The vitality of California’s anti-SLAPP statute as a weapon against meritless, but harassing defamation suits was confirmed in Simpson Strong-Tie Company, Inc., v. Gore (April 30, 2004; H030444) __Cal.App.4th __, a decision throwing out litigation against an plaintiffs attorney who advertised looking for people who had used allegedly defective wood screws.  The Sixth District Court of Appeal refused to apply the “commercial speech” exception to the anti-SLAPP law and found the advertisement not to be defamatory, mainly because it made no false assertions of fact. 
Simpson Strong-Tie Co., Inc. did not appreciate an advertisement by attorney Pierce Gore that told those whose decks had been built with listed screws that they “may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck.”  Undoubtedly thinking that the best defense was a good offense, Simpson sued Gore for defamation over the ad, although Gore never filed a suit against Simpson. 
Gore responded to the defamation complaint with a motion under Code Civ. Proc., § 425.16, California’s anti-SLAPP (Strategic Litigation Against Public Participation) statute.  He argued that his advertisement was free speech on a public issue and should be dismissed because Simpson could not show a probability of prevailing.  Gore specifically argued that his advertisement was privileged as a communication connected to a judicial proceding (Code Civ. Proc., § 47, subd. (b)), that it did not contain a false statement and that it was not made with the requisite knowledge of falsity or reckless disregard for the truth.   
Simpson responded that the “commercial speech” exception to the anti-SLAPP statute applied.  That exception, Code Civ. Proc., § 425.17, subdivision (c), according to the Court, “excludes claims arising from representations of fact about the speaker’s or a competitors products or services, or statements made in the course of delivering the speaker’s products or services.”  This exception was intended to prevent “the growing use of anti-SLAPP motions by commercial enterprises seeking to impede or obstruct litigation brought against them by public-interest or consumer class plaintiffs.” 

However, the actual language of the statute says noting about public interest litigation.  Instead, it states, in summary, that the anti-SLAPP statute does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement at issue consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services and is made in the course of a commercial transaction in the speaker’s goods or services.  The intended audience must be 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. 
The first issue was which party had the burden as to whether this exception applied.  The court held that the party asserting the exception (the plaintiff) had the burden of showing that it applied.  Regardless of who had this burden, the Court clearly would have found that the exception did not apply.  It found that none of the conditions for the application of the exception existed because (1) the asserted cause of action did not arise from any assertion of fact about Gore’s or a competitor’s goods or services and (2) it was not made in the course of providing services. 
Having found that the anti-SLAPP statute applied, the Court proceeded to make mincemeat of Simpson’s claim that the ad was actionable defamation.  Despite clever arguments by Simpson’s attorneys that the ad implied bad things about Simpson’s screws, the Court refused to find the statement that a Simpson customer “may” have legal rights and be entitled to compensation as an assertion of a “provably false assertion of fact.”  The opinion also refused to accept a survey purportedly showing that members of the public would view the ad as asserting that the screws were defective, finding a panoply of methodological problems. 
The result of this long, clear and well reasoned opinion by Justice Conrad Rushing is a further strengthening of the anti-SLAPP statute as protection against meritless lawsuits that are designed to shut people up.  Presumably the unpublished companion decision awarding Gore’s fees under the anti-SLAPP statute furthered that goal even more.