In Demetriades v. Yelp, Inc., ___ Cal.App.4th ___ (Jun. 24, 2014), the Court of Appeal (Second Appellate District, Division One) reversed the judgment that ensued after the trial court granted defendant Yelp, Inc.'s anti-SLAPP motion.
The Court of Appeal held that the plaintiff's UCL "fraudulent" prong claim and his FAL false advertising claim fell outside the scope of the anti-SLAPP statute:
We conclude that the commercial speech exemption of section 425.17, subdivision (c) applies to Yelp’s statements concerning the accuracy and efficacy of its review filter, and therefore find the trial court erred in granting Yelp’s special motion to strike under section 425.16. We reverse.
The legislative history indicates this legislation [i.e., the anti-SLAPP statute's commercial speech exemption (Code Civ. Proc. § 425.17, subd. (c)] is aimed squarely at false advertising claims and is designed to permit them to proceed without having to undergo scrutiny under the anti-SLAPP statute. Proponents of the legislation argued that corporations were improperly using the anti-SLAPP statute to burden plaintiffs who were pursuing unfair competition or false advertising claims. The proponents noted that law seminars were being conducted on the unfair competition law, “encouraging corporations to use the SLAPP motions as [a] new litigation weapon to slow down and perhaps even get out of litigation.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 515 (2003–2004 Reg. Sess.) as amended Jul. 8, 2003; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003–2004 Reg. Sess.) as amended May 1, 2003.)
Here, plaintiff’s claims satisfy both prongs of section 425.17, subdivision (c). Although Yelp’s website is a public forum and contains matters of public concern in its reviews of restaurants and other businesses (Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, 404), unlike the editorial content of Stewart v. Rolling Stone LLC, supra,181 Cal.App.4th 664, Yelp’s statements about its review filter—as opposed to the content of the reviews themselves—are commercial speech about the quality of its product (the reliability of its review filter) intended to reach third parties to induce them to engage in a commercial transaction (patronizing Yelp’s website, which patronage induces businesses on Yelp to purchase advertising).
Slip op. at 2, 15, 17.