Filed 2/9/24 Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BIOCORRX, INC., et al.,

 Plaintiffs and Respondents,

v.

VDM BIOCHEMICALS, INC., et al.,

 Defendants and Appellants.

 G061535

 (Super. Ct. No. 30-2021-01195606)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Martha K. 

Gooding, Judge. Affirmed in part and reversed in part.

Vegh IP Legal, Stephen Z. Vegh; Amin Talati Wasserman and William 

Paul Cole for Defendants and Appellants.

Samini Baric Katz, Michael I. Katz and Ignacio J. Lazo; Katz Law Office, 

Michael I. Katz and Byron H. Ruby for Plaintiffs and Respondents.

* * *
2

The Legislature enacted Code of Civil Procedure section 425.16, 

commonly known as the anti-SLAPP statute, to prevent powerful plaintiffs from chilling 

a defendant’s valid exercise of free speech rights.1 But the Legislature later observed that 

commercial defendants were abusing “the anti-SLAPP statute by claiming their 

advertising impacted the public interest.” (Metcalf v. U-Haul International, Inc. (2004) 

118 Cal.App.4th 1261, 1267.) To combat this abuse, the Legislature enacted the 

commercial speech exemption, found in section 425.17, subdivision (c). When this 

exemption applies, the challenged speech or conduct is not protected by the anti-SLAPP 

statute. (Metcalf, at p. 1265.)

Here, BioCorRx, Inc. (BioCorRx) is a publicly traded company that is 

primarily engaged in the business of providing addiction treatment services and related 

medication. It issued several press releases that allegedly made misrepresentations and 

improperly disclosed confidential information about a treatment it was developing for 

opioid overdose. We find these statements fall within the commercial speech exemption 

because they were representations about BioCorRx’s business operations that were made 

to investors to promote its goods and services through the sale of its securities.2 Since 

these statements are not protected by the anti-SLAPP statute, we reverse the part of the 

trial court’s order granting the anti-SLAPP motion as to the press releases. We affirm the 

unchallenged portion of the order striking unrelated allegations. We also affirm the order 

granting the anti-SLAPP motion as to Brady Granier, BioCorRx’s president and director.

1

 All further undesignated references are to the Code of Civil Procedure. “‘SLAPP’ is 

short for ‘strategic lawsuit against public participation.’” (Bonni v. St. Joseph Health 

System (2022) 83 Cal.App.5th 288, 293, fn. 1 (Bonni).)

2

 When used in relation to BioCorRx, the term “investors” includes persons or entities 

that had already invested in BioCorRx as well as potential investors.
3

I

FACTS AND PROCEDURAL HISTORY

VDM Biochemicals, Inc. (VDM) specializes in the synthesis and 

distribution of chemicals, reagents, and other specialty products for life science research. 

It owns a patent (the patent) for VDM-001, a compound with potential use as a treatment 

for opioid overdose. “VDM-001 is a ‘drug product candidate’ at a pre-clinical stage of its 

development” that still requires further pre-clinical development and clinical 

development before it can be utilized commercially.

BioCorRx is a publicly traded corporation located in Anaheim that provides

addiction treatment services and medications for treating addiction. BioCorRx explained 

its business model in an Investor Presentation filed with the Securities and Exchange 

Commission (SEC) in November 2018 (the investor presentation). The investor 

presentation noted that “[t]he addiction treatment market represents a multi-billion dollar 

industry . . . .” It then explained BioCorRx’s two-prong approach for operating in that

market. First, it “[s]eek[s] FDA approval of new medications to treat alcohol and opioid

use disorders.” Second, it operates the “revenue generating BioCorRx[] Recovery 

Program [that] combin[es] medication and therapy.”

In September 2018, VDM and BioCorRx entered into a Mutual 

Nondisclosure & Confidentiality Agreement (the NDA), which restricted each party’s 

disclosure of confidential information as they discussed forming a business relationship.

A month later, VDM and BioCorRx signed a Letter of Intent to Enter 

Definitive Agreement to Acquire Stake in Intellectual Property (the letter of intent). The 

letter of intent memorialized the parties’ “shared desire to sincerely explore the entering 

into a formal agreement whereby BioCorRx shall partner [with VDM] to develop and 

commercialize” VDM-001 as a treatment for opioid overdose. The parties agreed “to use 

best efforts to enter into a definitive agreement within 6 months from” the letter of intent. 
4

The letter of intent also granted BioCorRx a “right of first refusal to acquire up to a 49%”

equity stake in the patent.

A declaration from VDM’s chief executive officer states that VDM 

understood BioCorRx needed to validate some of the information in the patent and 

confirm that VDM-001 could treat opioid overdose. Evidence in the record also shows 

BioCorRx provided funds from April 2019 to October 2020 to conduct preclinical 

studies, engage consultants, and provide other resources to develop VDM-001.

BioCorRx issued press releases concerning VDM and VDM-001 in 

October 2018, December 2019, and March, May, August, and November 2020 (together, 

the press releases). The initial press release in October 2018, “announced the execution 

of a letter of intent (LOI) with [VDM], subject to execution of a definitive agreement, 

whereby the companies would partner to further develop and commercialize VDM’s new 

opioid antagonist molecule, VDM-001 . . . . Under the agreement, BioCorRx has the 

right of first refusal to acquire up to a 49% ownership stake in VDM-001 . . . . Both 

parties have agreed to use best efforts to enter into a definitive agreement within 6 

months from the date of the LOI execution on October 1, 2018.” The subsequent press 

releases provided general updates on BioCorRx’s development of VDM-001 as a 

treatment for opioid overdose.

After signing the letter of intent, BioCorRx and VDM apparently 

exchanged numerous e-mails and draft agreements but never signed a formal contract 

concerning VDM-001. Their relationship eventually soured.

BioCorRx filed a complaint (the complaint) against VDM in March 2022. 

Among other things, BioCorRx alleged that although the parties had not signed a formal 

contract, they had reached an agreement via e-mail concerning VDM-001’s development 

in March 2019 (the alleged agreement). Under the alleged agreement, BioCorRx 

obtained an ownership interest in VDM-001 based on the amount of research and 

development funding it provided. It also retained its right to purchase an additional 
5

interest in VDM-001 of up to 49 percent. But after BioCorRx informed VDM of its 

preclinical studies’ findings, VDM purportedly repudiated the alleged agreement and 

interfered with BioCorRx’s right to purchase an additional ownership interest in VDM001, among other things.

VDM filed a cross-complaint (the cross-complaint) against BioCorRx and 

its president and director, Brady Granier.

3 Generally, it alleged BioCorRx had induced 

VDM to disclose confidential information under the NDA and to enter the letter of intent. 

VDM claimed BioCorRx never intended to abide by the NDA or to enter into a formal 

agreement concerning VDM-001. Rather, it entered these agreements to attract investors 

and boost its stock price. BioCorRx allegedly perpetrated this scheme by issuing the 

press releases, which contained certain quotes from Granier. The press releases 

purportedly included confidential information and misrepresentations about BioCorRx’s 

relationship with VDM and VDM-001’s development. VDM also asserted BioCorRx 

improperly failed to redact confidential information in the complaint (the unredacted 

statements). Based on these allegations, the cross-complaint set forth causes of action for 

breach of the NDA, breach of the letter of intent, breach of the implied covenant of good 

faith and fair dealing, fraud, misappropriation of trade secrets, unjust enrichment, and 

violations of Business and Professions Code section 17200.

In response, BioCorRx and Granier filed an anti-SLAPP motion seeking to 

strike all the allegations from the cross-complaint concerning the press releases. They 

claimed these statements were matters of public interest under section 425.16, 

subdivisions (e)(3) or (4). They also sought to strike the cross-complaint’s allegations 

concerning the unredacted statements.

VDM filed a motion to take discovery to oppose the anti-SLAPP motion. 

Generally, it sought to depose a BioCorRx representative on various topics concerning 

3

 VDM’s chief executive officer, David Martirosyan, was also a cross-complainant.
6

the press releases, and it also sought documents related to those topics. The trial court 

found VDM had failed to establish good cause to conduct discovery and denied the 

motion.

After its discovery motion was denied, VDM filed an opposition to the antiSLAPP motion. Primarily, it argued the press release statements were exempt from the 

anti-SLAPP statute under the commercial speech exemption. It also asserted these

statements were not protected activity under section 425.16, because they did not concern 

a matter of public interest. It only offered token opposition to a portion of the antiSLAPP motion directed to the unredacted statements.

The trial court granted the anti-SLAPP motion as to both BioCorRx and 

Granier. As to the press release statements, it found VDM had failed to establish all the 

elements of the commercial speech exemption. It also held these statements were 

protected speech under section 425.16, based on authority finding medical care and 

treatment to be topics of public interest. As for the unredacted statements, the court ruled 

they were protected activity and privileged.

VDM appeals the ruling. It makes three arguments. First, the anti-SLAPP 

statute does not apply to the press release statements because they fall within the 

commercial speech exemption. Second, the press release statements are not protected 

activity under the anti-SLAPP statute and, even if they are, VDM has shown a probability 

of prevailing on its claims. Third, the trial court erred by denying VDM’s motion to take 

discovery. As to the portion of the order concerning BioCorRx, we agree with VDM’s 

first argument and, therefore, do not address the remaining contentions. As to the portion 

of the order concerning Granier, VDM has not shown any error. 4

4

 VDM does not challenge the portion of the court’s order striking the cross-complaint’s 

allegations concerning the unredacted statements.
7

II

DISCUSSION

A. The Anti-SLAPP Statute

Section 425.16 was enacted “‘to prevent and deter “lawsuits . . . brought 

primarily to chill the valid exercise of the constitutional rights of freedom of speech and 

petition for the redress of grievances.” [Citation.] Because these meritless lawsuits seek 

to deplete “the defendant’s energy” and drain “his or her resources” [citation], the 

Legislature sought “‘to prevent SLAPPs by ending them early and without great cost to 

the SLAPP target’” [citation]. Section 425.16 therefore establishes a procedure where the 

trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure 

at an early stage of the litigation.’” (Bonni, supra, 83 Cal.App.5th at p. 298.)

“Anti-SLAPP motions are reviewed through a two-step process. ‘First, the 

court must determine “whether the defendant has made a threshold showing that the 

challenged cause of action” arises from an act in furtherance of the right of petition or 

free speech in connection with a public issue. [Citation.] Second, the court must 

“determine whether the plaintiff has demonstrated a probability of prevailing on the 

claim.” [Citation.] If the defendant makes a threshold showing that the cause of action 

arises from an act in furtherance of the right of petition or free speech in connection with 

a public issue and the plaintiff fails to demonstrate a probability of prevailing, then the 

court must strike the cause of action [citation] and award the defendant “attorney’s fees 

and costs.”’” (Bonni, supra, 83 Cal.App.5th at p. 298.)

We begin by analyzing the ruling as to BioCorRx and then turn to Granier.
8

B. The Commercial Speech Exemption Applied to BioCorRx

The Legislature later became “‘concerned about the “disturbing abuse” of 

the anti-SLAPP statute.’” (JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th 984, 992.) 

To curb this abuse, the Legislature enacted section 425.17 to exempt certain actions from 

the anti-SLAPP statute, including a specific exemption for commercial speech. (Ibid.)

The commercial speech exemption applies “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(c)(2).” (Simpson Strong-Tie Co., Inc. v. Gore

(2010) 49 Cal.4th 12, 30 (Simpson).)

The commercial speech exemption is a threshold issue. If applicable, the 

challenged speech or conduct is not protected by the anti-SLAPP statute. (Xu v. Huang

(2021) 73 Cal.App.5th 802, 806-807.)

We review de novo the trial court’s ruling on the commercial speech 

exemption. (Xu v. Huang, supra, 73 Cal.App.5th at p. 811.) The exemption is narrowly 

construed. (Id. at p. 813.) VDM has the burden of establishing each element, and we 

accept as true the evidence favorable to VDM. (Id. at pp. 813, 815.) We do not consider 

the merits of VDM’s claims when analyzing whether the exemption applies. (JAMS, Inc. 

v. Superior Court, supra, 1 Cal.App.5th at p. 993.)
9

1. BioCorRx’s primary business

Under this prong, we must determine whether BioCorRx is “a person 

primarily engaged in the business of selling or leasing goods or services.” (§ 425.17, 

subd. (c), italics added.) VDM argues BioCorRx is primarily engaged in the business of 

providing addiction treatment services and selling related medications. It also contends 

BioCorRx sells and promotes its securities. In response, BioCorRx maintains it is 

primarily engaged in research and development. It cites evidence showing nearly all its 

revenues from 2019 to 2021 were from research and development grants. Likewise, 

nearly all its expenditures in these years were on research and development, with only a 

small fraction of funds spent on other costs of sales. There are no similar cases in which 

a company argued this prong was not met because it obtained most of its funds through 

grants that were used to research and develop new commercial products. We are not 

persuaded by this novel argument. As explained below, in analyzing this prong we 

cannot simply look at the percentage of funds BioCorRx allocates to or obtains from 

research and development. We must look at the business purpose behind these activities.

The record shows BioCorRx is primarily engaged in the business of 

providing medication and treatment services to people struggling with alcohol, opioid, 

and other addictive disorders. For example, in the press releases, BioCorRx consistently 

describes itself as “an addiction treatment solutions company offering a unique approach 

to the treatment of substance use and other related disorders.” In one press release, it 

calls itself “a leader, developer and provider of advanced solutions in the treatment of 

addiction and related disorders.”

Likewise, the investor presentation describes BioCorRx’s business as 

providing addiction treatment services and developing commercial medication to treat 

substance abuse. For instance, the investor presentation states that “[t]he addiction 

treatment market represents a multi-billion dollar industry which is undergoing a radical 

transformation to new treatment modalities involving medications.” It then explains that 
10

“BioCorRx has two business models for treating addiction aligned with this change:” 

(1) “Seeking FDA approval of new medications to treat alcohol and opioid use 

disorders”; and (2) “[r]evenue generating BioCorRx® Recovery Program combining 

medication and therapy.”

The BioCorRx® Recovery Program is “a non-addictive, medicationassisted treatment . . . program” that consists of two components: (A) an implant that 

delivers naltrexone, a nonaddictive medicine that reduces alcohol and opioid cravings, 

and (B) one-on-one counseling. The “Recovery Program is distributed at partner clinics 

across the US.” “Fees are paid to BioCorRx per program sold by independent treatment 

providers.” Around the time of the investor presentation, BioCorRx also began offering a 

medication-assisted weight loss program called “The UnCraveRxTM Weight Loss 

Program.”

BioCorRx argues it is primarily a research and development company given 

the amount of funds it expends on and receives from such activities. But this argument 

relies on a narrow interpretation of the word “primarily” that only focuses on a 

company’s finances. We cannot solely look at the amount of money BioCorRx spends 

on research and development or the amount it obtains from such activities. Rather, we 

must look at the entire context of its research and development efforts when analyzing 

whether it is “primarily engaged in the business of selling” goods or services. (§ 425.17, 

subd. (c).) Put differently, what is the purpose of its research and development?

Here, the record shows BioCorRx conducts research and development to 

create commercial products either for sale or for use in its treatment services. As 

explained above, one of BioCorRx’s core businesses involves “[s]eeking FDA approval 

of new medications to treat alcohol and opioid use disorders.” The investor presentation

also explains that BioCorRx’s research and development subsidiary, BioCorRx 

Pharmaceuticals, was developing several commercial drugs to treat these disorders as part 

of BioCorRx’s “Product Pipeline.” Further, BioCorRx’s weight loss program uses a 
11

proprietary naltrexone implant developed by BioCorRx Pharmaceuticals. We also note 

that during oral argument, BioCorRx conceded it conducts research and development to 

create commercial products.

BioCorRx is not a research and development company. It is a health 

services company that conducts research and development to further its treatment 

programs and line of commercial medications. Thus, it is primarily engaged in the 

business of selling goods or services.

2. Nature of the representations

Next, VDM argues the statements at issue are representations of fact about 

BioCorRx’s business operations. (See Simpson, supra, 49 Cal.4th at p. 30.) We agree.

The portions of the press releases at issue allege BioCorRx disclosed 

confidential information about VDM-001’s test results and made misrepresentations 

(1) about BioCorRx’s role in the “development” of VDM-001, (2) about the progress of 

VDM-001’s “development,” (3) about BioCorRx’s business relationship with VDM, and 

(4) that it owned VDM-001.

5

Since there are only a few statements at issue, we include 

them below.

• March 2020 press release: “‘We [(BioCorRx)] also continue to move ahead with 

VDM-001, a new molecule being developed to reverse opioid overdose through 

our partnership with [VDM]. Preclinical studies are currently ongoing, and we 

anticipate having minimal delays due to COVID-19. VDM-001 may represent an 

effective alternative to naloxone in the overdose reversal market. Early preclinical 

5

 We put the word “development” in quotes since VDM alleges BioCorRx 

misrepresented that VDM-001 was being developed. VDM claims BioCorRx was only

validating the results of prior preclinical studies conducted by VDM-001’s inventor in 

another country. We do not address this dispute in this opinion.
12

data showed that the effects of fentanyl, which is responsible for thousands of 

deaths annually, may be prevented by VDM-001.’”

• May 2020 press release: “‘We [(BioCorRx)] also continue to advance our 

preclinical studies with VDM-001, a new molecule being developed to reverse 

opioid overdose through our partnership with [VDM]. VDM-001 may represent 

an effective alternative to naloxone in the overdose reversal market. Early

preclinical data was promising as the effects of fentanyl, which is responsible for 

thousands of deaths annually, may be prevented by VDM-001. We are currently 

conducting more preclinical studies to gain more knowledge about the viability of 

this novel molecule.’”

• August 2020 press release: “‘BioCorRx Pharmaceuticals continues to work on 

preclinical studies of VDM-001, a new molecule being developed to reverse 

opioid overdose through our partnership with [VDM]. There are a few small 

preclinical studies currently underway and VDM-001 may represent an effective 

alternative to naloxone in the overdose reversal market. Fentanyl has become a 

major driving force behind the opioid epidemic in the U.S. In 2018 alone, 31,000 

people died from synthetic opioid overdoses. We are very encouraged by some 

early preclinical data that showed the ability of VDM-001 to block analgesic 

effects of fentanyl in vivo. The current studies that are currently underway will 

hopefully allow us to gain more insight into VDM-001 and its viability to progress 

to further development.’”

• November 2020 press release: “‘Our subsidiary, BioCorRx Pharmaceuticals Inc., 

. . . also continues to work on preclinical studies of VDM-001, a new molecule 

being developed to reverse opioid overdose. Fentanyl has become a major driving 

force behind the opioid epidemic in the US which continues to be exacerbated by 

the COVID-19 pandemic. We are very encouraged by some early preclinical data 
13

that demonstrated the ability of VDM-001 to block analgesic effects of fentanyl in 

vivo.’”

The above statements are representations of fact. They provide updates 

concerning BioCorRx’s relationship with VDM and VDM-001’s development, including 

that preclinical studies are underway and early data from those studies.

The representations at issue also directly concern BioCorRx’s business 

operations. The March, August, and November 2020 press releases are each labeled as a 

“Business Update,” while the May 2020 press release is labeled as an “Update on Current 

Business Operations.”

We also conclude these statements concern BioCorRx’s business operations 

based on their content. In conducting our analysis, we must consider the above 

statements in the context of the prior press releases. BioCorRx’s initial press release in 

October 2018, stated that “BioCorRx ha[d] the right of first refusal to acquire up to a 

49% ownership stake in VDM-001.” It also stated that VDM and BioCorRx were 

planning to partner “to develop and commercialize VDM-001.” (Italics added.) Given 

this context, the statements at issue provided investors with updates on BioCorRx’s 

development of a commercial treatment for opioid overdose. And, based on the initial 

press release, BioCorRx could share in any future profits generated from VDM-001 given 

its right to acquire an ownership stake. In other words, the statements at issue are about a 

business opportunity in line with one of BioCorRx’s core business purposes: Developing 

medications to treat opioid addiction.

We are unpersuaded by BioCorRx’s citation to Hawran v. Hixson (2012) 

209 Cal.App.4th 256. In Hawran, a publicly traded genetic diagnostic testing company 

admitted the results of a certain test it was developing had been mishandled. Numerous 

lawsuits were filed against the company, and its stock price dropped. (Id. at pp. 263-

264.) Hawran, the company’s chief financial officer, resigned based on an agreement 

with the company that he would not be associated with the mishandling. (Id. at p. 264.) 
14

The company issued a press release explaining the errors with the test and new remedial 

measures to prevent future mistakes. The press release also announced Hawran’s 

resignation and stated that the company’s board of directors had lost confidence in him 

following an investigation of the incident. (Ibid.) Hawran sued the company on grounds 

the press release painted him in a false light. (Id. at pp. 264-265.)

The company filed an anti-SLAPP motion, and Hawran asserted his claims 

fell within the commercial speech exemption. (Hawran, supra, 209 Cal.App.4th at p. 

271.) The court disagreed, finding he had failed to show the statements arose from 

representations of fact about the company’s business operations, goods, or services. 

Hawran argued his claims arose from the press release, which concerned the mishandling 

of the new test and the operational steps taken to address the problem. (Id. at p. 271.) 

But, as the court explained, Hawran’s claims did not arise from those portions of the 

press release. Rather, they were based on the press release’s statements about his 

resignation, which were not sufficiently related to the company’s business operations, 

goods, or services. (Id. at pp. 272-273.)

Unlike Hawran, the statements at issue are not tangential to BioCorRx’s 

business operations. Rather, they directly concern a business opportunity aligned with 

ones of BioCorRx’s core businesses.

3. Purpose of the representations and intended audience

We address the third and fourth elements together. The third element asks 

whether “the statements at issue were made either for the purpose of obtaining approval 

for, promoting, or securing sales . . . , or commercial transactions in, the person’s goods 

or services or in the course of delivering the person’s goods or services.” (Simpson, 

supra, 49 Cal.4th at p. 30.) The fourth asks whether the “intended audience is an actual 

or potential buyer or customer, or a person likely to repeat the statement to, or otherwise 

influence, an actual or potential buyer or customer.” (§ 425.17, subd. (c)(2); Simpson, at 
15

p. 30.) We find both elements have been met primarily based on this District’s decision 

in Neurelis, Inc. v. Aquestive Therapeutics, Inc. (2021) 71 Cal.App.5th 769 (Neurelis).)

In Neurelis, Neurelis, Inc., and Aquestive Therapeutics, Inc., were each 

developing competing medications for the same seizure condition. (Neurelis, supra, 71 

Cal.App.5th at p. 778.) Neurelis’s medication was administered nasally, while 

Aquestive’s was administered orally. (Id. at pp. 778-779.) Aquestive made various 

statements to investors about its drug. It filed a Form S-1 with the SEC, which stated its 

drug was further along than other competing drugs in development. (Id. at p. 780.) 

Aquestive’s chief executive officer also stated during an investor call that survey data

showed its drug was preferred by more than 80 percent of patients over nasal sprays. 

(Id. at pp. 781-782.) Neurelis sued Aquestive on various theories based on these investor 

statements. (Id. at p. 782.)

Aquestive filed an anti-SLAPP motion, which Neurelis opposed based on 

the commercial speech exemption. (Neurelis, supra, 71 Cal.App.5th at p. 782.) 

Aquestive argued the exemption did not apply because the statements at issue were made 

to investors and not to potential customers of either seizure medication under 

development. (Id. at p. 787.) It claimed the exemption would only apply to statements 

made to “customers or potential customers of its [drugs] and not investors, who only buy 

its stock. Aquestive further point[ed] out that it is not in the business of selling securities 

and securities are just a means by which it finds investment for its ‘true business’ of 

‘selling . . . pharmaceuticals for medical conditions.’” (Id. at p. 789.)

The court rejected Aquestive’s argument. It noted that Aquestive’s seizure 

medication was still in development when the investor statements were made. “Thus, 

there were no consumers that would have been able to purchase [Aquestive’s drug] when 

the comments were made. However, clearly the audience of Aquestive’s statements was 

in a position to ‘otherwise influence’ a ‘potential buyer’ of [the drug] by investing in 
16

Aquestive to help ensure that company brought [the drug] to market before other 

competing drugs . . . .” (Neurelis, supra, 71 Cal.App.5th at p. 790.)

While the statements at issue here pertained to a developing drug that was 

not available for purchase, they were made to promote the sales of BioCorRx’s goods and 

services through the sale of its securities. Similar to Neurelis, BioCorRx sought 

investment to fund its business of providing addiction treatment services and selling 

related medications. (See Neurelis, supra, 71 Cal.App.5th at p. 790.)6 As stated above, 

the October 2018 press release stated BioCorRx was planning to partner with VDM “to 

develop and commercialize VDM-001” and that BioCorRx had the right to purchase an 

ownership interest in VDM. The March, May, August, and November 2020 press 

releases generally stated VDM-001 was “being developed to reverse opioid overdose.”

Three of these press releases compared VDM-001 to competing drugs on the market, 

stating it could “‘represent an effective alternative to naloxone in the overdose reversal 

market.’” Several press releases also highlight the fentanyl problem in the United States 

and stated that VDM-001 may prevent “‘the effects of fentanyl, which is responsible for 

thousands of deaths annually.’”

The implication from the above statements is that there is a market for 

medication to combat opioid overdose, BioCorRx was developing such a medication, and 

investors should provide funds to continue that development. Thus, we conclude the 

press releases at issue were intended to attract investors that could “‘otherwise influence’

6

 BioCorRx contends Neurelis is distinguishable because Aquestive conceded it was 

primarily engaged in the business of selling pharmaceuticals and securities. (See 

Neurelis, supra, 71 Cal.App.5th at p. 790.) We are unpersuaded by this argument. As 

we read Neurelis, the appellate court was concerned that Aquestive had allegedly made 

representations to increase its investment so it could “fund its ‘true business’ of ‘selling 

. . . pharmaceuticals for medical conditions.’” (See id. at p. 790.) We find this akin to 

the situation here. Like Aquestive, the record shows BioCorRx operates in a similar field 

to pharmaceuticals and seeks investment to fund its primary business of providing 

addiction treatment services and related medications.
17

a ‘potential buyer’” by investing in BioCorRx to help it continue to develop VDM-001 

for commercialization. (See Neurelis, supra, 71 Cal.App.5th at p. 790.)

BioCorRx attempts to distinguish Neurelis by arguing the statements at 

issue were made to the public at large and not directly to investors. However, we can 

infer from the record that investors were the intended audience.

First, BioCorRx is a for profit, publicly traded company that sells and 

promotes the sale of its securities. The press releases all contain BioCorRx’s ticker 

symbol (BICX) in bold. Thus, readers of the press releases could easily look up and 

purchase shares of BioCorRx. (See Koegler, Here Come the Cybercops 2: Who Should 

Police Cybermarks? (1998) 22 Nova L.Rev. 531, 535, fn. 30 [ticker symbols “represent 

stocks on the market”].)

Second, the press releases include safe harbor statements that inform 

investors of certain investing risks. (See In re Copper Mountain Securities Litigation

(N.D. Cal. 2004) 311 F.Supp.2d 857, 866 [safe harbor statements can shield companies 

from securities fraud claims].) For instance, they state “[t]he information in this release 

includes forward-looking statements” that “involve known and unknown risks as well as 

uncertainties. Although [BioCorRx] believes that its expectations are based on 

reasonable assumptions, the actual results that [BioCorRx] may achieve may differ 

materially from any forward-looking statements, which reflect the opinions of the 

management of [BioCorRx] only as of the date hereof.” (Italics omitted.)

Third, all the press releases at issue contain investor-specific contact 

information for BioCorRx. They list BioCorRx’s e-mail address as 

“investors@BioCorRx.com.” (Italics added.) They also include the e-mail address and 

phone number for BioCorRx’s “Investor Relations” firm. (Boldfacing omitted.) Thus, 

the press releases invite investors to contact BioCorRx. In contrast, nothing in the press 

releases encourages scientists, researchers, or other members of the public to contact 

BioCorRx if they are interested in its research efforts.
18

Fourth, the statements about VDM-001 were made in the context of press 

releases labeled as “Business Update[s].” These “Business Update[s]” include news 

about BioCorRx’s business operations and product pipeline and, as such, appear tailored 

to investors. (Boldfacing omitted.) For instance, the press releases from March, May, 

August, and November 2020, contain not only updates about VDM-001 but on 

BioCorRx’s development of a new naltrexone implant for treating opioid and alcohol use 

disorders. The March and May 2020 press releases include updates on BioCorRx’s drug 

treatment and weight loss programs. The March 2020 press release states that BioCorRx 

obtained a grant that would “substantially cover [its] financial costs towards FDA 

approval” of a naltrexone implant in development. Finally, the November 2020 press 

release reports the appointment of BioCorRx’s new chief operating officer. It also 

announces a new partnership with “Truusight Health, a healthcare solutions and care 

navigation and management company, to bring the [BioCorRx’s] Recovery Program to 

self-funded health plans.”

Fifth, the press releases were distributed by Global Newswire. The record 

indicates Global Newswire “specializ[es] in the delivery of corporate press releases[,] 

financial disclosure[,] and multimedia content to the media, investment community, 

individual investors, and the general public.” (Italics added.)

BioCorRx also contends the third element is not met when a publicly traded

company promotes its own securities. It claims such an interpretation would make every 

publicly traded company “subject to the commercial speech exemption whenever it 

issued a press release.” We disagree.

In Neurelis, Aquestive’s statements also promoted the sale of its securities 

because its seizure medication was still in development and not available for purchase. 

(See Neurelis, supra, 71 Cal.App.5th at pp. 789-790.) Press releases only become subject 

to the commercial speech exemption when all four elements set forth above are met. 
19

Further, as this Division previously explained, the Legislature enacted the 

commercial speech exemption because “commercial defendants were invoking the 

procedural protections of the anti-SLAPP statute by claiming their advertising impacted 

the public interest.” (Metcalf v. U-Haul International, Inc., supra, 118 Cal.App.4th at p. 

1267.) The exemption was intended to curb this “‘disturbing abuse’ of the [anti-SLAPP] 

statute.” (Ibid.) A company’s promotion of its securities is simply another form of

advertising. For instance, if a company makes misrepresentations while promoting its 

securities sales and is sued, the resulting lawsuit “does not involve a plaintiff attempting 

to limit a defendant’s constitutionally protected free speech rights.” (See Neurelis, supra, 

71 Cal.App.5th at p. 790.) Rather, it involves bad advertising. Such lawsuits are “not the 

type of case[s] for which the anti-SLAPP statute was intended.” (See ibid.)

Finally, BioCorRx argues Neurelis is distinguishable because Aquestive 

made statements about a direct competitor’s (Neurelis’s) product, and no such statements 

were made here. But the commercial speech exemption can be applied if a company 

makes statements about its own products, services, or business operations. (Simpson,

supra, 49 Cal.4th at p. 30.)

C. Granier

VDM has the burden of showing the court erred by granting the antiSLAPP motion as to Granier. “This burden remains the same whether or not the 

respondent files a brief or provides argument or authority on an issue.” (Doe v. 

McLaughlin (2022) 83 Cal.App.5th 640, 655.) As explained below, VDM’s opening 

brief fails to make any reasoned argument showing the court erred by ruling in favor of 

Granier. Thus, the argument has been forfeited. (Id. at pp. 653 [“An appellant abandons 

an issue by failing to raise it in the opening brief”]; City of Riverside v. Horspool (2014) 

223 Cal.App.4th 670, 679, fn. 8 [“An appellate court is not required to examine 

undeveloped claims or to make arguments for the parties”].)
20

First, VDM has not made any reasoned argument that the commercial 

speech exemption applies to Granier. As set forth above, this exemption only applies 

when the relevant cause of action is asserted “against a person primarily engaged in the 

business of selling or leasing goods or services.” (Simpson, supra, 49 Cal.4th at p. 30.)

VDM’s opening brief asserts its “claims are against persons (BioCorRx and Granier) 

primarily engaged in the business of selling goods or services.” While it then explains 

how BioCorRx meets this element, it fails to make any argument that Granier is primarily 

engaged in the requisite business activities. Rather, the opening brief only contends he 

“made the challenged press-release statements in his capacity as BioCorRx’s CEO and/or 

Director,” with no further analysis. This statement does not explain why BioCorRx and 

Granier should be treated identically for purposes of the commercial speech exemption. 

VDM has sued Granier as an individual, and, generally, a corporation is distinct from its 

officers and directors. (See Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 

214, 220.) As such, it is unclear whether BioCorRx’s business activities can be imputed 

onto Granier when applying the commercial speech exemption. VDM’s opening brief

simply assumes they can but fails to provide any authority or argument for doing so. We 

will not make this argument on its behalf. (City of Riverside v. Horspool, supra, 223 

Cal.App.4th at p. 679, fn. 8.)

Second, VDM has not shown Granier fails to meet either prong of the twostep anti-SLAPP analysis. (See Bonni, supra, 83 Cal.App.5th at p. 298.) Again, VDM’s 

arguments conflate BioCorRx and Granier. But they are not synonymous. As set forth 

above, a corporation is generally distinct from its officers and directors. (See Curci 

Investments, LLC v. Baldwin, supra, 14 Cal.App.5th at p. 220.) VDM has not explained 

why statements Granier made on behalf of BioCorRx subject him to individual liability.
21

Besides, the statements made by Granier and BioCorRx do not entirely

overlap. While Granier was quoted in several press releases, the press releases also 

contain statements that were not made by Granier. Put differently, the press releases are 

composed of Granier’s statements and other statements that ostensibly are only 

attributable to BioCorRx. VDM’s opening brief only discusses BioCorRx’s statements 

generally. Indeed, as the opening brief explains, “this case concerns statements made by 

BioCorRx about the ownership, development, and control of a single, specific product, 

VDM-001—statements made to promote BioCorRx’s business.” (First italics added.) 

The opening brief fails to include any analysis of Granier’s individual statements, nor 

does it explain why such an analysis is unnecessary. In fact, Granier is not even 

mentioned in the opening brief’s discussion of the two-prong anti-SLAPP test.

In supplemental briefing, VDM contends the trial court failed to distinguish 

between BioCorRx and Granier in its analysis, so it did not address the two separately. 

But we review the court’s ruling not its analysis. (Doe v. McLaughlin, supra, 83 

Cal.App.5th at p. 654.) Thus, our review is limited to whether the trial court correctly 

ruled in favor of Granier, and VDM had the burden of showing that ruling was wrong. 

(Id. at pp. 654-655.) It did not meet that burden because it failed to provide any analysis 

of Granier’s statements. Rather, its analysis focused on BioCorRx’s statements without 

explaining how that same analysis applied to Granier.
22

III

DISPOSITION

We reverse the portion of the trial court’s order striking the allegations 

from the cross-complaint concerning the press releases. We affirm the portion of the 

order striking the allegations concerning the unredacted statements, which VDM did not 

challenge on appeal. Likewise, we affirm the portion of the order granting Granier’s antiSLAPP motion. The matter is remanded for further proceedings. Each party shall bear 

their own costs on appeal.7

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

MOTOIKE, J.

7

 VDM’s requests for judicial notice are denied as immaterial to our analysis. (Jordache 

Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 

[declining to take judicial notice of materials not “necessary, helpful, or relevant”].)