86 Cal.App.5th 713
Cal. Ct. App.2022Background:
- In 2016–2018, David Busch/Legacy Family Adventures (LFA) pitched, designed, and operated Quarry Park Adventures with the City of Rocklin; City alleges Busch misrepresented prior theme-park successes and financial projections, leading the City to invest $7M (costs exceeded projections) and later to assume control.
- The City sued LFA and Busch asserting 12 causes of action, including fraud (two counts), negligent misrepresentation, and UCL—four of which defendants targeted with an anti‑SLAPP (§ 425.16) special motion to strike.
- Defendants argued Busch’s communications (presentations, emails, council remarks) were protected speech and, although commercial, fell within the “artistic work” exception to the commercial‑speech exemption (§ 425.17(d)(2)); they submitted an expert opining theme parks can be art.
- The trial court sustained the City’s evidentiary objections to portions of the expert declaration (case‑specific hearsay and legal conclusion), held the speech was commercial and the artistic‑work exception did not apply, denied the anti‑SLAPP motion, and found the motion frivolous—awarding the City attorney fees and costs under § 425.16(c)(1) (incorporating § 128.5).
- Defendants appealed, challenging (a) frivolousness and reasonableness of counsel, (b) evidentiary rulings, (c) compliance with § 128.5 procedures, and (d) due‑process concerns from judge rotation; the Court of Appeal affirmed and remanded for determination of appellate fees.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the challenged speech qualified as an "artistic work" under § 425.17(d)(2) so anti‑SLAPP could apply | City: speech was commercial and not the creation/promotion of an artistic work; § 425.17(c) commercial‑speech exemption bars anti‑SLAPP | Defs: theme parks are artistic works (expert opined parks are like movies/stories), so artistic‑work exception applies | Court: Quarry Park is not the sort of artistic work contemplated by § 425.17(d)(2); artistic‑work exception does not apply |
| Whether invocation of the artistic‑work exception was frivolous warranting fees under § 425.16(c)(1)/§ 128.5 | City: defendants’ motion was totally devoid of merit; reasonable attorneys would agree it was frivolous | Defs: issue novel, reasonable attorneys could differ; absence of contrary published authority | Court: motion was frivolous; any reasonable attorney would agree the artistic‑work claim was without merit given statute and legislative history |
| Admissibility and weight of expert testimony (Exline) and renderings | City: portions of expert declaration were inadmissible case‑specific hearsay and contained legal conclusions | Defs: expert reliability and he relied on materials; trial court should have considered it | Court: sustained hearsay/legal‑conclusion objections; expert may not opine on statutory legal meaning—excluding those opinions was proper and not prejudicial |
| Procedural and due‑process objections (no § 128.5 safe‑harbor, judge rotation) | City: complied with procedure for seeking fees in anti‑SLAPP context; no prejudice | Defs: lack of 21‑day safe‑harbor, separate motion; multiple judges deprived them of process | Court: defenses forfeited for not raising below; in any event no reversible error or due‑process violation shown |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (anti‑SLAPP two‑step framework)
- Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co., 6 Cal.5th 931 (Cal. 2019) (second‑step is a summary‑judgment‑like inquiry; courts do not weigh credibility)
- People v. Sanchez, 63 Cal.4th 665 (Cal. 2016) (limits on expert testimony recounting case‑specific hearsay)
- Alfaro v. Waterhouse Mgmt. Corp., 82 Cal.App.5th 26 (Cal. Ct. App. 2022) (standard for frivolous anti‑SLAPP motion: totally devoid of merit)
- Major v. Silna, 134 Cal.App.4th 1485 (Cal. Ct. App. 2005) (legislative history on § 425.17(d) and media/art exceptions)
- Ingels v. Westwood One Broad. Servs., Inc., 129 Cal.App.4th 1050 (Cal. Ct. App. 2005) (interpretation/legislative history of § 425.17)
- Carpenter v. Jack in the Box Corp., 151 Cal.App.4th 454 (Cal. Ct. App. 2007) (appellate attorney fees available under § 425.16(c))