Filed 7/2/26 Wizmann v. Simon & Schuster CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PATRICK WIZMANN, B339923
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 24STCV00462)
SIMON & SCHUSTER, LLC et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County. Bruce G. Iwasaki, Judge. Affirmed.
Patrick Wizmann, in pro. per., for Plaintiff and Appellant.
Fox Rothschild, David Aronoff and Joshua Bornstein, for
Defendant and Respondent Forefront Books, LLC.
Sparks Law Firm and Jerry Sparks, for Defendant and
Respondent Simon & Schuster, LLC.
____________________
Appellant Patrick Wizmann sued the publishers of his
brother-in-law’s memoir, respondents Simon & Schuster, LLC
(Simon & Schuster) and Forefront Books, LLC (Forefront Books)
(collectively, respondents). Wizmann claimed that the synopsis
printed on the inside flap of the memoir’s dust jacket contained
misleading statements about the author’s life. The trial court
granted respondents’ motion to strike Wizmann’s lawsuit
pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16),
and Wizmann appealed.1 Finding no error, we affirm.
BACKGROUND
I. Facts
In or around November 2023, Forefront Books published
“Dreams Don’t Die: The Story of a Man on a Mission to Inspire a
Generation of Dreamers” (the book), the memoir of prominent
real estate developer Izek Shomof (Shomof). Simon & Schuster
distributed the book.
Over the course of his career, Shomof has been involved in
many high-profile real estate projects in Los Angeles, including
redeveloping several historic hotels and attempting to build an
ambitious housing support center. These projects have generated
consistent media attention and occasional controversy.
The inside flap of the book’s dust jacket states, as relevant
here, that “[i]t is the memoir of a man who had every opportunity
to take unethical and often-illegal shortcuts but who instead
chose the lesser-trod path of honesty and integrity” (the
1 SLAPP is an acronym for “strategic lawsuit against public
participation.” (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) All further statutory references are to
the Code of Civil Procedure unless otherwise indicated.
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synopsis). The synopsis was also included in various promotional
materials, including material published on respondents’ websites.
II. Complaint
In January 2024, Wizmann sued respondents for violating
the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et
seq.) and the False Advertising Law (FAL) (Bus. & Prof. Code,
§ 17500 et seq.), and for related declaratory relief. Wizmann
alleged that, by stating that Shomof “chose the lesser-trod path of
honesty and integrity[,]” the synopsis falsely led consumers to
believe that he is a “scrupulous[,]” “honest[,] [and] law-abiding
businessman[,]” even though Shomof had been charged with
three counts of felony receipt of stolen property (former Pen.
Code, § 496(1)) in the 1980s.
Wizmann sought monetary damages, civil penalties, and an
injunction ordering respondents to (1) replace the dust jackets of
“all copies of the [b]ook currently in circulation” and (2) delete the
offending sentence from their websites.
III. Anti-SLAPP Motion; Opposition
In March 2024, Forefront Books filed an anti-SLAPP
motion to strike Wizmann’s complaint. Simon & Schuster joined
the motion.
The motion included a declaration from Shomof explaining
that he pled nolo contendere to one charge of felony receipt of
stolen property in 1989. After he completed a term of probation
and paid full restitution to the property owner, the conviction
was reduced to a misdemeanor. Shomof “did not share this story
in the [b]ook” or with respondents, as he did not consider that the
conviction “detract[ed] from the story of [his] success built on
honesty and integrity.” Shomof believed that Wizmann, who had
filed two unrelated lawsuits against him in the 14 months
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preceding this suit, “sued [respondents] just to harass and
embarrass” Shomof.
Wizmann opposed the motion. In his attached declaration,
Wizmann wrote that he “ha[d] known Shomof since [Wizmann]
was a teenager[,]” and had “been business partners” with him
throughout their lives. Upon the book’s release, Wizmann
claimed he “was surprised by the claims [respondents] made
regarding Shomof’s law abiding, untarnished life.” Wizmann
“was induced into purchasing the [b]ook out of curiosity
regarding the veracity of” the synopsis, especially “how the [b]ook
would reconcile the claims in the [synopsis] with the reality of
Shomof’s history.” After “read[ing] the [b]ook in its entirety[,]”
Wizmann found that “[i]t d[id] not address Shomof’s arrest on
felony charges[] and subsequent plea of no contest.”
IV. Ruling; Appeal
In May 2024, the matter proceeded to a hearing. After both
parties presented argument, the trial court granted the anti-
SLAPP motion in full and dismissed Wizmann’s complaint with
prejudice. Wizmann timely appealed.
DISCUSSION
I. The Anti-SLAPP Statute
“A SLAPP is a civil lawsuit that is aimed at preventing
citizens from exercising their political rights or punishing those
who have done so.” (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, the anti-SLAPP statute[.]” (Ibid.; see
§ 425.16, subd. (a).)
Section 425.16, subdivision (b)(1), provides: “A cause of
action against a person arising from any act of that person in
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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 shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” This procedure is intended to “weed[] out,
at an early stage, meritless claims arising from protected
activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, italics
omitted.)
“[A] trial court tasked with ruling on an anti-SLAPP
motion must ask two questions: (1) has the moving party ‘made a
threshold showing that the challenged cause of action arises from
protected activity’ [citation], and, if so, (2) has the nonmoving
party ‘established . . . a probability that [it] will prevail’ on the
challenged cause of action by showing that the claim has
‘minimal merit’ [citations]?” (Abir Cohen Treyzon Salo, LLP v.
Lahiji (2019) 40 Cal.App.5th 882, 887.)
II. Standard of Review
“We review de novo the grant . . . of an anti-SLAPP
motion.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067 (Park).) In so doing, we “consider the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) “[W]e do not weigh evidence or resolve conflicting
factual claims[,]” and “must draw all reasonable inferences from
the evidence in favor of [Wizmann] as the plaintiff.” (Lee v. Kim
(2019) 41 Cal.App.5th 705, 720.)
III. Commercial Speech Exemption
We begin with Wizmann’s argument that the anti-SLAPP
statute does not apply to his lawsuit because it targets
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respondents’ commercial speech. (§ 425.17, subd. (c); see Xu v.
Huang (2021) 73 Cal.App.5th 802, 807 (Xu) [“Courts are
admonished to examine section 425.17 as a threshold issue before
proceeding to an analysis under section 425.16.” (Italics
omitted)].)
A. Forfeiture
Wizmann has forfeited this issue. He not only failed to
raise the commercial speech exemption below, but expressly
disavowed any “conten[tion] that the . . . exemption . . . precludes
[respondent’s anti-SLAPP] [m]otion.” (Hewlett-Packard Co. v.
Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [generally,
“ ‘theories not raised in the trial court cannot be asserted for the
first time on appeal’ ”].) However, the trial court addressed the
commercial speech exemption at length in its ruling after finding
that, notwithstanding Wizmann’s disavowal, the exemption
formed “the only basis for [his] argument[s].” We therefore
address Wizmann’s arguments on their merits. (See Fergus v.
Songer (2007) 150 Cal.App.4th 552, 572 [intent of rule
prohibiting new theories on appeal is to prevent surprise that “is
both unfair to the trial court and unjust to the opposing
litigant”].)
B. The Commercial Speech Exemption Does Not Apply
“In 2003, concerned about the ‘disturbing abuse’ of the anti-
SLAPP statute, the Legislature enacted section 425.17 to exempt
certain actions from [protection].” (Simpson, supra, 49 Cal.4th at
p. 21.) “[T]he plaintiff[] bear[s] the burden of proving” that an
exception applies. (Xu, supra, 73 Cal.App.5th at p. 813.)
Subdivision (c) of section 425.17 provides that lawsuits
targeting certain kinds of commercial speech are not subject to
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the anti-SLAPP statute.2 But the commercial speech exemption
“do[es] not apply to . . . [¶¶] [a]ny action against any person . . .
based upon the creation, dissemination, exhibition,
advertisement, or other similar promotion of any dramatic,
literary, musical, political, or artistic work[.]” (§ 425.17,
subd. (d)(2), italics added.)
Wizmann sued respondents based upon their promotion of
the book, a literary work. Therefore, the commercial speech
exemption does not apply to his lawsuit, regardless of whether it
satisfies the conditions set forth in 425.17, subdivision (c).
(§ 425.17, subd. (d)(2).)
Wizmann resists this conclusion by relying on Keimer v.
Buena Vista Books, Inc. (1999) 75 Cal.App.4th 1220, 1230
(Keimer), which “h[e]ld that the statements made on . . . book . . .
covers are commercial speech[.]” Keimer does not help Wizmann.
Classifying a statement as commercial speech is not enough to
establish the commercial speech exemption. A plaintiff must also
establish that the commercial speech at issue satisfies the
conditions of the exemption statute. (See FilmOn.com, Inc. v.
2 In relevant part, the exemption provides that the anti-
SLAPP statute “does not apply to any cause of action brought
against a person primarily engaged in the business of selling . . .
goods, . . . arising from any statement or conduct by that person[,]
if both of the following conditions exist: [¶] (1) [t]he statement or
conduct consists of representations of fact about that person’s or
a business competitor’s . . . goods . . . that is made for the purpose
of . . . promoting, or securing sales . . . of, . . . the person’s
goods . . . , or the statement or conduct was made in the course of
delivering the person’s goods,” and “(2) [t]he 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).)
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DoubleVerify Inc. (2019) 7 Cal.5th 133, 147 (FilmOn) [“[S]ection
425.17, subdivision (c) and subsequent case law indicate that the
provision exempts ‘only a subset of commercial speech —
specifically, comparative advertising.’ ”]; All One God Faith, Inc.
v. Organic & Sustainable Industry Standards, Inc. (2010) 183
Cal.App.4th 1186, 1217 [“[T]he better understanding of section
425.17, subdivision (c), is that all of the speech exempted from
the anti-SLAPP statute is commercial speech, but not all
commercial speech is exempted thereunder.”]) A lawsuit that
otherwise qualifies for the exemption is still subject to anti-
SLAPP if it targets commercial speech that promotes a literary
work. (§ 425.17, subd. (d)(2).)
Wizmann attempts to circumvent section 425.17,
subsection (d), by suggesting that books are not “literary works,”
which is meritless on its face. Wizmann further suggests that
Keimer—a case decided four years before the enactment of
section 425.17, and which does not involve the anti-SLAPP
statute—takes precedence over the statutory framework carefully
wrought by our Legislature. It does not.
IV. The Trial Court Properly Granted Respondents’
Motion to Strike
A. Respondents Established that Wizmann’s Claims
Arise from Protected Activity
Under the anti-SLAPP statute, “[a] claim arises from
protected activity when that activity underlies or forms the basis
for the claim. [Citations.] Critically, ‘the defendant’s act
underlying the plaintiff’s cause of action must itself have been an
act in furtherance of the right of petition or free speech.’
[Citation.]” (Park, supra, 2 Cal.5th at pp. 1062–1063.) Such
acts include “any written or oral statement or writing made in a
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place open to the public or a public forum in connection with an
issue of public interest[.]” (§ 425.16, subd. (e)(3).)
Wizmann’s claims arise from the synopsis posted on
respondents’ websites and printed on the book’s dust jacket. In
both forms, the synopsis qualifies as an “act in furtherance of
[the] right of . . . free speech” under section 425.16,
subdivision (e)(3). (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41,
fn. 4 [“Web sites accessible to the public . . . are ‘public forums’ for
purposes of the anti-SLAPP statute.”]; Nygård, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, 1039 [a publication
constitutes a public forum if “it can be purchased and read by
members of the public”].) And the synopsis was made “in
connection with an issue of public interest[,]” as its subject (i.e.,
Shomof) “ ‘[i]s a person or entity in the public eye[.]’ ” (Albanese
v. Menounos (2013) 218 Cal.App.4th 923, 934; see also Hoang v.
Tran (2021) 60 Cal.App.5th 513, 528 [“ ‘ “[T]here is a public
interest which attaches to people who, by their accomplishments,
mode of living, professional standing or calling, create a
legitimate and widespread attention to their activities.” ’ ”].)
Although Wizmann does not dispute any of these
conclusions, his repeated references to the synopsis as
“unprotected commercial speech” suggests the argument that
commercial speech does not constitute protected activity under
the anti-SLAPP statute. That argument fails. (FilmOn, supra, 7
Cal.5th at p. 154 [“ ‘[W]hether speech has a commercial or
promotional aspect is not dispositive’ of whether it is made in
connection with an issue of public interest.”].)
Wizmann also emphasizes that false commercial speech is
not protected by the First Amendment. But constitutional
protection is a separate question from anti-SLAPP protection.
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(Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539, 1548 [“To make their threshold
showing under the first prong of the [section 425.16] analysis,
[defendants] need not prove that the targeted activity is in fact
constitutionally protected.”]; see also City of Montebello v.
Vasquez (2016) 1 Cal.5th 409, 422 [courts “determining whether
conduct is protected under [section 425.16] look not to First
Amendment law, but to the statutory definitions in section
425.16, subdivision (e)”].)
B. Wizmann Did Not Show a Reasonable Probability of
Success on the Merits
“A claim has [the] ‘minimal merit’ ” required to survive an
anti-SLAPP motion “if it is ‘ “both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by [Wizmann] is
credited.” ’ [Citations.]” (Gruber v. Gruber (2020) 48 Cal.App.5th
529, 537, italics omitted.) Therefore, “when the . . . court
examines [Wizmann’s evidence] filed in support of [his] second
step burden, the court must consider whether [he] has presented
sufficient evidence to establish a prima facie case on his causes of
action[.]” (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th
174, 184, italics omitted.) An anti-SLAPP motion should only be
granted if the claimant fails to meet this burden. (Mattel, Inc. v.
Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179,
1188–1189.)
One element common to Wizmann’s false advertising and
unfair competition claims is the promulgation of a false or
misleading statement that deceives reasonable consumers about
the goods being sold. (Bus. & Prof. Code, §§ 17500 [“It is
unlawful for any person, . . . with intent directly or indirectly to
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dispose of . . . property . . . or to induce the public to enter into
any obligation relating thereto, to make or disseminate or cause
to be made or disseminated before the public . . . any statement,
concerning that . . . property . . . which is untrue or misleading,
and which is known, or which by the exercise of reasonable care
should be known, to be untrue or misleading”] (italics added),
17200 [unfair competition includes “deceptive, untrue or
misleading advertising”]; Shaeffer v. Califia Farms, LLC (2020)
44 Cal.App.5th 1125, 1136 (Shaeffer) [under the UCL and FAL, a
plaintiff must show that “ ‘ “ ‘members of the public are likely to
be deceived’ ” [citation]’ and must do so as adjudged through the
eyes of ‘the reasonable consumer’ [citation]”].)
Here, Wizmann has not demonstrated that the synopsis is
false or misleading to a reasonable consumer. The synopsis says
that the book shows that Shomof “had every opportunity to take
unethical and often-illegal shortcuts but . . . instead chose the
lesser-trod path of honesty and integrity.” Wizmann’s contention
that the 1989 conviction renders the synopsis false is
unreasonable. One conviction occurring nearly 40 years ago does
not render false the synopsis’s summary of the overall trajectory
of Shomof’s life and career. (See Shaeffer, supra, 44 Cal.App.5th
at p. 1139 [UCL and FAL claims fail if “a reasonable consumer is
unlikely to make the series of inferential leaps” required to reach
the plaintiff’s conclusion]; compare with Keimer, supra, 75
Cal.App.4th at p. 1224 [statements on the cover of a guide
promising to contain an investment strategy with a 23.4 percent
annual rate of return could be proven false by evidence that the
strategy’s true annual rate of return averaged 9.1 percent].)
Moreover, the synopsis summarizes the content of the book,
promising readers that the book contains the tale of “a man who
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had every opportunity to take unethical and often-illegal
shortcuts but who instead chose the lesser-trod path of honesty
and integrity.” Wizmann alleges that Shomof’s prior conviction
contradicts that premise, but concedes that the book “does not
address Shomof’s arrest on felony charges[] and subsequent
plea[.]” The synopsis thus truthfully advertises the book. (See
Keimer, supra, 75 Cal.App.4th at p. 1232 [distinguishing between
“ ‘ “advertising which summarizes an argument or opinion
contained in the book” ’ . . . [and promotional] statements that are
objectively verifiable as true or false”] (italics in original); see also
Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 882
[“[T]he principle motivating California’s protection of
advertisements adjunct to expressive works ‘is the need to protect
advertisers from tort actions that would otherwise threaten the
ability of publishers to truthfully promote particular works’ by
accurately conveying the content of those works, even when that
content is itself false.”].)
As respondents note, “[w]hat [Wizmann] truly is arguing is
that . . . the [b]ook supposedly whitewashes Shomof’s life story by
failing to address [Shomof’s conviction]. Put differently, his
grievance is with the content of the [b]ook itself rather than the
description about the [b]ook’s content on the dust jacket.”
Wizmann’s complaint reveals a glaring constitutional issue that
he makes no attempt to address. Nor could he. (Keimer, supra,
75 Cal.App.4th at p. 1231 [“[N]o one involved in modern
jurisprudence can reasonably dispute[] [that] the content of . . .
books is entitled to the full protection of the First Amendment.”].)
Wizmann cannot establish a prima facie case of false
advertising or unfair competition. Based on his evidence, there is
no reasonable probability that he can show the synopsis is false
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or misleading to a reasonable consumer, or that the synopsis is
not subject to heightened constitutional protections. And because
Wizmann’s substantive claims cannot proceed under the anti-
SLAPP statute, neither can his derivative claim for declaratory
relief. (City of Lancaster v. Netflix, Inc. (2024) 99 Cal.App.5th
1093, 1099 [where a “declaratory relief claim is wholly derivative
of [unsuccessful] claim[s] for damages, it also fails”].)
DISPOSITION
The order is affirmed. Respondents are entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
GOORVITCH
We concur:
________________________, Acting P. J.
CHAVEZ
________________________, J.
RICHARDSON
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