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Stewart v. Rolling Stone LLC

January 28, 2010


Trial Court: Alameda County Superior Court (Alameda County Super. Ct. No. RG07-361627) Trial Judge: Hon. Bonnie Sabraw.

The opinion of the court was delivered by: Dondero, J.


Defendants Rolling Stone LLC and Wenner Media LLC appeal from an order denying their special motion to strike a class action complaint under Code of Civil Procedure section 425.16 (hereafter section 425.16).*fn1 Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as "SLAPP" suits (strategic lawsuits against public participation). Defendants contend the trial court erred in concluding that a triable issue exists as to whether the editorial feature that is the subject of this litigation constitutes commercial speech. They also claim the plaintiffs have failed to present evidence sufficient to establish that they have a probability of prevailing on the merits. We agree and reverse.


Defendants are the publishers of Rolling Stone magazine. The named plaintiffs in this class action lawsuit are "indie rock" musicians whose band names are included with the names of over 100 other bands in an editorial feature entitled "Indie Rock Universe" (the Feature) that appeared in the November 15, 2007 issue of Rolling Stone.*fn2 The named plaintiffs are musicians James Stewart, Devin Hoff, and Caralee McElroy of the band "Xiu Xiu," along with Michael Haliechuk, Damian Abraham, and Sandy Miranda of the band "Fucked Up" (altered in the complaint to appear as "F****d Up"). They purport to represent "a defined class of some 186 independent music performers" whose names appear in the Feature.

The Feature consists primarily of a four-page foldout described by the parties as a "butterfly gatefold." The layout is explained by defendants as follows: "Typically, a gatefold consists of four advertising pages and five editorial pages laid out as follows: the first page of the editorial feature runs as a traditional page of editorial copy on a right-hand page, with an ad on the left-hand page. The first editorial page usually has a notation at the bottom corner that there is a `special foldout inside.' When the page is turned, two pages of advertising appear as a `gate,' and these two pages can be opened like French doors. When opened, the two advertising pages end up on the back of the four page continuation of the editorial feature and are no longer visible when one is reading and viewing the editorial feature."

The Feature is listed along with two other similar entries in the magazine's table of contents under the heading "Special Foldout Sections."*fn3 The table of contents identifies the Feature as beginning on page 65. The Feature consists of five pages. Each page contains hand-drawn cartoon-like illustrations accompanied by both handwritten and typeset text. The first page, which is on the right- hand side of the magazine at page 65, reveals an image resembling a well-used spiral notebook, complete with doodles, resting on what appears to be a wooden desk top. The title "Indie Rock Universe" appears on the notebook's cover in large hand-written block capital letters. Below this title, the cover states: "an alternate dimension where everyone wears black Converse." Just below the notebook, the lower right-hand corner of the page states: "SPECIAL FOLDOUT INSIDE >>>." In a smaller font size, the lower left-hand corner states: "ILLUSTRATIONS BY BENJAMIN MARRA." It appears Benjamin Marra only did the illustrating for the article and was not involved with the advertising pages in dispute.

The opposite page, on the magazine's left-hand side, contains a full-page advertisement for Camel cigarettes.*fn4 The background of the ad is a photograph of a flat grassy field with a stylized blue sky, upon which is centered a collage of photographs. At the center of the collage is the upper body of a woman with a tattooed arm and a pink streak in her hair, wearing a plain, black top. The woman is writing with a pen on a small lined notepad. She is surrounded by images of pink flowers, an audio speaker, an old-fashioned Victrola record player, and a few small birds. A hand appears from behind a group of flowers on the right side of the collage, its index finger pointed to the right. A small bird is perched on this finger. Above the collage is the arched "CAMEL" logo in large letters. Beneath the collage is a ribbon-like banner with the words "WELCOME TO THE FARM." The surgeon general's warning appears in a rectangular box in the lower left corner. In the right corner, the following language appears: "*Website restricted to legal age tobacco consumers. Events age restricted, ID required. Talent, locations and details subject to change. 16 mg. `tar', 1.3 mg. nicotine av. per cigarette by FTC method. Actual amount may vary depending on how you smoke. For T&N info, please visit"

When the first page of the Feature (p. 65) is turned, the Camel ad continues on both sides of the "gate," appearing as a two-page spread. The ad's rural background and collage design theme continues. Imposed over the grassy landscape on the lower portion of both pages are overlapping images of a woman in a straw hat driving an old tractor with film reels for wheels, a Victrola, farm animals, flowers, birds, a floating radio with a propeller, and a disembodied hand that emerges from a small framed mirror being carried by a flying bald eagle, along with a television, radios, and audio speakers placed on stems that appear to be growing from the ground. The upper left corner of the left-hand page contains a smaller version of the "CAMEL" lettering. Below that word is a logo consisting of the words "the FARM; fREE RANGE MUSIC" [sic] with a small silhouetted image of a camel situated to the right. In large letters spanning over the blue sky on the upper portion of both pages, the ad continues: "COMMITTED TO SUPPORTING & PROMOTING INDEPENDENT RECORD LABELS."

The lower right-hand side of the right page contains a ribbon-like banner stating: "THE BEST MUSIC RISES FROM THE UNDERGROUND." Just below this banner is the following paragraph: "The world of independent music is constantly changing. New styles and sounds emerge daily. That's why we're bringing you The FARM. A collaboration between Camel and independent artists and record labels. It's our way of supporting these innovators as they rise up to bring their sounds to the surface. We give them more opportunities to be heard through online music and countless events across the nation. [¶] Visit theFARMROCKS.COM* [¶] Free shows, great bands and more!" Situated to the left of this paragraph is the upper body of a smiling woman raising her left hand across her chest and pointing to the left. The surgeon general's warning appears again, this time on the lower left side of the left-hand page. The lower right corner of the right page contains the following text: "*Website restricted to legal age tobacco consumers."

When both pages of the "gate" are opened, the Feature reappears as a continuous four-page illustration. As described by defendants, the Feature "is reminiscent of doodling on several pages of a notebook, presenting a futuristic vision organizing the collective `universe' of indie rock bands. The four page interior includes hand-sketched planets, intergalactic creatures and spaceships. . . . Its drawings in turn are tied to the organization of the 186 bands identified, including such categories as Animal Planet (bands with animal names) or Lupus Major (bands with `wolf' in their name) and such aesthetic categories as Intergalactic Ear Killers and Masters of the Universe." The band Fucked Up is listed in the "Intergalactic Ear Killers" category, under the subtitle: "In space, no one can hear you scream." The band Xiu Xiu appears in a list under the subtitle "Fight the power," which is placed adjacent to a grimacing red ball with arms and clenched fists, identified as "Angry Red Planet." None of the language, logos, or images used in the Camel ad appear in the pages of the Feature.

When the "gate" pages are folded back to re-enclose the feature, and the right page is turned, another full page Camel ad appears on the left-hand side. The look and feel of this page is similar to the ad's previous pages. The "fREE RANGE MUSIC" logo appears again, this time above another collage consisting of a rooster, an old television, flowers, a small bird, and a man in a dark suit who is facing to the right, with his hand pointing to the right. Just below the collage, another ribbon banner states: "FOR THE BEST NEW SOUNDS, VISIT theFARMROCKS.COM*." The surgeon general's warning appears again in the lower left corner of the page. The right corner contains the same language regarding age restrictions and tar and nicotine content that appears on the first page of the ad.*fn5


On December 17, 2007, plaintiffs filed their class action complaint against defendants and R.J. Reynolds Tobacco Company (R.J. Reynolds),*fn6 alleging three causes of action: (1) unauthorized use of name in violation of Civil Code section 3344, (2) unauthorized use of name for commercial advantage (right of publicity), and (3) unfair business practice in violation of Business and Professions Code sections 17200-17203. The gravamen of the complaint is that defendants and R.J. Reynolds "used the artist names of plaintiffs and the members of the Class knowingly and deliberately for the commercial purpose of advertising Camel cigarettes" without their prior authorization.

On February 19, 2008, defendants filed their motion to strike pursuant to section 425.16. In their moving papers, they argued that all three causes of action asserted by plaintiffs are subject to the statute because they "arise from alleged conduct that involves Rolling Stone's exercise of its free speech rights about a matter of public interest." They also asserted plaintiffs would be unlikely to prevail on the merits of their claims, primarily because the Feature represents "non-commercial speech, absolutely protected by the First Amendment," and because the bands' names were not used for a commercial purpose.

On July 14, 2008, the trial court issued its order denying defendants' motion to strike. The court based its denial on the ground that defendants, by their "layout decision," had published "an allegedly integrated 9-page advertisement" for Camel cigarettes. The court found a trier of fact could conclude the Feature had been transformed into commercial speech by virtue of having become "inextricably entwined" with R.J. Reynold's surrounding Camel advertisement. This appeal followed.


I. Section 425.16 and the Standard of Review

Section 425.16, known as 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." (§ 425.16, subd. (b)(1).) "The phrase `arising from' . . . has been interpreted to mean that `the act underlying the plaintiff's cause' or `the act which forms the basis for the plaintiff's cause of action' must have been an act in furtherance of the right of petition or free speech." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001 [113 Cal.Rptr.2d 625].) "The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings." (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806 [119 Cal.Rptr.2d 108].)

Courts engage in a two-step process in determining whether a cause of action is subject to a special motion to strike under section 425.16. First, the court determines if the challenged cause of action arises from protected activity. If the defendant makes such a showing, the burden shifts to the plaintiff to establish, with admissible evidence, a reasonable probability of prevailing on the merits. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703].) "Only a cause of action that satisfies both prongs of the anti-SLAAP statute - i.e., that arises from protected speech or petitioning and lacks even minimal merit - is a SLAPP, subject to being stricken under the statute." (Id. at p. 89.)

A ruling on a section 425.16 motion is reviewed de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645 [24 Cal.Rptr.3d 619].) We review the record independently to determine whether the asserted cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th 993, 999; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, 807.)

II. Is the First Prong of the anti-SLAPP Test Met?

Before we consider whether the conduct or speech at issue is protected by section 425.16, we will address plaintiffs' contention that this case is excepted from the reach of the anti-SLAPP statute under section 425.17, subdivision (c).

A. Section 425.17, subdivision (c)

Section 425.17 was adopted in 2003 to address "a disturbing abuse of Section 425.16 . . . ." (ยง 425.17, subd. (a).) Section 425.17 exempts certain lawsuits from the ambit of the anti-SLAPP statute. As such, "it raises a threshold issue, and we address it prior to examining the applicability of section 425.16." ...

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