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Professional
Liability Case Alert: California Supreme Court Decides Attorney
Advertisement Falls Within Exemption Of Anti-SLAPP Statute
Simpson
Strong-Tie Company, Inc. v. Gore et al., (5/17/10) ___ Cal. 4th ___ [CA Supreme Court
Case No. S164174]
In a May 17,
2010 unanimous decision, the California Supreme Court determined that an
attorney advertisement did not fall within the commercial speech
exemption to the anti-SLAPP statute and, thus, affirmed the judgment of
the Court of Appeal dismissing the lawsuit.
This action
arose from a lawsuit brought by Simpson Strong-Tie Company, Inc. against
attorney Pierce Gore and The Gore Law Firm for a newspaper advertisement
directed to owners who had constructed wood decks after January 1, 2004.
The advertisement advised owners that they might be entitled to monetary
compensation and repair or replacement of their deck if built with
galvanized screws manufactured by Simpson. The advertisement invited
affected homeowners to contact The Gore Law Firm “if you would like
an attorney to investigate whether you have a potential claim.”
Simpson's complaint consisted of causes of action for defamation, trade
libel, false advertising and unfair business practices.
Gore moved to
strike the complaint pursuant to Code of Civil Procedure section 425.16
(known as the anti-SLAPP statute). In opposition, Simpson argued that the
commercial speech exemption of section 425.17(c) applied. The trial court
granted the motion to strike and dismissed the complaint, finding that
Gore had made a showing that the statements were in furtherance of his
freedom of speech rights on an issue of public interest, that Simpson had
failed to establish it would have prevailed on the merits and that the
commercial speech exemption did not apply because the advertisement made
no statement about a business competitor's products or services. The
Court of Appeal affirmed the trial court's decision.
The issue
presented to the California Supreme Court was limited to whether the
complaint was exempt from the anti-SLAPP statute under the commercial
speech exemption set forth in section 425.17(c). The Supreme
Court found that the proper interpretation of Section 425.17(c) was
“to exempt from the anti-SLAPP law a cause of action arising from
commercial speech when (1) the cause of action is against a person
primarily engaged in the business of selling or leasing goods or
services; (2) the cause of action arising from a statement or conduct by
that person consisting of representations of fact about that person's or
a business competitor's business operations, goods, or services; (3) the
statement or conduct was made either 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 in the course of
delivering the person's goods or services; and (4) the intended audience
for the statement or conduct meets the definition set forth in section
425.17(c)(2).”
The issue in
this case was whether the causes of action arose from representations of
fact about Gore's business operations, goods or services. Simpson had
alleged in its complaint that Gore's advertisement made the defamatory
statement that its screws were defective and, therefore, led the reader
to believe the screws were defective. Applying the Court's interpretation
of Section 425.17(c), the Court assumed Simpson's allegations to be true
and determined that the statements were not about Gore's business or
about Gore's competitor's business and therefore the complaint fell
outside the scope of section 425.17(c) and was properly dismissed.
This decision
should be closely examined by any attorney who is considering placing a
focused class advertisement for legal services.
This document in
intended to provide you with general information about recent
professional liability cases. The contents of this document are not
intended to provide specific legal advice. If you have any questions
about the contents of this alert, please contact Jennifer Saunders at
310-215-7535 or jsaunders@hbblaw.com or contact your preferred Haight Brown &
Bonesteel LLP attorney. This communication may be considered advertising
in some jurisdictions.
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