not address this portion of the common interest privilege analysis in its trial court briefing, focusing instead on whether Clarke made the statements in the YouTube video with malice. But "[w]here, as here, the applicability of a statute is a question of law that depends on undisputed facts appearing in the record, an appellate court may consider a theory that was not before the trial court." (Susan A., supra, 2 Cal.App.4th at p. 93, fn. 4.)
Applying these principles, the statements in the YouTube video were not made on a privileged occasion. Defendants posted the video on the Internet, where it was accessible to anyone, including, as the trial court noted, "untold numbers of curious websurfers." (Cf. Wilbanks, supra, 121 Cal.App.4th at p. 895 [in considering first prong of anti-SLAPP analysis, court noted defendant's statements posted on her website "hardly could be more public"].) Contrary to defendants' argument, the need to enter a search term such as "Procera AVH" to access the video does not establish it was narrowly targeted at persons with a sufficient interest to trigger the common interest privilege. Instead, persons with no more than "general or idle curiosity" could enter an appropriate search term and access the video.
Taus and Institute of Athletic Motivation, on which defendants rely, are distinguishable. In Taus, the Supreme Court held a statement made by a psychology professor and author at a professional conference attended by other mental health professionals, and that was related to the subject of the conference, fell within the common interest privilege. (Taus, supra, 40 Cal.4th at p. 721.) In Institute of Athletic Motivation, a university physical education professor sent a letter criticizing the plaintiffs' " 'sports-specific' " psychological test "to numerous professional athletic organizations and to several sports magazines." (Institute of Athletic Motivation, supra, 114 Cal.App.3d at p. 4.) In holding the common interest privilege applied, the appellate court stated: "In this case, unlike Rancho La Costa [supra, 106 Cal.App.3d at pp. 664-665, involving an article published in a national magazine], the communication was not directed toward the world at large, but mainly toward those involved as professionals in the field of athletics. And those to whom it was directed had a potential interest in the subject matter which went well beyond general or idle curiosity. The coaches who comprised the various organizational recipients of [the] letter constituted a group with a special concern for the subject matter of the communication: depending upon how they evaluated it, the communication could affect the manner in which they conducted their professional activities. If the contents of the communication were true, it was of professional importance for them to know it." (Institute of Athletic Motivation, supra, 114 Cal.App.3d at p. 12, italics added.) Here, in contrast, the YouTube video was made available to "the world at large," including countless potential Internet surfers whose interest in the video consisted of no more than "general or idle curiosity." Defendants have cited no case holding the common interest privilege applicable in such circumstances.
Because defendants failed to meet their initial burden to show the YouTube statements fell within the conditional privilege of Civil Code section 47, subdivision (c), the burden never shifted to plaintiffs to show the statements were made with malice. (See Mann, supra, 120 Cal.App.4th at p. 109.) We therefore need not address the parties' arguments as to malice.
III. DISPOSITION
The trial court's order denying defendants' anti-SLAPP motion is affirmed. BRL shall recover its costs on appeal.
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Jenkins, J.
We concur:
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McGuiness, P. J.
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Pollak, J.