Low, Ball & Lynch's

WEEKLY LAW RESUME

November 20, 2003 Issue By: Raymond Coates

Personal Injury Action - Anti-SLAPP Statute

Gloria Martinez v. Metabolife Int'l., Inc.

Court of Appeal, Fourth District

(November 12, 2003)

The California Anti-SLAPP statute protects a party's free speech rights. In this case, the anti-SLAPP statute was used to attempt to defeat a personal injury action.

Gloria and George Martinez sued Metabolife International, Inc. (MII), alleging that a product manufactured and marketed by MII caused Gloria to suffer a stroke. The complaint alleged physical injuries caused by the effect of the ingredients and alleged theories of product liability, negligence, breach of warranty, and fraud. MII moved to strike the complaint under the anti-SLAPP statute. It argued that the complaint targeted MII's commercial speech because it referred to labeling and advertising of the product and thus arose out of protected speech. The motion was opposed by plaintiff arguing their action did not fall within the ambit of the anti-SLAPP statute. The trial court agreed and denied the motion. MII appealed.

The Court of Appeal affirmed. The anti-SLAPP statute, Code of Civil Procedure section 425.16, was enacted to obtain an early and inexpensive dismissal from a nonmeritorious claim arising from an act of the defendant in furtherance of their right of free speech under the United States or California Constitution in connection with a public issue. Under this statute, a motion may be filed to dismiss the complaint. The defendant must show protected activity, and if it is, then the plaintiff has to demonstrate a probability of prevailing on the claim.

In trying to determine whether the claim arose from protected activity, the Court stated that the focus must be on the defendant's activity which gives rise to the asserted liability. The Court found no case deciding whether a claim for physical injury allegedly caused by use of a product was within the scope of the statute. The Court stated that while the anti-SLAPP statute is to be broadly construed, it did not believe the action in this case could be characterized as being premised on speech or conduct of MII protected by the First Amendment. This was so even though the complaint contained references to speech activity by the defendant. The principal thrust or gravamen of the plaintiff's cause of action determines whether the anti-SLAPP statute applies and when the allegations referring to arguably protected activity are incidental to the cause of action, the case does not fall within the scope of the statute.

In this complaint, protected speech was not the principal thrust of the claims. The principal claim was that the product manufactured by the defendant was defective, and this resulted in plaintiff's injury. The Court declined to extend the anti-SLAPP statute to protect a product liability claim merely because the complaint also alleged the manufacturer or seller engaged in commercial speech to market the product. This was true also of the breach of warranty and fraud claims. Their primary thrust was to seek recovery for physical injuries caused by activity outside the boundaries of conduct to which the anti-SLAPP statute applied. The core wrongful act alleged in this case was not the false advertising claim. In cases where speech proximately caused the injuries for which recovery is sought, the anti-SLAPP statute may apply. Here, it was the product that allegedly caused the injuries for which recovery was sought. Thus, the gravamen of the claim was not activity protected by the anti-SLAPP statute. Thus, the decision of the trial court was affirmed.

COMMENT

This rather clever approach to trying to apply the anti-SLAPP statute to a products liability case failed. It primarily failed because the thrust of the claim had nothing to do with speech, but rather had to do with an alleged product that caused personal injury. ____ To order a printed version of this analysis, or change your subscription information, reply to this transmission. Information regarding this and other WEEKLY LAW RESUME TM articles is available from Raymond Coates at

(650) 685-7160, RCoates@lowball.com or at WWW.LOWBALL.COM. The WEEKLY LAW RESUME TM is published fifty-two times a year, and is a complimentary publication of LOW, BALL & LYNCH, Attorneys at Law, a Professional Corporation, with offices in San Francisco, Redwood City and Monterey, California.

Gordon Hansen

(415) 981-6670 x226

ghansen@lowball.com

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