California Court of Appeals, Fourth District, First Division
ORIGINAL PROCEEDINGS in mandate. Superior Court of San Diego
County, No. 37-2015-00026133-CU FR-CTL, John Meyer, Judge.
Petition denied; stay vacated.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Levit, Joseph P. McMonigle, Jessica R. MacGregor, Jonathan
Rizzardi; Reed Smith, Paul D. Fogel and Dennis P. Maio for
appearance for Respondent.
Law Group, Gregory L. Cartwright; Goode Hemme & Peterson,
Jerry D. Hemme; Jenkins and Erik C. Jenkins for Real Party in
by McConnell, P. J., with Huffman and Haller, JJ.,
Cal.Rptr.3d 309] McCONNELL, P. J.
action arises from representations made on the JAMS, Inc.
(JAMS), Web site regarding the background of the Honorable
Sheila Prell Sonenshine (Retired), and JAMS's operations
in offering alternative dispute resolution (ADR) services.
Kevin J. Kinsella alleges he relied upon certain
representations made on the Web site when he agreed to
stipulate to hire Sonenshine as a privately compensated judge
to resolve issues related to his marital dissolution case and
later discovered the representations were either untrue or
and Sonenshine filed an anti-SLAPP (Code Civ. Proc., §
425.16) motion to strike Kinsella's
complaint. The court found the action exempt from the
anti-SLAPP procedure under the commercial speech exemption of
section 425.17, subdivision (c). JAMS and Sonenshine filed a
petition for writ of mandate or other relief. We stayed the
proceedings and issued an order to show cause why relief
should not be granted to allow us the opportunity to consider
the issues raised in the petition related to the scope of the
commercial speech exemption of section 425.17, subdivision
(c). (See Omaha Indemnity Co. v. Superior Court
(1989) 209 Cal.App.3d 1266, 1273 [258 Cal.Rptr. 66] [writ
review appropriate to decide issues of widespread interest].)
Having now considered the matter, we agree the commercial
speech exemption applies and precludes the use of the
anti-SLAPP procedure in this case. The petition is denied.
provides private ADR services by promoting, arranging and
handling the hiring of neutral individuals, such as retired
judges, to assist with resolution of disputes. Kinsella
alleges: " JAMS acts as the 'promoter' and as
the 'booking' agent for its neutrals, procuring
engagements for them through the use of advertising and
marketing. The neutrals are independent contractors, with
JAMS collecting a fee from the neutrals for the services it
provides in connection with the advertising, marketing,
promotion, and 'booking' services. JAMS, in fact,
collects the fees from the consumers who pay for the services
of the neutrals and JAMS in turn pays the neutrals."
Cal.Rptr.3d 310] JAMS allegedly " directs and controls
the publication of the JAMS [Web site] and the statements
made on that site." JAMS provides biographies of its
neutrals on its Web site and represents its family law
neutrals are " 'trusted' experts."
According to the complaint, the JAMS Web site stated "
'[JAMS ensures] the highest ethical standards' and
'[e]verything we do and say will reflect the highest
ethical and moral standards. We are dedicated to neutrality,
integrity, honesty, accountability, and mutual respect in all
is on JAMS's panel of neutrals. According to the
complaint, she is a " former California Superior Court
judge and a retired California
[Fourth] District Court of Appeal justice. She is held out
by JAMS as a neutral available for selection as a mediator,
arbitrator, referee, and [privately compensated temporary
agreed to hire Sonenshine through JAMS to adjudicate his
pending marital dissolution action, involving assets he
states were " valued somewhere north of eight
figures." These included assets from venture capital
partnerships founded and managed by Kinsella. At the
suggestion of his wife's attorney, Kinsella reviewed the
JAMS Web site and Sonenshine's credentials. He alleged he
did so carefully because he understood " the importance
of selecting someone he could respect and trust to rule on
the life-changing decisions" in his marital dissolution
case and he wanted to " assure himself he was selecting
someone who satisfied his need to have confidence in the
jurist and, specifically, a person who would understand
principles of business ventures and private equity
alleged, based on the JAMS representations, he expected he
could rely on the " honesty and integrity" of
Sonenshine's biography, which he stated " was
impressive." Kinsella alleged Sonenshine " was
claiming experience that evidenced sufficient business acumen
to understand his separate property holdings and private
venture capital funds."
stipulation and order appointing Sonenshine as the privately
compensated temporary judge for Kinsella's marital
dissolution case gave Sonenshine authority " to make all
orders necessary and proper to bring [the] case to
judgment." After Sonenshine began conducting hearings,
Kinsella alleged he " became alarmed by what he saw and
doubted that she possessed the business accomplishments her
resume led him to believe she possessed." He began to
look into her background " to determine whether her
[biography] accurately reflected her career achievements,
especially as they ...