Filed 7/27/16
                             CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



JAMS, INC., et al.,                           D069862

        Petitioners,                          (San Diego County
                                               Super. Ct. No. 37-2015-00026133-CU
        v.                                     FR-CTL)

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;

KEVIN J. KINSELLA,

        Real Party in Interest.


        ORIGINAL PROCEEDINGS in mandate. John S. Meyer, Judge. Petition denied;

stay vacated.

        Long & Levit, Joseph P. McMonigle, Jessica R. MacGregor, Jonathan Rizzardi;

Reed Smith, Paul D. Fogel and Dennis P. Maio for Petitioners.

        No appearance for Respondent.

        Bravo Law Group, Gregory L. Cartwright; Goode Hemme & Peterson, Jerry D.

Hemme; Jenkins and Erik C. Jenkins for Real Party in Interest.
                                     INTRODUCTION

       This 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 misleading.

       JAMS and Sonenshine filed an anti-SLAPP (Code Civ. Proc., § 425.16)1 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 [writ review appropriate to

decide issues of widespread interest].) Having now considered the matter, we agree the


1       "Code of Civil Procedure section 425.16 provides a procedure for the early
dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public
participation)—litigation of a harassing nature, brought to challenge the exercise of
protected free speech rights. The section is thus informally labeled the anti-SLAPP
statute, and a motion to dismiss filed under its authority is denominated an anti-SLAPP
motion." (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.)
        Further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
                                              2
commercial speech exemption applies and precludes the use of the anti-SLAPP procedure

in this case. The petition is denied.

                                        BACKGROUND

                                              A

       JAMS provides private alternative dispute resolution 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."

       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 our

interactions.' "

       Sonenshine 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

                                              3
of Appeal[] justice. She is held out by JAMS as a neutral available for selection as a

mediator, arbitrator, referee, and [privately compensated temporary judge]."

                                            B

       Kinsella 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 funding."

       He 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."

       The 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

                                             4
she possessed." He began to look into her background "to determine whether her

[biography] accurately reflected her career achievements, especially as they concerned

her business ventures." He concluded her biography "omitted key information" causing

him to question her integrity.

                                             C

       Kinsella filed a complaint alleging Sonenshine's biography on the JAMS Web site

was dishonest in two respects: (1) it "proclaimed business success surrounding the co-

founding and management of [EquiCo and RSM EquiCo]" when "the history of those

two ventures is full of adverse and unfavorable accusations" against Sonenshine and her

son in a class action lawsuit for fraud, and (2) it "proclaimed she was the founder of the

[Escher Fund], an equity fund that focused on growth-state, women-owned, and women-

led businesses" when "the equity fund existed in name only as it never raised any equity

capital and was, therefore, never funded" and never operated "as a functioning investment

entity."

       The complaint alleged Sonenshine omitted information about the class action

lawsuit because it would injure her reputation, reflect poorly on her background or

discourage consumers from selecting her as a neutral. It further alleged Sonenshine knew

her biography was misleading in implying "the Escher Fund was an actual operating

fund, one that had successfully raised equity capital, when it never was either."

       As to JAMS, the complaint alleged, "[b]y representing Sonenshine to be a person

of the highest ethical standards, JAMS misrepresented the nature of her qualifications as

a neutral to be hired from its [Web site]. [¶] … By 'ensuring' that its neutrals conduct

                                             5
themselves with the highest ethical standards, JAMS accredited the deception committed

by Sonenshine." (Some capitalization omitted.)

       The complaint set forth four causes of action: (1) violation of the Consumer Legal

Remedies Act (Civ. Code, § 1750 et seq.) based on "deceptive representations" made on

Sonenshine's biography posted on the JAMS Web site and based on "deceptive

representations" made by JAMS; (2) fraud based on (a) Sonenshine's false representation

she was the founder of the Escher Fund, "yet that fund never existed inasmuch as it was

never funded," (b) JAMS's false representation that its neutrals act with "highest ethical

standards" and JAMS acts with "integrity, honesty, accountability, and mutual respect in

all our interactions," and (c) the defendants' concealment regarding Sonenshine's

involvement with EquiCo and RSM EquiCo and the accusation of impropriety; (3)

negligent misrepresentation; and (4) violation of Business and Professions Code sections

17200 and 17500.

       The complaint stated "all allegations of wrongdoing relate to information Kinsella

specifically viewed on defendant JAMS' [Web site] before he agreed to select Sonenshine

as the [privately compensated temporary judge]." (Some capitalization omitted.)

Kinsella sought injunctive relief, actual damages exceeding $250,000, punitive damages,

prejudgment interest, disgorgement, and restitution.

                                             D

       JAMS and Sonenshine filed an anti-SLAPP motion contending Kinsella's action

arose from protected activity because the statements in Sonenshine's biography and on

the JAMS Web site were made in connection with an issue under consideration by a

                                             6
judicial body. They also contended Kinsella would be unable to show a probability of

prevailing because Sonenshine had no duty to disclose the facts she purportedly omitted

and, if she did, judicial immunity and/or litigation privilege bars the claim.

       Kinsella moved for an order determining the allegations in the complaint are

exempt from the anti-SLAPP statute under the commercial speech exemption of section

425.17, subdivision (c). JAMS and Sonenshine opposed the motion contending the

statements on the JAMS Web site and in Sonenshine's online biography did not fall

within the commercial speech exemption of section 425.17, subdivision (c), because (1)

the exemption applies to " 'representations of fact' " not to omissions or nonfactual

representations such as puffery, (2) Sonenshine's biography was not purely commercial

speech because it was also used for noncommercial purposes such as for litigants to

evaluate potential conflicts of interest or for dissemination to bar groups for

noncommercial events.

       The court determined the commercial speech exemption of section 425.17,

subdivision (c), applies to this case and precludes use of the anti-SLAPP special motion

to strike. The court noted "JAMS and Sonenshine are engaged in the business of selling

ADR services, including private judging services, to the public. The alleged statements

that form the basis of [Kinsella's] claims were posted on the JAMS[] [Web site] for the

purpose of promoting and securing sales or commercial transactions in defendants' ADR

services. The intended audience was [Kinsella], a party involved in dissolution litigation,

who actually engaged the services of JAMS and Sonenshine."



                                              7
       The court determined the JAMS statements on the Web site, which promotes ADR

services and "allegedly describe[] its neutrals as having the 'highest ethical and moral

standards' and [state] they are 'dedicated to neutrality, integrity, honesty,' " were not mere

puffery, but were statements that "can be provably false factual assertions." The court

concluded "JAMS is a for-profit enterprise. [Its] statements regarding the

trustworthiness, integrity and honesty of its enterprise as well as its neutrals is purely

commercial speech. The resume is included on the [Web site] for commercial purposes

… to sell ADR services."

                                       DISCUSSION

                                               I

                                     General Principles

       SLAPP lawsuits, " ' "masquerade as ordinary lawsuits … [but] are generally

meritless suits brought primarily to chill the exercise of free speech or petition rights by

threat of severe economic sanctions against the defendant, and not to vindicate a legally

cognizable right." ' " (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21

(Simpson).) "In 1992, out of concern over 'a disturbing increase' in these types of

lawsuits, the Legislature enacted section 425.16" and "authorized the filing of a special

motion to strike to expedite the early dismissal of these unmeritorious claims." (Ibid.)

"A special motion to strike involves a two-step process. First, the defendant must make a

prima facie showing that the plaintiff's 'cause of action … aris[es] from' an act by the

defendant 'in furtherance of the [defendant's] right of petition or free speech … in

connection with a public issue.' [Citation.] If a defendant meets this threshold showing,

                                               8
the cause of action shall be stricken unless the plaintiff can establish 'a probability that

the plaintiff will prevail on the claim.' " (Ibid., fn. omitted.) The anti-SLAPP statute

states it "shall be construed broadly." (§ 425.16, subd. (a).)

       "In 2003, concerned about the 'disturbing abuse' of the anti-SLAPP statute, the

Legislature enacted section 425.17 to exempt certain actions from it." (Simpson, supra,

49 Cal.4th at p. 21.) One such exemption is for commercial speech. Section 425.17,

subdivision (c), exempts "from the anti-SLAPP law a cause of action arising from

commercial speech when (1) the cause of action is against a person primarily engaged in

the business of selling or leasing goods or services; (2) the cause of action arises from a

statement or conduct by that person consisting of representations of fact about that

person's or a business competitor's business operations, goods, or services; (3) the

statement or conduct was made either for the purpose of obtaining approval for,

promoting, or securing sales or leases of, or commercial transactions in, the person's

goods or services or in the course of delivering the person's goods or services; and (4) the

intended audience for the statement or conduct meets the definition set forth in section

425.17[, subdivision,] (c)(2)." (Simpson, at p. 30.)

       "The commercial speech exemption … 'is a statutory exception to section 425.16'

and 'should be narrowly construed.' " (Simpson, supra, 49 Cal.4th at p. 22.) "[T]he party

seeking the benefit of the commercial speech exemption, [has] the burden of proof on

each element." (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of

Los Angeles (2015) 239 Cal.App.4th 918, 931.) "We review the applicability of the

commercial speech exemption independently." (Simpson, at p. 26.)

                                               9
                                              II

                                          Analysis

       JAMS and Sonenshine contend the commercial speech exemption is not applicable

for two reasons. First, they contend the statements about which Kinsella complains are

not "representations of fact" involving positive assertions of past or present conditions or

events, but are omissions or nonactionable opinions. Second, they contend the statements

from which the causes of action arise were not made for purely commercial purposes.

We are not persuaded by either contention.

                                              A

       We do not agree the commercial speech exemption is limited to exclude from the

anti-SLAPP statute only causes of action arising from positive assertions of facts. This

contention is not supported by either the plain language of the statute or its legislative

history.

       Section 425.17, subdivision (c), states in pertinent part: "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 … arising from any statement or conduct by that

person if both of the following conditions exist: [¶] (1) The statement or conduct consists

of representations of fact about that person's or a business competitor's business

operations, goods, or services, that is made for the purpose of obtaining approval for,

promoting, or securing sales or leases of, or commercial transactions in, the person's

goods or services, or the statement or conduct was made in the course of delivering the

person's goods or services. [¶] (2) The intended audience is an actual or potential buyer

                                             10
or customer, or a person likely to repeat the statement to, or otherwise influence, an

actual or potential buyer or customer." (Italics added.)

       "Under the two-pronged test of section 425.16, whether a section 425.17

exemption applies is a first prong determination." (Demetriades v. Yelp, Inc. (2014) 228

Cal.App.4th 294, 308 (Demetriades).) We do not consider whether the plaintiff has a

reasonable likelihood of prevailing on the merits of his or her claims, which is the second

prong of a section 425.16 analysis. (Id. at p. 312.) A conclusion about whether the

plaintiff's claims "are the kind of claims the Legislature intended to exempt from the

scope of the anti-SLAPP statute when it adopted section 425.17 … is entirely

independent of any evaluation of the merits of those claims, or even the adequacy of [the]

… pleadings." (The Inland Oversight Committee v. County of San Bernardino (2015)

239 Cal.App.4th 671, 678.)

       "The legislative history indicates this legislation is aimed squarely at false

advertising claims and is designed to permit them to proceed without having to undergo

scrutiny under the anti-SLAPP statute. Proponents of the legislation argued that

corporations were improperly using the anti-SLAPP statute to burden plaintiffs who were

pursuing unfair competition or false advertising claims" and were being encouraged to

use anti-SLAPP motions as a " 'litigation weapon to slow down and perhaps even get out

of [unfair competition] litigation.' " (Demetriades, supra, 228 Cal.App.4th at p. 309.)

       Responding to concerns an exemption would impact the free speech rights of

businesses, the legislative history of section 425.17 indicates it was drafted to track

constitutional principles governing regulation of commercial speech based upon

                                             11
guidelines discussed in Kasky v. Nike, Inc. (2002) 27 Cal.4th 939 (Kasky).2 (See Assem.

Com. on Judiciary, Rep. on Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended

June 27, 2003, p. 8.) In doing so, it followed "Kasky's guidelines on commercial speech,

focusing on the speaker, the content of the message, and the intended audience." (Id. at

p. 10.) Commercial speech usually involves a "speaker [who] is likely to be someone

engaged in commerce—that is, generally, the production, distribution, or sale of goods or

services—or someone acting on behalf of a person so engaged, and the intended audience

is likely to be actual or potential buyers or customers of the speaker's goods or services,

or persons acting for actual or potential buyers or customers." (Kasky, supra, at p. 960.)

Additionally, "the factual content of the message should be commercial in character. In

the context of regulation of false or misleading advertising, this typically means that the

speech consists of representations of fact about the business operations, products, or

services of the speaker …, made for the purpose of promoting sales of, or other

commercial transactions in, the speaker's products or services." (Id. at p. 961.) The




2       " '[T]he [federal] Constitution accords less protection to commercial speech than
to other constitutionally safeguarded forms of expression.' " (Kasky, supra, 27 Cal.4th at
p. 952.) The court noted several reasons for "withholding First Amendment protection
from commercial speech that is false or actually or inherently misleading" such as (1)
" '[t]he truth of commercial speech … may be more easily verifiable by its disseminator
… in that ordinarily the advertiser seeks to disseminate information about a specific
product or service that he himself provides and presumably knows more about than
anyone else,' " (2) "commercial speech is hardier than noncommercial speech in the
sense that commercial speakers, because they act from a profit motive, are less likely to
experience a chilling effect from speech regulation," and (3) "governmental authority to
regulate commercial transactions to prevent commercial harms justifies a power to
regulate speech that is ' "linked inextricably" to those transactions.' " (Id. at pp. 954-955.)
                                              12
language of section 425.16, subdivision (c)(1), closely tracks Kasky's discussion about

the content of commercial speech.

       Neither the Kasky decision nor the legislative history indicates the content of

commercial speech must be an affirmative or positive representation, as opposed to an

omission or half-truth. What matters for purposes of the commercial versus

noncommercial speech analysis is whether the speech at issue is about the speaker's

product or service or about a competitor's product or service, whether the speech is

intended to induce a commercial transaction, and whether the intended audience includes

an actual or potential buyer for the goods or services. Indeed, Kasky, supra, 27 Cal.4th at

page 951 recognized the unfair competition law and false advertising law "prohibit 'not

only advertising which is false, but also advertising which[,] although true, is either

actually misleading or which has a capacity, likelihood or tendency to deceive or confuse

the public.' "

       Here, Kinsella's causes of action against JAMS and Sonenshine arise from

statements posted on the JAMS Web site regarding Sonenshine's background and

qualifications to provide ADR services as well as general statements about how JAMS

conducts its business in providing ADR services. These statements fit comfortably

within the commercial speech exemption of section 425.17, subdivision (c).

       The representations made in Sonenshine's biography are representations of fact.

Whether those facts are true or whether she should have included additional facts to

ensure the representations were not misleading goes to the issue of whether or not



                                             13
Kinsella can prevail on his claim, not to whether the statements qualify as commercial

speech subject to the exemption of section 425.17, subdivision (c).

       The statements that JAMS ensured " 'the highest ethical standards,' " that

" '[e]verything we do and say will reflect the highest ethical and moral standards' " and

that JAMS is " 'dedicated to neutrality, integrity, honesty, accountability, and mutual

respect in all our interactions' " are also representations of fact for purposes of analyzing

the commercial nature of the speech. Although using words of emphasis, they are

specific statements representing how JAMS conducts its operations with neutrality,

integrity, honesty and accountability. They are certainly intended to be relied upon by

customers of its services, otherwise they would serve no legitimate purpose.

(Demetriades, supra, 228 Cal.App.4th at pp. 311-312.) As the trial court commented,

"After all, it is the violation of these types of standards and qualities that cause Bar

members to be disciplined by the State Bar." It is also worth noting the posting of

Sonenshine's biography in conjunction with these statements may have implicitly

represented JAMS adopted her representations about her credentials and ratified them as

reflecting "integrity, honesty, [and] accountability." Again, we do not reach the issue of

whether these statements are true, false, or otherwise nonactionable. Such a

determination would be part of a prong-two analysis under section 425.16 regarding the

merits of the claim, but is irrelevant to the commercial speech analysis required under

section 425.17, subdivision (c).

       The cases upon which JAMS and Sonenshine rely do not assist them. In Simpson,

supra, 49 Cal.4th 12, the court concluded an attorney's representations about a product in

                                              14
an advertisement to recruit potential plaintiffs for a class action suit did not fall within

section 425.17's commercial speech exemption because the statements were not

representations of fact about the attorney's business operations, goods or services. Since

the statements were neither about the attorney's services nor those of a competitor, the

plain language of commercial speech exemption did not apply. (Id. at p. 30.) The court

also rejected a contention the advertisement's statement " ' "an attorney" will "investigate

whether you have a potential claim" ' " qualified as commercial speech. The causes of

action in that case arose from the advertisement's implication the product was defective,

not a representation an attorney would investigate the claim. (Id. at pp. 30-31.) In dicta,

the court commented "[i]n addition, a promise of what an attorney will do if the reader

were to respond to the advertisement 'is not a representation of fact, but an agreement to

take certain actions in the future.' " (Id. at p. 31, quoting Navarro v. IHOP Properties,

Inc. (2005) 134 Cal.App.4th 834, 841 (Navarro).)

       In Navarro, the court held section 425.17 did not apply to allegedly false

promises, made in the context of settling a lawsuit, to handle matters " 'without undue

delay.' " (Navarro, supra, 134 Cal.App.4th at pp. 840-841.) In reaching this holding, the

court commented "[a] promise is not a representation of fact, but an agreement to take

certain actions in the future." (Id. at p. 841.) More to the point, however, the court

concluded the statement was not made as part of a commercial transaction or to induce a

commercial transaction, but rather as part of a settlement negotiation to protect its own

interests. (Ibid.)



                                              15
       The statements about JAMS are not mere promises, but representations of fact

about the neutrals it employs and how it conducts its business. These representations

published on a Web site to induce litigants to engage in ADR services offered by JAMS

were commercial speech for purposes of section 425.17, subdivision (c).

       It bears emphasizing again our conclusions here that Kinsella's claims are the kind

the Legislature intended to exempt from the scope of the anti-SLAPP statute, is separate

and distinct from any evaluation of the merits of his claims, the applicability of any

defenses such as judicial immunity, or even the adequacy of the pleadings. (The Inland

Oversight Committee v. County of San Bernardino, supra, 239 Cal.App.4th at p. 678.)

                                              B

       JAMS and Sonenshine also contend the commercial speech exemption does not

apply because the statements on the JAMS Web site might be used for multiple purposes,

such as to comply with Sonenshine's judicial duty of disclosure, or because the causes of

action arise from postretention conduct, not commercial speech. We do not agree.

       Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482 (Taheri) held the

commercial speech exemption does not apply to a lawsuit filed by a law firm against

another attorney for intentional interference with prospective economic advantage and

intentional interference with business relations for soliciting the law firm's client. The

court concluded "a cause of action arising from a lawyer's conduct, when the conduct

includes advice to a prospective client on pending litigation, does not fall within the

statutory exemption to the anti-SLAPP statute." (Id. at pp. 485, 490.) The court

commented the legislative history of the commercial speech exemption confirmed "the

                                             16
Legislature's intent to except from anti-SLAPP coverage disputes that were purely

commercial." (Id. at p. 491.)

      We do not understand the comment in Tahari to mean a statement giving rise to a

cause of action must be purely commercial and have no other use to fall within the

commercial speech exemption. The Tahari court noted "[a] dispute involving a lawyer's

advice to a prospective client on pending litigation … while it may include an element of

commerce or commercial speech, is fundamentally different from the 'commercial

disputes' the Legislature intended to exempt from the anti-SLAPP statute." (Tahari,

supra, 160 Cal.App.4th at p. 491.) The court acknowledged "lawyers engage in

'commercial speech' when they advertise their services" and stated "we can envisage

circumstances—such as a 'massive advertising campaign' divorced from individualized

legal advice—under which the commercial speech exemption to the anti-SLAPP statute

conceivably might apply to a lawyer's conduct." (Id. at pp. 491-492.)

      The issue is whether or not the statement or conduct from which the causes of

action arise is speech used to induce a commercial transaction. The Tahari court

concluded the " 'statement or conduct' " from which the causes of action arose

"constituted much more than 'commercial speech'; the conduct was in essence advice by a

lawyer on a pending legal matter." (Tahari, supra, 160 Cal.App.4th at p. 491.) This

weighing of purposes indicates it is not an all or nothing proposition as JAMS and

Sonenshine contend.

      JAMS and Sonenshine are engaged in the business of selling ADR services.

Kinsella's causes of action arise from statements posted on the JAMS Web site about

                                           17
both Sonenshine's background and experience and about JAMS's operations. It is

apparent all of the statements about which Kinsella complains were placed on the JAMS

Web site to be viewed by actual or potential ADR buyers or customers, or attorneys

representing actual or potential buyers or customers of ADR services. According to the

complaint, Kinsella reviewed the JAMS Web site and agreed to use Sonenshine as a

privately compensated temporary judge based on the statements. (Simpson, supra, 49

Cal.4th at p. 30.) Therefore, the statements or conduct from which Kinsella's causes of

action arise is more "commercial speech" than anything else. Whether or not the

statements may be used for other purposes does not change the analysis.

       Finally, we do not agree that Kinsella's references to postretention statements by

Sonenshine preclude application of the commercial speech exemption. Each of the

causes of action focuses on the statements regarding Sonenshine's background and how

JAMS operates its business. Although the complaint includes information about how

Kinsella discovered problems with the information and Sonenshine's subsequent response

to his challenges, he alleges each cause of action arises from the representations made on

the JAMS Web site. According to Kinsella, he "does not sue for any actions taken by

Sonenshine in any adjudicative capacity nor for any acts, [omissions] or defalcations

committed … from the time Kinsella agreed … to allow Sonenshine to serve as the

jointly retained [privately compensated temporary judge], sometime in late January 2013,

after he was induced into that agreement by the false representations … . In fact, all

allegations of wrongdoing relate to information Kinsella specifically viewed on defendant

JAMS' [Web site] before he agreed to select Sonenshine as the [privately compensated

                                            18
temporary judge]." (Some capitalization omitted.) Whether his causes of action, and the

damages he seeks, are as limited as he asserts are matters beyond the issue relevant in this

writ petition.

                                      DISPOSITION

       For all of the reasons expressed herein, the commercial speech exemption of

section 425.17, subdivision (c), applies to this action and precludes consideration of the

anti-SLAPP motion. The petition is denied. The stay issued on March 7, 2016 is

vacated. Kinsella is entitled to costs in this proceeding. (Cal. Rules of Court, rule

8.493(a)(1)(A).)



                                                                       MCCONNELL, P. J.

WE CONCUR:




                    HUFFMAN, J.




                      HALLER, J.




                                             19
