Stanford Law School - Robert Crown Law Library

Filed 5/17/10

IN THE SUPREME COURT OF CALIFORNIA

SIMPSON STRONG-TIE COMPANY,
INC.,
Plaintiff and Appellant,
S164174
v.
Ct.App. 6 H030444
PIERCE GORE et al.,
Santa Clara County
Defendants and Respondents. )
Super. Ct. No. CV0576666

In this case we consider the scope of the commercial speech exemption to
the anti-SLAPP statute. (See Code Civ. Proc., §§ 425.16, 425.17, subd. (c).)1
In February 2006, plaintiff Simpson Strong-Tie Company, Inc. (Simpson)
filed this action for defamation and related claims against defendants Pierce Gore
and The Gore Law Firm arising from a newspaper advertisement placed by Gore a
few weeks earlier. The advertisement, which was directed to owners of wood
decks constructed after January 1, 2004, advised readers that “you may have
certain legal rights and be entitled to monetary compensation, and repair or
replacement of your deck” if the deck was built with galvanized screws

1
SLAPP is an acronym for “strategic lawsuit against public participation.”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All
further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
1

---

manufactured by Simpson or other specified entities, and invited those persons to
contact Gore “if you would like an attorney to investigate whether you have a
potential claim.”
Gore moved successfully in the superior court to have the entire complaint
stricken under section 425.16, the anti-SLAPP statute, and the Court of Appeal
affirmed. We granted review to consider the limited issue whether Simpson‟s
complaint was exempt from the anti-SLAPP statute because of section 425.17,
subdivision (c) (section 425.17(c)), which excludes causes of action arising from
representations of fact about the speaker‟s or a competitor‟s “business operations,
goods, or services . . . made for the purpose of obtaining approval for, promoting,
or securing sales or leases of, or commercial transactions in, the person‟s goods or
services” or “made in the course of delivering the person‟s goods or services.”
Having found that the complaint is not exempt from dismissal under the anti-
SLAPP statute, we affirm.
BACKGROUND
Plaintiff Simpson is a California corporation in the business of designing,
manufacturing, and marketing building products, including metal connectors and
other hardware for use in wood frame construction. According to Simpson, it is
well known in the wood frame construction industry that pressure-treated wood,
which is commonly used in outdoor decks to protect against termites and fungal
decay, can have a corrosive effect on steel products, including galvanized screws.
Corrosion potentially shortens the service life of these fasteners and connectors
and compromises their ability to support their recommended loads or endure
seismic and environmental stresses.
In early 2004, at the recommendation of the United States Environmental
Protection Agency, the construction industry stopped selling lumber treated with
chromium copper arsenate, due to health hazards posed by its arsenic content.
2

---

Alternative lumber products, such as wood treated with alkaline copper quaternary
and copper azole, were substituted, but, as Simpson explains, these chemicals are
“more corrosive” to galvanized steel products. Simpson states that it
communicated this potential problem to the building industry and to the public
generally through its Web site, annual catalog, articles in engineering and building
magazines, bulletins issued to the building industry, point-of-sale information, and
annual report.
Gore, a California attorney, learned from television reports about the
potential for corrosion of galvanized deck fasteners and connectors when used on
wood pressure-treated with alkaline copper quaternary or copper azole and
contacted Ted Todd, a senior inspector with the Contra Costa County District
Attorney‟s Office who was featured in the television reports. At that time, the
district attorney‟s office was conducting an investigation into the risk posed by
galvanized fasteners and connectors when used with these types of pressure-
treated wood. The office ultimately issued a “Consumer Alert” warning of the
corrosive effect of the new pressure-treated wood products “on the metal
connector brackets typically used in construction.” The alert noted that advisories
had been posted in some retail stores about the potential incompatibility of the two
products but cautioned that the advisories “tend to be in very small print or
somewhat inconspicuously posted.”
Gore also visited the company Web site, where Simpson had advised in
bold type that “[m]any of the new Pressure Treated Woods use chemicals that are
corrosive to steel. By selecting connectors that offer greater corrosion resistance
. . . you can extend the service life of your connectors. However, corrosion will
still occur. You should perform periodic inspection of your connectors and
fasteners to insure their strength is not being adversely affected by corrosion. In
some cases, it may be necessary to have a local professional perform the
3

---

inspections. Because of the many variables involved, Simpson Strong-Tie cannot
provide estimates on service life of connectors, anchors or fasteners.”
In addition, Gore discovered that a class action complaint had been filed in
Massachusetts against one of Simpson‟s competitors, Phillips Fastener Products,
Inc., which sought relief on behalf of consumers allegedly damaged by defective
galvanized fasteners and connectors used with pressure-treated lumber, and that
Gore‟s former law firm, Lieff, Cabraser, Heimann & Bernstein, LLP, was
investigating claims that some of the newly designed fasteners were failing, in
spite of the manufacturers‟ representations that the “special coatings” were
intended to resist corrosion.
Based on this information, Gore arranged for an advertisement to be placed
in the San Jose Mercury News in order to locate individuals who had purchased
galvanized fasteners and connectors manufactured by Simpson and two other
companies, which together were responsible for most of the metal fasteners sold to
consumers in California. The advertisement, which commenced Christmas Day
2005 and ran four more times over a 28-day period in the Mercury News and once
in the Los Gatos Weekly-Times, read as follows:
4

---

ATTENTION:
WOOD DECK OWNERS
If your deck was built after January 1, 2004 with
galvanized screws manufactured by Phillips Fastener
Products, Simpson Strong-Tie or Grip-Rite, you may
have certain legal rights and be entitled to monetary
compensation, and repair or replacement of your deck.

Please call if you would like an attorney to investigate
whether you have a potential claim:

Pierce Gore
GORE LAW FIRM
900 East Hamilton Ave.
Suite 100 Campbell, CA 95008
408-879-7444
Gore has asserted that the wording of the advertisement was modeled after
notices he or his cocounsel had used in this state and in others during the
preceding three years in connection with potential class actions based on consumer
fraud or product defects.
In a letter dated January 9, 2006, counsel for Simpson advised Gore that the
advertisement falsely implied that Simpson‟s galvanized screws fail to meet
appropriate industry standards and that a valid claim may exist against Simpson
based upon negligence or product liability. The letter demanded that Gore cease
publication of any further defamatory advertisements directed at Simpson and
reserved Simpson‟s right to recover against Gore for any costs or damages that
may have already resulted from this or any similar publication. Gore did not
respond to the letter. In a letter dated January 27, 2006, counsel for Simpson
declared that Gore‟s failure to respond “suggests that your claims are without
merit, and that your newspaper advertisement is false, misleading, and defames
Simpson. . . . Unless you can present specific evidence to support your charges,
5

---

Simpson intends to pursue its defamation claim against your firm[] and vindicate
its rights.” Again, Gore did not respond.
Prior to filing this action, Simpson retained an opinion survey firm to
confirm that the advertisement had caused injury to Simpson‟s reputation. The
survey firm intercepted 214 randomly selected shoppers at nine different home
improvement stores in January and February 2006 and obtained their responses to
a set of questions with and without exposure to the Gore advertisement. The
survey revealed that the shoppers, after reading the advertisement, were
significantly more likely to believe that Simpson‟s galvanized screws were
defective or of low quality and were significantly less likely to purchase
galvanized screws manufactured by Simpson.
Two days after the survey was completed, Simpson filed this action for
defamation, trade libel, false advertising, and unfair business practices. The
complaint sought compensatory and punitive damages as well as injunctive relief.
When Gore moved to strike the complaint under section 425.16, Simpson
invoked the exemption to the anti-SLAPP law for commercial speech under
section 425.17(c). The trial court granted the special motion to strike and entered
a judgment of dismissal, finding Gore had made a threshold showing that the
statements were made in furtherance of his right of petition or free speech on an
issue of public interest (§ 425.16, subd. (e)(4)), that Simpson had failed to
demonstrate a probability of prevailing on the merits (§ 425.16, subd. (b)(1)), and
that the commercial speech exemption did not apply because the advertisement
made no statement about a business competitor‟s products or services.
The Court of Appeal affirmed in a published opinion. The court first
considered “who bears the burden of persuasion with respect to the applicability of
[the section 425.17(c)] exemption—the party invoking the anti-SLAPP law (i.e.,
the defendant), or the party invoking the exemption (the plaintiff)?” In assigning
6

---

the burden to the plaintiff, the Court of Appeal disagreed with Brill Media Co.,
LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324 (Brill), which had assigned
the burden to the defendant to establish that the cause of action is not exempt. The
court next determined that while the advertisement was “made for the purpose of
. . . promoting . . . [Gore‟s] services” (§ 425.17(c)(1)), Simpson‟s causes of action
did not “ „aris[e] from‟ ” any representation of fact “ „about‟ Gore‟s or a
competitor‟s services or business operations.”
In construing the exemption in section 425.17(c)(1) for causes of action
arising from statements or conduct “made in the course of delivering the person‟s
goods or services,” the Court of Appeal once again disagreed with Brill, which
had found this prong was satisfied where “the statements were made and conduct
engaged in as part of . . . . the type of business transaction engaged in by
defendants.” (Brill, supra, 132 Cal.App.4th at p. 341.) The Court of Appeal
reasoned that the Legislature had enacted instead “a much narrower exemption,
predicated by its plain terms on conduct in the course of delivering the goods or
services the defendant is in the business of selling or leasing.” The court then
found that the advertisement here “was seeking business from prospective clients,
not delivering services to them.” Concluding that the anti-SLAPP statute applied
and that Simpson had failed to establish a probability of prevailing on any of its
claims, the Court of Appeal affirmed the order granting the special motion to
strike and the judgment of dismissal.
We granted review to address the conflict in the case law concerning the
construction of the commercial speech exemption to the anti-SLAPP statute.
DISCUSSION
A SLAPP is a civil lawsuit that is aimed at preventing citizens from
exercising their political rights or punishing those who have done so. “ „While
SLAPP suits masquerade as ordinary lawsuits such as defamation and interference
7

---

with prospective economic advantage, they are generally meritless suits brought
primarily to chill the exercise of free speech or petition rights by the threat of
severe economic sanctions against the defendant, and not to vindicate a legally
cognizable right.‟ ” (Castillo v. Pacheco (2007) 150 Cal.App.4th 242, 249-250,
quoting Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997-1998 Reg.
Sess.) as amended May 12, 1997, pp. 1-2.)
In 1992, out of concern over “a disturbing increase” in these types of
lawsuits, the Legislature enacted section 425.16, the anti-SLAPP statute.
(§ 425.16, subd. (a).) The statute authorized the filing of a special motion to strike
to expedite the early dismissal of these unmeritorious claims. (§ 425.16, subds.
(b)(1), (f).) To encourage “continued participation in matters of public
significance” and to ensure “that this participation should not be chilled through
abuse of the judicial process,” the Legislature expressly provided that the anti-
SLAPP statute “shall be construed broadly.” (§ 425.16, subd. (a).)
A special motion to strike involves a two-step process. First, the defendant
must make a prima facie showing that the plaintiff‟s “cause of action . . . aris[es]
from” an act by the defendant “in furtherance of the [defendant‟s] right of petition
or free speech . . . in connection with a public issue.”2 (§ 425.16, subd. (b)(1).) If
a defendant meets this threshold showing, the cause of action shall be stricken
unless the plaintiff can establish “a probability that the plaintiff will prevail on the
claim.” (Ibid.)
In 2003, concerned about the “disturbing abuse” of the anti-SLAPP statute,
the Legislature enacted section 425.17 to exempt certain actions from it. (§
425.17, subd. (a).) We recently discussed the exemption for public interest

2
See Leoni v. State Bar (1985) 39 Cal.3d 609, 624 (lawyer advertising is
protected by the First Amendment).
8

---

lawsuits in Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th
309, where we “narrowly construed” section 425.17, subdivision (b) and held that
it applied “only when the entire action is brought in the public interest.” (Club
Members for an Honest Election, supra, 45 Cal.4th at pp. 312, 316.)
This case involves the scope and operation of the exemption for
commercial speech under section 425.17(c), which provides: “Section 425.16
does not apply to any cause of action brought against a person primarily engaged
in the business of selling or leasing goods or services, including, but not limited to,
insurance, securities, or financial instruments, arising from any statement or
conduct by that person if both of the following conditions exist: [¶] (1) The
statement or conduct consists of representations of fact about that person‟s or a
business competitor‟s business operations, goods, or services, that is made for the
purpose of obtaining approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person‟s goods or services, or the statement or
conduct was made in the course of delivering the person‟s goods or services. [¶]
(2) The intended audience is an actual or potential buyer or customer, or a person
likely to repeat the statement to, or otherwise influence, an actual or prospective
buyer or customer, . . .”
The commercial speech exemption, like the public interest exemption, “is a
statutory exception to section 425.16” and “should be narrowly construed.” (Club
Members for an Honest Election v. Sierra Club, supra, 45 Cal.4th at p. 316; see
also Major v. Silna (2005) 134 Cal.App.4th 1485, 1494; accord, Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended May
1, 2003, pp. 7-8 [“before us for consideration in [Senate Bill] 515 is a measure that
seeks to trim off a few bad branches as argued and identified by the [Consumer
Attorneys of California]”].)
9

---

A. Which Party Bears the Burden to Establish the Applicability of the
“Commercial Speech” Exemption Under Section 425.17(c)?
The Court of Appeal determined that Simpson, as the plaintiff, bore the
burden of establishing that Gore‟s advertisement fell within the commercial
speech exemption to the anti-SLAPP law, relying on the general rule that “ „[o]ne
claiming an exemption from a general statute has the burden of proving that he
comes within the exemption.‟ ” Simpson argues that the burden should have been
placed on Gore, as the defendant, to establish that the exemption does not apply.
He relies in particular on our summary in Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67 (Equilon), of the “two-step process” for analyzing
anti-SLAPP motions: “First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected
activity. . . . If the court finds such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the claim.”
(Italics added.) We agree with the Court of Appeal‟s construction.
It is a “familiar” and “longstanding” legal principle that “ „[w]hen a proviso
. . . carves an exception out of the body of a statute or contract those who set up
such exception must prove it.‟ ” (Meacham v. Knolls Atomic Power Laboratory
(2008) 554 U.S. 84 [128 S.Ct. 2395, 2400]; see also Trade Comm’n v. Morton Salt
Co. (1948) 334 U.S. 37, 44-45 [“the burden of proving justification or exemption
under a special exception to the prohibitions of a statute generally rests on one
who claims its benefits . . .”]; accord, 29 Am.Jur.2d (2008) Evidence § 176, p.
193.) Likewise, in California, “it has been declared that where the statute has
exemptions, exceptions or matters which will avoid the statute the burden is on the
claimant to show that he falls within that category.” (Colonial Ins. Co. v. Ind. Acc.
Com. (1945) 27 Cal.2d 437, 441; see also Briggs v. McCullough (1869) 36 Cal.
542, 551-552; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345 [“one who
10

---

claims an exemption from a general statute has the burden of proving that he or
she comes within the exemption”].)
Simpson does not dispute that section 425.16 sets forth a general statute or
that section 425.17 creates specified exemptions to it. Simpson contends, though,
that the familiar and long-standing rule of statutory construction governing
exemptions to a general statute was abrogated by the enactment in 1965 of
Evidence Code section 500, which provides: “Except as otherwise provided by
law, a party has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense that he is asserting.”
Although it is true that Evidence Code section 500 superseded former
section 1981, which had provided that the burden of proof was on the party
holding the affirmative of the issue, the change in wording did not upset the
traditional rule of statutory construction. As the Law Revision Commission
Comments to Evidence Code section 500 explain, the phrase the “ „affirmative of
the issue‟ ” in former section 1981 had been criticized “as establishing a
meaningless standard,” inasmuch as “ „practically any proposition may be stated in
either affirmative or negative form.‟ ” (Cal. Law Revision Com. com., reprinted at
29B West‟s Ann. Evid. Code (1995 ed.) foll. § 500, p. 554.) Evidence Code
section 500 was intended to make the allocation of the burden of proof “easier to
ascertain” than the “classic formulation,” but not to signal a sea change in the law.
(Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388, fn. 5; see also Los
Angeles Unified School Dist. v. Workers’ Comp. Appeals Bd. (1984) 150
Cal.App.3d 823, 829 [citing the two formulations together].) Tellingly, Simpson
cites nothing to support its novel claim that Evidence Code section 500 abrogated
the ordinary rule of statutory construction. (Cf. 31 Cal.Jur.3d (2002) Evidence §
90, p. 151 [“What facts are essential to a particular party‟s claim for relief or
defense is generally a matter to be determined by the substantive law, not the law
11

---

of evidence; Evid. Code, § 500 does not purport to determine which facts are
„essential‟ to the plaintiff‟s claim for relief and which facts are „essential‟ to a
claimed defense, but rather leaves those substantive determinations to be resolved
in light of the particular cause of action or defense at issue,” (fns. omitted)].)
Indeed, the Law Revision Commission Comments note that Evidence Code
section 500 “follows th[e] basic rule”—i.e., “ „that whatever facts a party must
affirmatively plead he also has the burden of proving‟ ”—and is even broader, in
that it “appl[ies] to issues not necessarily raised in the pleadings.” (Cal. Law
Revision Com. com., reprinted at 29B West‟s Ann. Evid. Code, supra, foll. § 500,
p. 554.) Inasmuch as Simpson concedes that “[t]he initial burden should be on the
plaintiff to invoke the exemption in opposition to the anti-SLAPP motion,” it
follows that the plaintiff also has the burden of proving the applicability of the
exemption.
Furthermore, the “general principle” of Evidence Code section 500 is “that
a party who seeks a court‟s action in his favor bears the burden of persuasion
thereon.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Because
establishing the commercial speech exemption is essential to Simpson‟s defense to
the special motion to strike, Evidence Code section 500 places the burden of proof
on Simpson. (See generally City of Lafayette v. East Bay Mun. Utility Dist. (1993)
16 Cal.App.4th 1005, 1017 [“ „ “One seeking to be excluded from the sweep of the
general statute must establish that the exception applies” ‟ ”].)
Nothing in Equilon or its discussion of the “two-step process” alters the
analysis. (Equilon, supra, 29 Cal.4th at p. 67.) In Equilon, we explained that the
defendant has the burden to show that the cause of action being challenged under
the anti-SLAPP statute is one arising from protected activity. (Equilon, supra, at
p. 67.) In discussing the defendant‟s burden at the first stage, Equilon construed
only section 425.16, and did not purport to identify the party with the burden to
12

---

establish the existence or nonexistence of the public interest exemption in section
425.17, subdivision (b), or the commercial speech exemption in section 425.17(c),
inasmuch as Equilon predated the enactment of section 425.17. It is worth noting,
though, that nothing in Equilon purported to abrogate the long-standing rule of
construction that the party seeking to benefit from an exception to a general statute
bears the burden to establish the exception.3
Simpson argues, correctly, that the ordinary rules governing allocation of
the burden of proof may be disregarded for policy reasons in exceptional
circumstances. (Adams v. Murakami (1991) 54 Cal.3d 105, 119-120; Cassady v.
Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 234 (Cassady).) Yet
such exceptions are “few, and narrow” (Sargent Fletcher, Inc. v. Able Corp.
(2003) 110 Cal.App.4th 1658, 1670), and the reasons justifying a shift in the
normal allocation of the burden of proof must be “compelling.” (Aydin Corp. v.
First State Ins. Co. (1998) 18 Cal.4th 1183, 1193; accord, Meacham v. Knolls
Atomic Power Lab., supra, 554 U.S. at p. ___ [128 S.Ct. at p. 2400].) Simpson
fails to identify any compelling justification.

3
As Simpson points out, Brill did place the burden on the defendant. But
Brill analyzed only whether the applicability of the commercial speech exception
was part of Equilon‟s first step, where the court decides whether the defendant has
made a threshold showing the challenged cause of action arises from protected
activity, or part of Equilon‟s second step, where the court determines whether the
plaintiff has demonstrated a probability of prevailing on the claim. (Brill, supra,
132 Cal.App.4th at pp. 329-331.) Brill‟s conclusion that the defendant had the
burden of proof to establish the nonapplicability of the commercial speech
exception was based solely on its classification of the issue as a first-step
determination and did not at all consider section 425.17‟s status as an exception to
section 425.16 or any canons of construction. (Brill, supra, at p. 331.) Brill
Media Co., LLC v. TCW Group, Inc., supra, 132 Cal.App.4th 324, is therefore
disapproved to the extent it is inconsistent with our holding here.
13

---

Simpson does assert that the facts underlying the commercial speech
exemption are “peculiarly” within the speaker‟s knowledge. But Simpson does
not explain how a plaintiff would be significantly disadvantaged in demonstrating
that the statement or conduct underlying its cause of action “consists of
representations of fact about [the defendant]‟s or a business competitor‟s business
operations, goods, or services”; that the defendant‟s statement or conduct was
“made for the purpose of obtaining approval for, promoting, or securing sales or
leases of, or commercial transactions in, the person‟s goods or services” or “in the
course of delivering the persons‟ goods or services”; or that the “intended
audience” was “an actual or potential buyer or customer, or a person likely to
repeat the statement to, or otherwise influence, an actual or potential buyer or
customer.” (§ 425.17(c)(1), (2); see generally Schaffer v. Weast (2005) 546 U.S.
49, 60 [“ „Very often one must plead and prove matters as to which his adversary
has superior access to the proof‟ ”].) In sum, Simpson does not persuade us that
section 425.17(c) presents one of those “ „rare occasions‟ ” justifying a deviation
from the normal allocation of the burden of proof. (Cassady, supra, 145
Cal.App.4th at p. 234.)
The burden of proof as to the applicability of the commercial speech
exemption, therefore, falls on the party seeking the benefit of it—i.e., the plaintiff.
B. Were Simpson’s Causes of Action Exempted from the Anti-SLAPP
Statute by Section 425.17(c)?
As noted, section 425.17(c) provides, in pertinent part: “Section 425.16
does not apply to any cause of action brought against a person primarily engaged
in the business of selling or leasing goods or services . . . arising from any
statement or conduct by that person if both of the following conditions exist: [¶]
(1) The statement or conduct consists of representations of fact about that person‟s
or a business competitor‟s business operations, goods, or services, that is made for
14

---

the purpose of obtaining approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person‟s goods or services, or the statement or
conduct was made in the course of delivering the person‟s goods or services. [¶]
(2) The intended audience is an actual buyer or potential buyer or customer, or a
person likely to repeat the statement to, or otherwise influence, an actual buyer or
customer . . . .”
There are no disputed issues of fact here. We review the applicability of
the commercial speech exemption independently. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
The Court of Appeal held, and the parties‟ initial briefing assumed, that
section 425.17(c)(1) prescribes a “content exemption” and a “delivery exemption”
and that these exemptions have distinctly different elements. The content
exemption shields a cause of action from the anti-SLAPP statute if the cause of
action arises from a statement or conduct that “consists of representations of fact
about that person‟s or a business competitor‟s business operations, goods, or
services, that is made for the purpose of obtaining approval for, promoting, or
securing sales or leases of, or commercial transactions in, the person‟s goods or
services.” (§ 425.17, subd. (c)(1).) The delivery exemption provides a similar
shield for any statement or conduct “made in the course of delivering the person‟s
goods or services.” (Ibid.) In other words, this approach divided the first 47
words of subdivision (c)(1) from the last 17 to create two independent and parallel
theories of exemption from the anti-SLAPP law.
Although section 425.17(c)(1) is grammatically susceptible to such a
construction, that construction was not necessarily the only plausible one. Gore
had observed, in a footnote in its initial briefing, that the statute might also be read
to exempt a cause of action arising from a statement or conduct that consists of
representations of fact about that person‟s or a competitor‟s business operations,
15

---

goods, or services that was made either “for the purpose of obtaining approval for,
promoting, or securing sales or leases of, or commercial transactions in, the
person‟s goods or services” or “in the course of delivering the person‟s goods or
services.” (§ 425.17(c)(1).) We granted the parties the opportunity to file
supplemental briefing as to which construction was the correct one and, as will
appear, agree with Gore‟s construction.
As in any case involving statutory interpretation, our fundamental task is to
determine the Legislature‟s intent so as to effectuate the law‟s purpose. (People v.
Lewis (2008) 43 Cal.4th 415, 491.) “We begin with the text of the statute as the
best indicator of legislative intent” (Tonya M. v. Superior Court (2007) 42 Cal.4th
836, 844), but we may reject a literal construction that is contrary to the legislative
intent apparent in the statute or that would lead to absurd results. (Ornelas v.
Randolph (1992) 4 Cal.4th 1095, 1105.)
Simpson‟s argument, at least at the outset, relies on the plain language of
section 425.17(c)(1) and the canon of construction of avoiding surplusage.
According to Simpson, section 425.17(c)(1) creates two independent commercial
speech exemptions, each introduced by the phrase “the statement or conduct,” and
to hold otherwise would render the second iteration of “the statement or conduct”
in the subdivision redundant. In Simpson‟s view, therefore, the delivery
exemption encompasses a cause of action arising from “any statement or conduct
made in the course of delivering the person‟s goods or services.” Gore argues that
such a construction would contravene the legislative intent and lead to absurd
results.
The Legislature‟s findings supporting the enactment of section 425.17 are
set forth in subdivision (a), which states that “there has been a disturbing abuse of
Section 425.16, the California Anti-SLAPP Law, which has undermined the
exercise of the constitutional rights of freedom of speech and petition for the
16

---

redress of grievances, contrary to the purpose and intent of Section 425.16. The
Legislature finds and declares that it is in the public interest to encourage
continued participation in matters of public significance, and that this participation
should not be chilled through abuse of the judicial process or Section 425.16.”
The construction favored by Simpson does not effectively fulfill the
statute‟s purposes. Under that construction, the Legislature can be seen to have
carefully devised specific requirements in order to exempt a cause of action under
the content prong—i.e., the statement or conduct underlying the cause of action
must (1) consist of representations of fact (2) about that person‟s or a business
competitor‟s business operations, goods, or services, and (3) have been made for
the purpose of obtaining approval for, promoting, or securing transactions in the
person‟s goods or services. Yet, under Simpson‟s construction of the delivery
prong, the Legislature apparently imposed no particular requirements—i.e., a
cause of action arising from any statement or conduct on any subject for any
purpose is exempted from the anti-SLAPP statute, as long as it was made in the
course of delivering goods or services. Simpson has not offered any rationale for
why the stage of the transaction should play such a critical factor in determining
whether to exempt a cause of action from the reach of the anti-SLAPP law.
Moreover, under Simpson‟s approach, a business that was sued because of
political or religious statements made by an employee in the course of delivering
the product or service to a customer would be deprived of the protection of the
anti-SLAPP law, but that same business would be able to invoke the anti-SLAPP
law if the same statements were made for the purpose of obtaining approval for,
promoting, or securing transactions in its products. Neither the Legislature‟s
findings nor common sense endorses or justifies such a result.
Simpson effectively concedes that such a result would be problematic, but
argues that the statements in these hypotheticals “are not a part of the delivery of
17

---

goods or services” and thus fall outside the delivery exemption as Simpson would
interpret it. But, as we recently observed, “ „[d]uring‟ means „at some point in the
course of.‟ ” (People v. Lewis, supra, 43 Cal.4th at p. 514.) Statements or
conduct made during the delivery of goods or services thus would qualify as
statements or conduct made in the course of delivering the goods or services. (Cf.
§ 425.17(c)(1).)
Simpson attempts to narrow the definition of the delivery exemption by
combining language that appears in two different sentences in Brill, supra, 132
Cal.App.4th at page 341, to argue that the exemption extends only to “ „statements
. . . made and conduct engaged in as part of . . . the type of business transaction
engaged in by defendants.‟ ” But this formulation does not appear anywhere in
the text of section 425.17(c)(1). If, as Simpson effectively concedes, the delivery
prong requires an interpretive gloss to avoid absurd results, it seems more
consonant with legislative intent to adopt the restriction the Legislature articulated
earlier in the sentence setting forth the exemption rather than to rummage about
elsewhere for new limitations arising out of whole cloth.
Moreover, Simpson‟s construction of the delivery prong would render the
first part of section 425.17(c)(1)—the so-called “content and purpose” prong—
surplusage. Statements or conduct that are “ „part of . . . the type of business
transaction engaged in by defendants‟ ” would necessarily encompass
“representations of fact about that person‟s . . . business operations, goods, or
services, that [are] made for the purpose of obtaining approval for, promoting, or
securing sales or leases of, or commercial transactions in, the person‟s goods or
services” (§ 425.17(c)(1)) inasmuch as every business engages in efforts to obtain
approval for, promote, or secure sales or transactions in its goods or services.
Indeed, Simpson concedes that “a grocer‟s advertisement in advance of intended
sales” falls within its broad definition of the delivery prong “to the extent the
18

---

advertising informs the public about the availability of the product for delivery” or
“to the extent the advertising keeps the product in the public eye and bolsters its
prestige.” With such a broad definition of the delivery prong, there would be no
need for the content and purpose prong.
The legislative history further undermines Simpson‟s interpretation of the
statute. Summaries of the bill prepared for various legislative committees
consistently stated that section 425.17(c) would prohibit “the anti-SLAPP motion
from being used in specified causes of action against businesses sued for
statements or conduct consisting of representations of fact about their goods,
services or business operations, or those of a competitor, when those statements or
conduct were for the purpose of obtaining approval for, promoting, or securing
sales or leases of the person‟s goods or services, or in the course of delivering the
person‟s goods or services, if the intended audience is an actual or potential buyer
or customer, or a person likely to repeat the statement to, or otherwise influence,
an actual or potential buyer or customer, . . .” (Legis. Analyst, 3d reading analysis
of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended July 8, 2003, p. 1, italics
added; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg.
Sess.) as amended June 27, 2003, p. 2, italics added; Assem. Republican Caucus,
analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, p.
1, italics added; see also Sen. Sheila Kuehl, letter to Governor Gray Davis, Sept. 3,
2003, p. 2.) In addition, an analysis prepared for the Senate Committee on the
Judiciary noted that Senate Bill 515 was “consistent with the recommendation of
the Senate Judiciary Committee analysis last year on [Senate Bill] 1651[,] which
urged the sponsors to look at the content and context of the statement or conduct
when crafting an exemption, rather than enacting a wholesale exclusion of a class
of defendants[,] which had been proposed in [Senate Bill] 1651.” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended May
19

---

1, 2003, p. 9, italics added.) Simpson offers no explanation why the Legislature
would have been so concerned about the content of the statement or conduct in the
first part of section 425.17(c)(1) but would have abandoned any such concern in
the remainder of the sentence.
For these reasons, we interpret section 425.17(c) to exempt from the anti-
SLAPP law a cause of action arising from commercial speech when (1) the cause
of action is against a person primarily engaged in the business of selling or leasing
goods or services; (2) the cause of action arises from a statement or conduct by
that person consisting of representations of fact about that person‟s or a business
competitor‟s business operations, goods, or services; (3) the statement or conduct
was made either for the purpose of obtaining approval for, promoting, or securing
sales or leases of, or commercial transactions in, the person‟s goods or services or
in the course of delivering the person‟s goods or services; and (4) the intended
audience for the statement or conduct meets the definition set forth in section
425.17(c)(2).
Gore does not dispute that he is in the business of selling legal services, that
Simpson‟s causes of action arise from Gore‟s advertisement, that the purpose of
the advertisement was to promote Gore‟s legal services, or that the advertisement
was addressed to a qualifying audience under section 425.17, subdivision (c)(2).
The point of contention concerns whether the causes of action “aris[e] from . . .
representations of fact about [Gore‟s] . . . business operations, goods, or services.”
(§ 425.17(c)(1).) We find that they do not.
Simpson‟s complaint asserts claims for defamation, trade libel, false
advertising, and unfair business practices. The common theme among these
causes of action is the allegation that the advertisement “communicates that
Simpson‟s galvanized screws are defective.” The complaint alleges in particular
that the advertisement “is libelous on its face in that it falsely communicates to the
20

---

reader that Simpson‟s products are defective”; that the advertisement “disparaged
Simpson‟s goods in that the Advertisement falsely communicates to the reader that
Simpson‟s galvanized screws are defective”; that these assertions in the
advertisement “are false and misleading”; and that using “the false and misleading
Advertisement to recruit potential plaintiffs to participate in an unjustified class
action lawsuit against Simpson” was an unfair business practice.
We will assume arguendo that the advertisement implies that Simpson‟s
galvanized screws are defective. As the Court of Appeal recognized, however,
even an implication that Simpson‟s screws are defective “is not „about‟ Gore‟s or
a competitor‟s „business operations, goods, or services . . . .‟ (§ 425.17(c)(1).) It
is, rather, a statement „about‟ Simpson—or, more precisely, Simpson‟s products.”
It therefore falls squarely outside section 425.17(c)‟s exemption for commercial
speech.
Simpson contends that the advertisement does nonetheless satisfy the
commercial speech exemption in that it “expressly states that „an attorney‟ will
„investigate whether you have a potential claim” and that it also supports the
inference “that Gore has investigated the named companies and has discovered
that they are selling defective screws.” Both of these statements are “about”
Gore‟s business operations, but neither satisfies the elements of the commercial
speech exemption to the anti-SLAPP law.
Simpson‟s causes of action plainly do not “arise from” (§ 425.17(c)) the
representation that an attorney will investigate “whether you have a potential
claim.” Simpson‟s complaint does not allege that this statement is false or even
that it is defamatory. In addition, a promise of what an attorney will do if the
reader were to respond to the advertisement “is not a representation of fact, but an
agreement to take certain actions in the future.” (Navarro v. IHOP Properties,
Inc. (2005) 134 Cal.App.4th 834, 841.) Consequently, it does not constitute
21

---

“representations of fact about that person‟s . . . business operations, goods, or
services.” (§ 425.17(c)(1).)
The alleged inference that Gore has investigated Simpson and discovered
that the galvanized screws are defective is not obvious from the advertisement
itself, which asserts only that users of these fasteners “may” have certain (but
unspecified) legal rights and that an attorney would need to “investigate whether
you have a potential claim.” Even if one were to draw this inference, however, it
would be no more than an attempt to layer the allegedly defamatory inference
itself—i.e., that Simpson‟s galvanized screws are defective—with an alleged
inference that Gore had discovered the defect. Simpson cites no authority for
expanding the scope of the commercial speech exemption in this manner. (Cf.
Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 676 [the commercial
speech exemption did not apply to a claim that the defendant magazine wrongfully
used plaintiffs‟ names for a Camel advertisement; “as plaintiffs concede, the goods
they sell are copies of Rolling Stone magazine, not Camel cigarettes. More
significantly, the statement or conduct at issue here did not consist of
„representations of fact about the business operations, goods, or services‟ of
Rolling Stone or of any of defendants‟ business competitors. Instead, the
representation at the center of this lawsuit is the representation that plaintiffs and
their fellow musicians endorse the sale and use of Camel cigarettes”]; accord,
New.Net v. Lavasoft (C.D.Cal. 2004) 356 F.Supp.2d 1090, 1104 [the commercial
speech exemption did not apply because “the purportedly offending statements are
not statements made about Defendant‟s product, but rather statements about
Plaintiff and its products” and the two were not competitors]; see also Troy Group,
Inc. v. Tilson (C.D.Cal. 2005) 364 F.Supp.2d 1149, 1151, 1155 [defendant
investment adviser‟s e-mail asking whether plaintiff corporation is one of “the
biggest crooks on the planet or what?” is “clearly not about [defendant]‟s business,
22

---

rather it is about [plaintiff], which, as [plaintiffs] admit, is not a business
competitor of [defendant]”].) We are reluctant to allow plaintiffs to evade the
limitations of the statutory text by mere wordplay, especially given our obligation
to construe the commercial speech exemption narrowly.
Moreover, Simpson has not attempted to recover damages here because of
any implied representation that Gore allegedly discovered that Simpson‟s products
were defective, but because Gore allegedly implied that they were defective.
Whether the Simpson products are in fact defective is beyond the scope of this
proceeding, but the inference that they are defective is not a representation of fact
about Gore’s business operations, goods, or services. The Court of Appeal stated
the issue succinctly: “To the extent that Gore‟s advertisement „consists of‟
representations about his services, Simpson‟s action does not „aris[e] from‟ it; to
the extent that Simpson‟s action „aris[es] from‟ a representation by Gore, the
representation was not „about‟ Gore‟s or a competitor‟s services or business
operations.” 4
Simpson argues next that the commercial speech exemption from dismissal
under the anti-SLAPP statute should not require that the statement itself giving
rise to the cause of action include factual representations about the defendant‟s or
a business competitor‟s business operations, goods, or services, as long as the
statement giving rise to the cause of action is accompanied by factual
representations about the defendant‟s or a business competitor‟s business
operations, goods, or services. The statute‟s plain language, however, is

4
One can conceive of a cause of action arising from a representation of fact
about the attorney‟s own services—such as a false claim that the attorney had
already recovered a judgment against the manufacturer for the defective product—
but the advertisement in this case did not contain such a representation.
23

---

otherwise. The commercial speech exemption applies only to a cause of action
“arising from” a statement (or conduct) that “consists of representations of fact
about that person‟s or a business competitor‟s business operations, goods, or
services . . . .” (§ 425.17(c)(1).)
Simpson complains, with rhetorical flourish, that the advertisement
“defam[es] Simpson in order to tout Gore and his services. . . . The tout and the
defamation were of an inseparable whole, with the defamation serving as bait for
the tout. The Court of Appeal‟s approach is as if to parse cheese from a
mousetrap.” But this is merely another way of saying that the speaker made a
representation of fact about a noncompetitor’s goods for the purpose of promoting
the speaker‟s own services. Had the Legislature intended the commercial speech
exemption to encompass representations of fact about any business operations,
goods, or services made for the purpose of promoting sales, leases, or transactions
in the speaker‟s own goods or services, then it would not have limited the
exemption to statements or conduct consisting of “representations of fact about
that person’s or a business competitor’s business operations, goods, or services
. . . .” (§ 425.17(c)(1); see Mendoza v. ADP Screening and Selection Services, Inc.
(2010) 182 Cal.App.4th 1644, 1652 [“the Legislature appears to have enacted
section 425.17, subdivision (c), for the purpose of exempting from the reach of the
anti-SLAPP statute cases involving comparative advertising by businesses”].)
The legislative history accords with the statute‟s plain language. As stated
earlier, committee reports summarized the bill as “[p]rohibit[ing] the anti-SLAPP
motion from being used in specified causes of action against businesses sued for
statements or conduct consisting of representations of fact about their goods,
services or business operations, or those of a competitor, when those statements
. . . were for the purpose of obtaining approval for, promoting, or securing sales or
leases of the person‟s goods or services, or in the course of delivering the person‟s
24

---

goods or services . . . .” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515
(2003-2004 Reg. Sess.) as amended June 27, 2003, p. 3, italics added.) The plain
language and the legislative history each confirm that the statement or conduct
giving rise to the cause of action must consist of factual representations about the
speaker‟s (or a competitor‟s) goods, services, or business operations. Nothing in
the plain language or the legislative history suggests it would be enough to protect
against dismissal under the anti-SLAPP statute if the factual representations about
the speaker‟s or a competitor‟s business simply appeared in the same publication
as the statements actually giving rise to the cause of action.5
Indeed, Simpson‟s proposed construction would seriously undermine the
anti-SLAPP statute itself. As Gore points out, a press release critical of a political
candidate—i.e., core political speech—would lose the protection of the anti-
SLAPP statute if the press release also mentioned the products sold by the
business. We therefore reject Simpson‟s expansive construction of the
commercial speech exemption and conclude, in accordance with the trial court and
the Court of Appeal, that Simpson‟s complaint was not exempted from the anti-
SLAPP statute by section 425.17(c)(1).
The trial court went on to consider Gore‟s special motion to strike the
complaint under section 425.16, determined that Simpson had failed to establish a
probability of prevailing on the merits, and granted the special motion to strike.

5
Simpson complains that a party should not be able to defeat the commercial
speech exception to the anti-SLAPP statute by parsing a two-sentence
advertisement into its component parts. We agree. The proper test does not turn
on the punctuation used in the advertisement, but on the basis for the cause of
action. Here, the causes of action all arise from the inference that Simpson‟s
products are defective, an inference that Simpson alleges is implied from the text
of the advertisement. This inference, though, contains no representations of fact
about Gore’s business operations, goods, or services.
25

---

The Court of Appeal affirmed. The correctness of those rulings is beyond the
scope of our grant of review, which was limited to the applicability of the
commercial speech exemption to the anti-SLAPP statute set forth in section
425.17(c)(1).
DISPOSITION
The judgment of the Court of Appeal is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

26

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Simpson Strong-Tie Company Inc. v. Gore
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 162 Cal.App.4th 737
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S164174
Date Filed: May 17, 2010
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: John F. Herlihy

__________________________________________________________________________________

Attorneys for Appellant:

Shartsis Friese, Arthur J. Shartsis, Erick C. Howard; Eisenberg and Hancock, Jon B. Eisenberg and William
N. Hancock for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Davis Wright Tremaine, Thomas R. Burke and Rochelle L. Wilcox for Defendants and Respondents.

Arkin & Glovsky and Sharon Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of
Defendants and Respondents.

Levy, Ram & Olson and Karl Olson for Senator Sheila Kuehl and California First Amendment Coalition as
Amici Curiae on behalf of Defendants and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jon B. Eisenberg
Eisenberg and Hancock
180 Montgomery Street, Suite 2200
San Francisco, CA 94104
(415) 984-0650

Thomas R. Burke
Davis Wright Tremaine
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
(415) 276-6500

---

Petition for review after the Court of Appeal affirmed an order granting a special motion to strike in a civil action. The court limited review to the following issues: (1) Which party bears the burden of persuasion with respect to the applicability of the anti-SLAPP exemptions set forth in Code of Civil Procedure section 425.17, subdivision (c)? (2) Does Code of Civil Procedure section 425.17, subdivision (c), exempt from anti-SLAPP protection an advertisement by a lawyer soliciting clients for a contemplated lawsuit?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 05/17/2010	49 Cal. 4th 12, 230 P.3d 1117, 109 Cal. Rptr. 3d 329	S164174	Review - Civil Appeal	submitted/opinion due

Opinion Authors
Opinion	Justice Marvin R. Baxter

Dockets
Jun 6 2008	Petition for review filed   Simpson Strong-Tie Co., Inc., plaintiff and appellant Jon Eisenberg, Arthur Shartsis, counsel
Jun 10 2008	Received Court of Appeal record   one box
Jun 10 2008	Record requested
Jun 26 2008	Answer to petition for review filed   Pierce Gore and The Gore Law Firm, respondent by Thomas R. Burke, counsel
Jul 7 2008	Reply to answer to petition filed   Simpson Strong-Tie Company, appellant by Jon B. Eisenberg, counsel
Jul 30 2008	Petition for review granted; issues limited (civil case)   The petition for review is granted. The issues to be briefed and argued are limited to the following: (1) Which party bears the burden of persuasion with respect to the applicability of the anti-SLAPP exemptions set forth in Code of Civil Procedure section 425.17, subdivision (c)? and (2) Does Code of Civil Procedure section 425.17, subdivision (c) exempt from anti-SLAPP protection an advertisement by a lawyer soliciting clients for a contemplated lawsuit? George, C.J., was absent and did not participate. Votes: Moreno, A.C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Aug 4 2008	Certification of interested entities or persons filed   Simpson Strong-Tie, appellant Jon Eisenberg, counsel
Aug 4 2008	Request for extension of time filed   for appellant Simpson Strong-Tie Co. to file the opening brief on the merits, to 9-29-08.
Aug 4 2008	Certification of interested entities or persons filed   Pierce Gore, respondent Thomas Burke, counsel
Aug 15 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 29, 2008.
Sep 26 2008	Opening brief on the merits filed   Simpson Strong-Tie Co., appellant Jon Eisenberg, Arthur Shartsis, counsel
Oct 16 2008	Request for extension of time filed   For respondents to file the answer brief on the merits, to 11-26-08
Oct 28 2008	Extension of time granted   On application of respondents and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 26, 2008.
Nov 26 2008	Answer brief on the merits filed   Pierce Gore and the Gore Law Firm, respondents Thomas Burke, counsel
Nov 26 2008	Request for judicial notice filed (granted case)   Pierce Gore and the Gore Law Firm, respondents Thomas Burke, counsel
Dec 2 2008	Request for extension of time filed   For appellant to file the reply brief on the merits, to 1-15-09.
Dec 9 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 15, 2009.
Jan 7 2009	Request for extension of time filed   for appellant to file the reply brief on the merits, to 1-30-09.
Jan 15 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 30, 2009. Based on the representation of Jon B. Eisenberg, counsel for appellant, that he does not anticipate the need for further time to complete the brief, no further extensions of time are contemplated.
Jan 26 2009	Reply brief filed (case fully briefed)   Simpson Strong-Tie Co., appellant Jon Eisenberg, Arthur Shartsis, counsel
Feb 20 2009	Application to file amicus curiae brief filed   Consumer Attorneys of California, in support of respondents Sharon Arkin, counsel
Feb 25 2009	Application to file amicus curiae brief filed   California First Amendment Coalition and California Anti-SLAPP Project Karl Olson, counsel
Mar 3 2009	Permission to file amicus curiae brief granted   The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 3 2009	Amicus curiae brief filed   Consumer Attorneys of California in support of respondents Sharon Arkin, counsel
Mar 3 2009	Permission to file amicus curiae brief granted   The application of California First Amendment Coalition and California Anti-SLAPP Project for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 3 2009	Amicus curiae brief filed   California First Amendment Coalition and California Anti-SLAPP Project in support of respondents Karl Olson, counsel
Mar 6 2009	Request for extension of time filed   for appellant to file the response to the amicus curiae briefs, to 4-22-09.
Mar 12 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer to the amicus curiae briefs is extended to and including April 22, 2009. No further extensions of time are contemplated.
Apr 10 2009	Response to amicus curiae brief filed Plaintiff and Appellant: Simpson Strong-Tie Company, Inc.Attorney: Jon B. Eisenberg
Feb 22 2010	Request for judicial notice granted   Respondent's request for judicial notice, filed in this court on November 26, 2008, is granted as to the legislative history documents for Senate Bill No. 1651. In all other respects, the request is denied.
Feb 24 2010	Supplemental briefing ordered   The parties are directed to address at oral argument, in addition to any other relevant matters, the following question: Does the anti-SLAPP exemption under Code of Civil Procedure section 425.17, subdivision (c), for a "statement or conduct . . . made in the course of delivering the . . . goods or services" of a person primarily engaged in the business of selling or leasing goods or services apply to any statement or conduct made in the course of delivering the person's goods or services or only to a statement or conduct made in the course of delivering the person's goods or services that "consists of representations of fact about that person's or a business competitor's business operations, goods, or services"? Supplemental briefs addressing this issue may be served and filed by both parties in the San Francisco office of this court no later than March 10, 2010, and supplemental reply briefs may be served and filed in the San Francisco office of this court no later than March 18, 2010. Baxter, J., was absent and did not participate.
Mar 3 2010	Case ordered on calendar   to be argued Tuesday, April 6, 2010, at 9:00 a.m., in Los Angeles
Mar 10 2010	Supplemental brief filed Plaintiff and Appellant: Simpson Strong-Tie Company, Inc.Attorney: Jon B. Eisenberg
Mar 11 2010	Supplemental brief filed Defendant and Respondent: Gore, PierceAttorney: Thomas Rohlfs Burke
Mar 18 2010	Supplemental brief filed Plaintiff and Appellant: Simpson Strong-Tie Company, Inc.Attorney: Jon B. Eisenberg   Reply brief.
Mar 18 2010	Supplemental brief filed Defendant and Respondent: Gore, PierceAttorney: Thomas Rohlfs Burke   Reply brief.
Mar 26 2010	Supplemental brief filed Defendant and Respondent: Gore, PierceAttorney: Thomas Rohlfs Burke   Recent decision issued by the 2CA8.
Apr 6 2010	Cause argued and submitted
May 14 2010	Notice of forthcoming opinion posted   To be filed Monday, May 17, 2010 at 10 a.m.

Briefs
Sep 26 2008	Opening brief on the merits filed
Nov 26 2008	Answer brief on the merits filed
Jan 26 2009	Reply brief filed (case fully briefed)
Mar 3 2009	Amicus curiae brief filed
Mar 3 2009	Amicus curiae brief filed
Apr 10 2009	Response to amicus curiae brief filed Plaintiff and Appellant: Simpson Strong-Tie Company, Inc.Attorney: Jon B. Eisenberg

Brief Downloads
appellants_petition_for_review.pdf (3342073 bytes) - Appellant's Petition for Review
respondents_answer_to_petition_for_review.pdf (1330370 bytes) - Respondents' Answer to Petition for Review
appellants_reply_to_answer_to_petition_for_review.pdf (1061776 bytes) - Appellant's Reply to Answer to Petition for Review
appellants_opening_brief_on_the_merits.pdf (2237881 bytes) - Appellant's Opening Brief on the Merits
respondents_answer_brief_on_the_merits.pdf (2514300 bytes) - Respondents' Answer Brief on the Merits
appellants_reply_brief_on_the_merits.pdf (1343964 bytes) - Appellant's Reply Brief on the Merits
appellants_supplemental_brief.pdf (83397 bytes) - Appellant's Supplemental Brief
respondents_supplemental_brief.pdf (197076 bytes) - Respondents' Supplemental Brief
appellants_supplemental_reply_brief.pdf (110261 bytes) - Appellant's Supplemental Reply Brief
respondents_supplemental_reply_brief.pdf (160097 bytes) - Respondents' Supplemental Reply Brief

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 26, 2010 Annotated by jkwu

Facts: Simpson Strong-Tie Company, Inc. filed a cause of action for defamation and related claims against Pierce Gore and The Gore Law Firm arising from a newspaper advertisement placed by Gore. The advertisement in question was directed at owners of wood decks contrasted after January 1, 2004 and advised readers: “you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck” if the deck was built by galvanized screws manufactured by Simpson. The advertisement invited persons to contact Gore “if you would like an attorney to investigate whether you have a potential claim.” Issues: (1) Whether the party invoking the anti-SLAPP law (i.e. the defendant) or the party invoking the exception to the anti-SLAPP law in section 425.16 (the plaintiff) bears the burden of persuasion with respect to the applicability of the exemption? (2) The scope of the commercial speech exemption to the anti-SLAPP law. Opinion (J. Baxter): First, the Court held that Simpson, as the plaintiff, bore the burden of establishing that it fell within the commercial speech exemption to the anti-SLAPP rule. The Court based its holding on the general rule that “one claming an exemption from a general statute has the burden of proving that he comes within the exemption.” In so doing, the Court rejected the plaintiff’s reliance on the Court’s “two-step process” for analyzing the anti-SLAPP statute established in Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002) that put the burden on the defendant to first make a threshold showing that the challenged cause of action is one arising from protected activity, then shifted the burden to the plaintiff to demonstrate a probability of prevailing on the claim. The Court also rejected Simpson’s argument that Evidence Code section 500 abrogated the long-standing rule of statutory construction governing exemptions to a general statute in 1965. Finally, the Court rejected Simpson’s argument that this was a situation in which the ordinary rules governing allocation of the burden proof could be disregarded for policy reasons because Simpson did not identify a compelling justification. Second, the Court interpreted section 425.17(c) to exempt from the anti-SLAPP law a cause of action arising from commercial speech when: (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17(c)(2). Here, the Court found that Gore’s advertisement did not fall into the 425.17(c) exemption to the anti-SLAPP law because even if the advertisement implied that Simpson’s screws were defective, the implication “is not about Gore’s or a competitor’s business operations, goods, or services. It is, rather, a statement about Simpson⎯or, more precisely, Simpson’s products.” The Court therefore held that Gore’s advertisement “falls squarely outside section 425.17(c)’s exemption for commercial speech.”

Related Media	The Complex Litigator
	First Amendment Coalition
	The American Lawyer