California Supreme Court Watch

#20-110 Serova v. Sony Music Entertainment, S260736. (B280526; 44 Cal.App.5th 103; Los Angeles County Superior Court; BC548468.)  Petition for review after the Court of Appeal affirmed in part and reversed in part an order granting in part and denying in part a special motion to strike in a civil action. This case presents the following issues: (1) Do representations a seller made about a creative product on the product packaging and in advertisements during an ongoing controversy constitute speech in connection with an issue of public interest within the meaning of the anti-SLAPP statute (Code of Civ. Proc., § 425.16)? (2) For purposes of liability under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.), do the seller’s marketing representations constitute commercial speech, and does it matter if the seller lacked personal knowledge that the representations were false? (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939.)

Review granted: 4/22/2020

Case fully briefed: 11/12/2020

Cause argued and submitted: 5/24/2022

Notice of Settlement: 8/10/2022

Opinion filed: Judgment reversed: 8/18/2022

See the California Court of Appeal Opinion.

See the Petition for Review.

See the Oral Argument.

See the California Supreme Court Opinion.  (Serova v. Sony Music Entertainment et al. (2022) 13 Cal.5th 859.)

“The Court of Appeal concluded the motion to strike [under California’s anti-SLAPP statute], should be granted, reasoning the First Amendment shields album marketers [who marketed Michael, an album of music billed as Michael Jackson’s first posthumous release] from liability….  The album marketers’ statements were, in the [Court of Appeal]’s view, noncommercial, because they ‘were directly connected to music that itself enjoyed full protection under the First Amendment’ and ‘concerned a publicly disputed issue about which [the speaker] had no personal knowledge.’  [Citation.]  We disagree and reverse.”

“The album-back statement and video were commercial advertising meant to sell a product, and generally there ‘can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public.’ (Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980) 447 U.S. 557, 563 (Central Hudson).)  We recognize artistic works such as albums, in some instances, enjoy robust First Amendment protections, but that does not turn all marketing of such works into noncommercial speech, and it does not do so in this case.  Additionally, a seller’s purported lack of knowledge of falsity does not tell us whether that seller’s speech is commercial or noncommercial, and commercial speech does not shed its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify.  The First Amendment has long coexisted with no-fault false advertising laws.'”

“After full briefing from the parties and amici curiae, and after oral argument in this court, Sony informed us that the parties ‘reached an agreement to settle the case independent of the outcome of the opinion from this Court, subject to the superior court’s approval of the dismissal of the action pursuant to California Rules of Court 3.770,’ governing dismissals of class actions.  Serova responded, asking us to decide this matter because the settlement is not yet approved and because of the importance of the issues.  Whether or not the yet-to-be-approved settlement moots the parties’ dispute, we render this opinion ‘[i]n light of the important issues presented.’ (Berroteran v. Superior Court (2022) 12 Cal.5th 867, 877; see State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 62.)”

Justice Jenkins authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Kruger, Groban, and Guerrero concurred.