Everything Is Not Art

City of Rocklin v. Legacy Family Adventures-Rocklin, LLC, No. C091172 (D3 Dec. 12, 2021)

City sues a Theme Park Developer over their joint venture to build and operate a theme park. TPD brings and anti-SLAPP, arguing that because a bunch of its claims were based on its negotiation with City, the claims arise from protected activity. City responds that this is commercial speech, excluded from anti-SLAPP coverage under Code of Civil Procedure § 425.17(c). But TPD retorts that the claims fall within an exception to the exception for commercial speech promoting dramatic, literary, musical, political, or artistic works. See § 425.17(d)(2). In support to that TPD put in declaration from a purported expert stating that a theme park can be a form of art. The trial court excluded the declaration, denied the motion and ordered the defendants to pay plaintiff’s fees.

Like a number of non-edge cases in the anti-SLAPP milieu, the case is factually easy but textually, less so. Of course Quarry Park Adventures is not an “artistic work.” But there is, doubtless, a continuum between a theme park and the ballet. It’s just that the court doesn’t need to draw that line here. But the difficulty of line drawing doesn’t mean a court can’t find that any reasonable lawyer wouldn’t know it has long since been crossed under the facts of a particular case. As the Court explains, “while the parameters of what constitutes art may not be precisely clear, not everything can be called art.” The problem is the argument here is that if this is art, everything is art. And that can’t be what the Legislature intended. TPD’s argument was frivolous.

Affirmed.