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Date: 03-21-2020
Case Style:
Medical Marijuana, Inc. v. Projectcbd.com
Case Number: D074755
Judge: Aaron, J.
Court: California Court of Appeals Fourth Appellate District, Division One on appeal from the Superior Court, County of San Diego
Plaintiff's Attorney: Tyler R. Andrews
Defendant's Attorney: Kendra J. Hall and Michael R. Kiesling
Description:
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This case arises from the publication of an article regarding the safety of a
cannabidiol (CBD) product, Real Scientific Hemp Oil (RSHO), sold by plaintiffs Medical
Marijuana, Inc. (MMI) and HempMeds PX, LLC (HempMeds) (jointly the plaintiffs).
The plaintiffs contend that the article contains false information about RSHO and that the
named defendants who were involved in the publication of the article, including
ProjectCBD.com (Project CBD), the website entity on which the article was published,
Martin Lee, the founder of ProjectCBD.com, and Aaron Miguel Cantu, the author of the
article (jointly "the Project CBD defendants"), should be held liable for libel, false light,
and unfair competition due to their publication of the article.1
The Project CBD defendants appeal from the trial court's order denying their
special motion to strike the three causes of action asserted in the second amended
complaint. The Project CBD defendants contend that the trial court erred in denying their
motion because the plaintiffs failed to demonstrate a probability of prevailing on their
claims.
We conclude that the trial court erred in determining that the plaintiffs have
demonstrated a probability of prevailing on the merits of their claims. We therefore
reverse the trial court's order and remand the matter with directions to enter an order
granting the Project CBD defendants' anti-SLAPP motion.
1 In a prior appeal, Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6
Cal.App.5th 602 (Medical Marijuana), the Project CBD defendants appealed the trial
court's denial of their anti-SLAPP motion with respect to the first amended complaint.
(Id., at p. 606.) We affirmed the trial court's denial, on the ground that the allegations of
the relevant causes of action did not include any conduct on the part of the Project CBD
defendants, and in fact specifically excluded the publication of the Article by limiting the
dates on which conduct underlying the causes of action were alleged to have occurred.
The first amended complaint thus failed to state any claims at all as to the Project CBD
defendants; consequently, there were no claims alleged against the Project CBD
defendants that could be stricken from the complaint pursuant to their anti-SLAPP
motion. (Id. at p. 621.)
3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background2
1. The parties involved in this appeal
Plaintiff MMI is an Oregon corporation, doing business in California. Plaintiff
HempMeds is a California limited liability company and a wholly owned subsidiary of
MMI. HempMeds manufactures and sells RSHO, which contains CBD derived from the
hemp plant. MMI also holds interests in an entity called KannaLife Sciences, Inc.
(KannaLife), which has its principal place of business in the State of New York.
Defendant Project CBD is registered as a California nonprofit C-corporation,
formed "for the public purpose of education regarding research into the medical utility of
cannabidiol (CBD) and other components of the cannabis plant." Defendant Martin Lee
is Project CBD's founder. Defendant Aaron Miguel Cantu is the author of Hemp Oil
Hustlers: A Project CBD Special Report on Medical Marijuana Inc., HempMeds &
Kannaway ("the Hemp Oil Hustlers Article" or "the Article"), which was published on
the Project CBD Web site. The allegations of the second amended complaint are based
on the publication of this article.
2 Because we are reviewing the record on the court's ruling on the Project CBD
defendants' anti-SLAPP motion made in response to the second amended complaint, we
take this factual background from the allegations of the operative complaint, as well as
from evidence presented to the court with respect to this anti-SLAPP motion.
4
2. The factual allegations in the operative pleading giving rise to the lawsuit
According to the operative pleading, Jason Cranford was previously a board
member of KannaLife. In late March 2014, Cranford resigned from the board of
KannaLife and began to sell CBD products in direct competition with plaintiffs' product,
RSHO, through a medical marijuana dispensary that he owns and operates called Rifle
Mountain, LLC.
The second amended complaint alleges that on or around April 26, 2014, Cranford
posted on Facebook that he intended to have RSHO tested at a diagnostic lab. Cranford
also allegedly posted on Facebook that a child had become ill after having a bad reaction
to RSHO.
Rather than having the RSHO sample tested at the facility that Cranford identified
in his April 26, 2014 Facebook posting, Cranford is alleged to have taken the sample to
Stewart Environmental Consultants, LLC (Stewart Labs) to be tested for "volatile organic
compounds and heavy metal concentrations." According to the pleading, in late May
2014, Stewart Labs released to Cranford a "preliminary report" regarding the RSHO
sample. The plaintiffs allege that after receiving this preliminary report, Cranford
"released copies of 'preliminary' test results" from Stewart Labs's testing.3
3 The second amended complaint suggests that Cranford "released" copies of these
" 'preliminary' test results from Stewart" by stating in a Facebook post that the results had
been posted on someone else's Facebook page.
5
According to the operative complaint, on May 30, 2014, Stewart Labs "published
the complete and final test results" from its analysis of the "purported RSHO sample" that
Cranford had submitted. The plaintiffs allege that "[t]he final results showed
significantly different reporting values than the preliminary results, especially for heavy
metals such as lead, molybdenum, nickel, selenium, and silver, among others." The
plaintiffs further allege that despite being aware of the Stewart Labs final test results, on
June 1, 2014, Cranford posted a link to a statement written on Facebook by " 'Sarah
Hadigan' " who asserted that her " 'daughter is dead because of this product[, i.e.,
RSHO].' "
The plaintiffs allege that in early June 2014, Stewart Labs stated in an e-mail "that
the preliminary test results published by Cranford were not accurate, [and] that the
sample was possibly contaminated as it had been handled by three different custodians
without a proper chain of custody . . . and should not have been published."
According to the operative pleading, on October 14, 2014, the Project CBD
defendants "published" defendant Cantu's Hemp Oil Hustlers Article on Project CBD's
Web site. In a section titled "FACTS COMMON TO ALL CLAIMS" (boldface &
underscoring omitted), the plaintiffs allege the following with respect to the Hemp Oil
Hustlers Article:
"That article claimed the existence of evidence that RSHO was
contaminated with heavy metals and solvents without verifying the
accuracy of the testing results from Stewart. PROJECT CBD also
alleged that multiple people became ill after using RSHO due to
heavy metals and other toxins based on Cranford's opinion. LEE
wrote a forward for the Hemp Oil Hustlers Article, asserting
6
opinions and rumors as fact without proof or citation, and published
the article on the PROJECT CBD website."
The operative complaint cites to "Exhibit 'M' attached hereto" and states that "the
full content of [this exhibit] is incorporated herein by this reference." "Exhibit 'M' " is a
full copy of the Hemp Oil Hustlers Article, which includes a one-page "Forward by
Project CBD," (boldface omitted) signed by Lee, and the article itself, which comprises
24 and 1/2 pages of single-spaced text, plus an additional 4 and 1/2 pages of endnotes.
According to the operative complaint, "as a proximate result of the publication and
republication of the Hemp Oil Hustlers Article" by the Project CBD defendants, MMI's
"stock price and sales fell dramatically." The plaintiffs assert that they have "suffered
damages" as a "direct and proximate result of the acts and omissions" of the Project CBD
defendants.
B. Procedural background
On January 16, 2015, the plaintiffs filed their first amended complaint in which
they named the Project CBD defendants as defendants.4 The first amended complaint
stated five pleaded counts against all of the originally-named defendants, including libel
(count 1), trade libel (count 2), false light (count 3), negligence (count 4), and intentional
interference with prospective business advantage (count 5) and had multiple exhibits
4 As occurred in the prior appeal, the record does not contain a copy of the original
complaint filed in this action. (See Medical Marijuana, supra, 6 Cal.App.5th at p. 609,
fn. 4.)
7
attached.5 The factual allegations regarding the Project CBD defendants, which were
included only in the general allegations of the first amended complaint and not in any of
the causes of action alleged against the various defendants, were essentially identical to
those currently alleged in the second amended complaint.
The Project CBD defendants filed an anti-SLAPP motion pursuant to California's
anti-SLAPP statute. The trial court issued an order granting the motion in part and
denying it in part. Specifically, the trial court determined that all of the counts alleged
against the Project CBD defendants arose from protected activity under the anti-SLAPP
statute, but that the plaintiffs had demonstrated a probability of prevailing on counts 1
and 3 only, and had not demonstrated a probability of prevailing on counts 2, 4 and 5.
(See Medical Marijuana, supra, 6 Cal.App.5th at p. 609.) The trial court therefore struck
counts 2, 4, and 5 insofar as those counts were asserted against the Project CBD
defendants, but left counts 1 and 3 intact. (Id. at p. 610.)
The Project CBD defendants appealed the trial court's order. (Medical Marijuana,
supra, 6 Cal.App.5th at p. 610.) In reviewing the record on appeal, this court noted that
although the plaintiffs had alleged certain conduct by the Project CBD defendants in the
"general allegations" of the first amended complaint, the plaintiffs had failed to identify
in their causes of action for libel and false light any specific conduct or activities on the
part of any of the Project CBD defendants. (Id. at pp. 616–619.) Because this court
5 The originally-named defendants included Genifer Murray, Cranford, CannLabs,
Inc., Rifle Mountain, LLC, and Stewart Labs.
8
determined that the first amended complaint "[did] not allege any conduct on the part of
the Project CBD defendants giving rise to the claims for liability in the libel and false
light counts," we concluded that "there is no activity on the part of the Project CBD
defendants, let alone activity that amounts to 'protected speech or petitioning' [citation],
that could give rise to the Project CBD [defendants'] claimed liability for libel or false
light as alleged in the first amended complaint." (Id. at p. 620.) We further concluded
that the "Project CBD defendants simply cannot identify any allegations of protected
activity that support the libel and false light claims for relief, as is their burden under the
first prong of the anti-SLAPP analysis. [Citation.]" (Ibid.)
This court affirmed "the denial of the anti-SLAPP motion with respect to counts 1
and 3, given that no protected or unprotected activity on the part of the Project CBD
defendants [was] alleged to support the claims for relief asserted in these counts." We
explained that our affirmance of the court's denial of the anti-SLAPP motion with respect
to counts 1 and 3 would "allow the parties, themselves, to correct the course of this
litigation in the trial court if they determine that such a course correction is necessary."
(Medical Marijuana, supra, 6 Cal.App.5th at pp. 621–622.)
After remand of the matter to the trial court, the Project CBD defendants demurred
to the first amended complaint, asserting that the lack of any alleged conduct on their part
to support the remaining claims against them required dismissal of the operative
pleading. They also contended that the plaintiffs should not be permitted to amend the
9
pleading, arguing that additional amendment to assert proper claims would be timebarred.
The trial court sustained the Project CBD defendants' demurrer to the first
amended complaint, but permitted the plaintiffs to file an amended complaint to properly
set forth defamation claims against the Project CBD defendants.
The plaintiffs filed a second amended complaint—the complaint underlying this
appeal—in which they allege causes of action for libel, false light, and unfair competition
under Business and Professions code section 17200 against the Project CBD defendants.6
In response to the filing of the second amended complaint, the Project CBD
defendants filed an anti-SLAPP motion seeking to strike the claims asserted against them.
In support of their contention that the plaintiffs were unable to demonstrate a probability
of prevailing on their claims, the Project CBD defendants relied on the factual allegations
of the second amended complaint, as well as documentary evidence intended to
demonstrate that the plaintiffs should be considered to be limited purpose public figures,
6 The copy of the second amended complaint in the Appellants' Appendix does not
appear to be file stamped. We therefore do not know the date on which the second
amended complaint was filed, nor whether the document included in the Appellants'
Appendix is, in fact, the document filed with the court. Because the plaintiffs have not
asserted that the record contains anything other than an accurate copy of the second
amended complaint that was filed in this action, we proceed on the understanding that
this document is an accurate copy of the operative pleading in the action. Parties should
ensure that court file-stamped copies of relevant documents are provided in the appellate
record in the future.
10
such that they would be required to establish that the defendants acted with actual malice
in publishing any defamatory material.
The plaintiffs filed an opposition to the anti-SLAPP motion in which they cited
additional alleged inaccuracies in the Hemp Oil Hustlers Article that they did not mention
in the second amended complaint.
On August 3, 2018, the trial court denied the Project CBD defendants' anti-SLAPP
motion, concluding that the second amended complaint "sufficiently pleads the substance
of the allegedly false statements."7 The court stated that it "remains disputed as to
whether Plaintiffs can be treated as 'limited purpose public figures,' " but went on to
conclude that "[e]ven assuming Plaintiffs could be elevated to the status of limited public
figures, the evidence presented by Plaintiffs supports a reasonable inference that
Defendants engaged in 'unreasonable conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to by responsible
publishers,' " citing Curtis Pub. Co. v. Butts (1967) 388 U.S. 130, 155. The trial court
ultimately concluded that the "Plaintiffs have demonstrated a probability of prevailing on
the merits" of their libel, false light, and Business and Professions Code section 17200
claims.
7 The trial court did not specifically state or identify the "allegedly false statements"
that it determined had been sufficiently pleaded. Elsewhere in the court's order, the court
stated that "Plaintiffs present several declarations demonstrating that many statements
within the article are false." (Italics added.)
11
The Project CBD defendants filed a timely notice of appeal from the trial court's
order denying their anti-SLAPP motion.
III.
DISCUSSION
A. Anti-SLAPP overview and relevant legal standards
A SLAPP suit is "a meritless lawsuit 'filed primarily to chill the defendant's
exercise of First Amendment rights.' " (Paul v. Friedman (2002) 95 Cal.App.4th 853,
861, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.)
California's anti-SLAPP statute allows a defendant to move to dismiss "certain
unmeritorious claims that are brought to thwart constitutionally protected speech or
petitioning activity." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420–1421.)
The anti-SLAPP statute provides: "A cause of action against a person arising from any
act of that person in furtherance of the person's right of petition or free speech under the
United States Constitution or the California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines that the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim."
(Code Civ. Proc., § 425.16, subd. (b)(1).)8
8 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
12
A court's consideration of an anti-SLAPP motion involves a two-pronged analysis.
(Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) The Supreme Court has
expounded on the standards to be applied in this two-pronged analysis:
"At the first step, the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them. . . . If the court determines that relief is
sought based on allegations arising from activity protected by the
statute, the second step is reached. There, the burden shifts to the
plaintiff to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually substantiated.
The court, without resolving evidentiary conflicts, must determine
whether the plaintiff's showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment. If not, the claim
is stricken. Allegations of protected activity supporting the stricken
claim are eliminated from the complaint, unless they also support a
distinct claim on which the plaintiff has shown a probability of
prevailing." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)
To make a showing under the first prong, the defendant need not show that the
actions it is alleged to have taken were protected as a matter of law, but need only
establish a prima facie case that its alleged actions fell into one of the categories listed in
section 425.16, subdivision (e). (See Flatley v. Mauro (2006) 39 Cal.4th 299, 314.)
If the court finds that the defendant has made the required showing, the burden
shifts to the plaintiff to demonstrate that "there is a probability that the plaintiff will
prevail on the claim." (§ 425.16, subd. (b)(1); see DuPont Merck Pharmaceutical Co. v.
Superior Court (2000) 78 Cal.App.4th 562, 567–568.) The second step of the antiSLAPP analysis consists of "a 'summary-judgment-like procedure.' " (Baral, supra, 1
Cal.5th at p. 384.) At this stage, "[t]he court does not weigh evidence or resolve
conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a
13
legally sufficient claim and made a prima facie factual showing sufficient to sustain a
favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the
defendant's showing only to determine if it defeats the plaintiff's claim as a matter of
law." (Id. at pp. 384–385.)
"Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e.,
[one] that arises from protected speech or petitioning and lacks even minimal merit—is a
SLAPP, subject to be stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th
82, 89, italics omitted.)
"As is true with summary judgment motions, the issues in an anti-SLAPP motion
are framed by the pleadings." (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th
659, 672 (Paulus); Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655
[the pleadings "frame the issues to be decided"].) Thus, the act or acts underlying a claim
for purposes of an anti-SLAPP statute is determined from the plaintiffs' allegations.
(Baral, supra, 1 Cal.5th at p. 396.) Because the issues to be determined in an antiSLAPP motion are framed by the pleadings, we will not "insert into a pleading claims for
relief based on allegations of activities that plaintiffs simply have not identified . . . . It is
not our role to engage in what would amount to a redrafting of [a] complaint in order to
read that document as alleging conduct that supports a claim that has not in fact been
specifically alleged, and then assess whether the pleading that we have essentially drafted
could survive the anti-SLAPP motion directed at it." (Medical Marijuana, supra, 6
Cal.App.5th at p. 621, fn. omitted, italics added.)
14
Our review of the trial court's order on an anti-SLAPP motion is de novo. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) Like the trial court, this
court considers " 'the pleadings, and supporting and opposing affidavits . . . upon which
the liability or defense is based.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 269, fn. 3, (Soukup), quoting § 425.16, subd. (b)(2).) The court does not
weigh or compare the evidence, but rather accepts as true the evidence favorable to the
plaintiff while evaluating the defendant's evidence " 'only to determine if it has defeated
that submitted by the plaintiff as a matter of law.' " (Soukup, at p. 269, fn. 3.)
B. Analysis
1. The plaintiffs have not demonstrated a probability of prevailing on their
pleaded cause of action for libel
Libel is one form of defamation. (Civ. Code, § 44 [defamation occurs either
through libel or slander].) Libel is defamation that is based on a publication in writing or
other fixed representation that can be seen. (Id., § 45.)
To establish defamation, a plaintiff must show a publication that was false,
defamatory, unprivileged, and that has a natural tendency to injure or cause special
damages. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259 (Jackson).)
"Because [a defamatory] statement must contain a provable falsehood, courts distinguish
between statements of fact and statements of opinion for purposes of defamation liability.
Although statements of fact may be actionable as libel, statements of opinion are
constitutionally protected." (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th
141, 155.)
15
Publication occurs when a defamatory statement is made to at least one third
person. (Cunningham v. Simpson (1969) 1 Cal.3d 301, 307.)
" 'The sine qua non of recovery for defamation . . . is the existence of a falsehood.'
[Citation.]" (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259 (Baker),
italics omitted.) As a result, truth is a defense to a libel action. (Campanelli v. Regents of
University of California (1996) 44 Cal.App.4th 572, 581–582.) "[T]he defendant need
not prove the literal truth of the allegedly libelous accusation, so long as the imputation is
substantially true so as to justify the 'gist or sting' of the remark. [Citation.]" (Ibid.)
Because "the issues in an anti-SLAPP motion are framed by the pleadings"
(Paulus, supra, 139 Cal.App.4th at p. 672), we look to the second amended complaint to
determine what activity on the part of the Project CBD defendants the plaintiffs have
alleged as forming the basis of their claim for libel. "The general rule is that the words
constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the
complaint." (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5 (Kahn), citing 5
Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 688, p. 140, des Granges v. Crall
(1915) 27 Cal.App. 313, 315, Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d
224, 235, and Okun v. Superior Court (1981) 29 Cal.3d 442, 458 (Okun).)
The plaintiffs allege, under the heading titled "FIRST CAUSE OF ACTION [¶]
(For Libel Against Defendants PROJECT CBD, CANTU, LEE and DOES 1 through 20,
inclusive)" (boldface & underscoring omitted), the following:
16
"58. Plaintiffs reallege and incorporate by this reference the
allegations contained in Paragraphs 1 through 57, above, as though
fully set forth herein.[9]
"59. Plaintiffs are informed and believe, and based thereon allege,
that on or about October 14, 2014, CANTU, by and through LEE
and PROJECT CBD, published the Hemp Oil Hustlers Article. That
article claimed the existence of evidence that RSHO was
contaminated with heavy metals and solvents without verifying the
accuracy of the testing results from Stewart. PROJECT CBD also
alleged that multiple people became ill after using RSHO due to
heavy metals and other toxins based on Cranford's opinion. LEE
wrote a forward for the Hemp Oil Hustlers Article, asserting
opinions and rumors as fact without proof or citation, and published
the article on the PROJECT CBD website. (See Exhibit 'M' attached
hereto, the full content of which is incorporated herein by this
reference.)" (Italics added.)
It is clear from the text of these special allegations that the only "words
constituting an alleged libel" (Kahn, supra, 232 Cal.App.3d at p. 1612, fn. 5) on which
9 The only paragraph in Paragraphs 1 through 57 in the second amended complaint
that sets forth any allegations regarding the purportedly "false" statements published by
the Project CBD defendants is paragraph 49, which is identical to paragraph 59 of the
complaint, and states:
"49. Plaintiffs are informed and believe, and based thereon allege,
that on or about October 14, 2014, CANTU, by and through LEE
and PROJECT CBD, published [the Hemp Oil Hustlers Article].
That article claimed the existence of evidence that RSHO was
contaminated with heavy metals and solvents without verifying the
accuracy of the testing results from Stewart. PROJECT CBD also
alleged that multiple people became ill after using RSHO due to
heavy metals and other toxins based on Cranford's opinion. LEE
wrote a forward for the Hemp Oil Hustlers Article, asserting
opinions and rumors as fact without proof or citation, and published
the article on the PROJECT CBD website. (See Exhibit 'M' attached
hereto, the full content of which is incorporated herein by this
reference.)"
17
the plaintiffs are relying are the following (in italics above): (1) that the "[Hemp Oil
Hustlers] article claimed the existence of evidence that RSHO was contaminated with
heavy metals and solvents without verifying the accuracy of the testing results from
Stewart" and (2) that the defendants "alleged that multiple people became ill after using
RSHO due to heavy metals and other toxins based on Cranford's opinion."10
The parties appear to agree that the plaintiffs' libel claims "aris[e] from" (§ 425.16,
subd. (b)(1)) the Project CBD defendant's protected speech, and that the first prong of the
anti-SLAPP statute is therefore met.
The burden thus shifted to the plaintiffs to demonstrate that "there is a probability
that [they] will prevail on the claim." (§ 425.16, subd. (b)(1); see Equilon Enterprises,
LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)
a. The claims relate back to the first amended complaint and thus are
not time-barred
As an initial matter, with respect to the plaintiffs' probability of prevailing, the
Project CBD defendants contend that the plaintiffs are unable to demonstrate a
probability of prevailing on their claims for libel11 because any such claims are time-
10 Although the second amended complaint also alleges that Lee, in particular,
"assert[ed] opinions and rumors as fact without proof or citation," this statement does not
specify which "opinions and rumors" Lee is alleged to have asserted that are purportedly
false. This statement thus does not sufficiently identify the "words constituting an
alleged libel" (Kahn, supra, 232 Cal.App.3d at p. 1612, fn. 5) committed by Lee.
11 Although the second amended complaint pleads a single "cause of action" for
libel, it is clear that there are—for purposes of section 425.15—at least two "causes of
action," or claims, for libel asserted in the complaint. In Baral, supra, 1 Cal.5th 376, the
California Supreme Court held that a "motion to strike" under section 425.16 "may be
18
barred. According to the Project CBD defendants, because libel and false light claims
have a one-year statute of limitations, and the alleged defamatory statements were
published in 2014, the plaintiffs were required to bring their claims for libel and false
light no later than October 14, 2015. The Project CBD defendants assert that the second
amended complaint was not filed on or before that date.
The plaintiffs contend that their claims for libel and false light should relate back
to the filing of the first amended complaint, which was filed prior to October 14, 2014.
A complaint must contain "[a] statement of the facts constituting the cause of
action, in ordinary and concise language." (§ 425.10, subd. (a)(1).) This fact-pleading
requirement obligates the plaintiff to allege ultimate facts that "as a whole apprise[ ] the
adversary of the factual basis of the claim. [Citations.]" (Estate of Archer (1987) 193
Cal.App.3d 238, 245.)
used to attack parts of a [single cause of action] as pleaded." (Baral, at pp. 381–382, 393,
384–396.) In defining a claim properly subject to a motion to strike, the Baral court
stated that the Legislature "had in mind allegations of protected activity that are asserted
as grounds for relief. The targeted claim must amount to a 'cause of action' in the sense
that it is alleged to justify a remedy." (Id. at p. 395, italics omitted.) "Neither the form of
the complaint nor the primary right at stake is determinative" of what constitutes such a
claim. (Ibid.) Here, each assertion of a defamatory statement represents a specific act
that could, on its own, give rise to a claim for relief. (See Shively v. Bozanich (2003) 31
Cal.4th 1230, 1242 [each publication of a defamatory statement gives rise to a new cause
of action].) One of the plaintiffs' claims for libel is that the Project CBD defendants
published a statement that "claimed the existence of evidence that RSHO was
contaminated with heavy metals and solvents without verifying the accuracy of the
testing results from Stewart," and the other claim for libel is that the Project CBD
defendants published a statement that "alleged that multiple people became ill after using
RSHO due to heavy metals and other toxins based on Cranford's opinion."
19
The requirement that the complaint allege ultimate facts forming the basis for the
plaintiff's cause of action is central to the relation-back doctrine and the determination
whether an amended complaint should be deemed filed as of the date of the original
pleading. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 [explaining role
of fact-pleading requirement in application of the relation-back doctrine].) An amended
complaint relates back to a timely filed original complaint, and thus avoids the bar of the
statute of limitations, only if it rests on the same general set of facts and refers to the
same " 'offending instrumentalities' " as the original complaint. (Barrington v. A. H.
Robins Co. (1985) 39 Cal.3d 146, 151; Austin v. Massachusetts Bonding & Ins. Co.
(1961) 56 Cal.2d 596, 600 ["where an amendment is sought after the statute of limitations
has run, the amended complaint will be deemed filed as of the date of the original
complaint provided recovery is sought in both pleadings on the same general set of facts"
(italics added)].)
The plaintiffs' claims for libel relate back to the first amended complaint because
even though the plaintiffs failed to sufficiently assert claims for libel or false light against
the Project CBD defendants in their first amended complaint, the plaintiffs nevertheless
did include in that pleading allegations of the "ultimate facts" (Estate of Archer, supra,
193 Cal.App.3d at p. 245) upon which they base their current libel and false light claims.
Specifically, the same factual allegations that are alleged in the second amended
complaint pertaining to the conduct on the part of the Project CBD defendants on which
the libel claims are based were alleged in the general factual allegations of the first
20
amended complaint. (See Medical Marijuana, supra, 6 Cal.App.5th at p. 617 [quoting
from first amended complaint where the following statements were made in the factual
allegations of the general allegations: "This article claimed to have evidence that RSHO
was contaminated with heavy metals and solvents without verifying the accuracy of the
results from Stewart Environmental. Project CBD also alleged that multiple people
became ill after using RSHO due to heavy metals and other toxins based on Cranford's
opinion"].) While these allegations were set forth in the general factual allegations of the
first amended complaint and were not in any of the enumerated claims, they were
sufficient to "apprise[ ]" the Project CBD defendants of "the factual basis of the claim[s]"
asserted in the second amended complaint." (Estate of Archer, supra, at p. 245.) We
therefore conclude that the relation-back doctrine applies, such that the Project CBD
defendants cannot rely on the statute of limitations to establish that the plaintiffs cannot
demonstrate a probability of prevailing.
b. The plaintiffs cannot demonstrate falsity with respect to the
statements identified in the second amended complaint, and they fail
to properly plead any other provably false statements
We conclude that the plaintiffs cannot demonstrate a probability of prevailing on
their libel claims because the plaintiffs have not demonstrated that they can establish that
the purportedly defamatory statements set forth in the libel cause of action are false.12
12 Where a case involves matters of public interest, the plaintiff, even a private figure
plaintiff, bears the burden of proving that the statements at issue are false. (Gallagher v.
Connell (2004) 123 Cal.App.4th 1260, 1274–1275.) "A review of the case law since
Philadelphia Newspapers, Inc. v. Hepps [(1986) 475 U.S. 767] reveals no precise
boundaries defining an issue of public importance." (Id. at p. 1275.) "It does appear,
21
As we have previously summarized, " ' "[t]he elements of a defamation claim are
(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage." ' [Citations.] 'In general, . . . a written
communication that is false, that is not protected by any privilege, and that exposes a
person to contempt or ridicule or certain other reputational injuries, constitutes libel.' "
(Jackson, supra, 10 Cal.App.5th at pp. 1259–1260.) A " 'provably false factual
assertion' . . . is indispensable to any claim for defamation." (Gilbert v. Sykes (2007) 147
Cal.App.4th 13, 32.) "The general rule is that the words constituting an alleged libel must
be specifically identified, if not pleaded verbatim, in the complaint." (Kahn, supra, 232
Cal.App.3d at p. 1612, fn. 5, italics added.)
In considering a claim for libel, a court examines the totality of the circumstances,
including the context in which the statement was made. (Baker, supra, 42 Cal.3d at pp.
260–261.) Thus, when analyzing whether a particular publication or statement is
defamatory, "[t]he publication in question may not be divided into segments and each
however, for a matter to be of public interest in the defamation context it must be of
concern to a large segment of the populace as opposed to a small fragment having a
special interest." (Id. at p. 1275.) It would seem that the efficacy and safety of a product
marketed and sold to the public does concern a matter of public interest. (See, e.g.,
Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 ["Consumer information . . . at least
when it affects a large number of persons, also generally is viewed as information
concerning a matter of public interest"]; Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th
1344, 1363 ["the public has a well-recognized interest in knowing about the quality and
contents of consumer goods"].) Indeed, the plaintiffs here appear to concede that this is
so, arguing at one point in their briefing that they "met [their] burden of presenting
evidence of falsity." (Boldface & some capitalization omitted.)
22
portion treated as a separate unit; it must be read as a whole in order to understand its
import and the effect that it was calculated to have on the reader, and construed in the
light of the whole scope and apparent object of the writer, considering not only the actual
language used, but the sense and meaning that may be fairly presumed to have been
conveyed to those who read it. [Citation.]" (Selleck v. Globe International, Inc. (1985)
166 Cal.App.3d 1123, 1131.) In addition, falsity cannot be shown if the statement at
issue appears substantially true: "To bar liability, ' "it is sufficient if the substance of the
charge be proved true, irrespective of slight inaccuracy in the details." [Citations.] . . .
[Citation.] . . . Minor inaccuracies do not amount to falsity so long as "the substance, the
gist, the sting, of the libelous charge be justified." [Citations.] Put another way, the
statement is not considered false unless it "would have a different effect on the mind of
the reader from that which the pleaded truth would have produced." [Citations.]'
[Citation.]" (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021 (Vogel), italics omitted.)
Starting as we must with the pleading, which provides the outer boundaries of the
issues that are to be addressed in an anti-SLAPP motion (see Paulus, supra, 139
Cal.App.4th at p. 672), we begin with the statement in the second amended complaint
that the Hemp Oil Hustlers Article "claimed the existence of evidence that RSHO was
contaminated with heavy metals and solvents without verifying the accuracy of the
testing results from Stewart." To the extent that the plaintiffs are alleging, in this
statement, that the Project CBD defendants published "evidence that RSHO was
contaminated with heavy metals and solvents without verifying the accuracy of the testing
23
results from Stewart" (italics added), this allegation does not constitute an allegation of
defamation. An allegation that someone published information without having first
verified its accuracy is insufficient, on its own, to allege that the person published a false
and defamatory statement about the plaintiff. Further, even assuming that the purportedly
false statement is that there is "evidence that RSHO was contaminated with heavy metals
and solvents," our review of the attached Hemp Oil Hustlers Article reveals no statement
"claim[ing] the existence of evidence that RSHO was contaminated with heavy metals
and solvents." However, the article does contain the following statements, which appear
to form the basis of the plaintiffs' contention with respect to this factual allegation related
to the Stewart Labs testing: "Most cannabis testing labs do not test for heavy metals, so
Cranford submitted the RSHO sample to Stewart Environmental Consultants in Fort
Collins. The initial results appeared to confirm what Cranford and Warrior had
suspected: The RSHO contained high levels of several heavy metals, including nickel,
selenium, molybdenum, arsenic, and silver."
As the plaintiffs acknowledge in the second amended complaint, there is evidence
that a sample presented to Stewart labs as being RSHO resulted in a preliminary report
reflecting what is reported in the Hemp Oil Hustlers Article. The Hemp Oil Hustlers
Article makes clear that it was Cranford who submitted the sample to Stewart Labs, and
the Article as a whole is clear in identifying Cranford as someone who was seeking to
discredit the RSHO product. Readers are thus free to question—as the plaintiffs appear
to do by alleging that the sample was only "purported" to be RSHO—whether the sample
24
provided to Stewart Labs by Cranford was actually RSHO, or whether, even if it was
RSHO, it may have been contaminated after production. The Article does not attempt to
state whether the findings by the lab were accurate; rather, the Article simply states,
accurately, what the initial Stewart Labs report indicated.
Further, the context of the Article as a whole makes clear that there were
contradictory lab results, some of which demonstrated the existence of problematic
ingredients, and some of which did not. Indeed, the Hemp Oil Hustlers Article is
completely up front about the fact that within days of releasing the initial test results,
Stewart Labs issued its final report with respect to the RSHO sample, in which it reported
that it had obtained results that contradicted its preliminary findings. In the paragraph
immediately following the paragraph discussing the "initial results" of the RSHO testing,
the Article states: "A few days later, Stewart Environmental Consultants issued a second
report that contradicted its earlier findings. Five numbers, all pertaining to heavy metal
toxins, were changed from unsafe to safe levels (see Appendix B)." The Hemp Oil
Hustlers Article thus does not state or imply that all RSHO contains heavy metals and
solvents. Rather, the Article states that one lab's testing produced contradictory results
with respect to the levels of heavy metals present in an RSHO sample. The article thus
acknowledges and addresses conflicting evidence regarding the RSHO testing, and in
doing so, truthfully and accurately reports the discrepancies in the test results and leaves
it to readers to determine for themselves what might have caused these discrepancies.
25
The plaintiffs do not argue on appeal (nor did they argue in the trial court) that the
statement in the Hemp Oil Hustlers Article regarding Stewart Labs's initial test results
demonstrating that the RSHO sample "contained high levels of several heavy metals,
including nickel, selenium, molybdenum, arsenic, and silver" is false. Nor do they
contend that there was no evidence "that RSHO was contaminated with heavy metals and
solvents" (the phrasing in the second amended complaint), such that a statement or
implication to the effect that there was "evidence that RSHO was contaminated with
heavy metals and solvents" could be demonstrated to be provably false. Indeed, they do
not contend that the initial test results from Stewart Labs were not as the Hemp Oil
Hustlers Article reports. Rather, their contention is that the initial lab results that Stewart
Labs reported to Cranford were inaccurate or wrong, and that the Hemp Oil Hustlers
article "claimed the existence of evidence that RSHO was contaminated with heavy
metals and solvents without verifying the accuracy of the testing results from Stewart."
However, as the plaintiffs appear to concede, Stewart Labs's report of its initial testing
results did state that RSHO was contaminated with heavy metals. The plaintiffs therefore
cannot demonstrate that a statement reporting the existence of these initial lab results is a
provably false statement.
The next statement that we consider is the plaintiffs' factual allegation that the
Hemp Oil Hustlers Article "alleged that multiple people became ill after using RSHO due
to heavy metals and other toxins based on Cranford's opinion." First, to the extent that
the plaintiffs are alleging that the Article reported that it was "Cranford's opinion" that
26
multiple people became ill after using RSHO, the plaintiffs have presented no evidence
that such a statement is false; there is no evidence that it is not Cranford's opinion that
more than one person became ill after taking RSHO.13 Further, to the extent that this
allegation may be broadly interpreted as alleging that the Project CBD defendants,
themselves, asserted that "multiple people became ill after using RSHO," the plaintiffs
have not demonstrated that they can establish that such an assertion is false.
Specifically, the Article does not state anything that can be understood as asserting
as fact that RSHO, in fact, caused multiple people to become ill. Rather, the Article is
clear that it is merely reporting what others have claimed regarding their experiences in
using RSHO. For example, the Article states that "Warrior [one of the original persons
who purportedly complained to Cranford] alleges that Real Scientific Hemp Oil . . .
sickened her girl." (Italics added.) The Article also states, "Several people, adults as well
as children, say they became ill after ingesting Real Scientific Hemp Oil. Others
maintain they've gotten positive results with RSHO. And some assert that the hemp oil
derivative didn't do much for them one way or another." (Italics added.) At another
point, the Article details claims made by "Brandon Krenzler," that "[a]lmost
immediatedly [after he gave his daughter some RSHO], she complained of severe
stomach cramps." Krenzler also told Cantu that "[o]ther people he'd sent samples to
13 The term "multiple" may refer to more than one. Indeed, the first definition
provided for the word "multiple" in Merriam-Webster's online dictionary is "consisting
of, including, or involving more than one. (
, viewed March 20, 2020.)
27
reported similar gut-wrenching reactions." (Italics added.) Cantu further reported that
Project CBD had sent to a laboratory for testing "a[n] RSHO Gold sample from a Crohn's
patient who said that she and a friend both became 'violently ill' after they ingested the
oil." (Italics added.) In response to this reporting, the plaintiffs did not refute or deny
that any of these individuals had, in fact, made these claims about their own subjective
experiences after using RSHO. Rather, the "evidence" on which the plaintiffs rely in
contending that an assertion that "multiple people became ill after using RSHO" is false
is the declaration of Stuart W. Titus, who identifies himself as "the President of Medical
Marijuana, Inc." In his declaration, Titus states:
"3. The ProjectCBD report states that 'several' people have gotten
sick from RSHO. This is a false statement. I am unaware of any
persons ever getting sick from Medical Marijuana, Inc.'s RSHO
product.
"4. Only the two persons identified in the ProjectCBD report have
ever presented as being 'sick' from RSHO. No other 'several'
persons have ever been identified and I do not know what other
'persons' the article is referring to."
These statements do not demonstrate, or even suggest, that Cantu fabricated the
existence of the sources cited in the Article or that he fabricated or falsified what the
sources actually told him. Indeed, these statements do not even manage to undermine the
veracity of the underlying claims in the sources' statements; the mere fact that the
President of MMI is "unaware of any persons ever getting sick from" RSHO is
insufficient to establish that no one has ever gotten sick as a result of ingesting RSHO.
Further, this statement appears to concede the existence of at least two individuals who
28
"presented as being 'sick' from RSHO"; two persons is sufficient to support the Article's
reporting that "multiple" people have reported becoming ill after using RSHO.
In fact, rather than specifically stating how they can demonstrate that either of the
alleged defamatory statements is false, in briefing on appeal the plaintiffs instead refer to
multiple other statements in the Hemp Oil Hustlers Article—statements that plaintiffs
neither identify nor refer to in the second amended complaint—to demonstrate on appeal
that they have "[m]et [their] [b]urden of [p]resenting [e]vidence of [f]alsity." (Boldface
omitted.) What the plaintiffs fail to recognize is that their burden is not merely to claim
that there exist some false statement in an article identified by the operative pleading, but
rather, to demonstrate the falsity of specific statements from the article that are identified
as defamatory in the plaintiffs' operative pleading.14 In fact, in a subheading titled
"False Statements in the Report" (boldface omitted), in the portion of the plaintiffs' brief
that purports to set forth the factual background of this action, the plaintiffs include a
table "summariz[ing]" 19 purportedly "false statements and inaccuracies" in the Hemp
Oil Hustlers Article.15 None of these 19 statements is quoted, identified, mentioned or
otherwise referenced in any way in the second amended complaint.
14 These statements are not even highlighted, underlined, or otherwise identified as
being the basis for a claim for libel in the copy of the Article that is attached as an exhibit
to the second amended complaint.
15 The table includes quotations of portions of the Article, together with the evidence
that the plaintiffs assert demonstrates the falsity of the quoted statements.
29
We reiterate that the pleading itself provides the outer boundaries of the issues that
are to be addressed in an anti-SLAPP motion. (See Paulus, supra, 139 Cal.App.4th at p.
672.) Because "[t]he general rule is that the words constituting an alleged libel must be
specifically identified, if not pleaded verbatim, in the complaint" (Kahn, supra, 232
Cal.App.3d at p. 1612, fn. 5, italics added), a court need not consider assertions of
defamatory statements that are not alleged in the complaint (see Vogel, supra, 127
Cal.App.4th at p. 1017, fn. 3 [A court would be "justified in disregarding any evidence or
argument concerning statements not explicitly set forth in the complaint"]).
In response to the Project CBD defendants' contention that the pleading sets forth,
at most, two potentially actionable assertions of defamatory statements (the two
statements identified above, from paragraph 59 of the second amended complaint), the
plaintiffs argue that they need not plead the falsehoods underlying their libel claims
"verbatim," but instead, that "a pleading is sufficient if it alleges the substance of the
defamatory statement." In support of this assertion, the plaintiffs quote the following
language from Okun, supra, 29 Cal.3d at p. 458: "Less particularity is required when it
appears that defendant has superior knowledge of the facts, so long as the pleading gives
notice of the issues sufficient to enable preparation of a defense. [Citations.] Nor is the
allegation defective for failure to state the exact words of the alleged slander."
The plaintiffs' position is problematic, at best. First, Okun is inapposite. The
Okun court was describing the pleading requirements for a claim for slander, not libel.
"Slander is a false and unprivileged publication, orally uttered, and also communications
30
by radio or any mechanical or other means." (Civ. Code, § 46.) "Libel is a false and
unprivileged publication by writing, printing, picture, effigy, or other fixed representation
to the eye . . . ." (Id., § 45.) Case law requires that statements alleged to constitute libel
"must be specifically identified, if not pleaded verbatim, in the complaint" (Gilbert v.
Sykes (2007) 147 Cal.App.4th 13, 31; Vogel, supra, 127 Cal.App.4th at p. 1017, fn. 3;
Kahn, supra, 232 Cal.App.3d at p. 1612, fn. 5); less specificity is required in the pleading
of slander, given that slander may "be charged by alleging the substance of the
defamatory statement" (Okun, supra, 29 Cal.3d at p. 458, italics added). The quotation
that the plaintiffs have provided from Okun helps explain why this is so; where the
defendant may have superior knowledge of the precise words that were actually stated
and on which a plaintiff is basing his or her claim, it makes sense to give the plaintiff
more leeway to allege the "substance" of the perceived wrong. "It is obvious that a
plaintiff, attempting to plead and prove an alleged slander which occurred when he was
not present, has a far more difficult task than when the defamation alleged is written,
where it may be seen. As we have previously pointed out, there is no requirement that, in
slander, the pleading and [ultimate] proof must be identical in order for a plaintiff to
recover." (Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832–833, italics altered.)
However, even for purposes of slander, "the disparagement set forth in the complaint
must be sufficiently close to the actual words proved to acquaint a defendant with what
he must defend against." (Ibid.) (Italics added.)
31
Here, the plaintiffs have a written copy of the article published by the defendants;
there is simply no justification for them to set forth in their complaint only the
"substance" of the statements that they claim are defamatory, instead of the actual
statements that they assert are false and defamatory.
Second, even if plaintiffs were correct, other than the two "statements" that we
have addressed, plaintiffs do not even allege in the second amended complaint the
purported "substance" of any of the other purportedly false statements that they
enumerate in the table set forth in their brief on appeal. Thus, even if we were to apply
the pleading standard to which the plaintiffs suggest they should be held—i.e., the
pleading standard for slander—the plaintiffs have failed to meet even that standard with
respect to the additional false statements on which they attempt to rely in demonstrating
the existence of "falsity" on appeal that do not relate to the two "statements" alleged in
the second amended complaint.16
We unequivocally reject the plaintiffs' suggestion that "[i]t was . . . unnecessary to
recite each challenged statement in the pleading because the entire [Article] was attached
to the second amended complaint." Specifically, we reject the idea that asserting that a
16 To the extent that the statements that the plaintiffs refer to in their table of
purportedly "false statements" go to the question of whether the Project CBD defendants
"claimed the existence of evidence that RSHO was contaminated with heavy metals and
solvents without verifying the accuracy of the testing results from Stewart" or "alleged
that multiple people became ill after using RSHO due to heavy metals and other toxins
based on Cranford's opinion," we have considered those statements in our discussion of
these allegations.
32
25-plus page article contains false statements and merely attaching a copy of the entire
article to the complaint—without identifying the specific matter that is purportedly
false—is sufficient to put a defendant (or a court, for that matter) on notice of the conduct
or statement that is alleged to form the basis for an actionable claim for defamation. In
justifying their use of this tactic, the plaintiffs note, that "the complaint should set the
matter out verbatim, either in the body or as an attached exhibit," (5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 739, p. 159, italics added), thus suggesting that
attaching an article that is alleged to contain defamatory statements to a complaint
constitutes setting the matter out verbatim. However, the requirement that the alleged
defamatory statement be set out verbatim does not permit a plaintiff to attach an entire
multi-page article to a complaint without identifying the specific defamatory matter on
which the plaintiff is relying and expect the defendants (and the court) to ferret out the
purportedly false statements with no guidance whatsoever from the plaintiff. The
plaintiffs clearly are not contending that every statement in the Hemp Oil Hustlers Article
is false and defamatory. Attaching the entire Article to the operative complaint, without
identifying which statements in the Article form the basis of their libel claims, is clearly
insufficient.
The plaintiffs accuse the Project CBD defendants of "seek[ing] to avoid
liability . . . by reframing the nature of MMI's claim." We reject this accusation, given
that the "nature of MMI's claim" is determined by the allegations of the pleading,
allegations that very clearly do not include any of the false statements upon which the
33
plaintiffs rely in asserting that they can establish a cause of action for libel. In sum, the
plaintiffs, themselves, controlled the framing of their cause of action for libel, and they
failed to identify any of the statements on which they rely on appeal to establish that the
Project CBD defendants published "false" statements about them. We reject the
plaintiffs' contention that they demonstrated a probability of prevailing based on
purportedly false statements that are not mentioned or even alluded to in the second
amended complaint. We therefore conclude that the plaintiffs have not demonstrated a
probability of prevailing on their claim for libel.
2. The plaintiffs have failed to demonstrate a probability of prevailing on their
causes of action for false light and violations of Business and Professions
Code section 17200
"A 'false light' claim, like libel, exposes a person to hatred, contempt, ridicule, or
obloquy and assumes the audience will recognize it as such." (M. G. v. Time Warner,
Inc. (2001) 89 Cal.App.4th 623, 636.) "A 'false light' cause of action is in substance
equivalent to a libel claim, and should meet the same requirements of the libel claim,
including proof of malice [when required]." (Aisenson v. American Broadcasting Co.
(1990) 220 Cal.App.3d 146, 161.) The plaintiffs acknowledge that their claims for false
light are "subsumed" in the analysis of their libel claims. Indeed, neither party provides
separate argument with respect to the false light cause of action, and both appear to
concede that our determination with respect to the libel claims will determine the
outcome of the anti-SLAPP analysis with respect to any false light claims, as well. Given
that the plaintiffs rely on the same alleged conduct on the part of the Project CBD
34
defendants as the basis for their libel, false light, and unfair competition claims, we
conclude that their false light and unfair competition claims suffer the same fate as their
libel claims. (See Jackson, supra, 10 Cal.App.5th at p. 1264 [" '[w]hen a false light claim
is coupled with a defamation claim, the false light claim is essentially superfluous, and
stands or falls on whether it meets the same requirements as the defamation cause of
action' "].)
Business and Professions Code section 17200 "prohibits unfair competition,
including unlawful, unfair, and fraudulent business acts. The UCL [unfair competition
law] covers a wide range of conduct. It embraces ' " ' "anything that can properly be
called a business practice and that at the same time is forbidden by law." ' " [Citations.]'
[Citation.] . . . [¶] [Business and Professions Code] section 17200 'borrows' violations
from other laws by making them independently actionable as unfair competitive
practices. [Citation.]" (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1143.) However, "a practice may violate the UCL even if it is not prohibited by
another statute. Unfair and fraudulent practices are alternate grounds for relief.
[Citation.]" (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.)
With respect to the plaintiffs' claim under the UCL, the conduct on the part of the
Project CBD defendants that the plaintiffs identify is the following: "Plaintiffs are
informed and believe, and based thereon allege, that said Defendants' publication and
republication of the Hemp Oil Hustlers Article has caused, and will continue to cause,
confusion, mistake, and deception, in that those actions have caused, and will continue to
35
cause, customers, potential customers, and the public to believe that Plaintiffs are
companies which supply a dangerous product, RSHO, that contains high heavy metal
concentrations and bleach, and as companies that misrepresent the nature of their
product." Immediately following this allegation, the plaintiffs refer to the "false and
defamatory statements as alleged herein." On appeal, the plaintiffs appear to suggest that
their UCL claim stands on its own, without reference to the allegations in the pleaded
cause of action for libel. However, in the trial court, the plaintiffs conceded that their
UCL claim "is derivative of [the plaintiffs'] defamation and false light causes of action;
that is, it is based on the same false and defamatory statements in the Article," and that
the UCL "cause of action must therefore stand or fall with the underlying claims." Given
that there is no further indication in the second amended complaint as to what conduct or
statements on the part of the Project CBD defendants, other than the statements identified
in the pleaded cause of action for libel, plaintiffs rely on for their UCL cause of action,
we agree that plaintiffs' UCL cause of action "must . . . stand or fall with the underlying
claims" for libel and false light. (See Hawran v. Hixson (2012) 209 Cal.App.4th 256,
277 [where a plaintiff's "UCL claim is derivative of [the plaintiff's] defamation cause of
action, that is, it is based on the same assertedly false and defamatory press release
statements, . . . that cause of action stands or falls with that underlying claim"].) We
therefore conclude that the trial court erred in denying the Project CBD defendants' antiSLAPP motion to strike the causes of action stated for false light and unfair competition.
36
3. Plaintiffs may not amend their complaint
The plaintiffs contend that if this court concludes that the Project CBD defendants'
anti-SLAPP motion should have been granted due to defects in the operative complaint,
then they should be permitted to amend the complaint under the authority of Nguyen-Lam
v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam). The Project CBD defendants counter
that, pursuant to Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073
(Simmons), the general rule disallowing amendment after a defendant has made a prima
facie showing that the allegations of the complaint are protected by the anti-SLAPP
statute should apply because here, unlike in Nguyen-Lam, the problems with the
plaintiffs' pleading are not "minor 'pleading technicalit[ies].' " Instead, an amended
complaint would require "yet another Special Motion to Strike under 425.16, and,
contrary to the prohibitions outlined in Simmons, the vicious cycle of using litigation to
chill [the Project CBD defendants'] protected speech would continue." (Italics altered.)
We conclude that the Project CBD defendants' argument is the better one under the
circumstances.
"[S]ection 425.16 provides no mechanism for granting anti-SLAPP motions with
leave to amend." (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611,
629, italics omitted.) Courts have routinely concluded that plaintiffs may not be
permitted to evade the intent of the anti-SLAPP statute by amendment once faced with an
anti-SLAPP motion. (See, e.g., Simmons, supra, 92 Cal.App.4th 1068; Jackson, supra,
10 Cal.App.5th at pp. 1263–1264; Contreras v. Dowling (2016) 5 Cal.App.5th 394, 411
37
[" '[a] plaintiff . . . may not seek to subvert or avoid a ruling on an anti-SLAPP motion by
amending the challenged complaint . . . in response to the motion' "]; Hansen v.
Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1547 ["A
plaintiff cannot avoid [an anti-]SLAPP motion by amending the complaint"]; Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.)
One of the reasons that a plaintiff is not permitted to amend in the face of an anti-SLAPP
motion, and particularly after obtaining a ruling on an anti-SLAPP motion, is to prevent a
lawsuit from becoming a moving target and thereby undermining the very purpose of the
statute, as the court in Simmons explained:
"Allowing a SLAPP plaintiff leave to amend the complaint once the
court finds the prima facie showing has been met would completely
undermine the statute by providing the pleader a ready escape from
section 425.16's quick dismissal remedy. Instead of having to show
a probability of success on the merits, the SLAPP plaintiff would be
able to go back to the drawing board with a second opportunity to
disguise the vexatious nature of the suit through more artful
pleading. This would trigger a second round of pleadings, a fresh
motion to strike, and inevitably another request for leave to amend.
[¶] By the time the moving party would be able to dig out of this
procedural quagmire, the SLAPP plaintiff will have succeeded in his
goal of delay and distraction and running up the costs of his
opponent. [Citation.] Such a plaintiff would accomplish indirectly
what could not be accomplished directly, i.e., depleting the
defendant's energy and draining his or her resources. [Citation.]
This would totally frustrate the Legislature's objective of providing a
quick and inexpensive method of unmasking and dismissing such
suits. [Citation.]" (Simmons, supra, at pp. 1073–1074.)
Nguyen-Lam, supra, 171 Cal.App.4th 858, cited by the plaintiffs, appears to
present the sole exception to this otherwise broadly accepted rule. The Nguyen-Lam
court was reviewing a ruling by the trial court granting a defendant's anti-SLAPP motion,
38
but also granting the plaintiff an opportunity to amend her complaint to correct a possible
deficiency in her pleading; the plaintiff's complaint for defamation was ambiguous as to
whether the plaintiff had properly alleged actual malice. (Id. at pp. 868, 869–870.)17
Apparently failing to appreciate that her role as a potential school superintendent
rendered her a public figure,18 the plaintiff had failed to clearly plead actual malice.
(Ibid.) However, as the trial court determined, and the appellate court agreed, the
evidence submitted in connection with the motion to strike was sufficient to demonstrate
that the defendant had acted with actual malice in making provably false oral statements
about the plaintiff. (Ibid.)
In deciding whether to affirm the trial court's order permitting the plaintiff to
amend her complaint to adequately allege that the defendant had acted with malice, the
Nguyen-Lam court distinguished Simmons and noted that unlike the Simmons plaintiff,
the Nguyen-Lam plaintiff's proposed amendment before the trial court would not "attempt
to void [the] defendant's showing on the first prong of the anti-SLAPP inquiry."
(Nguyen-Lam, supra, 171 Cal.App.4th at p. 870.) The Nguyen-Lam court further
17 The Nguyen-Lam court determined that it "need not resolve whether plaintiff
adequately alleged actual malice in her original complaint," given that "facts probative of
actual malice emerged through the evidence the parties submitted for the hearing on the
strike motion." (Nguyen-Lam, supra, 171 Cal.App.4th at pp. 868, 869–870.)
18 "[W]hen the plaintiff is a public figure, he or she 'must also show the speaker
made the objectionable statements with malice in its constitutional sense " 'that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.' "
[Citation.]' [Citation.]" (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1048.)
39
explained that its decision was also based on the fact that the "plaintiff's amendment had
nothing to do with [the] defendant's assertion his statements were made in connection
with his right of petition or free speech. Rather, assuming that showing had been made,
and in conjunction with her burden on the second prong to show a probability of
prevailing on the merits, [the] plaintiff sought to amend the complaint to plead
specifically that [the] defendant harbored the requisite actual malice as shown by the
evidence presented for the hearing on the strike motion." (Id. at pp. 870–871.)
The Nguyen-Lam court determined that because the plaintiff had demonstrated a
probability of prevailing at trial if she could amend her complaint to include malice,
" '[d]isallowing an amendment would permit [the] defendant to gain an undeserved
victory, undeserved because it was not what the Legislature intended when it enacted the
anti-SLAPP statute.' " (Nguyen-Lam, supra, 171 Cal.App.4th at p. 873.) The court
concluded that when "the strike opponent has demonstrated the requisite probability of
success in showing such malice, as here, her complaint falls outside the purpose of the
anti-SLAPP statute—indeed, it is not a SLAPP suit at all. Simply put, the Legislature did
not intend to shield statements shown to be malicious with an unwritten bar on
amendment in the circumstances here. Consequently, the trial court did not err in
permitting [the] plaintiff to amend her complaint to plead actual malice in conformity
with the proof presented at the hearing on the strike motion." (Ibid.)
Assuming that Nguyen-Lam was correctly decided, the unique exception
articulated in Nguyen-Lam is inapplicable here. The Nguyen-Lam plaintiff sought to
40
amend her complaint to plead a necessary element (malice) of a claim for which the
defendant's protected activity had already been sufficiently pleaded (defamation).
(Nguyen-Lam, supra, 171 Cal.App.4th at p. 862.) Thus, the plaintiff was not seeking to
amend the "allegations of protected activity that are asserted as grounds for relief" (Baral,
supra, 1 Cal.5th at p. 395, italics omitted) in the face of the anti-SLAPP ruling, but rather,
was seeking to amend to further allege the legal elements necessary for relief to be
granted based on the same activity that was already alleged in the deficient complaint.
Thus, in Nguyen-Lam, the proposed amendment to the complaint would not trigger a new
anti-SLAPP motion, since the trial court had already determined that the conduct alleged
in the first pleading, which would be the same in any amended pleading, was protected
under the anti-SLAPP motion (prong one) and that the plaintiff had demonstrated a
probability of prevailing on all necessary elements (prong two), including the element of
malice.19
The plaintiffs indicate that they would amend to assert that other statements made
in the Hemp Oil Hustlers Article—statements that are not identified or referred to in the
second amended complaint—are false and defamatory. The plaintiffs would thus be
19 The Nguyen-Lam court noted that the defendant had "admitted in his first
declaration [that] he had never met plaintiff and knew of her only through media reports,"
and there was nothing in those reports that suggested that the plaintiff was a
"communist." (Nguyen-Lam, supra, 171 Cal.App.4th at p. 869.) The appellate court
concluded that "because defendant had no basis for his claim plaintiff was a Communist,
a jury could reasonably determine he lied in leveling the charge against her and,
moreover, could infer malice from the lie." (Ibid.)
41
asserting entirely new causes of action for defamation, based on conduct different from
that alleged in the second amended complaint. Such an amendment would implicate the
precise concerns articulated by the Simmons court as counseling against permitting
amendment in the face of an adverse anti-SLAPP ruling, in that it would trigger "a fresh
motion to strike," and would allow "a plaintiff [to] accomplish indirectly what could not
be accomplished directly, i.e., depleting the defendant's energy and draining his or her
resources," which would, in turn, "totally frustrate the Legislature's objective of providing
a quick and inexpensive method of unmasking and dismissing such suits." (Simmons,
supra, 92 Cal.App.4th at pp. 1073–1074.)
We conclude that it would not be appropriate to permit plaintiffs to amend their
complaint to plead entirely new causes of action, particularly when there was nothing
prohibiting the plaintiffs from pleading claims based on the purportedly defamatory
unpled statements at the outset of this action. (See Navellier v. Sletten (2003) 106
Cal.App.4th 763, 772 [plaintiff's should not be permitted to plead new cause of action for
malicious prosecution when nothing prohibited plaintiff's from timely alleging the cause
of action before].) As we have explained, to allow the plaintiffs to amend again would
serve only to create the procedural quagmire discussed in Simmons as being antithetical
to the purpose of the anti-SLAPP statute. Such a result is simply not justified under the
circumstances of this case. We therefore conclude that the plaintiffs may not amend to
attempt yet again to adequately plead new claims for libel against the Project CBD
defendants based on purportedly false statements in the Hemp Oil Hustlers Article.
Outcome: The order of the trial court is reversed. On remand, the trial court is directed to enter an order granting the Project CBD defendants' anti-SLAPP motion in its entirety. The Project CBD defendants are entitled to costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: