1

Filed 3/5/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE
ANIMAL LEGAL DEFENSE FUND, Plaintiff and Respondent,

v. LT NAPA PARTNERS LLC , et al., Defendants and Appellants. A 139625
(Napa County Super. Ct. No. 26

- 61166)

Plaintiff and respondent Animal Legal Defense Fund (plaintiff) filed an action against defendants and appellants LT Napa Partners LLC and Kenneth Frank (defendants), alleging defendants sold foi e gras in their Napa restaurant in violation of
section 25982 of the Health and Safety Code (Section 25982)

. Defendants moved to

s trike plaintiff ’s claim pursuant to the anti

- SLAPP statute, 1 section 425.16 of the Code of
Civil Procedure (Section 425.16 )

. Defendants appeal from the trial court’s denial of the
motion. We affirm. 2

BACKGROUND In 2004, the Legislature enacted Section 25982 , banning the sale of foie gras effective July 1, 2012. (See Health & Saf. Code §§ 25980, et seq.) Plaintiff advocated

1 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ” ( Jarrow Formulas, Inc. v. LaMarche (2 003) 31 Cal.4th 728, 732, fn. 1 .) 2 On January 7, 2015, a Federal District Court held that Section 25982 is preempted by federal law and enjoined its enforcement. ( Des Eleveurs de Canards et d'Oies du Quebec v. Harris (C.D.Cal., Jan. 7, 2015, No . 2:12

- cv

- 5735

- SVW

- RZ )

___ F.Supp.3d. ___ [ 2015 U.S. Dist. LEXIS 5806 ].) Two days before oral argument, defendants requested dismissal of the present appeal , apparently on the basis that the present lawsuit was mooted by the federal ruling. We denied t hat request. Nothing in that denial or in this decision precludes defendant from presenting arguments after remand regarding the effect of the federal decision on the present lawsuit.2

for passage of the ban and has been active in informing the public about the law and its view that production of foie gras involves cruelty to animals

. 3 Defendant Frank, who is the head chef at Napa restaurant La Toque, has been a vocal opponent of Secti on 25982

. For example, he testified at state senate hearings pr eceding passage of the law, publicly debated the merits of the ban, and authored a newspaper opinion article against the ban. La Toque is owned by defendant LT Napa Partners, LLC (“LT Napa”); Frank is the managing member of LT Napa. After the ban went into effect, plaintiff paid an investigator to dine at La Toque on three occasions in September 2012, October 2012, and March 2013. On each occasion he requested foie gras and was told that if he ordered an expensive tasting menu he would receive foie gras

. On two of the occasions it was described a s a “gift” from the chef. He
ordered the tasting menus and was served foie gras. He was not told he was served foie

gras in protest against the fo ie gras ban and was not provided information about defendant Frank’s opposition to the foie gras ban. 4 Plaintiff brought the results of its investigation to Napa law enforcement authorities. Over the course of three months, plaintiff attempted to persuad e the Napa
authorities to take action ba sed on the alleged violation of Section 25982 at La Toque , but
the city attorney declined

. Subsequently, plaintiff initiated the present suit , alleging a cause of action under the Unfair Competition Law (“UCL”) (Bus . & Prof. Code §§ 17200, et seq.) based on defendants’ alleged violation of Section 25982 . Plaintiff does not request damages but seeks an injunction prohibiting defendants from “furnishing, preparing, or serving foie gras in any form or manner whatsoever .”
Defendants brought a special motion to strike plaintiff’s action as a SLAPP under
Section 425.16

. The trial court denied the motion, concluding defendants had failed to

3 Section 25982 bans the sale of p roducts that are “the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” 4 In a declaration, Frank averred that, “[s]hortly after” the investigator’s March 2013 visit, La Toque started “presenting a ‘protest card’ ” when serving foie gras. He av erred the cards explained his “criticism of and opposition to” Section 25982.3

show plaintiff’s cause of action arose from protected activity and concluding plai ntiff had shown a probability of prevailing on the merits. This appeal followed. 5

DISCUSSION
I. T he Anti

- SLAPP Law “In 1992, the Legislature enacted [S] ection 425.16 in an effort to curtail lawsuits brought primarily ‘to chill the valid exercise of .

. . freedom of speech and pet ition for redress of grievances’ and ‘to encourage continued participation in matters of public significance.’ (§ 425.16, subd. (a).) The section authorizes a special motion to strike ‘[a] cause of action against a person arisi ng 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).) The goal is to elim inate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the special motion to strike ‘unless the court determines that the plaintiff has established that there is a probabi lity that the plaintiff will prevail on the claim.’ (§ 425.16, subd. (b)(1).)” ( Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395

– 1396, fn. omitted ( Gallimore ) .) “The statutory language establishes a two

- part test. Firs t, it must be d etermined whether the plaintiff’ s cause of action arose from acts by the defendant in furtherance of
the defendant ’ s right of petition or free speech in connection with a public issue. [Citation.] ‘A defendant meets this burden by demonstra ting that the act underlying the plaintiff’ s cause fits one of the categories spelled out i n [S] ection 425.16, subdivision

5 We have considered an amicus curiae brief filed in favor of plaintiff by John L. Burton, the author of the senate bill that resulted in enactment of the ban on foie gras. Ami cus requested that this court take judicial notice of various legislative history materials regarding the enactment of Section 25982. We deny the request because most of the materials are unnecessary to resolution of the issues on appeal and those materia ls that we rely upon are published materials regarding which a motion for judicial notice is unnecessary. ( Wittenberg v. B eachwalk Homeowners Ass n

. (2013) 217 Cal.App.4th 654, 665, fn. 4 [“A motion for judicial notice of published legislative history, suc h as the Senate Analysis here, is unnecessary.”].)4

(e).’ [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a re asonable probability of success on his or her claims at trial.” ( Gallimore
, supra , 102 Cal.App.4th at p. 1396.) “Whether [S] ection 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review ind ependently on appeal. ” ( Ibid. ) The statute provides that
S ection 425.16 “shall be construed broadly.” (§ 425.16, subd. (a).)
II. We Assume For Purposes of Appeal That P laintiff’s Lawsuit Arises Out of Defendants’ Conduct In Furtherance of Speech
A def endant can meet its burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating t he act underlying the plaintiff’ s cause of action falls within one of the four categories identified in S ection 425.16, subdivision (e). ( City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Among other things, defendants contend plaintiff’s UCL claim arises out of “ 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)(4).) In particular, they contend the serving of foie gras at La Toque was in furtherance of defendant Frank’s public opposition to the foie gras ban. F or purposes of the present appeal we will assume that conduct is protected activity within the meaning of
S ection 425.16, subdivision (e)

. (See Smith v. Adventist Health Systems/West (2010)
190 Cal.App.4th 40, 56 [assuming satisfaction of first step and proceeding to consideration of second step of S ection 425.16 analysis ].)
III. P laintiff Has Demonstrated a Probability of Prevailing In order to establish a probability of prevailing for purposes of S ection 425.16, subdivision (b)(1), “ ‘the plaintiff “m ust demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” ( Navellier
v. Sletten (2002) 29 Cal.4th 8 2, 88

– 89.) However, a defendant that advances an
affir mative defense to the plaintiff’ s claims bears the burden of proof on the defense.5

( P eregrine F unding, Inc. v. S heppard M ullin R ichter & H ampton LLP (2005) 133 Cal.App.4th 658, 676.) “The UCL prohibi ts, and provides civil remedies for, unfair competition, which it defines as ‘any unlawful, unfair or fraudulent business act or practice.’ ( [Bus. & Prof. Code] § 17200.) Its purpose ‘is to protect both consumers and competitors by promoting fair competi tion in commercial markets for goods and services.’ [Citations.] In service of that purpose, the Legislature framed the UCL’s substantive provisions in ‘ “broad, sweeping language” ’ [citations] and provided ‘courts with broad equitable powers t o remedy violations.’ ” ( Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320 ( Kwikset ).) On appeal, defendants contend plaintiff failed to demonstrate a probability of prevailing because plaintiff lacks standing, there is no basis for liability against def endant Frank, and plaintiff’s evidence fails to show defendants sold foie gras within the meaning
of Section 25982 . We disagree.
A. Plaintiff Has Shown a Probability of Prevailing on The Standing Issue
1. Legal Background
In Kwikset
, supra , 51 Cal.4 th 310, t he California Supreme Court examined the standing requirements of the UCL in light of the 2004 approval of Proposition 64. The court explained that, “While the substantive reach of [the UCL] remains expansive, the electorate has materially curtai led the universe of those who may enforce [its] provisions.

. . . ‘In 2004, the electorate substantially revised the UCL’s standing requirement; where once private suits could be brought by “any person acting for the interests of itself, its members or th e general public” [citation], now priv ate standing is limited to any “ person who has suffered injury in fact and has lost money or property ” as a result of unfair competition

. [Citations]

. The intent of this change was to confine standing to those actual ly injured by a defendant’ s business practices and to curtail the prior practice of filing suits on behalf of “ ‘ clients who have not used the defendant’ s product or service, viewed the defendant ’ s advertising, or had any other business dealing
with the de fendant

. . . .’ ” [Citation.] While the voters clearly intended to restrict UCL6

standing, they just as plainly preserved standing for those who had had business dealings with a defendant and had lost money or proper ty as a result of the defendant’ s unfai r business pract ices. ’ ” ( Kwikset
, supra , 51 Cal.4th at p p . 320

– 321.) 6
Kwikset interpreted the Proposition 64 requirement that a party ha s “lost money or property” to mean that a party must “(1) establish a loss or deprivation of money or property suffic ient to qualify as injury in fact, i.e., economic injury , and (2) show that that economic injury was the result of, i.e., caused by , the unfair business practice or false advertising that is the gravamen of the claim.” ( Kwikset
, supra , 51 Cal.4th at p. 32 2.)
Kwikset p ointed out that “ ‘[i]njury in fact’ is a legal term of art” that makes reference to one of the requirements for federal standing under article III, section 2 of the United States Constitution. ( Kwikset , at p. 322.) Indeed, “[t]he text of P roposition 64 establishes expressly that in selecting this phrase the drafters and voters intended to incorporate the established federal meaning. The initiative declares: ‘It is the intent of the California voters in enacting this act to prohibit private attorneys from filing lawsuits for unfair competition where they have no client who has been injured in fact under the standing requirements of the United States Constitution .’ ” ( Kwikset , at p. 322.) “[P]roof of injury in fact will in many instances ov erlap with proof of” loss of “money or property,” as also required by Proposition 64. ( Kwikset
, supra , 51 Cal.4th at p. 323.) Kwikset noted that such “economic injury

. . . is itself a classic form of injury in fact,” and “the quantum of lost money or pr operty necessary to show standing is only so much as would suffice to establish injury in fact.” ( Kwikset , at p p

. 323

– 324.) “ However, because economic injury is but one among many types of injury in fact, the Proposition 64 requirement that injury be eco nomic renders standing under [Business and Professions Code,] section 17204 substantially narrower than federal standing under article III, section 2 of the United States Constitution, which may be predicated on a broader range

6 The UCL’s standing provision provides, “[a]ctions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by [various law enforcement officials] .

. . or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” (Bus. & Prof. Code § 17204.)7

of injuries. ” ( Kwikset , at p. 324.) Nevertheless, injury in fact is “ not a substantial or
insurmountable hurdle ;” it suffices “ to ‘ “allege[ ] some specific, ‘ identifiable trifle ’ of injury. ” ’ ” ( I

bid .) “If a party has alleged or proven a personal, individualized loss of

money o r property in any nontrivial amount, he or she has also alleged or proven injury in fact.” ( Id. at p. 325.) Finally , “Proposition 64 requires that a plaintiff’s economic injury come ‘as a result of’ the unfair competition .

. . . [Citations.] ‘The phras e “as a result of” in its plain and ordinary sense means “caused by” and requires a showing of a causal connection or
reliance .

. . .’ ” ( Kwikset
, supra , 51 Cal.4th at p. 326. )

2. Analysis In the present case, plaintiff contends it suffered injury in fact and lost money as a result of defendants’ conduct in serving foie gras because it “has diverted significant organizational resources to combat [defendants’] continuing illegal sales of foie gras. ”
Plaintiff submitted a detailed declaration from its executive director, Stephen Wells, outlining plaintiff’s advocacy against foie gras in general and in favor of California’s ban on the sale of foie gras in particular. Plaintiff wrote letters of support for the bill that
enacted Section 25982 , and “[d]uri ng the months before the law became effective, [plaintiff] performed public outreach to remind the public of the July 1, 2012 effective date and reinforce the law’s importance.” Following the effective date of the ban, plaintiff paid a private investigato r to visit La Toque, and “[u]pon learning the results of the investigations .

. . , paid staff at ALDF diverted their attention from other ALDF projects to analyze the facts obtained during the investigation.” Subsequently, plaintiff “expended significant staff time and resources to share its investigation findings with Napa law enforcement authorities.” Plaintiff’s staff attorneys “diverted time and attention from other projects and attempted to persuade the Napa authorities to enforce”
the ban on sale o f foie gras “over the course of at least three months.” Mr. Wells’ declaration also averred that defendants’ alleged violations of Section 25982 “harm [plaintiff’s] organizational mission,” and “[t]he diversion of limited resources has caused [plaintiff] to postpone projects that would reach new media markets, reach new people,8

better develop [plaintiff’s] organization, and advance its mission.” Alternatives to spending on the California foie gras ban include, for example, “advocating an end to cruel prod uction methods in other states and at the federal level.” Plaintiff points out that, although Kwikset declined to “supply an exhaustive list of the ways in which unfair competition may cause economic harm,” the court did note that a plaintiff “required to enter into a transaction, costing money or property, that would otherwise have been unnecessary” would have standing under the UCL. ( Kwikset
, supra , 51 Cal.4th at pp. 323

– 324.) Pla intiff contends its expenditure of resources in investigating defendants’ alleged sales of foie gras and attempting to persuade the Napa authorities to prosecute were such transactions. Kwikset cited Hall v. Time Inc

. (2008) 158 Cal.App.4th 847, 854

– 8 55 ( Hall ) , as a case “cataloguing some of the various forms of economic injur y

. ” ( Kwikset , at p. 323.) Hall had cited Southern Cal. Housing v. Los Feliz Towers Homeow

. (C.D.Cal. 2005) 426 F.Supp.2d 1061, 1069 ( Southern Cal. Housing ) , as an example of a case where a plaintiff “ expended money due to the
defendant ’ s acts of unfair c ompetition ,” with the parenthetical “ housing rights center lost financial resources and diverted staff time investigating case against defendants .” ( Hall
, at p. 854.) In Southern Cal. Housing , the federal district court held that a housing advocacy o rgan ization met the Proposition 64 standing requirement by “present[ing] evidence of actual injury based on the loss of financial resources in investigating [a]
claim and diversion of staff time from other cases to investigate the allegations here.” ( Southern Cal. Housing
, at p. 1069.) Accordingly, although Kwikset did not hold that the precise expenditures made by plaintiff constitute injury in fact under the UCL, the court did express some approval for that proposition through its approving citation to Hall

. Cases addressing the f

ederal standing requirement

— which are relevant as explained in Kwikset
, supra , 51 Cal.4th at p age 322

— also support the proposition that the plaintiff’s claimed diversion of resources can constitute injury in fact. For example, in Havens Realty Corp. v. Coleman (1982) 455 U.S. 363 ( Havens ) , a Fair Housing Act action, the plaintiff alleged it “had to devote significant resources to identify and
counteract the defendant’s

. . . racially discriminatory steering practices.” ( Havens , at p.9

379.) Havens held that “[s] uch concrete and demonstr able injury to the organization’ s activities

— with the consequent drai n on the organization’ s resources ” was sufficient to demonstrate injury in fact. ( Ibid. ; see Fair Hous. of Marin v. Combs (9 th Ci r. 2002) 285 F.3d 899, 903

– 905 [listing cases and finding standing where organization’s “resources were diverted to investigating and other efforts to counteract [the defendant’s] discrimination above and beyond litigation”].) Defendants rely on Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798 ( Buckland ), disapproved on other grounds in Kwikset
, supra , 51 Cal.4th
310 , in arguing that plaintiff does not have standing. But the reasoning of t hat case supports plaintiff’s position that it ha s established a prima facie case. In Buckland , a women’s rights advocate bought skin creams that were allegedly sold by the defendants in violation of federal marketing laws. ( Id. at 804

– 805.) The plaintiff in Buckland acknowledged she had incurred “the cost of purchasing each of these products in order to meet the letter of the law to have . . . economic damages that provide standing under the statutes by which I am proceeding in the case.” ( Id. at p. 805.) In considering whether the plaintiff had sta nding under the UCL, Buckland surveyed the post

- Havens federal
case law and concluded the federal circuits were divided on “ whether the costs an organization incurs to pursue litigation are sufficient, in themselves, to establish an injury
in fact .” ( Id. at p. 815.) Buckland adopted the rule of the m ajority of the circuits that,

“ ‘[a]n organization cannot

. . . manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.’ ” ( Ibid. , quoting Spann v. Colonial
Vi llage, Inc. (D.C. Cir. 1990) 899 F.2d 24, 27 ( Spann ) .) Buckland concluded its plaintiff did not have standing under that rule “[b]ecause the costs were incurred solely to facilitate her litigation

. . . [and] to hold otherwise would gut the injury in fact requirement .” ( Buckland , at p. 816

. ) Nevertheless, Buckland recognized that, under the federal cases it followed,

“ funds expended independently of the litigation to investigate or combat the defendant’s misconduct may establish an injury in fact. ” ( Buc kland
, supra , 155 Cal.App.4th at p.
815 , citing Spann , supra, 899 F.2d at p. 27; see also Fair Housing Council v.10

Roommate.com, LLC (9th Cir. 2012) 666 F.3d 1216, 1219 [ “[A]n organizati on has ‘ direct standing to sue [when] it showed a drain on its resource s from both a diversion of its

resources and frustration of its mission.’ [Citation.] However, ‘ “ standing must be established independent of the lawsuit filed by the plaintiff.” ’ ” ] .) Buckland distinguished Havens and Southern Cal. Housing on the basis that Buckland could not allege a “d iversion of resources ” comparable to the allegations of the organizations in
those other two cases , “ and her investigation costs, if any, are inextricably tied to her litigation expenses. ” ( Buckland , at p. 816; s ee Have ns , supra , 455 U.S. at p. 379;
Southern Cal . Housing , supra , 426 F.Supp.2d at p. 1069.) Accepting, as we must, the truth of the averments in Mr. Wells’ declaration ( Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444), we
conclude t he present case is like Havens and Southern Cal. Housing and unlike Buckland

. The declaration indicates pl aintiff spent months on the effort to persuade Napa authorities to take action based on the alleged violation s of Section 25982

. Th us, plaintiff ha s presented evidence its investigatory expenditures , as well as the resources spent in attempting to persuade the authorities, had a purpose independent of the current litigation and might have rendered such litigation unnecessary. 7 Moreover, Mr. Wells’ d eclaration indicates that, in addition to general advocacy against foie gras, plaintiff specifically advocated for passage of the California ban on sale of foie gras and has expended resources on educating the public about the ban, including immediately be fore the statute’s July 2012 effective date . Plaintiff, thus, has presented evidence of a genuine and longstanding interest in the effective enforcement of the statute and in exposing those
who violate it . Plaintiff’s evidence provides a basis to conclud e that defendants’ alleged
violations of the statute tended to frustrate plaintiff’s advocacy for an effective ban on the sale of foie gras in California, and tended to impede plaintiff’s ability to shift its focus on

7 We need not and do not conclude that plaintiff will ultimately persuade the court that the expenditure of res ources had a purpose independent of the current litigation and were not expenditures made to “manufacture the injury.” ( Buckland, supra , 155 Cal.App.4th at p. 815.) We hold only that plaintiff’s showing regarding standing is sufficient to defeat the defe ndants’ special motion to strike.11

advocacy efforts in , for example, othe r states and at the federal level. (See Havens , supra , 455 U.S. at p. 379 [the plaintiff alleged the defendan ts’ racial steering practices

“ ‘frustrated’ ” the plaintiff’s “ ‘ efforts to assist equal access to housing through counseling and other referral services ’ ”].) In sum, Mr. Wells’ declaration is sufficient to
make a prima facie showing of standing to sue.
Defendants argue that a recent decision from this District’s Division 4, Two Jinn, Inc. v. Government Payment Service , Inc. (Feb. 3, 2015, A1369 84) ___ Cal.App.4th ___ [2015 Cal.App. Lexis 102] ( Two Jinn ) , demonstrates plaintiff’s lack of standing. There, a licensed bail agent brought a UCL action to enjoin the defendant from engaging in bail agent activities in violation of legal requirements

. ( Two Jinn , at *2 .) T he plaintiff, like plaintiff in this case , argued it had standing because “ ‘[ w ] ell before any litigation was considered,’ it expended significant time and resources investiga ting and documenting [ the defendant’ s ] activities in order t o assist government regulators and convince the m to uniformly enforce the law.” ( Id. at *24 .) The Two Jinn court assumed that under
Buckland such a showing would demonstrate that plaintiff ’s investigation “ was conducted independently of [the] lawsuit, ” b ut the court held that the plaintiff had failed to present any evidence in support of its argument. ( Two Jinn , at *24.) “ Indeed, [ plaintiff ’s general counsel] expressly conceded that [its] investigation constituted ‘ pre [

- ] litig ation activities.’ ” ( Ibid .) The court noted that the plaintiff had shared its evidence with the California Department of Insurance, but “it did so as part of this litigation in order to support its petition for a writ of mandate .” ( Ibid. ) Here, Mr. Wells’ declaration
, which ave rs the investigation and enforcement efforts with Napa authorities had a purpose independent of the lawsuit, as well as harm from the diversion of resources and
the frustration of plaintiff’s advocacy efforts, provides the evidence absent in Two Jinn
and e stablishes a prima facie case of standing. We also reject defendants’ contention that plaintiff failed to make a prima facie showing that its economic injury was “caused by” defendants’ conduct ( Kwikset
, supra , 51 Cal.4th at p. 326), because the “purpose of [plaintiff’s] existence is to invest [its] resources in litigation activities.” That the expenditure of resources in investigating12

defendants’ alleged lawbreaking was wholly consistent with plaintiff’s mission does not
mean the resources were not in fa ct diverted from other activities as a result of defendants’ conduct. Where the economic injury is diversion of resources
, the proper focus of the inquiry is not the “voluntariness or involuntariness” of the expenditures. ( Equal Rights Center . v. Post Pr operties, Inc. ( D.C.Cir. 2011) 633 F.3d 1136, 1140 ( Equal Right

s Center ) .) Instead, the proper focus is on whether the plaintiff “undertook the expenditures in response to, and to counteract, the effects of the defendants’ alleged [ misconduct ] rather than in anticipation of litigation

. ” ( Ibid. ) 8 Plaintiff has made a prima facie showing it can satisfy the UCL’s causation requirement for standing.
B. Plaintiff Has Shown a Probability of Prevailing on Its Claim That Defendants Unlawfully Sold Foie Gras
1. Plaintiff Has Shown a Basis for Liability Against Defendant Frank Defendants contend plaintiff has not shown a basis for liability against defendant
Frank because there is no evidence that Frank himself direct ly served foie gras to any patron of La T oque. However, the complaint alleges, “[d]efendants, by themselves and through agents , routinely sell foie gras in violation of” Section 25982 . (Emphasis added.) T he evidence in the record shows Frank is the “managing member” of LT Napa (the owner of La Toque) and has worked as the restaurant’s “head chef” since 1976. Moreover, there is evidence Frank is personally responsible for the restaurant’s policy regarding serving foie gras. His own declaration states, “In the exercise of my constitutionally pr otected right of petition and free speech, my restaurant, La Toque, is protesting the law, not breaking it, by giving away foie gras to customers I choose to give
it to. I give away a much smaller amount of foie gras than I did before July 1, 2012,
when S ection 25982 went into effect. However, what I do give away to customers is my way of dumping tea in the harbor, so to speak. ” If the serving of foie gras at La Toque

8 Although the Equ al Rights Center case did not frame this aspect of the standing issue as a causation analysis, the reasoning of the case is applicable to show satisfaction of the UCL’s causation requirement.13

violates Section 25982 , plaintiff has shown a basis for its claim that Frank is persona lly
liable for the violation. 9

2. Plaintiff Has Shown A Probability of Prevailing on Its Claim Defendants Unlawfully “Sold” Foie Gras “Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces ‘ “ ‘ “anything that can properly be called a business practice and that at the same time is forbidden by law.” ’ ” ’ ” ( Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Ca l. 4th 1134, 1143 , fn omitted .) “ [Business and
Prof essions Code ] Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. [Citation.]” ( Korea Supply , at p. 1143.) At issue in the present case are Health and Safety Code section 2598 1 and
Section 25982. Under Health and Safety Code s ection 25981 , it is unlawful to “force feed a bird for the purpose of enlarging the bird’s liver beyond normal size.” Section 25982, in turn, prohibits the sa le of foie gras produced through force

- feeding, stating “ [ a ] product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” Plaintiff’s UCL action claims
defendants viol ated Section 25982 by selling foie gras at La Toque. “As with all questions of statutory interpretation, we att empt to discern the Legislature’ s intent, ‘be ing careful to give the statute’ s words their plain, commonsense meaning. [Citation.] If the lang uage of the statute is not ambiguous, the plain meaning
controls and resort to extrinsic sourc es to determine the Legislature’ s intent is unnecessary.’ ” ( Ste. Marie v. Riverside County Regional Park & Open

– Space Dist. (2009) 46 Cal.4th 282, 288.) If ter ms used in a statute “are not specifically defined, a court may also consider evidence of legislative history in ascertaining the statute’s

9 Because pl aintiff has shown a probability of prevailing on this issue, we need not address its contention that defendants forfeited the issue by failing to properly raise it below.14

meaning.” ( Metropolitan Water Dist

. v. Imperial Irrigation Dist. (2000) 80 Cal.App.4th 1403, 1425.)
At the outset , we reject defendants’ contention that Section 25982 is a statute “imposing criminal penalties” that must be construed narrowly. In People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294 ( Lungren ) , the California Supreme Court rejected the propos ition that “all statutes with civil monetary penalties should .

. . be strictly construed.” ( Id. at p. 313.) The court interpret ed “dictum” in Hale v. Morgan (1978) 22 Cal.3d 388

—upon which defendants here rely

— as possibly supporting narrow
construction of a statute ’ s “ ‘penalty clause.’ ” ( Lungren , at p. 314.) But Hale “did not purport to alter the general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.” ( Lungren , at p. 3 13 ; accord Smith v. Superior Court (2006) 39 Cal.4th 77, 92 .) In particular, that rule of broad construction applies to the interpretation of statutes “ that define [] the conduct proscribed by the Act, and the scope of the government’ s authority to enjoin and prohibit that conduct, rather than the method of assessing the amount of penalty for transgressing the proscription. ” ( Id. at p. 314.) Th at is what is at issue in the present case: we construe the language of Section 25982 defining what conduct is pr ohibited, rather than a penalty clause related to the prohibition. Because defendants do not deny that Section 25982 is intended for the protection of the public within the meaning of Lungren , 10 we broadly

construe Section 25982 in favor of its public purp oses. 11

10 The legislative history indicates proponents of the foie gras ban argued the force feeding involved in its production “is a cruel and inhumane process.” (See, e.g., Sen. Com. on Bus. & Prof., Analyses of Sen. 1540 (2003

– 2004 Reg. Sess.) as amended Apr. 26, 2004; Assem. Com. On Bus. & Prof., Analysis of Sen. 1520 (2003

– 2004 Reg. Sess.) as amended May 6, 2004.) “ ‘It has long been the public policy of this country to avoid unnecessary cruelty to animals.’ [Citation.] ‘[T]here is a social norm that strongly proscribes the infliction of any “unnecessary” pain on animals, and imposes an o bligation on all humans to treat nonhumans “humanely.” ’ ” ( Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 504; see also Church of the Luk umi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 538 [referring to “legitima te governmental interests in .

. . preventing cruelty to animals”].) Defendants do not dispute15

On the merits
, defendants do not dispute that the foie gras served at La Toque was produced through force

- feeding. The sole issue regarding the applicability of Section
25982 is whether defendants’ conduct in serving foie gras at La Toque constitu ted “ sales ” prohibited under the statute. In opposing defendants’ anti

- SLAPP motion, plaintiff presented a declaration from its investigator , who averred that on three occasions he was
told he w ould obtain foie gras if he purchased a tasting menu at La To que. On two of the occasions the foie gras was characterized as a “gift,” apparently foie gras was not listed in the description of the tasting menu, and apparently a separate amount was not charged for
the item. Defendants quote section 2106 , subdivisio n (1) of the Commercial Code for the proposition that “[a] ‘sale’ consists in the passing of title from the seller to the buyer for a price.” Although that definition expressly applies only to the Commercial Code, both parties agree it is a reasonable gen eral definition

. (See also Merriam

- Webster’s Collegiate Dictionary, 10 th ed., 2001, at p. 1 028 [defining a “sale” as “the transfer of ownership of and title to property from one person to another for a price”].) Employing that definition, defendants asse rt that plaintiff’s evidence does not show that foie gras was provided for a price. We find guidance in the California Supreme Court’s recent decision in Ennabe v.
Manosa (2014) 58 Cal. 4th 697. There, the court applied section 25602.1 of the Business
and Professions Code, which states that a person “ who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated minor ” can be liable for resulting injuries or death. (See Ennabe , at pp. 702, 709

– 710.) The court considered whether the defendant could be held liable under the provision whe re she supplied alcohol to a minor at a party , and the minor was charged a fee to enter the party. ( Ibid. ) The statute
considered in Ennabe is part of the Alcoholic Beverage Control Act, which define s a sale

that the public interest in preventing cruelty to animals is equivalent to the interest in the

“ protection of the public ” referenced in Lungren , supra , 14 Cal.4 th at page 313. 11 The additional cases cited by defendants supporting their argument for narrow construction of Section 25982 precede Lungren and do not provide a basis to distinguish the present case from Lungren . (See, e.g., People v. Mobile Oil Corp. ( 1983) 143 Cal.App.3d 261.)16

to include “ any transaction whereby, for any consideration, title to alcoholic beverages is transferred from one person to another.” (Bus. & Prof. Code, § 23025 ; see also Ennabe
, at p. 714.) In interpreting the statute, Ennabe noted it was uncle ar whether a rule of liberal or strict construction was applicable, because both rules applied under different principles of statutory interpretation. ( Ennabe
, supra , 58 Cal.4th at pp. 713

– 714.) Turning to the statutory language, Ennabe stated
, the “broa d definition of a sale shows the Legislature intended the law to cover a wide range of transactions involving alcoholic beverages: a qualifying sale includes ‘ any transaction’ in which title to an alcoholic beverage is passed
for ‘ any consideration.’ (It alics added.) Use of the term ‘any’ to modify the words ‘transaction’ and ‘consideration’ demonstrates the Legislature intended the law to have a broad sweep and thus include both indirect as well as direct transactions.” ( Ennabe , at p. 714.) The court concluded “the plain meaning of a ‘ sale, ’ as defined in [Business and Professions Code] section 23025 and used in [Business and Professions Code] section 25602.1, includes [the minor’s] payment of the entrance fee for [the defendant’s] party, irrespective of the fact possession of a particular drink did not occur immediately upon payment. ” ( Ennabe , at p. 715.)
Ennabe cited with approval a 1985 Attorney General Opinion that is more analogous to the present case. ( Ennabe
, supra , 58 Cal.4th at pp. 716

– 717.) In that opinion, the California Attorney General interpreted liquor licensing laws with respect to commercial enterprises that offer “complimentary” alcoholic beverages to paying customers who purchase another good or service. ( Offer of “Complimentary” Alcoholic Beverage is “Sale ” , 68 Ops.Cal.Atty.Gen. 263 (1985) (“ Opinion No. 85

- 701 ”) .) The Attorney General was asked, “ May the operator of a commercial enterprise who does not have an alcoholic beverage license legally offer and provide ‘complimentary’ a lcoholic beverages to any interested adult guest, customer or passenger of the business or service, without specific charge while at the same time charging for the product provided or the services rendered?” ( Id. at 263 .) Considering analogous out

- of

- sta te authority, the Attorney General concluded that “complimentary” alcohol is in fact “sold,” even though17

the operators do not charge additional amounts to customers who elect to consume
alcohol. ( Id. at pp. 265

– 267.) As the opinion explained, “ ‘It is wh olly immaterial that no specific price is attached to those articles separately.’ .

. . [T]he furnishing of the beverages, although denominated ‘complimentary’, are for a consideration and constitute a sale within the meaning of California’s Alcoholic Beve rage Control Act.” ( Id. at p. 267 ; accord Ennabe , at p. 717.) To hold otherwise would undermine the Legislature’s intent to regulate the provision of alcoholic beverages. ( Opinion No. 85

- 701 , at p. 267

. )
Under Ennabe and Opinion No. 85

- 701 , La Toque’s serving of foie gras as part of a tasting menu constituted a sale of foie gras. Plaintiff’s investigator’s decision to order and agreement to pay the specified price for the tasting menu was the consideration offered for the entirety of the food served, i ncluding the foie gras . ( H. S. Crocker Co.
, Inc. v. McFaddin (1957) 148 Cal.App.2d 639, 644 ( H. S. Crocker Co. ) [“The ‘price’ is the consideration passing from the buyer to the seller for the latter’s interest in the thing sold.”].) Under the investigato r’s averments, the foie gras served as part of the menu was “sold” to him as much as any other part of the tasting menu. Defendants present no reason in logic or the law why we should conclude otherwise. Defendants assert that “giving free foie gras to c ustomers who purchased specific meals at the normal price was not a ‘sale.’ ” It appears they contend not all of the patrons who ordered the tasting menu received foie gras, despite paying the same amount as the investigator

. However, regardless of wheth er other patrons paid the same amount without receiving foie gras, the investigator ’s averments show the receipt of foie gras was part of the tasting menu
offered to him prior to his decision to order it . Thus, the foie gras was part of the property he wa s offered for the price he agreed to pay. Regardless of whether other patrons received foie gras on a random basis without a prior agreement, the investigator ’s averments show he was “sold” foie gras as part of the tasting menu. Neither does the
server’s characterization of the foie gras as a “gift” on two of the occasions change the analysis, when the investigator was led to understand that he could only obtain the “gift” by purchasing the tasting menu. As in Ennabe and Opinion No. 85

- 701 , it is

“ ‘ “ im material that no specific ” ’ ” and separate price was attached to the foie gras; the18

furnishing of the foie gras, even if characterized as a gift, was “ ‘ for a consideration and constitute[d] a sale within the meaning of’ ” Section 25982 . ( Ennabe
, supra , 58 Cal .4th at p. 717

. ) 12

D efendants also argue the concept of sale in Section 25982 should be construed more narrowly than it was in Ennabe and Opinion No. 85

- 701 because the Legislature
did not broadly define “sold” for purposes of Section 25982

. Defenda nts assert, “It is instructive that the Legislature chose to adopt the substantially broader definition of ‘any
consideration’ for the ‘sale’ of alcohol .

. . , but chose not to do so for its ban of the ‘sale’ of foie gras produced by force feeding.” We d isagree. The standard definition of a sale in the Commercial Code, discussed previously, contemplates that any form of
consideration

— even non

- monetary consideration

— may constitute the “price” of the item sold. ( H. S. Crocker Co.
, supra , 148 Cal.App.2d at pp. 644

– 645; accord Amdahl Corp. v. County of Santa Clara (2004) 116 Cal. App. 4th 604, 615. ) The absence of an express broad definition for “sold” applicable to Section 25982 does not mean that the consideration for foie gras must take any particular fo rm. In light of the broad construction we apply to Section 25982 , it is appropriate that the outcome in the present case be the same as that under the Alcoholic Beverage Control Act. Notably, allowing restaurants to avoid the foie gras ban by the expedie nt of “gifting,” while informing patrons they will receive foie gras if they purchase other goods
, would substantially

12 Defendants assert La Toque’s policy for serving foie gras was other than as described by the investigator. For example, they assert, “There is no evidence in this case that foie gras was offered on a consistent basis to custom ers that ordered certain meals but only on a random basis to customers chosen by the duty chef. The evidence only showed that a gift of foie gras was offered on some occasions to patrons who ordered certain menu items.

. . . La Toque patrons are occasion ally served free foie gras on an arbitrary basis, as chosen by the duty chef, and often when the patrons order certain menu items (i.e., those that would complement, or be complemented by, a serving of foie gras).” Regardless of whether defendants ultimat ely prove the truth of their assertions, the evidence in plaintiff’s investigator’s declaration is prima facie evidence of a violation of Section 25982 and sufficient to satisfy the second prong of the anti

- SLAPP analysis. We need not and do not decide wh ether serving foie gras for no extra charge on a truly random basis, not tied to particular menu items or in response to a request by a patron, would constitute a sale prohibited under Section 25982.19

undermine the ban itself. (See Opinion No. 85

- 701, supra , 68 Ops. Cal Atty. Gen. at p. 267.) By analogy to Ennabe
, supra , 58 Cal. 4th 6 97, and Opinion No. 85

- 701 , 13 we construe the term “sold” in Section 25982 to encompass serving foie gras as part of a tasting menu, regardless of whether there is a separate charge for the foie gras , whether it
is listed on the menu
, and whether it is char acterized as a “gift” by the restaurant

. Plaintiff has shown a probability of prevailing on its UCL claim based on violation of
Section 25982

. DISPOSITION The trial court’s order is affirmed. Costs on appeal are awarded to respondents.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.

13 In light of the authoritativeness of Ennabe
, supra , 58 Cal. 4th 697, we need not discuss the various other authorities cited by the parties to support their respective positions, none of which is directly on point.20

Superior Court of Napa County , No. 26

- 61166, Hon. Diane M. Price, Judge.
Greenwald & Hoffman, Paul A. Hoffman and Paul Evan Greenwald ; Law Offices of Manuel S. Klausner and Manuel S. Klausner ; and The Michael Tenenbaum Law Firm and Michael Tenenbaum for Defendants and Appellants.
Animal Legal Defense Fund, Matthew Liebman and Christop her A. Berry; Fenwick & West , William R. Skinner for Plaintiff s and Responde nt s

. Drinker Biddle & Reath, Sheldon Eisenberg and Erin E. McCracken for John L. Burton as Amicus Curiae on behalf of Plaintiffs and Respondents.