Serova v. Sony Music Entertainment ( 2020 )

Filed 1/8/20; Opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
VERA SEROVA, B280526
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC548468)
v.
SONY MUSIC ENTERTAINMENT
et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County. Ann I. Jones, Judge. Affirmed in part and
reversed in part with directions.
Katten Muchin Rosenman, Zia F. Modabber, Andrew J.
Demko, Charlotte S. Wasserstein, Leah E. A. Solomon; Kinsella
Weitzman Iser Kump & Aldisert, Howard Weitzman and Suann
C. Macisaac for Defendants and Appellants.
Moss Bollinger, Jeremy F. Bollinger, Ari E. Moss and
Dennis F. Moss for Plaintiff and Respondent.
_________________________________
Defendants and appellants Sony Music Entertainment
(Sony), John Branca, as co-executor of the estate of Michael J.
Jackson (the Estate), and MJJ Productions, Inc. (collectively
Appellants) appealed from an order of the superior court partially
denying their motion to strike under the anti-SLAPP statute.
(Code Civ. Proc., § 425.16.)1 We previously issued an opinion in
this case holding that the claims of plaintiff and respondent Vera
Serova (Serova) against Appellants should be struck under
section 425.16. (Serova v. Sony Music Entertainment (2018) 26
Cal.App.5th 759 (Serova I).) Our Supreme Court granted review
and subsequently transferred the case back to this court for
reconsideration in light of the Supreme Court’s decision in
FilmOn.com Inc. v. Double Verify Inc. (2019) 7 Cal.5th 133
(FilmOn).
The case concerns allegations that Appellants misleadingly
marketed a posthumous Michael Jackson album entitled simply
“Michael.” Serova claims that the album cover and a promotional
video wrongly represented that Jackson was the lead singer on
each of the 10 vocal tracks on the album, when in fact he was not
the lead singer on three of those tracks. Serova alleged claims
under the Unfair Competition Law (UCL; Bus.& Prof. Code,
§ 17200 et seq.) and the Consumers Legal Remedies Act (CLRA;
Civ. Code, § 1750 et seq.). Serova also brought a fraud claim
against defendants Edward Joseph Cascio, James Victor Porte,
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal. 4th 1106, 1109, fn. 1.)
2
and Cascio’s production company, Angelikson Productions, LLC
(collectively, the Cascio Defendants), alleging that those
defendants knowingly misrepresented to Appellants that Jackson
was the lead singer on the three tracks at issue (the Disputed
Tracks).2
Our prior opinion held that: (1) Serova’s claims against
Appellants arose from conduct furthering Appellants’ right of free
speech “in connection with a public issue” under section 425.16,
subdivision (e)(3) and (4); and (2) Serova did not show a
probability that her claims under the UCL and the CLRA would
succeed because the claims concern noncommercial speech that is
not actionable under those statutes.
Upon reconsideration of these holdings in light of FilmOn,
we conclude that our original opinion was correct. Consequently,
we largely adopt that opinion, except that we have revised the
discussion of the first step of the anti-SLAPP procedure in part 1
below to take account of the FilmOn decision and its application
to the circumstances of this case.
FilmOn concerned only the first step of the anti-SLAPP
analysis, i.e., whether particular claims arise from conduct that
the anti-SLAPP statute protects. Specifically, FilmOn considered
“whether the commercial nature of a defendant’s speech is
relevant in determining whether that speech merits protection”
under section 425.16, subdivision (e)(4). (FilmOn, supra, 7
Cal.5th at p. 140.) The court concluded that the context of a
statement—including “the identity of the speaker, the audience,
and the purpose of the speech” —is “relevant, though not
2 The Cascio Defendants are not parties to this appeal.
3
dispositive, in analyzing whether the statement was made ‘in
furtherance of’ free speech ‘in connection with’ a public issue.”
(Ibid., quoting § 425.16, subd. (e)(4).)
As we explained in our prior opinion, the representations
that Serova challenges—that Michael Jackson was the lead
singer on the three Disputed Tracks―did not simply promote sale
of the album, but also stated a position on a disputed issue of
public interest. Before the album was released, certain Jackson
family members and others publicly claimed that Jackson was
not the lead singer on the Disputed Tracks. Appellants disputed
this claim. An attorney acting for the Estate released a public
statement outlining the steps Appellants had taken to verify the
authenticity of the tracks by consulting with experts and persons
who were familiar with Jackson’s voice and recordings.
Thus, the identity of the artist on the three Disputed
Tracks was a controversial issue of interest to Michael Jackson
fans and others who care about his musical legacy. By
identifying the singer on the Disputed Tracks as Michael
Jackson, Appellants’ challenged statements made a direct claim
about the controversy itself. The statements were made publicly
to an audience—potential purchasers of the album—that was
likely to have an interest in the identity of the singer. And,
although Appellants’ ultimate goal was presumably to sell
albums by marketing songs sung by Michael Jackson, that goal
did not make the controversy over the identity of the artist any
less real or important to those who cared about the issue. The
challenged statements furthered Appellants’ position on the
controversy by articulating a consistent and unqualified belief in
the identity of the artist. Appellants’ challenged statements were
4
therefore sufficiently connected to an issue of public interest to
warrant anti-SLAPP protection.
Our Supreme Court’s decision in FilmOn did not address
the second step of the anti-SLAPP analysis, which concerns the
merits of a plaintiff’s claims. Nor did it address the criteria for
identifying commercial and noncommercial speech under the
First Amendment. That issue was the focus of our prior ruling
that the speech that Serova challenges was outside the scope of
the consumer protection laws on which her claims are based.
Thus, we have no reason to reconsider our prior ruling on the
second step of the anti-SLAPP procedure, which we reproduce
(with minor changes) in part 2 below.
BACKGROUND
1. The Anti-SLAPP Procedure
Section 425.16 provides for a “special motion to strike”
when a plaintiff asserts claims 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.”
(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the moving defendant must show that the
challenged claims arise from protected activity. (Baral v. Schnitt
(2016) 1 Cal.5th 376, 396 (Baral); Rusheen v. Cohen (2006) 37
Cal. 4th 1048, 1056.) Second, if the defendant makes such a
showing, the “burden shifts to the plaintiff to demonstrate that
each challenged claim based on protected activity is legally
sufficient and factually substantiated.” (Baral, at p. 396.)
5
Without resolving evidentiary conflicts, the court determines
“whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.” (Ibid.)
Section 425.16, subdivision (e) defines the categories of acts
that are in “ ‘furtherance of a person’s right of petition or free
speech.’ ” Those categories include “any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest,” and
“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.” (§ 425.16, subd. (e)(3) & (4).)
In 2003 the Legislature enacted section 425.17 to curb “a
disturbing abuse of Section 425.16 . . . which has undermined the
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances, contrary to the purpose and
intent of Section 425.16.” (§ 425.17, subd. (a).) Section 425.17
seeks to accomplish that goal by expressly excluding several
categories of claims from the scope of section 425.16.
Section 425.17, subdivision (c) establishes such an
exclusion for claims concerning some commercial speech. That
subdivision provides that 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” if certain
conditions exist, including that: (1) the statement at issue
“consists of representations of fact about that person’s or a
business competitor’s business operations, goods, or services” that
was made to promote commercial transactions or was made “in
the course of delivering the person’s goods or services”; and
(2) the intended audience is an actual or potential customer or a
6
person likely to influence a customer. (§ 425.17, subd. (c)(1)
& (2).)
Section 425.17 contains certain specifically defined
exceptions. One of those exceptions states that the commercial
speech provision in section 425.17, 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 dramatic, literary, musical, political, or
artistic work.” (§ 425.17, subd. (d)(2).)
2. Serova’s Allegations3
The album “Michael” was released on or about
December 14, 2010, about 18 months after Michael Jackson’s
death. Sony released the album in conjunction with the Estate.
The album contained 10 songs. Serova alleges that the
three songs on the Disputed Tracks—“Breaking News,”
“Monster,” and “Keep Your Head Up” (the Songs)—have been
controversial “[s]ince Michael’s inception.”
Serova claims that the Cascio Defendants recorded the
initial versions of the Disputed Tracks and had “exclusive
knowledge” that the lead vocals for the Songs were actually
performed by a singer other than Michael Jackson. Serova
alleges that Cascio then falsely represented to Appellants that
Michael Jackson was the singer.
3 As explained below, the trial court ruled on Appellant’s
anti-SLAPP motion based upon the allegations in Serova’s first
amended complaint (Complaint) and a stipulation that
established certain background facts for purposes of the motion
only. Thus, the relevant facts are primarily those alleged in the
Complaint.
7
Prior to “Michael’s” release, various members of Michael
Jackson’s family and others familiar with his recordings disputed
whether he was the lead singer on the Disputed Tracks. In
response to those concerns, Sony and the Estate (through
Attorney Howard Weitzman) both publicly issued statements
confirming their belief that Jackson was the singer.
In his statement (the Weitzman Statement), Weitzman
explained that many persons who were familiar with Jackson’s
work had confirmed that he was the lead singer on the Disputed
Tracks, including former producers, engineers, performers, and
directors who had worked with Jackson. He stated that the
Estate and Sony had also retained forensic musicologists who
examined the Disputed Tracks and concluded that the lead singer
was actually Jackson. He also stated that he had spoken to the
singer whom some persons had “wrongfully alleged was a
‘soundalike’ singer that was hired to sing” on the Disputed
Tracks, and that the singer had denied any involvement with the
project. Weitzman explained that, “given the overwhelming
objective evidence resulting from the exhaustive investigations,”
Sony decided to include the Disputed Tracks on the album
“because they believed, without reservation, that the lead vocal[s]
on all of those tracks were sung by Michael Jackson.”
The album cover for “Michael” (Album Cover) included a
statement that “ ‘[t]his album contains 9 previously unreleased
vocal tracks performed by Michael Jackson.’ ”4 A video released
before the album (the Promotional Video) described “Michael” as
4One of the tracks on the album had been previously
recorded.
8
“ ‘a brand new album from the greatest artist of all time.’ ” While
appearing on the Oprah Winfrey show, Cascio also stated that
Jackson performed the lead vocals on the Disputed Tracks.
The Complaint alleges that the lead singer on the Disputed
Tracks actually sounds like the “soundalike” singer mentioned in
the Weitzman Statement. Serova claims she discovered evidence
indicating that the lead singer on the Disputed Tracks was not
Michael Jackson. Among other things, she claims that:
(1) Cascio did not produce any “demos, outtakes, alternate takes,
and multi-track recordings” when requested; (2) Jackson never
mentioned that he had recorded the Songs; (3) the Songs did not
appear on a list of ongoing or planned projects found in Michael
Jackson’s house after his death; and (4) various persons that the
Weitzman Statement said had confirmed that the lead singer on
the Disputed Tracks was Jackson in fact had doubts about that
conclusion.
Serova also hired an audio expert who prepared a report
concluding that Michael Jackson “very likely did not sing” the
lead vocals on the Disputed Tracks. The report was peer-
reviewed by another expert who concluded that the study’s
“methodologies and conclusions were reasonable.”
The Complaint alleges claims against all defendants under
the CLRA and UCL, and asserts a fraud claim against the Cascio
Defendants only. The Complaint claims that thousands of
putative class members purchased “Michael” and lost “money or
property” as a result of the alleged misleading representations.
3. Appellants’ Anti-SLAPP Motion
Appellants and the Cascio Defendants filed motions to
strike under section 425.16. Appellants argued that Serova’s
claims arose from protected speech under prong one of the anti-
9
SLAPP procedure. With respect to prong two, Appellants argued
that Serova could not succeed on her claims against them
because their challenged statements about the identity of the
lead singer on the Disputed Tracks were noncommercial speech
as a matter of law and no reasonable consumer could find the
statements misleading.
To permit a ruling on the anti-SLAPP motions in advance
of discovery, the parties stipulated that, “solely for purposes of
this determination on the Motions,” Michael Jackson did not sing
the lead vocals on the three Disputed Tracks (the Stipulation).
The parties also stipulated to the authenticity of copies of the
Weitzman Statement, the Album Cover, and the Promotional
Video.
The trial court granted the defendants’ motions with
respect to allegations concerning the Weitzman Statement and
Cascio’s statement on the Oprah Winfrey show, but denied the
motions with respect to allegations concerning statements on the
Album Cover and in the Promotional Video.
Under prong one of the anti-SLAPP procedure, the trial
court ruled that all the statements addressed in the defendants’
motions arose from conduct in furtherance of the defendants’
right of free speech concerning an issue of public interest. The
court concluded that the Weitzman Statement was “made in a
public forum about a matter of public interest.” The court
reasoned that the Weitzman Statement “responded to a matter of
public concern, i.e., the authenticity of certain recordings released
posthumously and claimed to have been written and recorded by
a pop superstar.” Similarly, the court concluded that Cascio’s
statement on the Oprah Winfrey show addressed “the same
controversy.”
10
In contrast, the trial court concluded that the Album Cover
and the Promotional Video were simply promotional materials
that “did not speak to the controversy surrounding the
performance [or] address or refute” the allegations concerning the
Disputed Tracks. The court nevertheless found that statements
on the Album Cover and in the Promotional Video arose from
protected conduct because “Michael Jackson’s professional
standing and accomplishments created legitimate and
widespread attention to the release of a new album.”
With respect to prong two, the trial court found that the
Weitzman Statement and Cascio’s statements on the Oprah
Winfrey show were noncommercial speech. The court concluded
that those statements were not made to promote or sell the
album, but addressed “a controversy regarding the veracity of the
claims surrounding the release of the album.”
However, the court concluded that the challenged
statements on the Album Cover and in the Promotional Video
were advertisements constituting commercial speech. The court
rejected the defendants’ argument that this speech was
“inextricably intertwined” with the Songs themselves under Riley
v. National Federation of Blind (1988) 487 U.S. 781, 796 (Riley).
The court reasoned that “[n]othing in this case prevented
Defendants from giving the album a different title and look or
from electing not to attest to the authenticity of the recordings on
the cover or in a commercial.”
The court also found that, assuming (pursuant to the
parties’ Stipulation) that Michael Jackson was not actually the
lead singer on the Disputed Tracks, both the Album Cover and
the Promotional Video were likely to deceive a reasonable
consumer. The court concluded that images of Michael Jackson
11
and the challenged statements on the Album Cover, along with
the lack of any attribution to others, conveyed the message that
Jackson was the lead singer on the Disputed Tracks. The court
also concluded that a reasonable consumer would believe that
Michael Jackson was the “artist” referenced in the statement on
the Promotional Video that “Michael” was “ ‘a brand new album
from the greatest artist of all time.’ ”
DISCUSSION
Appellants challenge the trial court’s rulings that: (1) the
Promotional Video and the Album Cover were commercial speech
that may be subject to claims under the UCL and CLRA; and
(2) the representations in those materials were likely to deceive a
reasonable consumer. Serova argues that those rulings were
correct, and also asserts as an alternative ground for affirmance
that her claims do not “arise from” protected free speech activity
under prong one of the anti-SLAPP procedure. (See Klem v.
Access Ins. Co. (2017) 17 Cal.App.5th 595, 609 [“A prevailing
party on an anti-SLAPP motion need not file a cross-appeal to
preserve his disagreement with the trial court’s reasoning”].) 5
We apply a de novo standard of review to the trial court’s
rulings on the anti-SLAPP motion. (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal. 4th 260, 269, fn. 3.)
5Serova did not appeal from the trial court’s ruling
granting the defendants’ anti-SLAPP motion with respect to the
Weitzman e-mail and Cascio’s statement during the Oprah
Winfrey interview. Thus, the only claims at issue in this appeal
concern the representations in the Promotional Video and the
Album Cover (the Challenged Statements).
12
1. Serova’s Claims Concerning the Promotional Video
and the Album Cover Arise from Appellants’ Right of
Free Speech Under the United States and California
Constitutions
Appellants claim the trial court correctly concluded that
Serova’s claims arose from protected speech concerning an issue
of public interest, but also suggest that we need not reach that
issue. Appellants argue that the Legislature’s decision to create
an exception for the marketing of musical works under section
425.17, subdivision (d)(2) shows a legislative intent that such
speech “is eligible for anti-SLAPP protection,” which is
“essentially dispositive of step one of the anti-SLAPP analysis.”
We first consider that argument.
a. The significance of the Legislature’s exclusion
of music advertisements from the scope of
section 425.17
As mentioned, section 425.17, subdivision (d)(2) provides
that the “creation, dissemination, exhibition, advertisement, or
other similar promotion of any dramatic, literary, musical,
political, or artistic work” is outside the scope of the commercial
speech provision in section 425.17, subdivision (c). The exception
in section 425.17, subdivision (d)(2) certainly means that the
promotion of a musical work is not included within the categories
of conduct that the Legislature specifically stated were not
subject to anti-SLAPP relief. However, the Legislature’s decision
to exclude the advertising of musical works from section 425.17
does not mean that it also intended to afford anti-SLAPP
protection to such conduct in every circumstance, regardless of
the requirements of section 425.16.
13
Such a conclusion would be inconsistent with the
Legislature’s stated intent. The Legislature specifically stated
that it enacted section 425.17 to curb abuses of the anti-SLAPP
law that were “contrary to the purpose and intent of Section
425.16.” (§ 425.17, subd. (a).) That statement suggests that our
Legislature was concerned that the courts were granting too
broad a reading to what constitutes “protected” conduct under
section 425.16, subdivision (e). Appellants’ argument, if accepted,
would commit that very same sin because it would require courts
to treat the types of speech delineated in section 425.17,
subdivision (d)(2) as subject to the anti-SLAPP law without any
showing that such speech meets the definition of “protected”
conduct under section 425.16, subdivision (e).
The interpretation that Appellants suggest would also be
inconsistent with the definitions of protected conduct under
section 425.16. Section 425.16, subdivision (e)(3) and (4) each
require that protected conduct must have some connection to a
“public issue” or an “issue of public interest.” Appellants’
interpretation of section 425.17, subdivision (d)(2) ignores that
requirement. For example, an action challenging an
advertisement falsely claiming that a musical album contains a
particular song would be an action “based upon the . . .
advertisement” of a musical work. (§ 425.17, subd. (d)(2).)
Appellants do not provide any reason to believe that the
Legislature intended to provide automatic anti-SLAPP protection
to such a mundane commercial misrepresentation simply because
the statement was made in connection with the advertisement of
a musical work.
Ignoring the public interest requirement in defining the
conduct that is protected under section 425.16, subdivision (e)(3)
14
and (4) would also be directly contrary to our Supreme Court’s
opinion in FilmOn. As discussed further below, the court in
FilmOn confirmed the need for a party moving for anti-SLAPP
relief to show a relationship between the challenged speech “and
the public conversation about some matter of public interest.”
(FilmOn, supra, 7 Cal.5th at pp. 149–150.)6
The court in Dyer v. Childress (2007) 147 Cal. App. 4th 1273
rejected an argument similar to the one that Appellants make
6 The court in FilmOn addressed the scope of section
425.17, subdivision (c) in rejecting the argument that, in
identifying protected conduct, the commercial context of a
challenged statement was relevant only under that section.
(FilmOn, supra, 7 Cal.5th at pp. 146–149.) Although the court
did not consider the significance of the exclusion in section
425,17, subdivision (d)(2), its analysis is consistent with our
understanding of that subdivision. The court explained that not
all commercial speech is included within the anti-SLAPP
exemption that section 425.17, subdivision (c) defines. For
commercial speech not included in that subdivision, “[l]ike all
other statements that do not fall within the scope of an
exemption, such statements are eligible for anti-SLAPP
protection under section 425.16.” (FilmOn, at p. 148, italics
added.) The court did not suggest that commercial statements
not included in section 425.17 are automatically entitled to anti-
SLAPP protection under section 425.16. Indeed, the court clearly
held that the context of such statements must be considered to
determine if they are sufficiently connected to an issue of public
interest to warrant protection under section 425.16, subdivision
(e)(4). (FilmOn, at p. 148.) Similarly, conduct excluded from
section 425.17, subdivision (c) under section 425.17, subdivision
(d)(2) is not automatically entitled to anti-SLAPP protection
without any consideration of context.
15
here. After reviewing the legislative history concerning section
425.17, subdivision (d)(2), the court rejected the defendant’s claim
that “by expressly exempting motion pictures from the anti-
SLAPP limitations imposed in section 425.17, subdivisions (b)
and (c), the Legislature acknowledged that motion pictures are
more deserving of protection than other forms of expression not
enumerated.” (Dyer, at pp. 1283–1284.) The court concluded
that “[t]he exclusion of motion pictures from the exemptions to
the limitations set forth in section 425.17, subdivisions (b) and (c)
means only that anti-SLAPP motions remain available to
defendants who are creators and distributors of motion pictures
. . . . [¶] The exception of section 425.17, subdivision (d)(2) does
not eliminate the need to show significant public interest in the
conduct at the heart of the plaintiff’s complaint or expand the
scope of the anti-SLAPP law to provide protection to motion
picture defendants in every context.” (Dyer, at p. 1284.)
Similarly, the exception of section 425.17, subdivision (d)(2)
does not provide anti-SLAPP protection to sellers of music in
every context. At most, the Legislature’s exclusion of the
promotion of “dramatic, literary, musical, political, or artistic
work” from the scope of commercial activity covered by section
425.17, subdivision (c) means that courts should be particularly
sensitive to the constitutional free speech aspects of such work in
analyzing whether particular statements or conduct are protected
under section 425.16.7
7 For example, as discussed below, in this case the identity
of the singer on the Disputed Tracks greatly affects the artistic
significance of the music on those tracks. The music is of course
constitutionally protected expression. In analyzing context under
16
We therefore consider whether Appellants’ Challenged
Statements were made “in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e).) In so doing, we pay
particular attention to the context of those statements as
instructed by the court in FilmOn.
b. The challenged promotional statements in this
case
In FilmOn our Supreme Court held that, “within the
framework of section 425.16, subdivision (e)(4), a court must
consider the context as well [as] the content of a statement in
determining whether that statement furthers the exercise of
constitutional speech rights in connection with a matter of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 149.)8 That case
concerned alleged disparaging statements about the Web-based
entertainment programming distributed by the plaintiff,
FilmOn.com Inc. (FilmOn.com). The defendant, DoubleVerify
Inc. (DoubleVerify), provided confidential reports to its paying
clients classifying FilmOn.com Web sites under categories of sites
section 425.16, it is appropriate to consider the relationship
between the Challenged Statements promoting “Michael” and the
expressive content of the album itself.
8 FilmOn concerned the definition of protected conduct
under section 425.16, subdivision (e)(4). (FilmOn, supra, 7
Cal.5th at pp. 139–140.) However, the requirement that a
statement be “in connection with an issue of public interest” is
also present in subdivision (e)(3). (§ 425.16, subd. (e)(3).) The
court’s analysis of the importance of context in determining
whether such a connection exists therefore appears equally
applicable to section 425.16, subdivision (e)(3).
17
that engage in copyright infringement and contain “adult
content.” (Id. at pp. 140–142.) The court held that these reports
were not “ ‘in connection with’ ” an issue of public interest. (Id. at
p. 154.) In doing so, the court relied on the context of the reports,
which it characterized as “two well-funded for-profit entities
engaged in a private dispute over one’s characterization—in a
confidential report—of the other’s business practices.” (Ibid.)
Before reaching this conclusion, the court explained the
appropriate process for determining whether challenged speech
has a sufficient connection to a public issue to warrant anti-
SLAPP protection. “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. (§ 425.16,
subd. (e)(4).) Second, we ask what functional relationship exists
between the speech and the public conversation about some
matter of public interest. It is at the latter stage that context
proves useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.)
Context includes the identity of the speaker, the audience, and
the purpose of the speech. (Id. at pp. 142–143, 145.)
In analyzing the relationship between the challenged
speech and the issue of public interest, it 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.” (FilmOn, supra, 7 Cal.5th at p. 150.) A defendant has
contributed to the public debate if he or she “participated in, or
furthered, the discourse that makes an issue one of public
interest.” (Id. at p. 151.)
i. The issue of public interest
FilmOn did not announce any change in the approach that
courts should take to identifying issues of public interest. On the
18
contrary, the court said that the Courts of Appeal have “ably
distilled the characteristics of a ‘public issue or an issue of public
interest’ ” for purposes of section 425.16, subdivision (e)(4).
(FilmOn, supra, 7 Cal.5th at p. 149.) In particular, the court
cited with approval the definition of an issue of public interest in
Rivero v. American Federation of State, County, and Municipal
Employees, AFL-CIO (2003) 105 Cal. App. 4th 913, 919–924
(Rivero), and in Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122,
1132–1133 (Weinberg).
In Rivero, the court surveyed a number of cases and
identified three common elements in statements that concerned
an issue of public interest. The statements concerned either:
(1) a person or entity “in the public eye”; (2) conduct that “could
directly affect a large number of people beyond the direct
participants”; or (3) a “topic of widespread, public interest.”
(Rivero, supra, 105 Cal.App.4th at p. 924.) In Weinberg, the court
offered additional analysis consistent with the categories in
Rivero. Among other things, the court explained that public
interest “does not equate with mere curiosity” and that a matter
of public interest should be of concern to a substantial number of
people rather than just to a “relatively small, specific audience.”
(Weinberg, supra, 110 Cal.App.4th at p. 1132.) In addition, a
“person cannot turn otherwise private information into a matter
of public interest simply by communicating it to a large number
of people.” (Id. at pp. 1132–1133.)
The issue of public interest here is whether Michael
Jackson was in fact the singer on the three Disputed Tracks. It is
beyond dispute that Michael Jackson was a famous entertainer
who was very much “in the public eye.” (Rivero, supra, 105
Cal.App.4th at p. 924.) As the court stated in Stewart v. Rolling
19
Stone LLC (2010) 181 Cal. App. 4th 664 (Stewart), “ ‘ “there is a
public interest which attaches to people who, by their
accomplishments, mode of living, professional standing or calling,
create a legitimate and widespread attention to their
activities.” ’ ” (Id. at pp. 677–678, quoting Eastwood v. Superior
Court (1983) 149 Cal. App. 3d 409, 422; see No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal. App. 4th 1018, 1027 [video game
distributor’s use of band members’ likenesses in a video game
was a “matter of public interest because of the widespread fame”
of the band]; Hall v. Time Warner, Inc. (2007) 153 Cal. App. 4th
1337, 1347 [Marlon Brando’s decisions concerning the
distribution of his assets was an issue of public interest].)
Moreover, the question whether Michael Jackson was the
singer on the Disputed Tracks did not simply concern some
trivial fact about his life, but related to his artistic legacy. Facts
concerning the creation of works of art and entertainment can
themselves be issues of public interest. For example, in
Kronemyer v. Internet Movie Database Inc. (2007) 150
Cal. App. 4th 941, the plaintiff challenged the omission of his
name from the credits listed for the movie My Big Fat Greek
Wedding on a widely visited Web site. (Id. at p. 944.) The court
concluded that the movie “was a topic of widespread public
interest,” and the Web site was a public forum. (Id. at pp. 949–
950.) Accordingly, the plaintiff’s action challenging the listings
was “within the ambit of section 425.16, subdivision (e)(3) and
(4).” (Id. at p. 950; see Tamkin v. CBS Broadcasting, Inc. (2011)
193 Cal. App. 4th 133, 143–144 [there was a “public interest in the
writing, casting and broadcasting” of a television episode for
purposes of the anti-SLAPP statute].)
20
The controversy over the identity of the singer on the
Disputed Tracks was also of widespread interest among Michael
Jackson fans. (See Rivero, supra, 105 Cal.App.4th at p. 924;
Weinberg, supra, 110 Cal.App.4th at p. 1132.) The Complaint
alleges that, “[b]efore Michael’s release, numerous people familiar
with Michael Jackson’s voice disputed the authenticity” of the
Disputed Tracks. As discussed above, Sony and the Estate
released public statements in response, including the detailed
Weitzman Statement. Serova further alleges that, “[s]ince
Michael’s inception, controversy has surrounded three of the
album’s ten songs.”
This public controversy distinguishes this case from cases
that Serova cites concerning allegedly misleading descriptions of
a particular commercial product or service. (See Consumer
Justice Center v. Trimedica International, Inc. (2003) 107
Cal. App. 4th 595, 599, 601 [claims about a pill for breast
enlargement]; Nagel v. Twin Laboratories, Inc. (2003) 109
Cal. App. 4th 39, 43–46 [list of ingredients on labels for nutritional
and dietary supplements]; Scott v. Metabolife Internat., Inc.
(2004) 115 Cal. App. 4th 404, 423 [claims about the safety and
efficacy of a particular weight loss product]; L.A. Taxi
Cooperative, Inc. v. The Independent Taxi Owners Assn. of
Los Angeles (2015) 239 Cal. App. 4th 918, 921, 927–928 [alleged
misleading advertisements concerning contact information for
companies providing taxi services]; Jewett v. Capital One Bank
(2003) 113 Cal. App. 4th 805, 814–816 [alleged false statements in
credit card solicitations].)
The representations at issue here concerned the body of
work of a well-known artist and an album containing his songs
that generated significant public attention. We therefore
21
conclude that the issue was one of “public interest” for purposes
of section 425.16, subdivision (e)(3) and (4).
ii. The relationship between the Challenged
Statements and the public debate
As discussed above, the court in FilmOn explained that
courts considering whether challenged speech concerned an issue
of public interest should analyze not only the nature of the issue
but also the connection between the issue and the speech. In the
latter analysis, the context of the speech—the speaker, audience
and purpose—are important.
We discussed the context of the Challenged Statements at
some length in our prior opinion in analyzing whether those
statements can be categorized as actionable commercial speech
for purposes of the second step of the anti-SLAPP procedure.
(Serova I, supra, 26 Cal.App.5th at pp. 775–781.) Much of that
analysis is also relevant to the connection between the
statements that Serova challenges and the issue of public
interest for purposes of the first step in the anti-SLAPP analysis.
As we previously explained (and reiterate below), the
speaker and the audience for the Challenged Statements suggest
a commercial purpose.9 Appellants are sellers of the album, and
the audience for the statements was potential purchasers.
However, the court in FilmOn explained that “ ‘[w]hether
speech has a commercial or promotional aspect is not dispositive’
9 However, we also hold that the content of the statements
shows that they were not merely commercial speech for purposes
of determining whether Serova has shown a probability of success
on her consumer protection claims under the second step of the
anti-SLAPP analysis.
22
of whether it is made in connection with an issue of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 154, quoting Industrial
Waste & Debris Service, Inc. v. Murphy (2016) 4 Cal.App.5th
1135, 1150.) The court stated unequivocally that “[s]ome
commercially oriented speech will, in fact, merit anti-SLAPP
protection.” (FilmOn, at p. 153.) The proper analysis focuses on
the same “contextual cues” that show a statement “to be
‘commercial’ in nature—whether it was private or public, to
whom it was said, and for what purpose.” (Id. at p. 148.) The
ultimate question is whether the “wedding of content and
context” shows that the statement “contributes to or furthers the
public conversation on an issue of public interest.” (Id. at p. 154.)
Analysis of the content and context of the Challenged
Statements here shows that they merit anti-SLAPP protection.
(a) Content
The content of the Challenged Statements related directly
to the issue of public interest. According to Serova’s Complaint,
the statements identified Michael Jackson as the singer on the
Disputed Tracks, which was the precise focus of the public
controversy. Thus, the statements at issue here were not just
tangentially connected to the issue of public interest through a
creative generalization of their subject matter (what the court in
FilmOn characterized as the “ ‘synedoche theory’ of public
interest”). (FilmOn, supra, 7 Cal.5th at p. 152; see
Commonwealth Energy Corp. v. Investor Data Exchange, Inc.
(2003) 110 Cal. App. 4th 26, 34 [“The part is not synonymous with
the whole. Selling an herbal breast enlargement product is not a
disquisition on alternative medicine”].)
In her supplemental brief, Serova disputes that there was
any connection between the Challenged Statements and the issue
23
of public interest, claiming that the statements did not refer to
the identity of the singer on the Disputed Tracks at all. She
argues that the Challenged Statements “do not reference the
three controversial songs and do not suggest to the audience that
these three songs are somehow special.”
Serova’s argument ignores her own allegations, which she
may not do. Her complaint alleges that the Challenged
Statements are among those that “expressly and impliedly
represented that the lead vocals on all of the tracks of the album
were performed by Michael Jackson.” Indeed, absent such an
allegation of deceptive conduct, Serova would not have any basis
for a consumer protection claim concerning the Challenged
Statements.
The question in the first step of the anti-SLAPP analysis is
whether the claims at issue arise from protected conduct.
(§ 425.16, subd. (b)(1); Baral, supra, 1 Cal.5th at p. 396.) A
plaintiff’s complaint of course defines his or her claims, and can
itself show that the claims arise from protected conduct. (See
Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936–
937.) Serova cannot contradict her own allegations in arguing
that the Challenged Statements did not identify the singer on the
Disputed Tracks as Michael Jackson. (Ibid.)
It is true that the statements on the Album Cover and the
Promotional Video did not actually refer to the public debate
about the identity of the singer. And, unlike the Weitzman
Statement, they did not offer any argument in support of the
conclusion that Michael Jackson was the singer. They simply
asserted the conclusion as fact. But they certainly showed
Appellants’ acceptance of that fact, which communicated
Appellants’ position on the issue. As Serova acknowledges, a
24
statement “need not necessarily reference the debate to
participate in it.” Whether couched as argument or fact, the
Challenged Statements expressed a position on the question
whether Michael Jackson was the singer on the Disputed Tracks.
Serova also argues that “nothing about Jackson’s persona,
life or career is communicated by the advertisements” at issue.
This assumes that the content of Jackson’s body of work is
irrelevant to those interested in his life and career. The
assumption is unreasonable on its face, and belied in any event
by Serova’s own allegations, which acknowledge the public
controversy over the identity of the singer.
(b) Context
As discussed above, the commercial purpose of the
Challenged Statements—to sell albums—does not itself
determine whether they contributed to the public debate. It
certainly reflects that Appellants had a commercial interest in
the debate, but it does not divorce the statements from that
debate. Appellants had the same commercial interest in
defending their claims about the identity of the singer in the
Weitzman Statement, which Serova does not dispute was
protected speech. The purpose of the Challenged Statements is
essentially a neutral consideration in determining whether the
statements were protected conduct.
On the other hand, the identity of the speaker and the
audience both support the conclusion that the Challenged
Statements contributed to the “public conversation” on an issue
of public interest. (FilmOn, supra, 7 Cal.5th at p. 154.) Unlike
the speech at issue in FilmOn, the Challenged Statements here
were public. The Album Cover and the Promotional Video were
available to those who were interested. And the audience for
25
those statements—persons who might buy the album—was also
an audience that was highly likely to be interested in the identity
of the singer on the Disputed Tracks. The relevant point here is
not, as Serova argues, whether the Challenged Statements
reached everyone who was interested in the controversy over the
identity of the singer. The point is that Appellants made the
statements publicly to a sizeable audience that was likely to be
interested in the issue.
There is another important fact concerning the identity of
the speakers here. Appellants were not sellers of a typical
consumer product; they were sellers of a product (music) that is
itself subject to First Amendment protection. In explaining that
the identity of the speaker matters in analyzing context, the
court in FilmOn cited as an example the identity of the
defendants in San Diegans for Open Government v. San Diego
State University Research Foundation (2017) 13 Cal.App.5th 76
(San Diegans). (FilmOn, supra, 7 Cal.5th at p. 145.) In San
Diegans, the plaintiff claimed that contracts for collaborative
news reporting between a defendant, inewsource, and a public
radio and television station, KPBS, violated prohibitions on self-
dealing and gifts of public funds. (San Diegans, at p. 103.) In
holding that the claims arose from protected speech activity, the
court observed that “the fact these contracts are for gathering
and delivering news stories and not some other purpose matters.”
(Id. at p. 105.) The court explained that inewsource “is not a
construction company. It is in the news reporting business, and
the contracts [the plaintiff] challenges shape the way inewsource
and KPBS gather, produce, and report the news.” (Id. at p. 106.)
Similarly, the challenged conduct in this case helped shape
the experience of the music that consumers purchased. There is
26
no dispute that the identity of the singer on the Disputed Tracks
affected the musical experience for many listeners; indeed, the
basis for Serova’s Complaint is that whether the singer was
Michael Jackson mattered to consumers.
Moreover, in FilmOn, the court instructed that courts
should undertake the analysis of context mindful of the anti-
SLAPP statute’s purpose to “encourage continued participation in
matters of public significance.” (FilmOn, supra, 7 Cal.5th at
p. 154, quoting § 425.16, subd. (a).) Giving too much weight to
the commercial context of the Challenged Statements here risks
unduly curtailing protected expression. Without anti-SLAPP
protection for their statements on the Album Cover and
Promotional Video, Appellants might simply have decided not to
sell the Disputed Tracks at all. Others in their situation might
similarly decide not to include songs or other artistic works with
disputed provenance in a collection offered for sale rather than
either (1) risk the expense of consumer litigation, or (2) dilute
their marketing by acknowledging doubts about the provenance
of the work that they do not share. That result would discourage,
rather than encourage, protected speech.
We therefore conclude that, consistent with the analysis
and holding in FilmOn, Appellants’ Challenged Statements on
the Album Cover and the Promotional Video were protected
speech under section 425.16, subdivision (e)(3) and (4).
2. The Challenged Statements Were
Noncommercial Speech Outside the Scope of
Serova’s Consumer Protection Claims
Appellants argue that Serova cannot show a probability of
success on her UCL and CLRA claims under prong two of the
anti-SLAPP analysis because those statutes apply only to
27
commercial speech. They claim that their Challenged
Statements about the lead singer on the Disputed Tracks were
not commercial speech, or, if they were, that those statements
were inextricably intertwined with the protected contents of the
Songs themselves.
Appellants argue that the consumer protection claims that
Serova asserts against them apply only to commercial speech. A
number of cases support that assertion. (See Kasky v. Nike, Inc.
(2002) 27 Cal. 4th 939, 952 (Kasky) [identifying criteria for
determining whether speech may constitutionally be regulated as
commercial speech under California’s false advertising laws];
Rezec v. Sony Pictures Entertainment, Inc. (2004) 116
Cal. App. 4th 135, 140 (Rezec) [California’s consumer protection
laws, like the unfair competition law, govern only commercial
speech]; Keimer v. Buena Vista Books, Inc. (1999) 75 Cal. App. 4th
1220, 1231 (Keimer) [Bus. & Prof. Code, §§ 17200 et seq. and
17500 et seq. do not “seek to restrict noncommercial speech in
any manner”]; O’Connor v. Superior Court (1986) 177 Cal. App. 3d
1013, 1019.) Serova does not dispute this. Moreover, she did not
argue below and does not argue on appeal that Appellants’
Challenged Statements are actionable even if they are
noncommercial speech. Thus, if Appellant’s Challenged
Statements are noncommercial speech, Serova’s claims against
them must be stricken.
a. Identifying commercial speech
Restrictions on purely commercial speech are subject to a
lesser level of scrutiny than are “ ‘other constitutionally
safeguarded forms of expression.’ ” (Kasky, supra, 27 Cal.4th at
p. 952, quoting Bolger v. Youngs Drug Products Corp. (1983) 463
U.S. 60, 64–65 (Bolger).) Moreover, “commercial speech that is
28
false or misleading is not entitled to First Amendment protection
and ‘may be prohibited entirely.’ ” (Kasky, at p. 953, quoting In re
R. M. J. (1982) 455 U.S. 191, 203.)
The United States Supreme Court first held that
commercial speech is entitled to some constitutional protection in
Bigelow v. Virginia (1975) 421 U.S. 809. In Bigelow, the court
rejected the proposition that “advertising, as such, was entitled to
no First Amendment protection.” (Id. at p. 825.) Following that
decision, courts have had to grapple with the distinction between
expressive activities that are merely commercial in nature and
those that are subject to more stringent First Amendment
protection.
In Bolger, the court held that materials distributed by a
manufacturer of contraceptives, including both promotional flyers
and informational pamphlets about contraceptives, were
commercial speech. (Bolger, supra, 463 U.S. at pp. 62, 66–68.)
Most of the mailings at issue fell “within the core notion of
commercial speech—‘speech which does “no more than propose a
commercial transaction.” ’ ” (Id. at p. 66, quoting Va. Pharmacy
Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762 (Virginia
Pharmacy).) However, the informational pamphlets required
further analysis. The court identified three factors indicating
that the pamphlets were commercial speech: (1) the pamphlets
were “conceded to be advertisements”; (2) they referred to a
specific product; and (3) the defendant had an economic
motivation for mailing them. (Bolger, at pp. 66–67.) The court
stated that none of these factors alone was sufficient to show that
the speech was commercial, but “[t]he combination of all these
characteristics . . . provides strong support” for the decision that
29
the informational pamphlets were commercial speech. (Id. at p.
67.)
In Kasky, supra, 27 Cal. 4th 939, our Supreme Court
considered the factors the court identified in Bolger, supra, 463
U.S. 60, along with other relevant United States Supreme Court
precedent and crafted a “limited-purpose” test for identifying
commercial speech. The test applies when, as here, “a court must
decide whether particular speech may be subjected to laws aimed
at preventing false advertising or other forms of commercial
deception.” (Kasky, at p. 960.) The court directed that a court
faced with such a decision should consider “three elements: the
speaker, the intended audience, and the content of the message.”
(Ibid.)
The court in Kasky applied those factors to the allegations
that the defendant, Nike, made false statements about labor
practices in its own business operations. (Kasky, supra, 27
Cal.4th at pp. 969–970.) The court held that these alleged
statements constituted commercial speech that was actionable
under California’s consumer protection laws. (Ibid.)
b. Appellants’ Challenged Statements
Applying the three-factor test for identifying commercial
speech described in Kasky, we conclude that Appellants’
challenged representations were noncommercial speech.
As discussed above, the first two factors—the speaker and
the intended audience—both suggest a commercial purpose.
Appellants were “engaged in commerce” in making
representations on the Album Cover and on the Promotional
Video to sell the album. (Kasky, supra, 27 Cal.4th at p. 963.)
And the audience for those representations was potential
purchasers of the album. (Id. at p. 964.)
30
However, the third factor—the content of the challenged
speech—shows that the speech at issue here is critically different
from the type of speech that may be regulated as purely
commercial speech under Kasky. That is so for two reasons.
First, Appellants’ Challenged Statements concerned a publicly
disputed issue about which they had no personal knowledge.
Second, the statements were directly connected to music that
itself enjoyed full protection under the First Amendment.
i. Personal knowledge
The court in Kasky explained that, “at least in relation to
regulations aimed at protecting consumers from false and
misleading promotional practices, commercial speech must
consist of factual representations about the business operations,
products, or services of the speaker (or the individual or company
on whose behalf the speaker is speaking), made for the purpose of
promoting sales of, or other commercial transactions in, the
speaker’s products or services.” (Kasky, supra, 27 Cal.4th at
p. 962.) This requirement relates directly to the reasons for
denying First Amendment protection to false or misleading
commercial speech. As the court explained, the United States
Supreme Court “has stated that false or misleading commercial
speech may be prohibited because the truth of commercial speech
is ‘more easily verifiable by its disseminator’ and because
commercial speech, being motivated by the desire for economic
profit, is less likely than noncommercial speech to be chilled by
proper regulation.” (Ibid., quoting Virginia Pharmacy, supra,
425 U.S. at p. 772, fn. 24.)
These factors were important for the court’s ruling. The
court in Kasky ascribed great significance to the fact that, “[i]n
describing its own labor policies, and the practices and working
31
conditions in factories where its products are made, Nike was
making factual representations about its own business
operations.” (Kasky, supra, 27 Cal.4th at p. 963, italics added.)
The court concluded that “Nike was in a position to readily verify
the truth of any factual assertions it made on these topics,” and
that commercial regulation was “unlikely to deter Nike from
speaking truthfully or at all about the conditions in its factories.”
(Ibid.)
Here, Appellants’ representations about the identity of the
lead singer on the Disputed Tracks did not concern their own
business operations or a fact of which they had personal
knowledge. Serova alleges that the Cascio Defendants, not
Appellants, “jointly created, produced, and recorded the initial
versions” of the Disputed Tracks. She claims that the “lead
vocals on these songs were performed by another singer under
the direction, and with the knowledge, cooperation, participation,
and substantial assistance of the Cascio Defendants.” And she
further alleges that the Cascio Defendants had “exclusive
knowledge of the fact that Jackson did not perform the songs.”
(Italics added.)10
As discussed above, Appellants’ Challenged Statements in
the Promotional Video and on the Album Cover concerned an
10 As mentioned above, the parties stipulated below for
purposes of the anti-SLAPP motions that Michael Jackson did
not sing the lead vocals on the three Disputed Tracks.
Accordingly, for purposes of their appeal, Appellants state that
they accept “that Jackson did not sing the lead vocals” on the
Disputed Tracks. However, Appellants did not stipulate that
they knew the identity of the singer.
32
issue of public interest and debate—whether the three Songs on
the Disputed Tracks should be included in Michael Jackson’s
body of work. Appellants did not record the Songs and, according
to Serova’s allegations, were themselves deceived about the
identity of the singer. Appellants’ statements therefore lacked
the critical element of personal knowledge under the Kasky
standard.
As the trial court correctly concluded, Appellants’
statements directly addressing the public controversy about the
identity of the singer—including the Weitzman Statement—were
noncommercial. The Challenged Statements on the Album Cover
and the Promotional Video also staked out a position in that
controversy by identifying the singer as Michael Jackson. The
fact that those statements were made in the context of promoting
the album does not change their constitutional significance.
Economic motivation is only one of the factors, insufficient
in itself, that may indicate that speech is commercial. (Bolger,
supra, 463 U.S. at p. 67.) As our Supreme Court explained in
Kasky, whether speech is commercial or noncommercial should
take account of the reasons for affording commercial speech less
constitutional protection. (Kasky, supra, 27 Cal.4th at pp. 958,
965.) The court in Kasky recognized that the speech at issue in
that case—Nike’s statements about labor practices in the
factories that manufactured its products—addressed an issue of
public interest. The reason that Nike’s speech could be subject to
regulation under the state’s unfair competition and false
advertising laws was that it concerned facts about Nike’s own
business operations, which were “ ‘more easily verifiable’ ” and
“ ‘less likely to be chilled by proper regulation’ ” than other
speech about the publicly debated issue of international labor
33
practices. (Id. at pp. 965, 967, quoting Virginia Pharmacy, supra,
425 U.S. at p. 772, fn. 24.) The court cautioned that it did not
purport to decide whether speech should be considered
commercial if all of the factors that the court identified—
including the element of personal knowledge about one’s own
business operations—were not present. (Kasky, at p. 964.)11
The absence of the element of personal knowledge is highly
significant here. Because Appellants lacked actual knowledge of
the identity of the lead singer on the Disputed Tracks, they could
only draw a conclusion about that issue from their own research
and the available evidence. Under these circumstances,
Appellant’s representations about the identity of the singer
amounted to a statement of opinion rather than fact.12 (Cf.
11 For example, the court might well have reached a
different conclusion in Kasky if the statements at issue concerned
the labor practices of an independent commercial supplier who
simply sold products to Nike for resale. The court specifically
noted that Nike had entered into a memorandum of
understanding assuming responsibility for its subcontractors’
compliance with local labor laws. (Kasky, supra, 27 Cal.4th at
p. 947.)
12 In her petition for rehearing following our prior opinion,
Serova argued that Appellants’ Challenged Statements on the
Album Cover and in the Promotional Video were statements of
fact, not opinion, because consumers would have understood
them to be factual assertions about the identity of the lead singer
of the songs in the album. This argument misunderstands the
issue. The question here is not whether Appellants have a
defense to Serova’s claims because their Challenged Statements
were truthful assertions of opinion rather than alleged false
statements of fact. In that context, focus on the listener’s
34
Bernardo v. Planned Parenthood Federation of America (2004)
115 Cal. App. 4th 322, 348 [statements of opinion on Planned
Parenthood’s Web site concerning scientific research about
abortion and breast cancer were not commercial speech].)
The lack of personal knowledge here also means that
Appellants’ Challenged Statements do not fit the definition of
speech that is “ ‘less likely to be chilled by proper regulation.’ ”
(Kasky, supra, 27 Cal.4th at p. 965, quoting Virginia Pharmacy,
supra, 425 U.S. at p. 772, fn. 24.) The “regulation” at issue here
is the UCL and the CLRA. Serova could obtain relief under these
consumer protection statutes without proof of intentional or
willful conduct. (See Kasky, at pp. 980–981 (dis. opn. of
Brown, J.); Podolsky v. First Healthcare Corp. (1996) 50
Cal. App. 4th 632, 647 [violation of the UCL is a “strict liability
understanding is appropriate. (See, e.g., Baker v. Los Angeles
Herald Examiner (1986) 42 Cal. 3d 254, 260–261 [applying a
“ ‘totality of the circumstances’ ” test in a libel action to
determine whether a statement was one of fact or opinion].)
Rather, the question here is whether Appellants’ challenged
speech was commercial. Under the court’s analysis in Kasky, the
speaker’s knowledge about the content of the speech is the
important feature in answering that question. Nike’s challenged
speech in that case concerned its own business operations, which
were within its personal knowledge. (Kasky, supra, 27 Cal.4th at
p. 963.) That is not the case here, as Appellants were not
involved in the initial recordings of the Disputed Tracks. From
Appellants’ perspective, their Challenged Statements about the
identity of the lead singer were therefore necessarily opinion.
35
offense”].)13 Thus, to avoid possible liability for a mistaken
judgment about the lead singer on the Disputed Tracks,
Appellants would have needed to either: (1) provide disclaimers
about the singer’s identity in its marketing materials; or (2) omit
the Disputed Tracks from the album.14
The chilling effect of the second option is obvious. But the
first option also has First Amendment implications. The United
States Supreme Court has emphasized the potentially
problematic nature of regulations that compel speech, even in a
commercial context. In National Institute of Family & Life
Advocates v. Becerra (2018) ___ U.S. ___ [201 L. Ed. 2d 835] (Life
Advocates), the court held that a California law requiring notices
in health care clinics concerning available health care services,
including abortion, likely violated the First Amendment. The
court declined to recognize an exception to strict scrutiny review
13 The CLRA does provide for a good faith defense to an
action for damages, but the defense requires proof of “appropriate
correction, repair or replacement or other remedy of the goods
and services.” (See Civ. Code, §§ 1782, subds. (b) & (c), 1784.) In
contrast to the consumer claims asserted against Appellants,
Serova’s fraud claim against the Cascio Defendants of course does
include a scienter element. That claim is still pending in the trial
court.
14 The record illustrates this dilemma. During oral
argument, the trial court suggested that Appellants could have
avoided legal challenge by leaving the Songs at issue off the
album entirely. The trial court’s written ruling also observes that
Appellants could have given the album “a different title and look”
or elected “not to attest to the authenticity of the recordings on
the cover or in a commercial.”
36
under the First Amendment for “professional speech,” noting that
the court has permitted compelled disclosures only in the context
of professionals’ “commercial advertising” concerning “ ‘purely
factual and uncontroversial information about the terms under
which . . . services will be available.’ ” (201 L.Ed.2d at p. 848.)
By compelling a particular disclosure, the law at issue amounted
to an impermissible “content-based regulation of speech.” (201
L.Ed.2d at p. 846.)15
By compelling disclosure of the controversy over the
Disputed Tracks to avoid liability, the UCL and CLRA would, in
effect, require Appellants to present views in their marketing
materials with which they do not agree.16 The possibility that
15 That the court’s reasoning in Life Advocates has
implications beyond just professional disclosures is shown by
Justice Breyer’s dissent, which cautions that “the majority’s view,
if taken literally, could radically change prior law, perhaps
placing much securities law or consumer protection law at
constitutional risk, depending on how broadly its exceptions are
interpreted.” (Life Advocates, supra, 201 L.Ed.2d at p. 857 (dis.
opn. of Breyer, J.).) The majority countered by stating that it
does not “question the legality of . . . purely factual and
uncontroversial disclosures about commercial products.” (201
L.Ed.2d at p. 852, italics added.) Here, any compelled disclosure
would not be “uncontroversial”; Serova herself alleges that
“controversy has surrounded” the three Disputed Tracks. Nor
would it be “purely factual” from Appellants’ perspective, as they
had no personal knowledge of the facts.
16 In her supplemental brief following transfer from the
Supreme Court, Serova suggests another alternative. She argues
that Appellants could have simply disclosed their “lack of
certainty” about the identity of the singer, for example by stating
37
applying these unfair competition and consumer protection laws
to Appellants’ speech would have the effect of chilling the content
of that speech—whether by preventing the sale of particular
musical works or by regulating the expression of a point of view
on a public controversy about those works—is a further reason to
conclude that the speech at issue was noncommercial.
ii. The relationship between the
Challenged Statements and the art
that they promoted
Appellants’ statements in the Promotional Video and on the
Album Cover described and promoted the album, of which the
Disputed Tracks were a part. The music on the album itself is
entitled to full protection under the First Amendment. (Stewart,
supra, 181 Cal.App.4th at p. 682.) The Challenged Statements
therefore related directly to a piece of art that has independent
significance under the First Amendment.
The identity of a singer, composer, or artist can be an
important component of understanding the art itself. No one
could reasonably dispute that knowing whether a piece of music
was composed by Johann Sebastian Bach or a picture was
painted by Leonardo Da Vinci informs the historical
that the “ ‘lead vocals are believed to be by Michael Jackson.’ ”
This alternative still has the effect of compelling speech that is
not “purely factual and uncontroversial.” (Life Advocates, supra,
201 L.Ed.2d at p. 852.) Such a statement implies the existence of
real controversy or doubt about the identity of the singer even
though Appellants might not believe that any reasonable doubt
exists.
38
understanding of the work.17 Similarly, although the art at issue
is contemporary and in a different genre, whether Michael
Jackson was actually the lead singer of the songs on the Disputed
Tracks certainly affects the listener’s understanding of their
significance. Thus, the marketing statements at issue here are
unlike the purely factual product or service descriptions
constituting commercial speech in cases that Serova cites. (See
Benson v. Kwikset Corp. (2007) 152 Cal. App. 4th 1254, 1268
[representation that products were manufactured in the United
States]; Peel v. Attorney Disciplinary Comm’n of Ill. (1990) 496
U.S. 91, 99–100 [advertisement concerning attorney’s
certification as an expert]; Rubin v. Coors Brewing Co. (1995) 514
U.S. 476, 481 [descriptions of alcohol content on beer labels].)
We do not suggest that the Challenged Statements here are
noncommercial speech only because they promoted an art work.
We agree with the court in Rezec, supra, 116 Cal. App. 4th 135,
that advertising is not necessarily excluded from the category of
commercial speech simply because it promotes a product that is
17 While these examples are only illustrative, they are not
purely hypothetical. (See Dutter & Nikkhah, Bach works were
written by his second wife, claims academic, The Telegraph
(Apr. 23, 2006) [as of Dec. 16, 2019], archived at
; Sayej, Artistic License? Experts
doubt Leonardo da Vinci painted $450m Salvator Mundi, The
Guardian (Nov. 20, 2017) [as of Dec. 16, 2019],
archived at .)
39
itself subject to full First Amendment protection. In Rezec, the
court held that film advertisements that featured fictional
endorsements from a nonexistent critic was commercial speech.
The court rejected the “absolutist approach” that “because the
films themselves are noncommercial speech, so are the
advertisements.” (Id. at p. 142.)18
Such an approach would ascribe full First Amendment
significance to any commercial representation about a piece of
art, no matter how mundane or willfully misleading. For
example, returning to the hypothetical advertisement mentioned
above, there is no apparent reason why a statement falsely
stating that a particular song is included in an album should be
subject to full First Amendment protection simply because the
statement promotes the sale of music.19 However, where, as
18 In Keimer, the court concluded that advertisements
repeating “verifiably false or misleading” statements about
investment returns contained in a book were commercial speech
despite the fully protected status of the books themselves under
the First Amendment. (Keimer, supra, 75 Cal.App.4th at
p. 1231.) The statements at issue here were not “verifiably false”
based upon the information available to Appellants, so we need
not consider this holding.
19 Thus, we do not accept Appellants’ suggestion that an
advertisement promoting a particular piece of art is necessarily
“inextricably intertwined” with the First Amendment content of
the art itself simply because it makes a representation about the
identity of the artist. (See Riley, supra, 487 U.S. at p. 796.) The
distinguishing features here are that: (1) the identity of the
artist was itself an issue of public discussion and interest; and
(2) Appellants had no personal knowledge of the issue.
40
here, a challenged statement in an advertisement relates to a
public controversy about the identity of an artist responsible for a
particular work, and the advertiser has no personal knowledge of
the artist’s identity, it is appropriate to take account of the First
Amendment significance of the work itself in assessing whether
the content of the statement was purely commercial.
This conclusion is consistent with the flexible approach
that the United States Supreme Court has adopted for
identifying commercial speech. In Bolger, the court explained
that no single factor that it identified as a marker of commercial
speech is sufficient in itself to classify particular speech as
commercial, nor must each factor “necessarily be present in order
for speech to be commercial.” (Bolger, supra, 463 U.S. at p. 67,
fn. 14.) The court concluded that the presence of all three factors
in that case “provides strong support” for the conclusion that the
informational pamphlets at issue were commercial. (Id. at p. 67.)
However, citing a prior opinion involving the advertising of
religious books, the court also cautioned that “a different
conclusion may be appropriate in a case where the pamphlet
advertises an activity itself protected by the First Amendment.”
(Id. at p. 67, fn. 14.)
That is the situation here. The Challenged Statements in
the Promotional Video and on the Album Cover concerned music
that is “itself protected by the First Amendment.” (Bolger, supra,
463 U.S. at p. 67, fn. 14.) While not itself dispositive, the fact
that the Challenged Statements promoted a piece of art is
appropriate to consider in assessing the content of the speech
under the Kasky guidelines. (Kasky, supra, 27 Cal.4th at p. 961.)
41
3. Conclusion
Appellant’s Challenged Statements on the Album Cover
and in the Promotional Video were noncommercial speech outside
the scope of the consumer protection claims that Serova asserts
against Appellants. As a matter of law Serova therefore cannot
show a likelihood that she will prevail on her claims under prong
two of the anti-SLAPP procedure, and her claims against
Appellants must be stricken. We therefore need not reach the
issue of whether the Challenged Statements would be misleading
to a reasonable consumer.
We emphasize that this holding is based on the record in
this case and the issues that have been appealed. The Cascio
Defendants have not appealed, and our holding therefore does
not reach any portion of the trial court’s order with respect to
them. Nor do we purport to decide whether statements in
another context concerning the marketing of creative works
might constitute commercial speech.
42
DISPOSITION
The trial court’s order is affirmed in part and reversed in
part. The portions of the Complaint alleging claims against
Appellants are ordered stricken. In all other respects the trial
court’s order is affirmed. Appellants are entitled to their costs on
appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
43