In cases involving defamation arising from a critical consumer review, Plaintiff’s lawyers often make the mistake of including a claim for unfair business practices (“UCL”) in their client’s complaint. This is often unnecessary because the claim for defamation is sufficient by itself in most cases. All it does is create a larger attack surface for an experienced defamation defense attorney. This is because UCL claims that arise from consumer reviews are often non-commercial speech. And the First Amendment fully protects the publication of consumer reviews, which are noncommercial speech. Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 343 (“Noncommercial speech is entitled to full First Amendment protection and is thus not actionable under Business & Professions Code §§ 17200 and 17500.”).
In Bernardo, an anti-SLAPP case, plaintiff brought suit for injunctive relief under the UCL alleging that Planned Parenthood’s Internet websites contained “unlawful, unfair, confusing, and misleading statements/advertisements.” The court held that plaintiff failed to show a probability of prevailing on her claim that Planned Parenthood’s speech concerning the safety of abortion constituted commercial speech that was actionable under the UCL. Specifically, the court ruled that plaintiff failed to show (1) that Planned Parenthood’s website statements constituted representations of fact of a commercial nature, or (2) that the intended audience of the speech was ‘“likely to be actual or potential buyers or customers’” of defendants’ health services. Bernardo, at 348-49. In most cases I see, Plaintiff cannot show that the challenged review(s) constitute commercial speech. See United States v. United Foods (2001) 533 U.S. 405, 409 (“commercial speech, [is] usually defined as speech that does no more than propose a commercial transaction”). Additionally, section 17204 of the UCL requires a plaintiff to have “lost money or property as a result of the unfair competition” to have standing to seek relief. However, plaintiffs rarely are able to produce competent and admissible evidence that they have lost money as a result of any of the reviewer’s alleged conduct. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 (holding plaintiff must produce competent and admissible evidence in order to satisfy second prong burden). Consequently, in these kinds of cases claims under the UCL are often subject to an anti-SLAPP motion, which, if successful, mandates the award of attorney’s fees.
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