California Anti-SLAPP Project
Jewett v. Capital One Bank
Cite as: 113 Cal.App.4th 805, 6 Cal.Rptr.3d 675
Beverly JEWETT, Plaintiff and Appellant,
v.
CAPITAL ONE BANK et al., Defendants and Respondents
California Court of Appeal, Second District, Div. 2
No. B163311
Nov. 25, 2003
(Appeal from Superior Court of Los Angeles County, Mary Ann Murphy, Judge.)
Appellant Beverly Jewett appeals from an order of the trial court granting a special motion to strike under Code of Civil Procedure section 425.16 [FN 1] in favor of respondents Capital One Bank and Capital One, F.S.B. We are asked to determine whether credit card solicitations are acts of free speech in connection with a public issue, and therefore subject to the anti-SLAPP (strategic lawsuit against public participation) provisions of section 425.16. We hold that they are not and reverse the orders of the trial court granting the special motion to strike and awarding respondents attorney fees and costs of $40,788.55.
CONTENTIONS
Appellant contends that the trial court erred: (1) in finding that credit card solicitations constitute speech in connection with an issue of public interest; (2) in finding as a matter of law that the solicitations were not misleading; (3) in finding that appellant had not met her burden of establishing the merits of the complaint under section 425.16; and (4) by abusing its discretion in permitting respondents to bring an untimely motion to strike.
FACTS AND PROCEDURAL HISTORY
The complaint
On July 6, 2001, appellant and Jim Moana [FN 2] filed a class action complaint against Capital One Bank, Capital One, F.S.B., and Capital One Financial Corporation [FN 3] for: (1) deceptive business practices (Civ.Code, § 1770) and (2) unfair business practices (Bus. & Prof.Code, § 17200).
The complaint alleges the following. Respondents offered "pre-approved" credit cards or "Gold" credit cards with a credit line up to $2,000, but actually issued open-ended unsecured personal credit agreements having a credit limit of $200 or less. Despite having only a $200 credit limit, these cards incurred the same (or greater) monthly or annual charges (and other fixed fees such as late and over limit fees) as the card the consumer was offered in the original solicitations.
These practices are misleading because the solicitations "contain a personalized invitation using the name of the specific individual, repeatedly use the words 'pre-approved' with regard to the credit card being offered, repeatedly refer to a $2,000 amount while printing the amount '$2,000' in large, bold face type, uses the phrase 'Pre-approved Credit Line Up to $2,000' or similar wording, offers 'CONGRATULATIONS!', indicates a specific 'Reservation' number and 'Access Code' for the credit card, and describes multiple uses which would be totally unrealistic for a card that only carries a $200 credit limit." The personalized solicitation uses the word "pre-approved" 15 times, the word "Gold" 19 times, and the phrase "up to $2,000" five times. Only once does the fact that the credit line may be as low as $200 appear, tucked away in fine print on the back of the solicitation letters, in what appears to be a preprinted form disclosure.
The trial court's reasoning that commercial speech is protected under the First Amendment and that "[c]onsumer credit is essential in the present economy and providing information about consumer credit is an issue of public interest" is untenable. As explained in Nagel, commercial speech is subject to limited protection. (Nagel, supra, 109 Cal.App.4th at pp. 46-47.) There is no indication that respondents' solicitations were designed to inform the public of an issue of public interest, despite respondents' arguments that the solicitations affect large numbers of people and provide "important, specific, and detailed information on serious matters." We find that the solicitations were designed solely for the purpose of commercial activity, and that to allow such solicitations the protection of section 425.16 by virtue of the fact that they touch upon matters of general public interest would eviscerate the unfair business practices laws. We hold that the credit card solicitations at issue do not implicate matters of public interest and therefore do not qualify for protection under section 425.16.
We hold that the trial court erred in granting respondents' motion to strike. Because of our conclusion that credit card solicitations do not qualify for protection under section 425.16, we need not address appellant's contention that the trial court abused its discretion in permitting respondents to bring an untimely motion to strike. Further, having concluded that respondents failed to carry their burden of showing that their acts arose from protected activity, we need not address the issue of whether appellant has a probability of prevailing on the merits. Finally, we decline respondents' invitation to affirm the trial court's order on the alternate ground that the complaint is legally insufficient.
DISPOSITION
The orders of the trial court granting the motion to strike and awarding $40,788.55 in fees and costs under section 425.16, subdivision (c) are reversed. Appellant shall receive costs of appeal. The matter is remanded to the trial court for consideration of an award of fees and costs to appellant.
We concur: DOI TODD and ASHMANN-GERST, JJ.
The portions of the case herein contained are exerpted from the actual case and do not constitute the entire case which can be found here.
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