239 Cal. App. 4th 918
Cal. Ct. App.2015Background
- Yellow Cab and Bell Cab sued ITOA, Checker Cab, and an individual for creating internet search ads that used plaintiffs’ trade names but directed consumers to defendants’ phone numbers/websites, alleging false advertising (Bus. & Prof. Code § 17500), UCL violations, and Lanham Act claims.
- Plaintiffs alleged consumers were deceived into believing they were contacting plaintiffs when ads routed them to defendants’ services; plaintiffs sought damages and injunctive relief and initially sought a TRO (denied).
- Defendants filed anti-SLAPP motions under Cal. Code Civ. Proc. § 425.16, arguing the ads were speech in a public forum on a matter of public interest; plaintiffs opposed, arguing the ads were purely commercial and fell within the commercial-speech exemption (§ 425.17(c)).
- The trial court denied defendants’ anti-SLAPP motions, concluding defendants failed their threshold showing that the ads involved protected speech; the court also found plaintiffs had not proved the § 425.17(c) exemption applied.
- Plaintiffs moved for fees under § 425.16(c), claiming the anti-SLAPP motions were frivolous; the trial court denied fees. The parties appealed and cross-appealed; the Court of Appeal affirmed denial of the anti-SLAPP motion, held the commercial-speech exemption applied, and reversed the denial of fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants met the anti-SLAPP threshold by showing the internet search ads were protected speech in connection with a public issue | Ads are purely commercial, not speech on a public issue, so anti-SLAPP does not apply | Internet/search advertising is in a public forum and concerns public transportation/taxi availability, so it is protected | Denied: ads are purely commercial and not in connection with a public issue for anti-SLAPP purposes |
| Whether the commercial-speech exemption (§ 425.17(c)) bars defendants’ anti-SLAPP motion | Exemption applies because defendants are primarily engaged in taxi services and ads are factual representations to attract customers | Defendants are nonprofit/cooperative entities acting for members, not primarily in the business of selling services | Held: exemption applies — ITOA and Checker are persons primarily engaged in selling taxi services and ads are factual promotions aimed at customers |
| Whether plaintiffs are entitled to attorney fees under § 425.16(c) because the anti-SLAPP motion was frivolous | Motion was frivolous: no reasonable attorney could believe purely commercial ads were protected; prior caselaw clearly so holds | Whether the public-interest question was debatable made the motion non-frivolous | Held: motion was frivolous and fees/costs must be awarded to plaintiffs; appellate fees recoverable on remand |
| Whether defendants’ reliance on cases like Wong v. Jing and other authority provided a reasonable basis for the anti-SLAPP motion | N/A (plaintiffs argue these cases do not apply) | Defendants argued some authorities showed a debatable question about public interest | Held: reliance on those cases was unreasonable; those cases involved noncommercial speech or different contexts and did not support protection here |
Key Cases Cited
- Rusheen v. Cohen, 37 Cal.4th 1048 (definition and purpose of the anti-SLAPP statute)
- Nagel v. Twin Laboratories, Inc., 109 Cal.App.4th 39 (commercial speech promoting products/services not protected by anti-SLAPP)
- Consumer Justice Ctr. v. Trimedica Int'l, Inc., 107 Cal.App.4th 595 (commercial claims about specific products are not matters of public interest under anti-SLAPP)
- All One God Faith, Inc. v. Organic & Sustainable Indus. Standards, Inc., 183 Cal.App.4th 1186 (trade association not "primarily engaged" in selling goods/services for § 425.17(c) analysis)
- Wong v. Jing, 189 Cal.App.4th 1354 (consumer review addressing broader public issues may be protected speech)
- Hunter v. CBS Broad., Inc., 221 Cal.App.4th 1510 (news-broadcast selection as speech; discussion distinguishing commercial advertising)
- Rezec v. Sony Pictures Entm't, Inc., 116 Cal.App.4th 135 (advertising for films is commercial speech not protected by anti-SLAPP)