Vera Serova v. Sony Music Entertainment

Defendants and appellants Sony Music Entertainment

(Sony), John Branca, as co-executor of the estate of Michael J.

Jackson (the Estate), and MJJ Productions, Inc. (collectively

Appellants) appealed from an order of the superior court partially

denying their motion to strike under the anti-SLAPP statute.

(Code Civ. Proc., § 425.16.)

1 We previously issued an opinion in

this case holding that the claims of plaintiff and respondent Vera

Serova (Serova) against Appellants should be struck under

section 425.16. (Serova v. Sony Music Entertainment (2018) 26

Cal.App.5th 759 (Serova I).) Our Supreme Court granted review

and subsequently transferred the case back to this court for

reconsideration in light of the Supreme Court’s decision in

FilmOn.com Inc. v. Double Verify Inc. (2019) 7 Cal.5th 133

(FilmOn).

The case concerns allegations that Appellants misleadingly

marketed a posthumous Michael Jackson album entitled simply

“Michael.” Serova claims that the album cover and a promotional

video wrongly represented that Jackson was the lead singer on

each of the 10 vocal tracks on the album, when in fact he was not

the lead singer on three of those tracks. Serova alleged claims

under the Unfair Competition Law (UCL; Bus.& Prof. Code,

§ 17200 et seq.) and the Consumers Legal Remedies Act (CLRA;

Civ. Code, § 1750 et seq.). Serova also brought a fraud claim

against defendants Edward Joseph Cascio, James Victor Porte,

1 Subsequent undesignated statutory references are to the

Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic

lawsuit against public participation.” (Briggs v. Eden Council for

Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)

3

and Cascio’s production company, Angelikson Productions, LLC

(collectively, the Cascio Defendants), alleging that those

defendants knowingly misrepresented to Appellants that Jackson

was the lead singer on the three tracks at issue (the Disputed

Tracks).2

Our prior opinion held that: (1) Serova’s claims against

Appellants arose from conduct furthering Appellants’ right of free

speech “in connection with a public issue” under section 425.16,

subdivision (e)(3) and (4); and (2) Serova did not show a

probability that her claims under the UCL and the CLRA would

succeed because the claims concern noncommercial speech that is

not actionable under those statutes.

Upon reconsideration of these holdings in light of FilmOn,

we conclude that our original opinion was correct. Consequently,

we largely adopt that opinion, except that we have revised the

discussion of the first step of the anti-SLAPP procedure in part 1

below to take account of the FilmOn decision and its application

to the circumstances of this case.

FilmOn concerned only the first step of the anti-SLAPP

analysis, i.e., whether particular claims arise from conduct that

the anti-SLAPP statute protects. Specifically, FilmOn considered

“whether the commercial nature of a defendant’s speech is

relevant in determining whether that speech merits protection”

under section 425.16, subdivision (e)(4). (FilmOn, supra, 7

Cal.5th at p. 140.) The court concluded that the context of a

statement—including “the identity of the speaker, the audience,

and the purpose of the speech” —is “relevant, though not

2 The Cascio Defendants are not parties to this appeal.

4

dispositive, in analyzing whether the statement was made ‘in

furtherance of’ free speech ‘in connection with’ a public issue.”

(Ibid., quoting § 425.16, subd. (e)(4).)

As we explained in our prior opinion, the representations

that Serova challenges—that Michael Jackson was the lead

singer on the three Disputed Tracks―did not simply promote sale

of the album, but also stated a position on a disputed issue of

public interest. Before the album was released, certain Jackson

family members and others publicly claimed that Jackson was

not the lead singer on the Disputed Tracks. Appellants disputed

this claim. An attorney acting for the Estate released a public

statement outlining the steps Appellants had taken to verify the

authenticity of the tracks by consulting with experts and persons

who were familiar with Jackson’s voice and recordings.

Thus, the identity of the artist on the three Disputed

Tracks was a controversial issue of interest to Michael Jackson

fans and others who care about his musical legacy. By

identifying the singer on the Disputed Tracks as Michael

Jackson, Appellants’ challenged statements made a direct claim

about the controversy itself. The statements were made publicly

to an audience—potential purchasers of the album—that was

likely to have an interest in the identity of the singer. And,

although Appellants’ ultimate goal was presumably to sell

albums by marketing songs sung by Michael Jackson, that goal

did not make the controversy over the identity of the artist any

less real or important to those who cared about the issue. The

challenged statements furthered Appellants’ position on the

controversy by articulating a consistent and unqualified belief in

the identity of the artist. Appellants’ challenged statements were

5

therefore sufficiently connected to an issue of public interest to

warrant anti-SLAPP protection.

Our Supreme Court’s decision in FilmOn did not address

the second step of the anti-SLAPP analysis, which concerns the

merits of a plaintiff’s claims. Nor did it address the criteria for

identifying commercial and noncommercial speech under the

First Amendment. That issue was the focus of our prior ruling

that the speech that Serova challenges was outside the scope of

the consumer protection laws on which her claims are based.

Thus, we have no reason to reconsider our prior ruling on the

second step of the anti-SLAPP procedure, which we reproduce

(with minor changes) in part 2 below.

BACKGROUND

1. The Anti-SLAPP Procedure

Section 425.16 provides for a “special motion to strike”

when a plaintiff asserts claims 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.”

(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the

court determines that the plaintiff has established that there is a

probability that the plaintiff will prevail on the claim.” (Ibid.)

Thus, ruling on an anti-SLAPP motion involves a two-step

procedure. First, the moving defendant must show that the

challenged claims arise from protected activity. (Baral v. Schnitt

(2016) 1 Cal.5th 376, 396 (Baral); Rusheen v. Cohen (2006) 37

Cal.4th 1048, 1056.) Second, if the defendant makes such a

showing, the “burden shifts to the plaintiff to demonstrate that

each challenged claim based on protected activity is legally

sufficient and factually substantiated.” (Baral, at p. 396.)

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Without resolving evidentiary conflicts, the court determines

“whether the plaintiff’s showing, if accepted by the trier of fact,

would be sufficient to sustain a favorable judgment.” (Ibid.)

Section 425.16, subdivision (e) defines the categories of acts

that are in “ ‘furtherance of a person’s right of petition or free

speech.’ ” Those categories include “any written or oral

statement or writing made in a place open to the public or a

public forum in connection with an issue of public interest,” and

“any other conduct in furtherance of the exercise of the

constitutional right of petition or the constitutional right of free

speech in connection with a public issue or an issue of public

interest.” (§ 425.16, subd. (e)(3) & (4).)

In 2003 the Legislature enacted section 425.17 to curb “a

disturbing abuse of Section 425.16 . . . which has undermined the

exercise of the constitutional rights of freedom of speech and

petition for the redress of grievances, contrary to the purpose and

intent of Section 425.16.” (§ 425.17, subd. (a).) Section 425.17

seeks to accomplish that goal by expressly excluding several

categories of claims from the scope of section 425.16.

Section 425.17, subdivision (c) establishes such an

exclusion for claims concerning some commercial speech. That

subdivision provides that section 425.16 does not apply to “any

cause of action brought against a person primarily engaged in the

business of selling or leasing goods or services” if certain

conditions exist, including that: (1) the statement at issue

“consists of representations of fact about that person’s or a

business competitor’s business operations, goods, or services” that

was made to promote commercial transactions or was made “in

the course of delivering the person’s goods or services”; and

(2) the intended audience is an actual or potential customer or a

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person likely to influence a customer. (§ 425.17, subd. (c)(1)

& (2).)

Section 425.17 contains certain specifically defined

exceptions. One of those exceptions states that the commercial

speech provision in section 425.17, subdivision (c) does not apply

to “[a]ny action against any person or entity based upon the

creation, dissemination, exhibition, advertisement, or other

similar promotion of any dramatic, literary, musical, political, or

artistic work.” (§ 425.17, subd. (d)(2).)

2. Serova’s Allegations3

The album “Michael” was released on or about

December 14, 2010, about 18 months after Michael Jackson’s

death. Sony released the album in conjunction with the Estate.

The album contained 10 songs. Serova alleges that the

three songs on the Disputed Tracks—“Breaking News,”

“Monster,” and “Keep Your Head Up” (the Songs)—have been

controversial “[s]ince Michael’s inception.”

Serova claims that the Cascio Defendants recorded the

initial versions of the Disputed Tracks and had “exclusive

knowledge” that the lead vocals for the Songs were actually

performed by a singer other than Michael Jackson. Serova

alleges that Cascio then falsely represented to Appellants that

Michael Jackson was the singer.

3 As explained below, the trial court ruled on Appellant’s

anti-SLAPP motion based upon the allegations in Serova’s first

amended complaint (Complaint) and a stipulation that

established certain background facts for purposes of the motion

only. Thus, the relevant facts are primarily those alleged in the

Complaint.

8

Prior to “Michael’s” release, various members of Michael

Jackson’s family and others familiar with his recordings disputed

whether he was the lead singer on the Disputed Tracks. In

response to those concerns, Sony and the Estate (through

Attorney Howard Weitzman) both publicly issued statements

confirming their belief that Jackson was the singer.

In his statement (the Weitzman Statement), Weitzman

explained that many persons who were familiar with Jackson’s

work had confirmed that he was the lead singer on the Disputed

Tracks, including former producers, engineers, performers, and

directors who had worked with Jackson. He stated that the

Estate and Sony had also retained forensic musicologists who

examined the Disputed Tracks and concluded that the lead singer

was actually Jackson. He also stated that he had spoken to the

singer whom some persons had “wrongfully alleged was a

‘soundalike’ singer that was hired to sing” on the Disputed

Tracks, and that the singer had denied any involvement with the

project. Weitzman explained that, “given the overwhelming

objective evidence resulting from the exhaustive investigations,”

Sony decided to include the Disputed Tracks on the album

“because they believed, without reservation, that the lead vocal[s]

on all of those tracks were sung by Michael Jackson.”

The album cover for “Michael” (Album Cover) included a

statement that “ ‘[t]his album contains 9 previously unreleased

vocal tracks performed by Michael Jackson.’ ”

4 A video released

before the album (the Promotional Video) described “Michael” as

4 One of the tracks on the album had been previously

recorded.

9

“ ‘a brand new album from the greatest artist of all time.’ ” While

appearing on the Oprah Winfrey show, Cascio also stated that

Jackson performed the lead vocals on the Disputed Tracks.

The Complaint alleges that the lead singer on the Disputed

Tracks actually sounds like the “soundalike” singer mentioned in

the Weitzman Statement. Serova claims she discovered evidence

indicating that the lead singer on the Disputed Tracks was not

Michael Jackson. Among other things, she claims that:

(1) Cascio did not produce any “demos, outtakes, alternate takes,

and multi-track recordings” when requested; (2) Jackson never

mentioned that he had recorded the Songs; (3) the Songs did not

appear on a list of ongoing or planned projects found in Michael

Jackson’s house after his death; and (4) various persons that the

Weitzman Statement said had confirmed that the lead singer on

the Disputed Tracks was Jackson in fact had doubts about that

conclusion.

Serova also hired an audio expert who prepared a report

concluding that Michael Jackson “very likely did not sing” the

lead vocals on the Disputed Tracks. The report was peerreviewed by another expert who concluded that the study’s

“methodologies and conclusions were reasonable.”

The Complaint alleges claims against all defendants under

the CLRA and UCL, and asserts a fraud claim against the Cascio

Defendants only. The Complaint claims that thousands of

putative class members purchased “Michael” and lost “money or

property” as a result of the alleged misleading representations.

3. Appellants’ Anti-SLAPP Motion

Appellants and the Cascio Defendants filed motions to

strike under section 425.16. Appellants argued that Serova’s

claims arose from protected speech under prong one of the anti-

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SLAPP procedure. With respect to prong two, Appellants argued

that Serova could not succeed on her claims against them

because their challenged statements about the identity of the

lead singer on the Disputed Tracks were noncommercial speech

as a matter of law and no reasonable consumer could find the

statements misleading.

To permit a ruling on the anti-SLAPP motions in advance

of discovery, the parties stipulated that, “solely for purposes of

this determination on the Motions,” Michael Jackson did not sing

the lead vocals on the three Disputed Tracks (the Stipulation).

The parties also stipulated to the authenticity of copies of the

Weitzman Statement, the Album Cover, and the Promotional

Video.

The trial court granted the defendants’ motions with

respect to allegations concerning the Weitzman Statement and

Cascio’s statement on the Oprah Winfrey show, but denied the

motions with respect to allegations concerning statements on the

Album Cover and in the Promotional Video.

Under prong one of the anti-SLAPP procedure, the trial

court ruled that all the statements addressed in the defendants’

motions arose from conduct in furtherance of the defendants’

right of free speech concerning an issue of public interest. The

court concluded that the Weitzman Statement was “made in a

public forum about a matter of public interest.” The court

reasoned that the Weitzman Statement “responded to a matter of

public concern, i.e., the authenticity of certain recordings released

posthumously and claimed to have been written and recorded by

a pop superstar.” Similarly, the court concluded that Cascio’s

statement on the Oprah Winfrey show addressed “the same

controversy.”

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In contrast, the trial court concluded that the Album Cover

and the Promotional Video were simply promotional materials

that “did not speak to the controversy surrounding the

performance [or] address or refute” the allegations concerning the

Disputed Tracks. The court nevertheless found that statements

on the Album Cover and in the Promotional Video arose from

protected conduct because “Michael Jackson’s professional

standing and accomplishments created legitimate and

widespread attention to the release of a new album.”

With respect to prong two, the trial court found that the

Weitzman Statement and Cascio’s statements on the Oprah

Winfrey show were noncommercial speech. The court concluded

that those statements were not made to promote or sell the

album, but addressed “a controversy regarding the veracity of the

claims surrounding the release of the album.”

However, the court concluded that the challenged

statements on the Album Cover and in the Promotional Video

were advertisements constituting commercial speech. The court

rejected the defendants’ argument that this speech was

“inextricably intertwined” with the Songs themselves under Riley

v. National Federation of Blind (1988) 487 U.S. 781, 796 (Riley).

The court reasoned that “[n]othing in this case prevented

Defendants from giving the album a different title and look or

from electing not to attest to the authenticity of the recordings on

the cover or in a commercial.”

The court also found that, assuming (pursuant to the

parties’ Stipulation) that Michael Jackson was not actually the

lead singer on the Disputed Tracks, both the Album Cover and

the Promotional Video were likely to deceive a reasonable

consumer. The court concluded that images of Michael Jackson

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and the challenged statements on the Album Cover, along with

the lack of any attribution to others, conveyed the message that

Jackson was the lead singer on the Disputed Tracks. The court

also concluded that a reasonable consumer would believe that

Michael Jackson was the “artist” referenced in the statement on

the Promotional Video that “Michael” was “ ‘a brand new album

from the greatest artist of all time.’ ”

DISCUSSION

Appellants challenge the trial court’s rulings that: (1) the

Promotional Video and the Album Cover were commercial speech

that may be subject to claims under the UCL and CLRA; and

(2) the representations in those materials were likely to deceive a

reasonable consumer. Serova argues that those rulings were

correct, and also asserts as an alternative ground for affirmance

that her claims do not “arise from” protected free speech activity

under prong one of the anti-SLAPP procedure. (See Klem v.

Access Ins. Co. (2017) 17 Cal.App.5th 595, 609 [“A prevailing

party on an anti-SLAPP motion need not file a cross-appeal to

preserve his disagreement with the trial court’s reasoning”].)5

We apply a de novo standard of review to the trial court’s

rulings on the anti-SLAPP motion. (Soukup v. Law Offices of

Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

5 Serova did not appeal from the trial court’s ruling

granting the defendants’ anti-SLAPP motion with respect to the

Weitzman e-mail and Cascio’s statement during the Oprah

Winfrey interview. Thus, the only claims at issue in this appeal

concern the representations in the Promotional Video and the

Album Cover (the Challenged Statements).

13

1. Serova’s Claims Concerning the Promotional Video

and the Album Cover Arise from Appellants’ Right of

Free Speech Under the United States and California

Constitutions

Appellants claim the trial court correctly concluded that

Serova’s claims arose from protected speech concerning an issue

of public interest, but also suggest that we need not reach that

issue. Appellants argue that the Legislature’s decision to create

an exception for the marketing of musical works under section

425.17, subdivision (d)(2) shows a legislative intent that such

speech “is eligible for anti-SLAPP protection,” which is

“essentially dispositive of step one of the anti-SLAPP analysis.”

We first consider that argument.

a. The significance of the Legislature’s exclusion

of music advertisements from the scope of

section 425.17

As mentioned, section 425.17, subdivision (d)(2) provides

that the “creation, dissemination, exhibition, advertisement, or

other similar promotion of any dramatic, literary, musical,

political, or artistic work” is outside the scope of the commercial

speech provision in section 425.17, subdivision (c). The exception

in section 425.17, subdivision (d)(2) certainly means that the

promotion of a musical work is not included within the categories

of conduct that the Legislature specifically stated were not

subject to anti-SLAPP relief. However, the Legislature’s decision

to exclude the advertising of musical works from section 425.17

does not mean that it also intended to afford anti-SLAPP

protection to such conduct in every circumstance, regardless of

the requirements of section 425.16.

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Such a conclusion would be inconsistent with the

Legislature’s stated intent. The Legislature specifically stated

that it enacted section 425.17 to curb abuses of the anti-SLAPP

law that were “contrary to the purpose and intent of Section

425.16.” (§ 425.17, subd. (a).) That statement suggests that our

Legislature was concerned that the courts were granting too

broad a reading to what constitutes “protected” conduct under

section 425.16, subdivision (e). Appellants’ argument, if accepted,

would commit that very same sin because it would require courts

to treat the types of speech delineated in section 425.17,

subdivision (d)(2) as subject to the anti-SLAPP law without any

showing that such speech meets the definition of “protected”

conduct under section 425.16, subdivision (e).

The interpretation that Appellants suggest would also be

inconsistent with the definitions of protected conduct under

section 425.16. Section 425.16, subdivision (e)(3) and (4) each

require that protected conduct must have some connection to a

“public issue” or an “issue of public interest.” Appellants’

interpretation of section 425.17, subdivision (d)(2) ignores that

requirement. For example, an action challenging an

advertisement falsely claiming that a musical album contains a

particular song would be an action “based upon the . . .

advertisement” of a musical work. (§ 425.17, subd. (d)(2).)

Appellants do not provide any reason to believe that the

Legislature intended to provide automatic anti-SLAPP protection

to such a mundane commercial misrepresentation simply because

the statement was made in connection with the advertisement of

a musical work.

Ignoring the public interest requirement in defining the

conduct that is protected under section 425.16, subdivision (e)(3)

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and (4) would also be directly contrary to our Supreme Court’s

opinion in FilmOn. As discussed further below, the court in

FilmOn confirmed the need for a party moving for anti-SLAPP

relief to show a relationship between the challenged speech “and

the public conversation about some matter of public interest.”

(FilmOn, supra, 7 Cal.5th at pp. 149–150.)6

The court in Dyer v. Childress (2007) 147 Cal.App.4th 1273

rejected an argument similar to the one that Appellants make

6 The court in FilmOn addressed the scope of section

425.17, subdivision (c) in rejecting the argument that, in

identifying protected conduct, the commercial context of a

challenged statement was relevant only under that section.

(FilmOn, supra, 7 Cal.5th at pp. 146–149.) Although the court

did not consider the significance of the exclusion in section

425,17, subdivision (d)(2), its analysis is consistent with our

understanding of that subdivision. The court explained that not

all commercial speech is included within the anti-SLAPP

exemption that section 425.17, subdivision (c) defines. For

commercial speech not included in that subdivision, “[l]ike all

other statements that do not fall within the scope of an

exemption, such statements are eligible for anti-SLAPP

protection under section 425.16.” (FilmOn, at p. 148, italics

added.) The court did not suggest that commercial statements

not included in section 425.17 are automatically entitled to antiSLAPP protection under section 425.16. Indeed, the court clearly

held that the context of such statements must be considered to

determine if they are sufficiently connected to an issue of public

interest to warrant protection under section 425.16, subdivision

(e)(4). (FilmOn, at p. 148.) Similarly, conduct excluded from

section 425.17, subdivision (c) under section 425.17, subdivision

(d)(2) is not automatically entitled to anti-SLAPP protection

without any consideration of context.

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here. After reviewing the legislative history concerning section

425.17, subdivision (d)(2), the court rejected the defendant’s claim

that “by expressly exempting motion pictures from the antiSLAPP limitations imposed in section 425.17, subdivisions (b)

and (c), the Legislature acknowledged that motion pictures are

more deserving of protection than other forms of expression not

enumerated.” (Dyer, at pp. 1283–1284.) The court concluded

that “[t]he exclusion of motion pictures from the exemptions to

the limitations set forth in section 425.17, subdivisions (b) and (c)

means only that anti-SLAPP motions remain available to

defendants who are creators and distributors of motion pictures

. . . . [¶] The exception of section 425.17, subdivision (d)(2) does

not eliminate the need to show significant public interest in the

conduct at the heart of the plaintiff’s complaint or expand the

scope of the anti-SLAPP law to provide protection to motion

picture defendants in every context.” (Dyer, at p. 1284.)

Similarly, the exception of section 425.17, subdivision (d)(2)

does not provide anti-SLAPP protection to sellers of music in

every context. At most, the Legislature’s exclusion of the

promotion of “dramatic, literary, musical, political, or artistic

work” from the scope of commercial activity covered by section

425.17, subdivision (c) means that courts should be particularly

sensitive to the constitutional free speech aspects of such work in

analyzing whether particular statements or conduct are protected

under section 425.16.7

7 For example, as discussed below, in this case the identity

of the singer on the Disputed Tracks greatly affects the artistic

significance of the music on those tracks. The music is of course

constitutionally protected expression. In analyzing context under

17

We therefore consider whether Appellants’ Challenged

Statements were made “in connection with a public issue or an

issue of public interest.” (§ 425.16, subd. (e).) In so doing, we pay

particular attention to the context of those statements as

instructed by the court in FilmOn.

b. The challenged promotional statements in this

case

In FilmOn our Supreme Court held that, “within the

framework of section 425.16, subdivision (e)(4), a court must

consider the context as well [as] the content of a statement in

determining whether that statement furthers the exercise of

constitutional speech rights in connection with a matter of public

interest.” (FilmOn, supra, 7 Cal.5th at p. 149.)8 That case

concerned alleged disparaging statements about the Web-based

entertainment programming distributed by the plaintiff,

FilmOn.com Inc. (FilmOn.com). The defendant, DoubleVerify

Inc. (DoubleVerify), provided confidential reports to its paying

clients classifying FilmOn.com Web sites under categories of sites

section 425.16, it is appropriate to consider the relationship

between the Challenged Statements promoting “Michael” and the

expressive content of the album itself.

8 FilmOn concerned the definition of protected conduct

under section 425.16, subdivision (e)(4). (FilmOn, supra, 7

Cal.5th at pp. 139–140.) However, the requirement that a

statement be “in connection with an issue of public interest” is

also present in subdivision (e)(3). (§ 425.16, subd. (e)(3).) The

court’s analysis of the importance of context in determining

whether such a connection exists therefore appears equally

applicable to section 425.16, subdivision (e)(3).

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that engage in copyright infringement and contain “adult

content.” (Id. at pp. 140–142.) The court held that these reports

were not “ ‘in connection with’ ” an issue of public interest. (Id. at

p. 154.) In doing so, the court relied on the context of the reports,

which it characterized as “two well-funded for-profit entities

engaged in a private dispute over one’s characterization—in a

confidential report—of the other’s business practices.” (Ibid.)

Before reaching this conclusion, the court explained the

appropriate process for determining whether challenged speech

has a sufficient connection to a public issue to warrant antiSLAPP protection. “First, we ask what ‘public issue or . . . issue

of public interest’ the speech in question implicates—a question

we answer by looking to the content of the speech. (§ 425.16,

subd. (e)(4).) Second, we ask what functional relationship exists

between the speech and the public conversation about some

matter of public interest. It is at the latter stage that context

proves useful.” (FilmOn, supra, 7 Cal.5th at pp. 149–150.)

Context includes the identity of the speaker, the audience, and

the purpose of the speech. (Id. at pp. 142–143, 145.)

In analyzing the relationship between the challenged

speech and the issue of public interest, it is “ ‘not enough that the

statement refer to a subject of widespread public interest; the

statement must in some manner itself contribute to the public

debate.” (FilmOn, supra, 7 Cal.5th at p. 150.) A defendant has

contributed to the public debate if he or she “participated in, or

furthered, the discourse that makes an issue one of public

interest.” (Id. at p. 151.)

i. The issue of public interest

FilmOn did not announce any change in the approach that

courts should take to identifying issues of public interest. On the

19

contrary, the court said that the Courts of Appeal have “ably

distilled the characteristics of a ‘public issue or an issue of public

interest’ ” for purposes of section 425.16, subdivision (e)(4).

(FilmOn, supra, 7 Cal.5th at p. 149.) In particular, the court

cited with approval the definition of an issue of public interest in

Rivero v. American Federation of State, County, and Municipal

Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919–924

(Rivero), and in Weinberg v. Feisel (2003) 110 Cal.App.4th 1122,

1132–1133 (Weinberg).

In Rivero, the court surveyed a number of cases and

identified three common elements in statements that concerned

an issue of public interest. The statements concerned either:

(1) a person or entity “in the public eye”; (2) conduct that “could

directly affect a large number of people beyond the direct

participants”; or (3) a “topic of widespread, public interest.”

(Rivero, supra, 105 Cal.App.4th at p. 924.) In Weinberg, the court

offered additional analysis consistent with the categories in

Rivero. Among other things, the court explained that public

interest “does not equate with mere curiosity” and that a matter

of public interest should be of concern to a substantial number of

people rather than just to a “relatively small, specific audience.”

(Weinberg, supra, 110 Cal.App.4th at p. 1132.) In addition, a

“person cannot turn otherwise private information into a matter

of public interest simply by communicating it to a large number

of people.” (Id. at pp. 1132–1133.)

The issue of public interest here is whether Michael

Jackson was in fact the singer on the three Disputed Tracks. It is

beyond dispute that Michael Jackson was a famous entertainer

who was very much “in the public eye.” (Rivero, supra, 105

Cal.App.4th at p. 924.) As the court stated in Stewart v. Rolling

20

Stone LLC (2010) 181 Cal.App.4th 664 (Stewart), “ ‘ “there is a

public interest which attaches to people who, by their

accomplishments, mode of living, professional standing or calling,

create a legitimate and widespread attention to their

activities.” ’ ” (Id. at pp. 677–678, quoting Eastwood v. Superior

Court (1983) 149 Cal.App.3d 409, 422; see No Doubt v. Activision

Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1027 [video game

distributor’s use of band members’ likenesses in a video game

was a “matter of public interest because of the widespread fame”

of the band]; Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th

1337, 1347 [Marlon Brando’s decisions concerning the

distribution of his assets was an issue of public interest].)

Moreover, the question whether Michael Jackson was the

singer on the Disputed Tracks did not simply concern some

trivial fact about his life, but related to his artistic legacy. Facts

concerning the creation of works of art and entertainment can

themselves be issues of public interest. For example, in

Kronemyer v. Internet Movie Database Inc. (2007) 150

Cal.App.4th 941, the plaintiff challenged the omission of his

name from the credits listed for the movie My Big Fat Greek

Wedding on a widely visited Web site. (Id. at p. 944.) The court

concluded that the movie “was a topic of widespread public

interest,” and the Web site was a public forum. (Id. at pp. 949–

950.) Accordingly, the plaintiff’s action challenging the listings

was “within the ambit of section 425.16, subdivision (e)(3) and

(4).” (Id. at p. 950; see Tamkin v. CBS Broadcasting, Inc. (2011)

193 Cal.App.4th 133, 143–144 [there was a “public interest in the

writing, casting and broadcasting” of a television episode for

purposes of the anti-SLAPP statute].)

21

The controversy over the identity of the singer on the

Disputed Tracks was also of widespread interest among Michael

Jackson fans. (See Rivero, supra, 105 Cal.App.4th at p. 924;

Weinberg, supra, 110 Cal.App.4th at p. 1132.) The Complaint

alleges that, “[b]efore Michael’s release, numerous people familiar

with Michael Jackson’s voice disputed the authenticity” of the

Disputed Tracks. As discussed above, Sony and the Estate

released public statements in response, including the detailed

Weitzman Statement. Serova further alleges that, “[s]ince

Michael’s inception, controversy has surrounded three of the

album’s ten songs.”

This public controversy distinguishes this case from cases

that Serova cites concerning allegedly misleading descriptions of

a particular commercial product or service. (See Consumer

Justice Center v. Trimedica International, Inc. (2003) 107

Cal.App.4th 595, 599, 601 [claims about a pill for breast

enlargement]; Nagel v. Twin Laboratories, Inc. (2003) 109

Cal.App.4th 39, 43–46 [list of ingredients on labels for nutritional

and dietary supplements]; Scott v. Metabolife Internat., Inc.

(2004) 115 Cal.App.4th 404, 423 [claims about the safety and

efficacy of a particular weight loss product]; L.A. Taxi

Cooperative, Inc. v. The Independent Taxi Owners Assn. of

Los Angeles (2015) 239 Cal.App.4th 918, 921, 927–928 [alleged

misleading advertisements concerning contact information for

companies providing taxi services]; Jewett v. Capital One Bank

(2003) 113 Cal.App.4th 805, 814–816 [alleged false statements in

credit card solicitations].)

The representations at issue here concerned the body of

work of a well-known artist and an album containing his songs

that generated significant public attention. We therefore

22

conclude that the issue was one of “public interest” for purposes

of section 425.16, subdivision (e)(3) and (4).

ii. The relationship between the Challenged

Statements and the public debate

As discussed above, the court in FilmOn explained that

courts considering whether challenged speech concerned an issue

of public interest should analyze not only the nature of the issue

but also the connection between the issue and the speech. In the

latter analysis, the context of the speech—the speaker, audience

and purpose—are important.

We discussed the context of the Challenged Statements at

some length in our prior opinion in analyzing whether those

statements can be categorized as actionable commercial speech

for purposes of the second step of the anti-SLAPP procedure.

(Serova I, supra, 26 Cal.App.5th at pp. 775–781.) Much of that

analysis is also relevant to the connection between the

statements that Serova challenges and the issue of public

interest for purposes of the first step in the anti-SLAPP analysis.

As we previously explained (and reiterate below), the

speaker and the audience for the Challenged Statements suggest

a commercial purpose.

9 Appellants are sellers of the album, and

the audience for the statements was potential purchasers.

However, the court in FilmOn explained that “ ‘[w]hether

speech has a commercial or promotional aspect is not dispositive’

9 However, we also hold that the content of the statements

shows that they were not merely commercial speech for purposes

of determining whether Serova has shown a probability of success

on her consumer protection claims under the second step of the

anti-SLAPP analysis.

23

of whether it is made in connection with an issue of public

interest.” (FilmOn, supra, 7 Cal.5th at p. 154, quoting Industrial

Waste & Debris Service, Inc. v. Murphy (2016) 4 Cal.App.5th

1135, 1150.) The court stated unequivocally that “[s]ome

commercially oriented speech will, in fact, merit anti-SLAPP

protection.” (FilmOn, at p. 153.) The proper analysis focuses on

the same “contextual cues” that show a statement “to be

‘commercial’ in nature—whether it was private or public, to

whom it was said, and for what purpose.” (Id. at p. 148.) The

ultimate question is whether the “wedding of content and

context” shows that the statement “contributes to or furthers the

public conversation on an issue of public interest.” (Id. at p. 154.)

Analysis of the content and context of the Challenged

Statements here shows that they merit anti-SLAPP protection.

(a) Content

The content of the Challenged Statements related directly

to the issue of public interest. According to Serova’s Complaint,

the statements identified Michael Jackson as the singer on the

Disputed Tracks, which was the precise focus of the public

controversy. Thus, the statements at issue here were not just

tangentially connected to the issue of public interest through a

creative generalization of their subject matter (what the court in

FilmOn characterized as the “ ‘synedoche theory’ of public

interest”). (FilmOn, supra, 7 Cal.5th at p. 152; see

Commonwealth Energy Corp. v. Investor Data Exchange, Inc.

(2003) 110 Cal.App.4th 26, 34 [“The part is not synonymous with

the whole. Selling an herbal breast enlargement product is not a

disquisition on alternative medicine”].)

In her supplemental brief, Serova disputes that there was

any connection between the Challenged Statements and the issue

24

of public interest, claiming that the statements did not refer to

the identity of the singer on the Disputed Tracks at all. She

argues that the Challenged Statements “do not reference the

three controversial songs and do not suggest to the audience that

these three songs are somehow special.”

Serova’s argument ignores her own allegations, which she

may not do. Her complaint alleges that the Challenged

Statements are among those that “expressly and impliedly

represented that the lead vocals on all of the tracks of the album

were performed by Michael Jackson.” Indeed, absent such an

allegation of deceptive conduct, Serova would not have any basis

for a consumer protection claim concerning the Challenged

Statements.

The question in the first step of the anti-SLAPP analysis is

whether the claims at issue arise from protected conduct.

(§ 425.16, subd. (b)(1); Baral, supra, 1 Cal.5th at p. 396.) A

plaintiff’s complaint of course defines his or her claims, and can

itself show that the claims arise from protected conduct. (See

Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936–

937.) Serova cannot contradict her own allegations in arguing

that the Challenged Statements did not identify the singer on the

Disputed Tracks as Michael Jackson. (Ibid.)

It is true that the statements on the Album Cover and the

Promotional Video did not actually refer to the public debate

about the identity of the singer. And, unlike the Weitzman

Statement, they did not offer any argument in support of the

conclusion that Michael Jackson was the singer. They simply

asserted the conclusion as fact. But they certainly showed

Appellants’ acceptance of that fact, which communicated

Appellants’ position on the issue. As Serova acknowledges, a

25

statement “need not necessarily reference the debate to

participate in it.” Whether couched as argument or fact, the

Challenged Statements expressed a position on the question

whether Michael Jackson was the singer on the Disputed Tracks.

Serova also argues that “nothing about Jackson’s persona,

life or career is communicated by the advertisements” at issue.

This assumes that the content of Jackson’s body of work is

irrelevant to those interested in his life and career. The

assumption is unreasonable on its face, and belied in any event

by Serova’s own allegations, which acknowledge the public

controversy over the identity of the singer.

(b) Context

As discussed above, the commercial purpose of the

Challenged Statements—to sell albums—does not itself

determine whether they contributed to the public debate. It

certainly reflects that Appellants had a commercial interest in

the debate, but it does not divorce the statements from that

debate. Appellants had the same commercial interest in

defending their claims about the identity of the singer in the

Weitzman Statement, which Serova does not dispute was

protected speech. The purpose of the Challenged Statements is

essentially a neutral consideration in determining whether the

statements were protected conduct.

On the other hand, the identity of the speaker and the

audience both support the conclusion that the Challenged

Statements contributed to the “public conversation” on an issue

of public interest. (FilmOn, supra, 7 Cal.5th at p. 154.) Unlike

the speech at issue in FilmOn, the Challenged Statements here

were public. The Album Cover and the Promotional Video were

available to those who were interested. And the audience for

26

those statements—persons who might buy the album—was also

an audience that was highly likely to be interested in the identity

of the singer on the Disputed Tracks. The relevant point here is

not, as Serova argues, whether the Challenged Statements

reached everyone who was interested in the controversy over the

identity of the singer. The point is that Appellants made the

statements publicly to a sizeable audience that was likely to be

interested in the issue.

There is another important fact concerning the identity of

the speakers here. Appellants were not sellers of a typical

consumer product; they were sellers of a product (music) that is

itself subject to First Amendment protection. In explaining that

the identity of the speaker matters in analyzing context, the

court in FilmOn cited as an example the identity of the

defendants in San Diegans for Open Government v. San Diego

State University Research Foundation (2017) 13 Cal.App.5th 76

(San Diegans). (FilmOn, supra, 7 Cal.5th at p. 145.) In San

Diegans, the plaintiff claimed that contracts for collaborative

news reporting between a defendant, inewsource, and a public

radio and television station, KPBS, violated prohibitions on selfdealing and gifts of public funds. (San Diegans, at p. 103.) In

holding that the claims arose from protected speech activity, the

court observed that “the fact these contracts are for gathering

and delivering news stories and not some other purpose matters.”

(Id. at p. 105.) The court explained that inewsource “is not a

construction company. It is in the news reporting business, and

the contracts [the plaintiff] challenges shape the way inewsource

and KPBS gather, produce, and report the news.” (Id. at p. 106.)

Similarly, the challenged conduct in this case helped shape

the experience of the music that consumers purchased. There is

27

no dispute that the identity of the singer on the Disputed Tracks

affected the musical experience for many listeners; indeed, the

basis for Serova’s Complaint is that whether the singer was

Michael Jackson mattered to consumers.

Moreover, in FilmOn, the court instructed that courts

should undertake the analysis of context mindful of the antiSLAPP statute’s purpose to “encourage continued participation in

matters of public significance.” (FilmOn, supra, 7 Cal.5th at

p. 154, quoting § 425.16, subd. (a).) Giving too much weight to

the commercial context of the Challenged Statements here risks

unduly curtailing protected expression. Without anti-SLAPP

protection for their statements on the Album Cover and

Promotional Video, Appellants might simply have decided not to

sell the Disputed Tracks at all. Others in their situation might

similarly decide not to include songs or other artistic works with

disputed provenance in a collection offered for sale rather than

either (1) risk the expense of consumer litigation, or (2) dilute

their marketing by acknowledging doubts about the provenance

of the work that they do not share. That result would discourage,

rather than encourage, protected speech.

We therefore conclude that, consistent with the analysis

and holding in FilmOn, Appellants’ Challenged Statements on

the Album Cover and the Promotional Video were protected

speech under section 425.16, subdivision (e)(3) and (4).

2. The Challenged Statements Were

Noncommercial Speech Outside the Scope of

Serova’s Consumer Protection Claims

Appellants argue that Serova cannot show a probability of

success on her UCL and CLRA claims under prong two of the

anti-SLAPP analysis because those statutes apply only to

28

commercial speech. They claim that their Challenged

Statements about the lead singer on the Disputed Tracks were

not commercial speech, or, if they were, that those statements

were inextricably intertwined with the protected contents of the

Songs themselves.

Appellants argue that the consumer protection claims that

Serova asserts against them apply only to commercial speech. A

number of cases support that assertion. (See Kasky v. Nike, Inc.

(2002) 27 Cal.4th 939, 952 (Kasky) [identifying criteria for

determining whether speech may constitutionally be regulated as

commercial speech under California’s false advertising laws];

Rezec v. Sony Pictures Entertainment, Inc. (2004) 116

Cal.App.4th 135, 140 (Rezec) [California’s consumer protection

laws, like the unfair competition law, govern only commercial

speech]; Keimer v. Buena Vista Books, Inc. (1999) 75 Cal.App.4th

1220, 1231 (Keimer) [Bus. & Prof. Code, §§ 17200 et seq. and

17500 et seq. do not “seek to restrict noncommercial speech in

any manner”]; O’Connor v. Superior Court (1986) 177 Cal.App.3d

1013, 1019.) Serova does not dispute this. Moreover, she did not

argue below and does not argue on appeal that Appellants’

Challenged Statements are actionable even if they are

noncommercial speech. Thus, if Appellant’s Challenged

Statements are noncommercial speech, Serova’s claims against

them must be stricken.

a. Identifying commercial speech

Restrictions on purely commercial speech are subject to a

lesser level of scrutiny than are “ ‘other constitutionally

safeguarded forms of expression.’ ” (Kasky, supra, 27 Cal.4th at

p. 952, quoting Bolger v. Youngs Drug Products Corp. (1983) 463

U.S. 60, 64–65 (Bolger).) Moreover, “commercial speech that is

29

false or misleading is not entitled to First Amendment protection

and ‘may be prohibited entirely.’ ” (Kasky, at p. 953, quoting In re

R. M. J. (1982) 455 U.S. 191, 203.)

The United States Supreme Court first held that

commercial speech is entitled to some constitutional protection in

Bigelow v. Virginia (1975) 421 U.S. 809. In Bigelow, the court

rejected the proposition that “advertising, as such, was entitled to

no First Amendment protection.” (Id. at p. 825.) Following that

decision, courts have had to grapple with the distinction between

expressive activities that are merely commercial in nature and

those that are subject to more stringent First Amendment

protection.

In Bolger, the court held that materials distributed by a

manufacturer of contraceptives, including both promotional flyers

and informational pamphlets about contraceptives, were

commercial speech. (Bolger, supra, 463 U.S. at pp. 62, 66–68.)

Most of the mailings at issue fell “within the core notion of

commercial speech—‘speech which does “no more than propose a

commercial transaction.” ’ ” (Id. at p. 66, quoting Va. Pharmacy

Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762 (Virginia

Pharmacy).) However, the informational pamphlets required

further analysis. The court identified three factors indicating

that the pamphlets were commercial speech: (1) the pamphlets

were “conceded to be advertisements”; (2) they referred to a

specific product; and (3) the defendant had an economic

motivation for mailing them. (Bolger, at pp. 66–67.) The court

stated that none of these factors alone was sufficient to show that

the speech was commercial, but “[t]he combination of all these

characteristics . . . provides strong support” for the decision that

30

the informational pamphlets were commercial speech. (Id. at p.

67.)

In Kasky, supra, 27 Cal.4th 939, our Supreme Court

considered the factors the court identified in Bolger, supra, 463

U.S. 60, along with other relevant United States Supreme Court

precedent and crafted a “limited-purpose” test for identifying

commercial speech. The test applies when, as here, “a court must

decide whether particular speech may be subjected to laws aimed

at preventing false advertising or other forms of commercial

deception.” (Kasky, at p. 960.) The court directed that a court

faced with such a decision should consider “three elements: the

speaker, the intended audience, and the content of the message.”

(Ibid.)

The court in Kasky applied those factors to the allegations

that the defendant, Nike, made false statements about labor

practices in its own business operations. (Kasky, supra, 27

Cal.4th at pp. 969–970.) The court held that these alleged

statements constituted commercial speech that was actionable

under California’s consumer protection laws. (Ibid.)

b. Appellants’ Challenged Statements

Applying the three-factor test for identifying commercial

speech described in Kasky, we conclude that Appellants’

challenged representations were noncommercial speech.

As discussed above, the first two factors—the speaker and

the intended audience—both suggest a commercial purpose.

Appellants were “engaged in commerce” in making

representations on the Album Cover and on the Promotional

Video to sell the album. (Kasky, supra, 27 Cal.4th at p. 963.)

And the audience for those representations was potential

purchasers of the album. (Id. at p. 964.)

31

However, the third factor—the content of the challenged

speech—shows that the speech at issue here is critically different

from the type of speech that may be regulated as purely

commercial speech under Kasky. That is so for two reasons.

First, Appellants’ Challenged Statements concerned a publicly

disputed issue about which they had no personal knowledge.

Second, the statements were directly connected to music that

itself enjoyed full protection under the First Amendment.

i. Personal knowledge

The court in Kasky explained that, “at least in relation to

regulations aimed at protecting consumers from false and

misleading promotional practices, commercial speech must

consist of factual representations about the business operations,

products, or services of the speaker (or the individual or company

on whose behalf the speaker is speaking), made for the purpose of

promoting sales of, or other commercial transactions in, the

speaker’s products or services.” (Kasky, supra, 27 Cal.4th at

p. 962.) This requirement relates directly to the reasons for

denying First Amendment protection to false or misleading

commercial speech. As the court explained, the United States

Supreme Court “has stated that false or misleading commercial

speech may be prohibited because the truth of commercial speech

is ‘more easily verifiable by its disseminator’ and because

commercial speech, being motivated by the desire for economic

profit, is less likely than noncommercial speech to be chilled by

proper regulation.” (Ibid., quoting Virginia Pharmacy, supra,

425 U.S. at p. 772, fn. 24.)

These factors were important for the court’s ruling. The

court in Kasky ascribed great significance to the fact that, “[i]n

describing its own labor policies, and the practices and working

32

conditions in factories where its products are made, Nike was

making factual representations about its own business

operations.” (Kasky, supra, 27 Cal.4th at p. 963, italics added.)

The court concluded that “Nike was in a position to readily verify

the truth of any factual assertions it made on these topics,” and

that commercial regulation was “unlikely to deter Nike from

speaking truthfully or at all about the conditions in its factories.”

(Ibid.)

Here, Appellants’ representations about the identity of the

lead singer on the Disputed Tracks did not concern their own

business operations or a fact of which they had personal

knowledge. Serova alleges that the Cascio Defendants, not

Appellants, “jointly created, produced, and recorded the initial

versions” of the Disputed Tracks. She claims that the “lead

vocals on these songs were performed by another singer under

the direction, and with the knowledge, cooperation, participation,

and substantial assistance of the Cascio Defendants.” And she

further alleges that the Cascio Defendants had “exclusive

knowledge of the fact that Jackson did not perform the songs.”

(Italics added.)10

As discussed above, Appellants’ Challenged Statements in

the Promotional Video and on the Album Cover concerned an

10 As mentioned above, the parties stipulated below for

purposes of the anti-SLAPP motions that Michael Jackson did

not sing the lead vocals on the three Disputed Tracks.

Accordingly, for purposes of their appeal, Appellants state that

they accept “that Jackson did not sing the lead vocals” on the

Disputed Tracks. However, Appellants did not stipulate that

they knew the identity of the singer.

33

issue of public interest and debate—whether the three Songs on

the Disputed Tracks should be included in Michael Jackson’s

body of work. Appellants did not record the Songs and, according

to Serova’s allegations, were themselves deceived about the

identity of the singer. Appellants’ statements therefore lacked

the critical element of personal knowledge under the Kasky

standard.

As the trial court correctly concluded, Appellants’

statements directly addressing the public controversy about the

identity of the singer—including the Weitzman Statement—were

noncommercial. The Challenged Statements on the Album Cover

and the Promotional Video also staked out a position in that

controversy by identifying the singer as Michael Jackson. The

fact that those statements were made in the context of promoting

the album does not change their constitutional significance.

Economic motivation is only one of the factors, insufficient

in itself, that may indicate that speech is commercial. (Bolger,

supra, 463 U.S. at p. 67.) As our Supreme Court explained in

Kasky, whether speech is commercial or noncommercial should

take account of the reasons for affording commercial speech less

constitutional protection. (Kasky, supra, 27 Cal.4th at pp. 958,

965.) The court in Kasky recognized that the speech at issue in

that case—Nike’s statements about labor practices in the

factories that manufactured its products—addressed an issue of

public interest. The reason that Nike’s speech could be subject to

regulation under the state’s unfair competition and false

advertising laws was that it concerned facts about Nike’s own

business operations, which were “ ‘more easily verifiable’ ” and

“ ‘less likely to be chilled by proper regulation’ ” than other

speech about the publicly debated issue of international labor

34

practices. (Id. at pp. 965, 967, quoting Virginia Pharmacy, supra,

425 U.S. at p. 772, fn. 24.) The court cautioned that it did not

purport to decide whether speech should be considered

commercial if all of the factors that the court identified—

including the element of personal knowledge about one’s own

business operations—were not present. (Kasky, at p. 964.)11

The absence of the element of personal knowledge is highly

significant here. Because Appellants lacked actual knowledge of

the identity of the lead singer on the Disputed Tracks, they could

only draw a conclusion about that issue from their own research

and the available evidence. Under these circumstances,

Appellant’s representations about the identity of the singer

amounted to a statement of opinion rather than fact.

12 (Cf.

11 For example, the court might well have reached a

different conclusion in Kasky if the statements at issue concerned

the labor practices of an independent commercial supplier who

simply sold products to Nike for resale. The court specifically

noted that Nike had entered into a memorandum of

understanding assuming responsibility for its subcontractors’

compliance with local labor laws. (Kasky, supra, 27 Cal.4th at

p. 947.)

12 In her petition for rehearing following our prior opinion,

Serova argued that Appellants’ Challenged Statements on the

Album Cover and in the Promotional Video were statements of

fact, not opinion, because consumers would have understood

them to be factual assertions about the identity of the lead singer

of the songs in the album. This argument misunderstands the

issue. The question here is not whether Appellants have a

defense to Serova’s claims because their Challenged Statements

were truthful assertions of opinion rather than alleged false

statements of fact. In that context, focus on the listener’s

35

Bernardo v. Planned Parenthood Federation of America (2004)

115 Cal.App.4th 322, 348 [statements of opinion on Planned

Parenthood’s Web site concerning scientific research about

abortion and breast cancer were not commercial speech].)

The lack of personal knowledge here also means that

Appellants’ Challenged Statements do not fit the definition of

speech that is “ ‘less likely to be chilled by proper regulation.’ ”

(Kasky, supra, 27 Cal.4th at p. 965, quoting Virginia Pharmacy,

supra, 425 U.S. at p. 772, fn. 24.) The “regulation” at issue here

is the UCL and the CLRA. Serova could obtain relief under these

consumer protection statutes without proof of intentional or

willful conduct. (See Kasky, at pp. 980–981 (dis. opn. of

Brown, J.); Podolsky v. First Healthcare Corp. (1996) 50

Cal.App.4th 632, 647 [violation of the UCL is a “strict liability

understanding is appropriate. (See, e.g., Baker v. Los Angeles

Herald Examiner (1986) 42 Cal.3d 254, 260–261 [applying a

“ ‘totality of the circumstances’ ” test in a libel action to

determine whether a statement was one of fact or opinion].)

Rather, the question here is whether Appellants’ challenged

speech was commercial. Under the court’s analysis in Kasky, the

speaker’s knowledge about the content of the speech is the

important feature in answering that question. Nike’s challenged

speech in that case concerned its own business operations, which

were within its personal knowledge. (Kasky, supra, 27 Cal.4th at

p. 963.) That is not the case here, as Appellants were not

involved in the initial recordings of the Disputed Tracks. From

Appellants’ perspective, their Challenged Statements about the

identity of the lead singer were therefore necessarily opinion.

36

offense”].)

13 Thus, to avoid possible liability for a mistaken

judgment about the lead singer on the Disputed Tracks,

Appellants would have needed to either: (1) provide disclaimers

about the singer’s identity in its marketing materials; or (2) omit

the Disputed Tracks from the album.14

The chilling effect of the second option is obvious. But the

first option also has First Amendment implications. The United

States Supreme Court has emphasized the potentially

problematic nature of regulations that compel speech, even in a

commercial context. In National Institute of Family & Life

Advocates v. Becerra (2018) ___ U.S. ___ [201 L.Ed.2d 835] (Life

Advocates), the court held that a California law requiring notices

in health care clinics concerning available health care services,

including abortion, likely violated the First Amendment. The

court declined to recognize an exception to strict scrutiny review

13 The CLRA does provide for a good faith defense to an

action for damages, but the defense requires proof of “appropriate

correction, repair or replacement or other remedy of the goods

and services.” (See Civ. Code, §§ 1782, subds. (b) & (c), 1784.) In

contrast to the consumer claims asserted against Appellants,

Serova’s fraud claim against the Cascio Defendants of course does

include a scienter element. That claim is still pending in the trial

court.

14 The record illustrates this dilemma. During oral

argument, the trial court suggested that Appellants could have

avoided legal challenge by leaving the Songs at issue off the

album entirely. The trial court’s written ruling also observes that

Appellants could have given the album “a different title and look”

or elected “not to attest to the authenticity of the recordings on

the cover or in a commercial.”

37

under the First Amendment for “professional speech,” noting that

the court has permitted compelled disclosures only in the context

of professionals’ “commercial advertising” concerning “ ‘purely

factual and uncontroversial information about the terms under

which . . . services will be available.’ ” (201 L.Ed.2d at p. 848.)

By compelling a particular disclosure, the law at issue amounted

to an impermissible “content-based regulation of speech.” (201

L.Ed.2d at p. 846.)15

By compelling disclosure of the controversy over the

Disputed Tracks to avoid liability, the UCL and CLRA would, in

effect, require Appellants to present views in their marketing

materials with which they do not agree.

16 The possibility that

15 That the court’s reasoning in Life Advocates has

implications beyond just professional disclosures is shown by

Justice Breyer’s dissent, which cautions that “the majority’s view,

if taken literally, could radically change prior law, perhaps

placing much securities law or consumer protection law at

constitutional risk, depending on how broadly its exceptions are

interpreted.” (Life Advocates, supra, 201 L.Ed.2d at p. 857 (dis.

opn. of Breyer, J.).) The majority countered by stating that it

does not “question the legality of . . . purely factual and

uncontroversial disclosures about commercial products.” (201

L.Ed.2d at p. 852, italics added.) Here, any compelled disclosure

would not be “uncontroversial”; Serova herself alleges that

“controversy has surrounded” the three Disputed Tracks. Nor

would it be “purely factual” from Appellants’ perspective, as they

had no personal knowledge of the facts.

16 In her supplemental brief following transfer from the

Supreme Court, Serova suggests another alternative. She argues

that Appellants could have simply disclosed their “lack of

certainty” about the identity of the singer, for example by stating

38

applying these unfair competition and consumer protection laws

to Appellants’ speech would have the effect of chilling the content

of that speech—whether by preventing the sale of particular

musical works or by regulating the expression of a point of view

on a public controversy about those works—is a further reason to

conclude that the speech at issue was noncommercial.

ii. The relationship between the

Challenged Statements and the art

that they promoted

Appellants’ statements in the Promotional Video and on the

Album Cover described and promoted the album, of which the

Disputed Tracks were a part. The music on the album itself is

entitled to full protection under the First Amendment. (Stewart,

supra, 181 Cal.App.4th at p. 682.) The Challenged Statements

therefore related directly to a piece of art that has independent

significance under the First Amendment.

The identity of a singer, composer, or artist can be an

important component of understanding the art itself. No one

could reasonably dispute that knowing whether a piece of music

was composed by Johann Sebastian Bach or a picture was

painted by Leonardo Da Vinci informs the historical

that the “ ‘lead vocals are believed to be by Michael Jackson.’ ”

This alternative still has the effect of compelling speech that is

not “purely factual and uncontroversial.” (Life Advocates, supra,

201 L.Ed.2d at p. 852.) Such a statement implies the existence of

real controversy or doubt about the identity of the singer even

though Appellants might not believe that any reasonable doubt

exists.

39

understanding of the work.17 Similarly, although the art at issue

is contemporary and in a different genre, whether Michael

Jackson was actually the lead singer of the songs on the Disputed

Tracks certainly affects the listener’s understanding of their

significance. Thus, the marketing statements at issue here are

unlike the purely factual product or service descriptions

constituting commercial speech in cases that Serova cites. (See

Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1268

[representation that products were manufactured in the United

States]; Peel v. Attorney Disciplinary Comm’n of Ill. (1990) 496

U.S. 91, 99–100 [advertisement concerning attorney’s

certification as an expert]; Rubin v. Coors Brewing Co. (1995) 514

U.S. 476, 481 [descriptions of alcohol content on beer labels].)

We do not suggest that the Challenged Statements here are

noncommercial speech only because they promoted an art work.

We agree with the court in Rezec, supra, 116 Cal.App.4th 135,

that advertising is not necessarily excluded from the category of

commercial speech simply because it promotes a product that is

17 While these examples are only illustrative, they are not

purely hypothetical. (See Dutter & Nikkhah, Bach works were

written by his second wife, claims academic, The Telegraph

(Apr. 23, 2006) [as of Dec. 16, 2019], archived at

; Sayej, Artistic License? Experts

doubt Leonardo da Vinci painted $450m Salvator Mundi, The

Guardian (Nov. 20, 2017) [as of Dec. 16, 2019],

archived at .)

40

itself subject to full First Amendment protection. In Rezec, the

court held that film advertisements that featured fictional

endorsements from a nonexistent critic was commercial speech.

The court rejected the “absolutist approach” that “because the

films themselves are noncommercial speech, so are the

advertisements.” (Id. at p. 142.)18

Such an approach would ascribe full First Amendment

significance to any commercial representation about a piece of

art, no matter how mundane or willfully misleading. For

example, returning to the hypothetical advertisement mentioned

above, there is no apparent reason why a statement falsely

stating that a particular song is included in an album should be

subject to full First Amendment protection simply because the

statement promotes the sale of music.

19 However, where, as

18 In Keimer, the court concluded that advertisements

repeating “verifiably false or misleading” statements about

investment returns contained in a book were commercial speech

despite the fully protected status of the books themselves under

the First Amendment. (Keimer, supra, 75 Cal.App.4th at

p. 1231.) The statements at issue here were not “verifiably false”

based upon the information available to Appellants, so we need

not consider this holding.

19 Thus, we do not accept Appellants’ suggestion that an

advertisement promoting a particular piece of art is necessarily

“inextricably intertwined” with the First Amendment content of

the art itself simply because it makes a representation about the

identity of the artist. (See Riley, supra, 487 U.S. at p. 796.) The

distinguishing features here are that: (1) the identity of the

artist was itself an issue of public discussion and interest; and

(2) Appellants had no personal knowledge of the issue.

41

here, a challenged statement in an advertisement relates to a

public controversy about the identity of an artist responsible for a

particular work, and the advertiser has no personal knowledge of

the artist’s identity, it is appropriate to take account of the First

Amendment significance of the work itself in assessing whether

the content of the statement was purely commercial.

This conclusion is consistent with the flexible approach

that the United States Supreme Court has adopted for

identifying commercial speech. In Bolger, the court explained

that no single factor that it identified as a marker of commercial

speech is sufficient in itself to classify particular speech as

commercial, nor must each factor “necessarily be present in order

for speech to be commercial.” (Bolger, supra, 463 U.S. at p. 67,

fn. 14.) The court concluded that the presence of all three factors

in that case “provides strong support” for the conclusion that the

informational pamphlets at issue were commercial. (Id. at p. 67.)

However, citing a prior opinion involving the advertising of

religious books, the court also cautioned that “a different

conclusion may be appropriate in a case where the pamphlet

advertises an activity itself protected by the First Amendment.”

(Id. at p. 67, fn. 14.)

That is the situation here. The Challenged Statements in

the Promotional Video and on the Album Cover concerned music

that is “itself protected by the First Amendment.” (Bolger, supra,

463 U.S. at p. 67, fn. 14.) While not itself dispositive, the fact

that the Challenged Statements promoted a piece of art is

appropriate to consider in assessing the content of the speech

under the Kasky guidelines. (Kasky, supra, 27 Cal.4th at p. 961.)

42

3. Conclusion

Appellant’s Challenged Statements on the Album Cover

and in the Promotional Video were noncommercial speech outside

the scope of the consumer protection claims that Serova asserts

against Appellants. As a matter of law Serova therefore cannot

show a likelihood that she will prevail on her claims under prong

two of the anti-SLAPP procedure, and her claims against

Appellants must be stricken. We therefore need not reach the

issue of whether the Challenged Statements would be misleading

to a reasonable consumer.

We emphasize that this holding is based on the record in

this case and the issues that have been appealed. The Cascio

Defendants have not appealed, and our holding therefore does

not reach any portion of the trial court’s order with respect to

them. Nor do we purport to decide whether statements in

another context concerning the marketing of creative works

might constitute commercial speech.

The trial court’s order is affirmed in part and reversed in part. The portions of the Complaint alleging claims against Appellants are ordered stricken. In all other respects the trial court’s order is affirmed. Appellants are entitled to their costs on appeal.