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.

Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entm’t, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.

Not Very Convincing....

Dean v. Friends of Pine Meadow, No. A149735 (D1d4 Mar. 8, 2018)

A golf course developer sued an advocacy group that is agitating against one of its projects for defamation and various business interference torts. That might sound familiar. Perhaps because the California Supreme Court used that precise scenario as an example of “the paradigm SLAPP” almost twenty years ago. Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1125 (1999).

Sounds More Like Garth Knight to Me

Cross v. Facebook, Inc., No. A148623 (D1d2 Aug. 9, 2017) 

Plaintiff here is Jason Cross, aka, Mikel Knight. No, not Michael Knight—a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law. It’s Mikel Knight, a performer of really awful Country/Rap music, who (if one believes the internets) goes around the country with his “Maverick Dirt Road Street Team,” using aggressive and sometimes violent tactics to peddle his merch, harass women, and get in all kinds of traffic accidents.

Garbage Battle Is a SLAPP.

Indus. Waste & Debris Box. Serv., Inc. v. Murphy, No A142388 (D1d2 Oct. 28, 2016)

Defendant is a waste and recycling consultant. On behalf of Client, it wrote a report about recycling rates that was positive for Client but questioned the veracity of Client’s Competitor’s statements about how much of the waste it collected was ultimately recycled. Client ultimately submitted the report to a local government in Sonoma County, resulting in Client getting a waste hauling contract that Competitor previously held. Competitor sued Defendant for defamation and other similar causes of action.

If you haven’t yet guessed where this is going, you might be new to California.

Commercial Speech Exception Applies Even When the Product Is Judging

JAMS, Inc. v. Superior Court, No. D069862 (D4d1 Jul. 27, 2016)

An unhappy arbitrant sued JAMS for misstating the bios of one of its neutrals. The trial court denied JAMS’s anti-SLAPP motion based on the commercial speech exception. The court of appeal affirms. JAMS’s claims about its practices and neutrals fall firmly within Code of Civil Procedure §425.17(c). They are factual statements made by the seller of a product intended to induce members of the consuming public to by the product. That’s all that’s required.

Affirmed.

SLAPP Exception Applies to Keyword Manipulation in Taxi Ads

L.A. Taxi Cooperative, Inc. v. The Indep. Taxi Owners Assoc. of L.A., No. B255909 (D2d4 Aug. 20, 2015)

A cooperative of taxicab companies sued another cooperative for false advertising on the Internet. Allegedly, defendants were buying keyword search terms from search engines that would return Defendants’ links when customers searched for contact information for Plaintiff’s company. Defendants filed an anti-SLAPP motion, claiming that claims arose from speech protected under Code of Civil Procedure § 425.16(b)(1). After Plaintiffs opposed, Defendants stipulated to take the motion off calendar. But they then refiled an essentially identical motion, without even trying to address the arguments Plaintiffs made in their prior opposition.

Goods and Services in the Digital Age

Demetriades v. Yelp, No. B247151 (July 24, 2014)

A restaurant proprietor sued Yelp for false advertising, claiming that Yelp’s statements about the quality and accuracy of its review filtering software were false and misleading. Yelp responded with an anti-SLAPP motion, arguing that the statements were protected activity under Code of Civil Procedure § 425.16(e). But according to the court, that doesn’t matter, because the statements at issue fall within the commercial speech exception in § 425.17(c). The exception applies when (i) defendant is in the business of selling goods or services, (ii) the statements at issue are statements of fact about those goods or services, (iii) the statements were made for the purpose of procuring a transaction in those goods and services, and (iv) the statements are directed to likely consumers of defendant’s goods or services. Those requirements were satisfied here. Although user reviews posted on Yelp are generally outside the exception, Yelp's statements about the quality of its own filtering software are not. The latter are clearly aimed at encouraging businesses to buy ads on the Yelp platform.

Reversed.