Opinion
B294568
03-16-2020
TREVOR SELKIRK et al., Plaintiffs, Respondents, and Cross-Appellants, v. GRASSHOPPER HOUSE, LLC et al., Defendants, Appellants, and Cross-Respondents.
Steptoe Johnson, Jason Levin and Melanie A. Ayerh for Defendants, Appellants, and Cross-Respondents. Aiman-Smith & Marcy, Randall B. Aiman-Smith, Reed W.L. Marcy, Hallie Von Rock, Carey A. James and Brent A. Robinson for Plaintiffs, Respondents, and Cross-Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC706281) APPEALS from an order of the Superior Court of Los Angeles County, Randolph M. Hammock, Judge. Reversed in part and remanded with directions and dismissed in part. Steptoe Johnson, Jason Levin and Melanie A. Ayerh for Defendants, Appellants, and Cross-Respondents. Aiman-Smith & Marcy, Randall B. Aiman-Smith, Reed W.L. Marcy, Hallie Von Rock, Carey A. James and Brent A. Robinson for Plaintiffs, Respondents, and Cross-Appellants.
____________________
INTRODUCTION
Grasshopper House, LLC and Passages Silver Strand, LLC are luxury facilities that purport to treat drug and alcohol addiction. Trevor Selkirk and Dan Rescigno, former patients, filed a complaint against the facilities and their founders (collectively, Passages) alleging Passages made false statements about the efficacy of its treatment programs. Passages filed a special motion to strike under Code of Civil Procedure section 425.16, which the trial court granted in part and denied in part. Both sides appealed the court's order.
Undesignated statutory references are to the Code of Civil Procedure.
We conclude that Passages met its burden of demonstrating certain alleged statements were protected under section 425.16 and that Selkirk and Rescigno did not demonstrate minimal merit on any of their causes of action based on those statements. We also conclude the order denying the special motion to strike the remaining alleged statements is not appealable. Therefore, we reverse the order in part, remand with directions to issue a new order striking certain allegations, and dismiss the appeal in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. Selkirk and Rescigno File This Action
Selkirk and Rescigno filed this action alleging Chris Prentiss and his son, Pax Prentiss, own Grasshopper House LLC, dba Passages Malibu, which they describe as a "luxury drug rehabilitation center like no other." Selkirk and Rescigno also allege the Prentisses own a similar facility, Passages Silver Strand LLC, dba Passages Ventura. According to the allegations in the complaint, the Passages facilities "are among the most expensive" rehabilitation centers "on the planet," charging between $40,000 and $100,000 for a 30-day stay. Neither Pax, who used to be addicted to heroin, cocaine and alcohol, nor Chris has any education or training in the treatment of substance abuse.
Selkirk and Rescigno allege Passages advertises it discovered a novel treatment approach that "cured" Pax of his addictions and that can cure others. For example, at the time Selkirk and Rescigno filed this action, the Passages Malibu website stated: "The program we created for Pax, the one that is now the Passages program, was primarily based on finding out the 'why' behind his addiction. It worked. Pax finally discovered his 'why' and we knew that he was cured, that he would never again use drugs or alcohol." Passages also claims in its advertising the program can cure addiction within 30 days. At the time Selkirk and Rescigno filed this action, the Passages Malibu website stated that the "treatment method . . . has cured thousands of people at Passages."
Selkirk and Rescigno allege Passages made similar statements in Internet, television, and print advertisements, in "television and other media interviews," and during lectures and personal appearances by the Prentisses. Selkirk and Rescigno allege the Prentisses also made similar statements in a book they authored, titled The Alcoholism and Addiction Cure: A Holistic Approach to Total Recovery, which has sold more than 200,000 copies.
Selkirk and Rescigno are former patients of Passages Malibu and Passages Ventura, respectively. They allege Passages' statements about the curability of addiction generally, Pax's claimed successful recovery from addiction specifically, and the number of patients successfully treated at Passages, are all false. Selkirk and Rescigno allege they relied on these statements when they decided to enroll in the facilities and, had they known the statements were false, they would not have enrolled. Selkirk and Rescigno asserted causes of action for fraud, negligent misrepresentation, unfair competition, false advertising, and negligence.
B. The Trial Court Rules on Passages' Special Motion To Strike
Passages filed a special motion to strike under section 425.16, arguing that its statements about the curability of addiction were protected speech activity and that each of the causes of action in the complaint was based on these alleged statements. In opposition to the motion, Selkirk and Rescigno argued that their causes of action were based on Passages' specific misrepresentations about the efficacy of the Passages treatment program and that promotional statements by a business about its services were commercial speech to which section 425.16 did not apply. To demonstrate the falsity of Passages' statements, Selkirk and Rescigno submitted evidence that Pax continued to use drugs after the Prentisses opened Passages Malibu and that since 2004 Passages has not documented whether its clients remained sober after leaving its facilities. Selkirk and Rescigno did not, however, submit evidence showing they enrolled at the facilities, paid money to Passages, or were aware of Passages' alleged misrepresentations before enrolling at the facilities.
The trial court denied the special motion to strike in part and granted it in part. In the first step of its analysis, the court ruled that all statements "arising out of television ads, internet advertising, and Defendants' website constitute commercial speech which comes within the exception" to section 425.16 "set forth in" section 425.17, subdivision (c). The court denied the motion to strike all causes of action based on these alleged statements. The court ruled, however, the statements in the Prentisses' book (the book statements) were protected speech activity under section 425.16 and were not commercial speech under section 425.17, because section 425.17, subdivision (d)(2), "specifically exempts from its application claims based upon the dissemination of a literary work." In the second step of its analysis of the book statements, the court ruled Selkirk and Rescigno demonstrated a probability of prevailing on each of their causes of action except their cause of action for negligence.
Passages filed a timely notice of appeal, and Selkirk and Rescigno filed a cross-appeal. Passages no longer seeks to strike the entire complaint; it concedes the statements about Pax's personal history of addiction and abuse (whether those statements were book statements or non-book statements) are not subject to section 425.16. Passages only appeals the portion of the order denying the special motion to strike the other allegations based on the statements about addiction, treatment, and the Passages facilities. Selkirk and Rescigno appeal the portion of the order striking the cause of action for negligence to the extent it is based on allegations about the book statements.
DISCUSSION
A. Applicable Law and Standard of Review
Section 425.16, subdivision (b)(1), provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Courts evaluate special motions to strike under section 425.16 "through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) We review the trial court's order granting or denying a special motion to strike under section 425.16 de novo. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) "We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.] In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based." (Park, at p. 1067.)
B. The Trial Court Erred in Denying the Special Motion To Strike the Book Statements
1. The Trial Court Correctly Found the Book Statements Are Protected Speech
"On the protected speech/conduct requirement, the statute identifies four categories of actions that are '"in furtherance of"' a defendant's free speech or petition rights . . . ." (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 877; see § 425.16, subd. (e).) The trial court ruled the book statements were within two categories of section 425.16, subdivision (e): subdivision (e)(3), "any written . . . statement or writing made in a place open to the public or a public forum in connection with an issue of public interest," and subdivision (e)(4), "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
In the book, Chris Prentiss states that he and Pax "use[d] what [they] learned curing [Pax] to help others discover the roots of their addiction or alcoholism and break free" and that, "having healed thousands of people," Chris "can write with complete certainty that alcoholism and addiction are not diseases." The book also tells readers that, if patients "set up . . . intense therapy" at Passages, they "should be able to cure [their] addiction in thirty days or less." Selkirk and Rescigno argue these statements do not concern an issue of public interest.
In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn.com), the Supreme Court addressed how the context of a statement "should feature" in deciding whether a statement "furthers the exercise of constitutional speech rights in connection with a matter of public interest" under section 425.16, subdivision (e)(4). (FilmOn.com, at p. 149.) The Supreme Court held: "The inquiry . . . calls for a two-part analysis rooted in the statute's purpose and internal logic. First, we ask what 'public issue or [ ] issue of public interest' the speech in question implicates—a question we answer by looking to the content of the speech." (Ibid.) "In articulating what constitutes a matter of public interest," we look to considerations "such as whether the subject of the speech or activity 'was a person or entity in the public eye' or 'could affect large numbers of people beyond the direct participants' [citation]; and whether the activity 'occur[red] in the context of an ongoing controversy, dispute or discussion' [citation] or 'affect[ed] a community in a manner similar to that of a governmental entity.'" (Id. at pp. 145-146.)
"Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest." (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) "'[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.'" (Id. at p. 150; see Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) In considering "whether a statement contributes to the public debate" we "incorporate[e] considerations of context—including audience, speaker, and purpose." (FilmOn.com, at pp. 151-152.)
The treatment of substance abuse and addiction is undeniably an issue of public interest. (See Health & Saf. Code, § 11760 ["The Legislature finds and declares that problems related to the inappropriate use of alcoholic beverages and other drug use adversely affect the general welfare of the people of California."]; United States v. Mendenhall (1980) 446 U.S. 544, 561 (conc. opn. of Powell, J.) ["Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances."]; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164-165 ["[m]ajor societal ills are issues of public interest," including "[t]he issuance of prescriptions for controlled substances other than for a legitimate medical purpose"]; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 47 ["matters of health . . . management are undeniably of interest to the public"]; see also Federal Efforts to Combat the Opioid Crisis: A Status Update on [the Comprehensive Addiction and Recovery Act] and Other Initiatives, Hearing before House Com. on Energy and Commerce, 115th Cong., 1st Sess., p. 17 (2017), written testimony of Department of Health and Human Services ["Over the past 15 years, communities across our Nation have been devastated by increasing prescription and illicit opioid abuse, addiction, and overdose. . . . [I]n 2016 . . . 2.1 million [Americans] had an opioid use disorder due to prescription opioids or heroin."].) The issue, however, is whether the book statements contribute to the public discussion regarding the treatment of addiction and substance abuse for purposes of section 425.16, subdivision (e).
As the California Supreme Court observed, context matters. (FilmOn.com, supra, 7 Cal.5th at p. 152.) Passages demonstrated the purpose of the book is not solely to advertise the Passages facilities, but to discuss how the Prentisses developed their views on addiction and treatment. In their 300-page book, the Prentisses discuss conventional understandings of addiction, conventional treatment methods, why they believe addiction is not "incurable," and why they believe their "holistic" treatment method is better than other treatment methods. For example, the Prentisses discuss their views on the causes of substance dependency, various therapies and activities they suggest as part of a treatment program, and why they believe these therapies and activities help "cure" addiction. In so doing, they present anecdotal evidence from patients they treated at Passages facilities. To be sure, the statements about the efficacy of the Passages treatment program and the number of patients the program has successfully treated may help Passages solicit new clients. But those statements also provide context and explain the Prentisses' views on addiction and treatment. The statements about their views contribute to the public discussion of the issue.
Moreover, the intended audience of the book is not limited to potential patients, clients and customers of Passages. As Selkirk and Rescigno allege in their complaint, the book has sold over 200,000 copies. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567 [statements about pharmaceutical products involved issue of public interest in light of "the number of persons allegedly affected and the seriousness of the conditions treated"].) The book's discussion of Passages' treatment methods appears designed, at least in part, to help readers improve themselves. For example, Chris states, "Within the covers of this book, I will show you how you can cure your alcoholism or addiction" and "One of the goals of this book is to show you how to obtain happiness without the use of substances." Chris also claims he will explain "how to put together your own personalized program to achieve total recovery and optimum health by enlisting the help of several key health practitioners."
The views of the Prentisses may not be, as Selkirk and Rescigno allege, consistent with "[t]he general consensus among medical professions." They may even harm some persons who would receive better treatment from medical professionals. But the question is whether the Prentisses "participated in, or furthered, the discourse," not "the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction." (FilmOn.com, supra, 7 Cal.5th at pp. 150-151.) Selkirk and Rescigno may not agree with the Prentisses' contribution, but their book still makes one.
Selkirk and Rescigno argue "it is well-settled that statements regarding the properties and efficacy of a commercial product or service do not concern a public interest." There are cases that stand for the proposition that "commercial speech that does nothing but promote a commercial product or service is not speech protected under [section 425.16]." (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 927; see, e.g., id. at pp. 921, 927 [search engine advertisements that did "nothing other than direct customers to a [w]eb site containing information about the specific taxicab company or to a telephone number to make reservations for a taxicab" were not subject to section 425.16]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 411, 423 [advertisement about the effectiveness and safety of dietary supplement for weight loss and increase "does not concern an issue of public interest as that term is used in section 425.16"]; Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 808, 814-815 [solicitations to potential customers about the purported benefits of a credit card did not "fall within the ambit of section 425.16"]; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 28, 34 [telemarketing calls from a company to shareholders of a corporation to pitch the company's investigatory services were not subject to section 425.16]; Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 599, 601 [manufacturer's advertisements stating that a herbal supplement could cause breast enlargement did not fall within section 425.16].) These cases, however, do not stand for the proposition that section 425.16, subdivision (e), never applies to statements about a business's services. In each of these cases, the statements were either promotional advertisements or solicitations; they were not statements in a literary work made (in part) to share the author's views on an issue of public interest.
The facts here are more analogous to Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135. The plaintiff in that case was a waste management company, and the defendant was a consultant for a competitor of the plaintiff who prepared a report questioning the accuracy of the plaintiff's reporting of its waste management practices. (Id. at pp. 1140-1141.) The plaintiff sued the defendant alleging the report was false and defamatory, and the defendant filed a special motion to strike. (Id. at p. 1141.) The plaintiff argued that the report was not in connection with an issue of public interest because the report "was 'essentially a commercial advertisement'" for the competitor and that speech about "a commercial product is not speech in connection with" an issue of "public interest for purposes of section 425.16, subdivision (e)(4)." (Id. at pp. 1149-1150.) The court in Murphy disagreed, holding that the statements in the report were in connection with a matter of public interest because the report discussed issues of significant interest to local government bodies and their citizens and that "[w]hether speech has a commercial or promotional aspect is not dispositive of whether it addresses a matter of public interest." (Id. at pp. 1148-1150.) The same reasoning applies here. Although the statements in the book about the Passages treatment program have a promotional aspect, they are in connection with an issue of public interest because they are part of the Prentisses' broader discussion of their views on addiction treatment.
The reliance by Selkirk and Rescigno on Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098 is also misplaced. There, the court held a defendant's circulation of an electronic newsletter containing an excerpt from, and link to, a newspaper article about an unlicensed doctor and unlicensed local rehabilitation facility was not in connection with an issue of public interest. (Id. at pp. 1101, 1104.) As the court explained, the statements in the newsletter "were simply comments about the purported license status of that particular facility. They did not concern treatment and rehabilitation facilities, in general." (Id. at p. 1106.)
Selkirk and Rescigno argue that, because the complaint references only some of the statements in the book, we should consider those statements in isolation. According to Selkirk and Rescigno, statements not described in the complaint "cannot provide a basis for liability." Selkirk and Rescigno conflate two distinct parts of the analysis under section 425.16. A special motion to strike "may only target claims 'arising from'" the alleged petitioning activity (Park, supra, 2 Cal.5th at p. 1062), not allegations that "merely provide context" (Baral v. Schnitt (2016) 1 Cal.5th 376, 394 (Baral)) or activities that "merely lead to the liability-creating activity." (Park, at p. 1064). Passages did not "target" (i.e., move to strike) allegations describing statements in the book not referenced in the complaint (nor could it). But under FilmOn.com, courts must still consider the book as a whole to determine whether, in context, the book statements Passages moved to strike were made in connection with an issue of public interest for purposes of section 425.16, subdivision (e).
Finally, Selkirk and Rescigno argue the statements "do not contribute to public discussion of any issue" because they are false. Whether the statements are false may be relevant to whether Selkirk and Rescigno's claims have merit, but it does not determine whether the statements were made in connection with an issue of public interest. "[E]vidence that the alleged 'statements were false does not determine whether they constitute protected activity for purposes of [section 425.16].'" (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 372; accord, Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1549; see Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1034, 1043-1044 [filmmaker's allegedly false statements and promises made to solicit investments in a documentary were in connection with an issue of public interest]; Industrial Waste & Debris Box Service, Inc. v. Murphy, supra, 4 Cal.App.5th at pp. 1141, 1148-1149 [allegedly false statements about a waste management company's practices were made in connection with an issue of public interest]; DuPont Merck Pharmaceutical Co. v. Superior Court, supra, 78 Cal.App.4th at pp. 564, 567 [allegedly false statements about the generic version of a drug manufactured by the defendant were made in connection with an issue of public interest].)
2. The Book Statements Are Not Exempt from Section 425.16 as Commercial Speech
Selkirk and Rescigno argue the book statements are not protected because "[c]ommercial speech that is false or misleading is not entitled to First Amendment protection." Whether speech is constitutionally protected from government regulation does not determine whether it is subject to a special motion to strike under section 425.16. "The Legislature did not limit the scope of [section 425.16] to activity protected by the constitutional rights of speech and petition." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 421; see Navellier v. Sletten (2002) 29 Cal.4th 82, 94-95 ["'The Legislature did not intend that . . . to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law.'"]; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, supra, 184 Cal.App.4th at p. 1548 ["To make their threshold showing under the first prong of the [section 425.16] analysis, appellants need not prove that the targeted activity is in fact constitutionally protected."].) "The Legislature spelled out the kinds of activity it meant to protect in section 425.16, subdivision (e) . . . . " (City of Montebello, at p. 422.) "Because of these specifications," courts "determining whether conduct is protected under [section 425.16] look not to First Amendment law, but to the statutory definitions in section 425.16, subdivision (e)." (Ibid.)
Kasky v. Nike (2002) 27 Cal.4th 939 (Kasky), cited by Selkirk and Rescigno, is distinguishable. Kasky did "not involve a special motion to strike under section 425.16, or the commercial speech exemption of section 425.17." (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273; accord, Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 948.) In Kasky the Supreme Court discussed the distinction between commercial and noncommercial speech for purposes of analyzing when the United States Constitution or the California Constitution protects false or misleading speech from government regulation, not for purposes of section 425.16. (See Kasky, at pp. 946, 953.)
That is not to say the Supreme Court's discussion of commercial speech in Kasky is irrelevant to section 425.16. Section 425.17, subdivision (c), exempts from the scope of section 425.16 "'a subset of commercial speech'—specifically, comparative advertising" (FilmOn.com, supra, 7 Cal.5th at p. 147), and "the legislative history of section 425.17 indicates it was drafted to track constitutional principles governing regulation of commercial speech based upon guidelines discussed in Kasky." (JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th 984, 994; see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, p. 8; see also Serova v. Sony Music Entertainment (2020) 44 Cal.App.5th 103, 111 ["Section 425.17, subdivision (c) establishes . . . an exclusion for claims concerning some commercial speech."].) Section 425.17, subdivision (d), however, states that subdivision (c) does not apply to "[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any . . . literary . . . work." (§ 425.17, subd. (d)(2).) Therefore, although the Legislature exempted some commercial speech from the scope of section 425.16, the exemption does not extend to speech that creates, disseminates, or promotes a literary work. And that is what the trial court found: the Prentisses' book was a literary work under section 425.17, subdivision (d).
Selkirk and Rescigno argue section 425.17, subdivision (d), does not apply where the defendant uses the purported literary work to promote a commercial service. The language of section 425.17, subdivision (d), contains no such limitation. Moreover, as discussed, the Prentisses did not make the statements in the book solely to solicit clients.
Finally, Selkirk and Rescigno argue applying section 425.17, subdivision (d)(2), here would "immunize[ ] from suit . . . false advertising within the covers of a book." Not so. Section 425.17, subdivision (d)(2), makes the provisions that otherwise exempt commercial speech from the scope of section 425.16 inapplicable to the creation, dissemination, and exhibition of a literary work. Section 425.16 does not "immunize" conduct from liability. "It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral, supra, 1 Cal.5th at p. 384.) If a plaintiff can demonstrate its claims arising from protected speech or petitioning activity have minimal merit, the claims may proceed. (Ibid.)
3. Selkirk and Rescigno Failed To Demonstrate Their Causes of Action Based on the Book Statements Have Minimal Merit
At the second step of the section 425.16 analysis, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated." (Baral, supra, 1 Cal.5th at p. 396.) The Supreme Court has "described this second step as a 'summary-judgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Id. at pp. 384-385; accord, Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.) As stated, "'claims with the requisite minimal merit may proceed.'" (Baral, at p. 385.)
Each of Selkirk and Rescigno's causes of action is based in part on the book statements and in part on statements on Passages' websites and in advertisements. Generally, when "the defendant seeks to strike particular claims supported by allegations of protected activity that appear alongside other claims within a single cause of action, the motion cannot be defeated by showing a likelihood of success on the claims arising from unprotected activity." (Baral, supra, 1 Cal.5th at p. 392.) This case, however, presents a procedural scenario not addressed in Baral or in subsequent opinions addressing "so-called 'mixed causes of action.'" (See id. at p. 381.)
Passages moved to strike the entire complaint, not any particular allegations. The trial court ruled that only the allegations based on the book statements were subject to a special motion to strike. Under Baral the claims arising from the book statements could only proceed if Selkirk and Rescigno showed a probability of prevailing on claims arising from those specific statements (see Baral, supra, 1 Cal.5th at p. 392), a burden Selkirk and Rescigno could only meet by submitting "'competent admissible evidence'" (Monster Energy Co. v. Schechter, supra, 7 Cal.5th at p. 788). But because Passages did not give notice it was moving to strike any specific allegations, Selkirk and Rescigno submitted their evidence in opposition to the motion before they knew the trial court might rule that only the book statements were protected speech. It seems unfair to require Selkirk and Rescigno to predict which allegations would survive the first step of the analysis and submit evidence showing causes of action arising from those specific allegations had minimal merit. Should the trial court have required Selkirk and Rescigno to demonstrate a probability of prevailing on their causes of action arising specifically from the book statements or permitted them to demonstrate a probability of prevailing based on any theory of recovery alleged in the complaint? Or should the trial court just have denied Passages' special motion to strike (an argument Selkirk and Rescigno do not make)? (Cf. Baral, at p. 396 ["[a]t the first step, the moving defendant bears the burden of identifying all allegations of protected activity"].)
In addressing a defendant's failure to identify the specific allegations it seeks to strike, the court in Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574 stated: "[W]hen a conventional motion to strike is directed at something less than an entire pleading or an entire cause of action, the notice of motion must quote in full the portions to be stricken so that there is no confusion among the parties and the trial court as to what is at issue . . . . There is, however, no such similar rule for special motions to strike . . . . Baral is silent on how the parties, the trial court, and (given the immediate right of appeal for special motions to strike) a reviewing court are to proceed where the plaintiff's protected and unprotected claims, as here, are not well delineated." (Id. at p. 589.)
We do not need to answer these questions in this case because Selkirk and Rescigno failed to demonstrate a probability of prevailing on each of their pleaded causes of action under any theory of recovery alleged in their complaint. Selkirk and Rescigno's causes of action for fraud, negligent misrepresentation, unfair competition, and false advertising all arise from alleged misrepresentations. To prevail on all these causes of action, Selkirk and Rescigno had to prove (or, in opposition to a special motion to strike, submit evidence of) reliance on the alleged misrepresentations. (See Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1092 ["California courts have always required plaintiffs in actions for deceit to plead and prove the common law element of actual reliance"]; id. at p. 1089, fn. 2 ["Negligent misrepresentation . . . requires plaintiffs to plead and prove actual reliance just as in a claim for intentional misrepresentation."]; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326-327 ["a plaintiff 'proceeding on a claim of misrepresentation as the basis of his or her [unfair competition] action must demonstrate actual reliance on the allegedly deceptive or misleading statements'"]; id. at p. 326 [to prevail on a false advertising cause of action, "a plaintiff's economic injury [must] come 'as a result of' the . . . violation of the false advertising law," which "'requires a showing of a causal connection or reliance on the alleged misrepresentation'"].) Selkirk and Rescigno also had to prove (or submit evidence showing) that they suffered a loss as a result of Passages' fraudulent or negligent misrepresentations (Creative Ventures, LLC v. Jim Ward & Associates (2011) 195 Cal.App.4th 1430, 1444) and that they "lost money or property" as a result of Passages' unfair competition and false advertising (see Bus. & Prof. Code, §§ 17204, 17535; Kwikset, at p. 323).
Selkirk and Rescigno's negligence cause of action is also based on Passages' alleged misrepresentations.
Selkirk and Rescigno failed to make any of these showings. While Selkirk and Rescigno alleged in their complaint they attended the Passages facilities because of Passages' alleged misrepresentations, they did not submit evidence in support of this allegation. Nor did they submit evidence that they ever heard or read any of Passages' alleged misrepresentations, that they relied on these statements when they decided to enter the Passages facilities, or that they suffered any economic injury as a result of these alleged statements. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 ["As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'"]; Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213 ["Once the court reaches the second prong of the analysis, it must rely on admissible evidence, not merely allegations in the complaint or conclusory statements by counsel."].) Thus, Selkirk and Rescigno did not meet their burden to demonstrate any of their causes of action were "legally sufficient and factually substantiated." (Baral, supra, 1 Cal.5th at p. 396.)
The Supreme Court in Sweetwater stated that, at the second stage of the analysis under section 425.16, "the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable." (Sweetwater, supra, 6 Cal.5th at p. 949.) Here, Selkirk and Rescigno did not present any evidence, admissible or inadmissible, on the elements of reliance or loss, nor did they describe any evidence relevant to these elements that "will be admissible at trial." (Ibid.)
Selkirk and Rescigno argue Passages "waived any argument that [they] failed to produce sufficient evidence" in support of their causes of action because Passages "did not raise this issue in the proceedings below." Again, not so. In its motion Passages argued that, because it met its burden of demonstrating the action arose from protected speech activity, "[t]he burden now shifts to [Selkirk and Rescigno] to prove, with admissible evidence, a probability of prevailing" and that Selkirk and Rescigno could not "meet their evidentiary burden."
C. The Order Denying the Special Motion To Strike the Non-Book Statements Is Not Reviewable in This Appeal
1. The Order Denying the Special Motion To Strike the Non-Book Statements Is Not Appealable Under Section 425.16
"A trial court order is appealable only when made so by statute." (Montano v. Wet Seal Retail, Inc. (2015) 7 Cal.App.5th 1248, 1259; see Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Generally, an appeal may be taken "[f]rom an order granting or denying a special motion to strike under Section 425.16." (§ 904.1, subd. (a)(13); see § 425.16, subd. (i).) However, where a "trial court denies a special motion to strike on the grounds that the action or cause of action is exempt pursuant to [section 425.17]," the provisions making an order denying a special motion to strike appealable "do not apply to that action or cause of action." (§ 425.17, subd. (e); see Benton v. Benton (2019) 39 Cal.App.5th 212, 217 [section 425.17 "makes immediate appeal of an order applying the exemption unavailable"].)
Section 425.17, subdivision (c), exempts from section 425.16 certain types of commercial speech. (See FilmOn.com, supra, 7 Cal.5th at p. 147.) The trial court ruled all Passages' alleged statements, other than the book statements, were commercial speech under section 425.17, subdivision (c), and denied the special motion to strike the allegations based on those statements. Therefore, under section 425.17, subdivision (e), the order denying the special motion to strike the allegations of these statements is not appealable. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20 ["'When a party appeals from both appealable and nonappealable orders, courts in this state regularly dismiss the appeal from the latter order.'"].)
Passages argues an order denying a special motion to strike is not appealable under section 425.17, subdivision (e), only when the trial court rules an entire "action or cause of action is exempt" under section 425.17. Passages argues the trial court did not rule any "cause of action" was exempt because each cause of action was based in part on the book statements. Passages appears to use the term "cause of action" synonymously with "an entire count as pleaded in the complaint." (Baral, supra, 1 Cal.5th at p. 382.) According to the Supreme Court, such an approach is not consistent with the Legislature's use of the term "cause of action" in sections 425.16 and 425.17. "When [section 425.16] refers to a 'cause of action,' it is not referring specifically to a pleaded cause of action or a primary right. [Citation.] Rather, it refers to 'allegations of protected activity that are asserted as grounds for relief.'" (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 775, fn. 8); accord, Baral, supra, 1 Cal.5th at p. 395; see Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165 ["the term '"cause of action"' in [section 425.16] 'refers to claims for relief that are based on allegations of protected activity'"].) Because the trial court ruled Passages' non-book statements were commercial speech under section 425.17, all claims for relief arising from those statements are "causes of action" for purposes of sections 425.16 and 425.17, and the order denying the special motion to strike allegations of non-book statements is not appealable. (See Baral, at p. 395 ["By referring to a 'cause of action . . .', the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of" a special motion to strike under section 425.16].)
Passages also argues the order denying the special motion to strike the allegations based on the non-book statements is appealable because the trial court found some of the alleged statements subject to the commercial speech exemption were statements of opinion, not statements of fact. The commercial speech exemption applies only to a "statement or conduct [that] consists of representations of fact about [the speaker's] or a business competitor's business operations, goods, or services." (§ 425.17, subd. (c)(1); see Serova v. Sony Music Entertainment, supra, 44 Cal.App.5th at p. 128 [defendants' "conclusion about [an] issue from their own research and the available evidence" was not commercial speech under section 425.17, subdivision (c), because it "amounted to a statement of opinion rather than fact"].) But any error in ruling Passages' statements of opinion were commercial speech under section 425.17, subdivision (c), would not affect the appealability of the order. "[W]here the trial court has denied [a special motion to strike] pursuant to the commercial speech exemption in section 425.17, we are not to look at the merits of that denial to determine whether we have jurisdiction. Section 425.17, subdivision (e), precludes [appellate] jurisdiction because the motion was denied on that basis, not because of the merits of that denial." (Benton v. Benton, supra, 39 Cal.App.5th at p. 219.)
2. The Order Denying the Special Motion To Strike the Non-Book Statements Is Not Appealable Under Section 906
Passages argues that, because the order denying the special motion to strike the allegations based on the book statements is appealable, "[s]ection 906 provides an alternative jurisdictional basis for the Court to review" the order denying the special motion to strike the non-book statements. Section 906 provides, "Upon an appeal pursuant to Section 904.1 . . . the reviewing court may review the verdict or decision and any intermediate ruling, proceedings, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . ."
The order denying the special motion to strike the allegations based on the non-book statements was not "intermediate" to the order denying the special motion to strike the book statements. The orders were simultaneous. (See City of Oakland v. Darbee (1951) 102 Cal.App.2d 493, 505 [predecessor to section 906 applied "to an appealable order . . . and to any nonappealable order or ruling intermediate thereto"]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 2:261 ["Except where extraordinary writ review will lie . . . appellate court review of a nonappealable order lies only on appeal from a subsequent appealable judgment or order"].)
See Statutes 1968, chapter 385, section 2, repealing section 956 and enacting section 906.
Moreover, the order denying the special motion to strike the allegations based on the non-book statements did not involve the merits of or necessarily affect the order denying the special motion to strike the allegations based on the book statements, even though, as Passages points out, Selkirk and Rescigno contend both the book statements and non-book statements are commercial speech. Because the book statements were statements in a literary work not subject to the exemptions listed in section 425.17, whether the book statements would otherwise qualify as commercial speech under section 425.17, subdivision (c), is not relevant to the analysis. Thus, a ruling on whether the non-book statements were commercial speech under section 425.17, subdivision (c), would not impact the order denying the special motion to strike the book statements.
Passages also contends the order denying the special motion to strike the non-book statements substantially affects its rights, but Passages does not support this contention with any analysis.
Finally, even if the order denying the special motion to strike the allegations based on the non-book statements were intermediate to, and "involve[d] the merits of," the order denying the special motion to strike the allegations based on the book statements, the order denying the special motion to strike the allegations based on the non-book statements would still not be appealable under section 906. In enacting section 425.17, subdivision (e), the Legislature intended to preclude an appeal from an order denying a special motion to strike if the trial court determined the motion targeted commercial speech. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 515, (2003-2004 Reg. Sess.) as amended May 1, 2003, p.15 ["SB 515 would make the right to an immediate appeal inapplicable to [special motions to strike] that are denied by the trial court based upon one of the new grounds."]; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, p. 6 ["SB 515 was amended to clarify that motions denied under the new section are not immediately appealable"].) Where, as here, a trial court rules a cause of action is exempt from section 425.16 under the commercial speech exemption in section 425.17, subdivision (c), it would defeat the purpose of section 425.17, subdivision (e), to permit the defendant nonetheless to appeal the order simply because the trial court also addressed a cause of action arising from noncommercial speech.
3. Treating the Appeal as a Petition for Writ of Mandate Is Not Appropriate
Finally, Passages argues we should treat the appeal from the order denying the special motion to strike the allegations based on the non-book statements as a petition for writ of mandate. "'An appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but that power should be exercised only in unusual circumstances.'" (Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071; see Olson v. Cory (1983) 35 Cal.3d 390, 401; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) For example, in Olson the Supreme Court treated a purported appeal as a petition for writ of mandate where "the record sufficiently demonstrate[d] the lack of adequate remedy at law necessary for issuance of the writ," "the issue of appealability was far from clear in advance," "all issues in th[e] litigation" had been resolved except the issue the parties sought the Supreme Court to decide, and "all parties strongly urge[d]" the Supreme Court to decide the issue. (Olson, at p. 401.)
These factors are not present here. First, the appealability of the court's order was not "far from clear"; the order is clearly not appealable under section 425.17, subdivision (e). (See Benton v. Benton, supra, 39 Cal.App.5th at p. 219 [section 425.17, subdivision (e), contains "unambiguous statutory language"; "the Legislature precluded immediate appellate jurisdiction where a trial court denied [a section 425.16] motion due to the commercial speech exemption"]; Goldstein v. Ralphs Grocery Co. (2004) 122 Cal.App.4th 229, 233 ["The language at issue is clear. When a special motion to strike is denied on the grounds the cause of action is exempt from such a procedure pursuant to section 425.17, subdivision (b) or (c), then the immediate appeal right . . . is inapplicable."].) Second, Passages concedes Selkirk and Rescigno's allegations regarding Pax's personal drug use (and therefore claims based on those allegations) are not subject to a special motion to strike. Therefore, even if we were to treat Passages' appeal as a petition for writ of mandate, grant the petition, and direct the trial court to reverse the order denying the special motion to strike the allegations based on the non-book statements, such a decision would not dispose of the entire action. Finally, only one side (Passages) urges us to treat the purported appeal as a writ petition.
Passages argues we should nonetheless treat the appeal as a writ petition because the issues are before us, the trial court's ruling was erroneous, and "the legal issue to be decided is ripe." These circumstances, which would likely exist any time a defendant attempted to appeal an order denying a special motion to strike under section 425.17, are not the kind of "unusual circumstances" that justify treating a defective appeal as a writ petition. To treat Passages' appeal as a petition for a writ of mandate would be contrary to the Legislature's decision to make an order denying a special motion to strike under the commercial speech exemption nonappealable under 425.17, subdivision (e). "'The interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders . . . .'" (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770 accord, Benton v. Benton, supra, 39 Cal.App.5th at p. 220; Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1455-1456.)
DISPOSITION
The order is reversed. The matter is remanded with directions for the trial court to enter a new order granting the special motion to strike the allegations of statements in the book, except for statements concerning Pax's personal history of addiction and substance abuse. The appeal from the order denying the special motion to strike the allegations of the non-book statements is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.