SAN FRANCISCO (CN) – A judge rightly refused to kill a lawsuit against a Napa restaurant that serves foie gras despite a statewide ban, a California appeals court ruled Thursday.
The feud between activists Animal Legal Defense Fund and Chef Kenneth Frank likely began when the California Legislature passed a ban on foie gras – fatty duck or goose liver prized by gourmands for its rich flavor.
Animal Legal Defense Fund lobbied hard for the ban and has since been active in educating the public that the production of foie gras involves cruelly force-feeding ducks and geese.
Frank – head chef at Napa’s La Toque restaurant – worked just as hard against the ban, testifying at State Senate hearings before the bill’s passage and authoring a newspaper opinion piece decrying foie gras’ demise as a delicacy in California.
The ban took effect in 2012. Apparently suspecting Frank would defy the law and continue serving foie gras, Animal Legal Defense Fund sent a paid investigator into La Toque on three occasions in 2012 and 2013. Each time the investigator asked for foie gras: twice he received it compliments of the chef, and once as a reward for ordering from an expensive tasting menu.
After repeated and unsuccessful attempts to get law enforcement and the Napa city attorney involved, the activists filed an unfair competition lawsuit against Frank and La Toque’s owners, LT Napa Partners LLC in Napa County Superior Court seeking an injunction to stop Frank from serving foie gras – but no damages.
The restaurateurs moved to strike the suit using California’s anti-SLAPP, or strategic lawsuit against public participation, statute. A Napa County judge denied the motion, finding that the defendant’s hadn’t shown the activists’ lawsuit stemmed from protected activity and concluding that the group would likely prevail on the merits of their case.
On appeal, a panel for the First Appellate District agreed, although it did find that La Toque continued serving foie gras because of Frank’s public opposition to the ban and was therefore protected activity for SLAPP purposes.
But Animal Legal Defense Fund also showed the likelihood of prevailing on its claims, despite the restaurateurs’ contention that they didn’t technically violate the foie gras ban because they never actually sold the product to the activists’ investigator, the panel concluded.
Specifically, the activists made case that they have been financially harmed by the restaurateurs’ unfair competition practices, not only spending time and money to get the foie gras ban passed but also paying the private investigator and lobbying authorities in Napa to go after La Toque.
“Plaintiff has presented evidence of a genuine and longstanding interest in the effective enforcement of the statute and in exposing those who violate it,” Judge Mark Simons wrote for the panel. “Plaintiff’s evidence provides a basis to conclude 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 advocacy efforts in, for example, other states and at the federal level. In sum, plaintiff’s declaration is sufficient to make a prima facie showing of standing to sue.”
The panel also rejected the restaurateurs’ argument that the activists hadn’t been economically injured because the purpose of the group’s existence is to investigate and sue.
And, after all, foie gras is being served at La Toque, the panel said.
“There is evidence Frank is personally responsible for the restaurant’s policy regarding serving foie gras,” Simons wrote. “His own declaration states, ‘In the exercise of my constitutionally protected 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 the law 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 violates the law, plaintiff has shown a basis for its claim that Frank is personally liable for the violation.”
Whether La Toque “gives away” foie gras or charges for it, serving it constitutes a sale and a violation of the law, the judges said.
“Under the investigator’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,” Simons wrote. “The foie gras was part of the property he was 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.”
The 19-page opinion makes no mention of a recent ruling by a federal judge that the Golden State’s ban on foie gras is unconstitutional, preempted by federal law regulating poultry products.
La Toque, located in the Westin Verasa in downtown Napa, has a coveted Michelin Star – and four-star ratings from diners on Yelp and Urbanspoon.
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