The trial court erred in failing to grant defendants’ Anti-SLAPP motion to strike plaintiff’s claims under the UCL and CLRA based on defendants’ allegedly false statements in releases or other statements and advertisements that Michael Jackson was the lead artist on all tracks in a posthumous CD. CCP 425.17(d)(2) exempts creation or advertisement of dramatic, literary, musical, political or artistic work from CCP 425.17(c)’s commercial speech carve-out from the protections of the Anti-SLAPP statute, CCP 425.16. However, this decision holds that proving the statement falls within the (d)(2) exemption doesn’t mean it is automatically protected by 425.16(e). The statement must still be about a matter of public interest or concern to be protected. Here, defendants’ statements met that standard because who was the lead singer on three tracks had become an issue of public debate. Also, the plaintiff couldn’t show a probability of success since the First Amendment protected defendants’ speech. Though made by a seller to a buyer, the statements were about a disputed issue on which the seller had no better knowledge than others, and it was an issue of public and historical concern. To have required the seller to warn of disagreement on the subject would have been to force the seller to say what it didn’t believe.
California Court of Appeal, Second District, Division 2 (Lui, P.J.); August 28, 2018 (modified upon denial of rehearing September 13, 2018); 26 Cal. App. 5th 759