Solahart Industries Pty. Ltd., v. International Association of Plumbing and Mechanical Officials

SOLAHART INDUSTRIES PTY. LTD., an Austrian corporation, doing business as SOLAHART AMERICA, Plaintiff, v. INTERNATIONAL ASSOCIATION OF PLUMBING AND MECHANICAL OFFICIALS, a California nonprofit corporation; IAPMO RESEARCH AND TESTING, INC., a California nonprofit corporation; CITY OF VISTA, a municipal corporation, on behalf of itself and all others similarly situated; and DOES 1 through 100, inclusive, Defendants. No. 96-0239-IEG (JFS) United States District Court Southern District of California Filed October 24, 1996         Order granting defendant's motion for summary judgment on the first through seventh, ninth, and tenth claims, granting defendants motion to dismiss the eight claim, granting the parties' requests for judicial notice, and denying the parties evidentiary objections [doc. ## 30, 32, 72, 73, 74, 75]
        Defendant's motion for summary judgment came on regularly for hearing on Monday, October 21, 1996, at 10:30 a.m., in Courtroom 13, the Honorable Irma E. Gonzalez presiding. Peter S. Selvin and Anna J. Valdberg of Loeb & Loeb appeared on behalf of defendant. Eugene S. Wilson of the Law Offices of Eugene S. Wilson appeared on behalf of plaintiff.

BACKGROUND         This dispute concerns the design and marketing of solar water heaters, a plumbing industry association's promulgation of model codes setting standards for plumbing equipment, and the association's program of certifying equipment as complying with its codes. Plaintiff manufacturer brings claims against defendant industry association for violations of the Sherman Act, the California Unfair Business Practices Act, and the United States Constitution, together with several tort claims.
        Plaintiff Solahart Industries Pty., Ltd., d/b/a Solahart America ("Solahart") is an Australian corporation that manufactures and markets solar water heaters. It has a distribution facility in San Marcos, California. Solahart has marketed its Model 300 series solar water heater in the United States since 1983.
        The Model 300 water heater is a "closed-loop" system, as opposed to an "open-loop" system. In an open-loop system, potable water flows directly into the solar collectors, where it is heated by sunlight, and then flows into the water heater tank. In a closed-loop system, a "heat transfer fluid" circulates into the solar-collectors and then around the water heater tank, heating the potable water in the tank without mixing with it. The heat transfer fluid may be plain water or another substance. In the Model 300 water heater, a single wall separates the potable water from the heat transfer fluid. Solahart contends that this single-wall design is more energy-efficient than designs employing a double wall between the potable water and the heat transfer fluid.
        In areas of the United States that experience temperatures below freezing, Solahart markets the Model 300 with "Hartgard," an antifreeze additive for the heat transfer fluid. This additive prevents the heat transfer fluid from freezing, bursting the pipes, and damaging the system. Hartgard contains propylene glycol, an additive approved by the United States Food and Drug Administration ("FDA") for certain uses in food.
        Defendant International Association of Plumbing and Mechanical Officials, together with its wholly-owned subsidiary, IAPMO Research and Testing, Inc. (collectively "IAPMO"), is a nonprofit corporation headquartered in Walnut, California. It develops model codes including the Uniform Plumbing Code ("UPC") and Uniform Solar Energy Code ("USEC"), and lobbies for their adoption by local governments. It also provides certification of plumbing and mechanical products that comply with its codes; certification allows the manufacturer to display the IAPMO trademark on the product.
        IAPMO's membership includes representatives of governmental entities, members of the plumbing and mechanical trades, and product manufacturers and distributors. The membership is divided into classes. Class A membership is limited to governmental units involved with the administration or adoption of laws and ordinances related to mechanical construction. Class B membership is limited to government employees or contractors involved in the enforcement of such laws and ordinances, for example, field inspectors. The remaining membership classes are open to other individuals, firms, and utilities. (Declaration of Dumitru Sandru in Support of Motion for Summary Judgment ("Sandru Decl.") at Exh. A, p.20.)
        IAPMO's model codes are formulated by its Codes Changes Committee, which is made up of Class A and B members. (Sandru Decl. at Exh. A, p.33.) Proposed amendments to the codes are voted on by the entire IAPMO Class A and B membership. Id. at 38.
        The Research Committee reviews and tests products for compliance with the model codes, publishes its findings, and certifies products as being in compliance with the model codes. This committee also is made up of only Class A and B members. (Id. at 33; Sandru Decl. at ¶¶ 12-17.) In order to obtain certification, a manufacturer submits an application to the Research Committee. Some products that are not certified, because they do not comply with the applicable codes, are nonetheless listed as "classified" products. Once a product has been approved for certification or listing as a "classified" product, the manufacturer must sign a standard "listing agreement" and pay a fee. Listings must be renewed annually. The listing agreement provides for, among other things, an annual unannounced inspection of the manufacturer's plant to ensure that its products remain in compliance with the codes and impounding of noncomplying products. If the manufacturer fails to comply with certification requirements, the product may be "delisted." (Sandru Decl. at ¶¶ 14-19.)
        In the 1970s, IAPMO added to its codes UPC section 603.3.4 and USEC section 402(c). These sections require that solar water heaters use a double wall to separate potable water from any heat transfer fluid that is other than potable water. (Sandru Decl. at Exhs. B, C.) The parties agree that the Model 300's single-wall construction does not comply with these codes if the heat transfer fluid used is anything other than pure water.
        In April 1982, Solahart applied for certification of the Model 300. IAPMO found that the Model 300 did not comply with USEC section 402(c) or UPC section 603.4.4, but gave it a classified listing. The listing certificate states that "300 models use a jacket which constitutes a single-wall heat exchanger, therefore, only potable, distilled or de-ionized water is to be used in the collector circuit to heat the domestic water. Units are to be labeled with this information . . . ." (Sandru Decl. at Exh. D.) This listing apparently was renewed annually up to and including 1994. Solahart signed a listing agreement annually, most recently in 1994. (Id. at ¶ 27 & Exh. E.)
        In December 1995, an IAPMO inspector visited Solahart's San Marcos facility. He reported that each of the three Model 300 water heaters in stock had engraved on it the words "the closed circuit shall be filled only with brand name Hartgard." (Declaration of Terence S. Eddy ("Eddy Decl.") at Exh. A.) The inspector "impounded" the three units. (Eddy Decl. at Exh. A.) The IAPMO Research Committee then 'delisted" the Model 300.
        On February 9, 1996, Solahart filed the instant action against defendants City of Vista and IAPMO. On July 2, 1996, this Court granted the City of Vista's motion to dismiss the complaint against it for lack of subject matter jurisdiction.

DISCUSSION         IAPMO now brings this motion for summary judgment on all claims. In addition, both parties have filed requests for judicial notice and evidentiary objections to declarations submitted in support of and opposition to the motion.

I.        Requests for Judicial Notice
        Each party has requested judicial notice pursuant to Fed. R. Evid. 201 of materials submitted in support of its position on the summary-judgment motion. Under Fed. R. Evid. 201(a) and (d) court must take judicial notice of an adjudicative fact if "requested by a party and supplied with the necessary information."
        IAPMO requests judicial notice of the "Order on Motion for Summary Judgment; Findings of Fact and Conclusions or Law Thereon" issued by Judge Rea of the Central District of California in Laborers' Local 1184 v. International Ass'n or Plumbinq and Mechanical Officials, No. 88-1071, on August 22, 1988. This request is hereby GRANTED.
        Solahart requests that this Court take judicial notice of (1) the "Foreword" and Section 11 of the "Directory of Listed Plumbing Products," published by IAPMO, and (2) the "Declaration of Eugene S. Wilson in Opposition to Ex Parte Application by IAPMO for Leave to File First Amended Answer," filed in this action on August 15, 1996. This request is hereby GRANTED.

II. Motion for Summary Judgment
        IAPMO moves for summary judgment on the grounds that (1) its conduct in advocating the adoption of its model codes by administrative authorities is protected by the First Amendment; (2) Solahart has failed to present evidence either of the existence of a conspiracy or that the development of model codes constitutes an unreasonable restraint of trade; and (3) Solahart's state law claims are barred by the applicable statutes of limitations and Solahart has failed to exhaust administrative remedies.

        A.        Legal Standard Under Rule 56
        Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
        In considering a motion for summary judgment, the Court must examine all the evidence in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 325. If the moving party does not bear the burden of proof at trial, it may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 at 325. The moving party is not required to produce evidence showing the absence of genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990); United Steelworkers v. Phelps Dodqe Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809 (1989). Instead, "the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885 (quoting Celotex, 477 U.S. at 323).
        Once the moving party meets the requirement of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the nonmoving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.

        B. Antitrust Claims
        Solahart's first through third causes of action allege violations of the Sherman Act, 15 U.S.C. §§ 1 through 7, namely "boycott per se," unreasonable restraint of trade, and unlawful monopolization. Its tenth cause of action alleges unfair competition in violation of California Business and Professions Code § 17200.

        1. Parties' Arguments
        In its first and second causes of action, Solahart contends that IAPMO conspired to prevent Solahart from obtaining certification for its solar water heaters. It alleges that IAPMO "entered into an agreement the substantial terms and the necessary and foreseeable effects of which were to arbitrarily adopt unreasonable and groundless requirements for certification of solar water heaters to exclude the plaintiff's products from certification and sale in the United States. . . . The application of these standards to Solahart has been influenced by persons with an economic interest in blocking competition by plaintiff . . . .' (Compl. at ¶ 39.)
        In its third cause of action, Solahart charges that IAPMO entered into a contract, combination, or conspiracy to prevent Solahart from obtaining certification of its solar water heaters, thereby preventing Solahart from selling its water heaters in the United States. It further charges that this activity was for the purpose of unreasonably restraining interstate trade in water heaters and had the effect of lessening competition.
        IAPMO argues that its activities of lobbying for adoption of its model codes are protected by the First Amendment under the Noerr-Pennington doctrine. In addition, it contends that Solahart has failed to make out any claim for violations of the Sherman Act because it has failed to show the existence of a conspiracy, inasmuch as IAPMO cannot conspire with itself; that as a matter of law a trade association's development of uniform product standards is not anti-competitive; and that, because it does not manufacture or sell any products, it cannot monopolize a market.

        2. The Noerr-Pennington Doctrine
        The Noerr-Pennington doctrine has its roots in two Supreme Court decisions of the 1960s, which held that Sherman Act liability cannot be premised on attempts to influence lawmakers, even if these efforts are undertaken with the intent to restrain trade or create a monopoly. "[T]he Sherman Act forbids only those trade restraints and monopolizations that are created, or attempted, by the acts of 'individuals or combinations of individuals or corporations.' Accordingly, it has been held that where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out" Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-36 (1961) (footnote omitted). Therefore, "the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce restraint or a monopoly." Id. at 136. Moreover, "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965).
        Even activities that are "incidental" to attempts to influence government are protected. "[W]here, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis for antitrust liability if it is 'incidental' to a valid effort to influence government action." Allied Tube & Conduit Corp. v. Indian Head. Inc., 486 U.S. 492, 499 (1988). In Noerr, for example, a publicity campaign that was directed at the general public, employed unethical and deceptive methods, and damaged the plaintiff's relationships with its customers was nonetheless protected because it was undertaken in conjunction with an effort to influence lawmaking. Noerr, 365 U.S. at 140, 143.

        3. Application of Noerr-Pennigton to IAPMO's Activities
        Solahart contends that IAPMO's action of delisting the Model 300 has caused injury to its reputation in the marketplace. It further contends that IAPMO's listing and certification activities are unrelated to IAPMO's code promulgation activities and therefore are not protected by the Noerr-Pennington doctrine.
        However, IAPMO's listing and certification activities simply involve a determination of whether a product complies with the model codes. Solahart does not dispute that IAPMO accurately applied the codes in evaluating the Model 300; that is, it does not dispute that the Model 300 does not conform with the requirements of the codes. Instead, it presents a variety of evidence that IAPMO is wrong in its judgment that a double-wall construction is necessary to protect potable water from contamination by heat transfer agents other than potable water. Solahart's complaint is that the codes are wrong.
        Solahart states that the present case is distinguishable from "pure standards cases."' (P1.'s Opp. at 13.) However, it introduces no evidence to indicate that this action is anything other than a "pure standards case." In fact, Solahart takes the contrary position. For example, in the context of an argument that it should not be required to take an internal IAPMO appeal of the delisting decision, Solahart refers to the deposition of IAPMO's chief administrative officer as follows:

                        Mr. Kochmann testified that he knows of no authority at IAPMO that has the power to certify a product that         does not comply with the uniform codes. He knows of no policy nor any document that would allow a product that         does not comply with the IAPMO codes to be certified. Further, Mr. Kochmann has never seen the IAPMO Board of         Directors certify a product that was not compliant with the IAPMO codes. In fact, certification is a statement that the product is code-compliant.

(P1.'s Opp. at 21-23 (footnotes omitted)). Continuing, Solahart states that "it is agreed that the Model 300 does not comply with the IAPMO codes and cannot be certified as code-compliant." (Pl.'s Opp. at 22-23.) Solahart's arguments demonstrate that its complaint concerns IAPMO's promulgation of its model codes and not any feature of the listing process.
        As to the adoption of the standards, Solahart introduces no evidence to show that IAPMO should not be protected by Noerr-Pennington immunity in this case. Decisions that have held         Noerr-Pennington inapplicable to the activities of standard-setting organizations typically involve improper influence by industry competitors over the standard-setting process. In addition, they typically involve actions against a competitor, not against the standard-setting organization itself. The holding of Allied Tube, cited by Solahart, "is expressly limited to cases where an 'economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants.'" Allied Tube, 486 U.S. at 510 n.l3. In that case, the Supreme Court found that the actions of a manufacturer that packed a standard setting organization's membership meeting to defeat approval of competitor's product were not protected by Noerr-Pennington. In Sessions Tank Liners, Inc. v. Joor Manufacturing. Inc., 17 F.3d 295 (9th Cir.), cert. denied, 115 S. Ct. 66 (1994), the Ninth Circuit confronted a case in which "[t]hrough deliberate misrepresentation, Joor caused a prominent standard-setting organization to amend its influential model fire code to the disadvantage of Joor`s competitor . . . ." Id. at 296 (reversing judgment on antitrust claims because plaintiff failed to allege injury other than from governmental action). Finally, in American Society of Mechanical Enqineers Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982), the Supreme Court held that the standard-setting organization was subject to antitrust liability for acts of its agent, an officer of a manufacturer, in issuing a letter stating that a competitor's product did not comply with ASME code requirements.
        IAPMO has introduced evidence showing that no economically interested party exercised decisionmaking authority in formulating the UPC and the USEC. IAPMO's evidence indicates that the relevant code provisions stem from provisions promulgated even before the introduction of solar water heaters and that these provisions were applied to solar water heaters prior to the development of the Model 300. (Declaration of John Meacham ("Meacham Decl.") at ¶¶ 4, 5.) Adoption of these code provisions and rejection of Solahart's proposals for amendment was by vote only of IAPMO members representing government entities, not of those representing Solahart or its competitors. Solahart and its competitors are not permitted to vote. (Meacham Decl. at ¶ 6; Sandru Decl. at ¶¶ 9-11 and Exh. A pp. 20, 33, 38.) Solahart has introduced no evidence to controvert these facts.
        In sum, Solahart has offered no evidence that IAPMO's model code decisions were made by anything other than a disinterested group of government representatives. It has cited no case in which the standard-setting activities undertaken by such a group subjects an organization to antitrust liability. Accordingly, the Court holds that IAPMO is entitled to Noerr-Pennington immunity for the actions of which Solahart complains. IAPMO's motion for summary judgment on the antitrust and unfair competition causes of action is hereby GRANTED.

        C. Tort Claims
        Solahart alleges causes of action against IAPMO for negligence, interference with prospective economic advantage, and breach of fiduciary duty. IAPMO responds that Solahart has waived its right to bring these claims by signing the listing agreement, which contains a clause by which the "listee" waives claims of this nature. This clause provides that "Listee hereby waives any claim or cause of action against the Association including any claims or causes based on negligence arising out of any actions or failures to act by the Association in granting, denying, or revoking any certifications except claims based on gross negligence or lack of good faith by the association." (Sandru Decl. at Exh. E, p. 5.) Such clauses are enforceable under California law. See Powers v. Superior Court (Hoffman), l96 Cal. App. 3d 318, 320 (Ct. App. 1987).
        However, Solahart argues that the clause is unenforceable because (1) it is "buried in the fine print of a lengthy document," (2) it is not prospective in operation, (3) the contract is an adhesion contract because Solahart was driven to sign it by IAPMO's market power, and (4) the clause is unconscionable.
        Solahart's arguments are-baseless. The waiver clause appears as a separate numbered paragraph on the signature page of four-and-one-half page dual-column document. Its type is the same size as that of the forty-one other paragraphs. Its language does not limit its application to claims arising prior to execution of the agreement.- The clause exempts claims for gross negligence or bad faith and so is not unconscionable.
        Solahart voluntarily applied for listing and executed the listing agreement annually for more than ten years. The declarations it has submitted attest that it is "a world leader in the development, manufacture, and distribution of solar hot water systems," doing business in Europe, Asia, and Australia, as well as the United States. It has sold more than 180,000 units of its Model 300 series worldwide. (Declaration of Mal Hayes in Opposition to Motion for Summary Judgment at ¶¶ 3, 4.) Solahart has been in the solar water heater business since 1953. (Eddy Decl. at ¶ 20.) Since IAPMO's delisting of the Model 300, Solahart has continued to sell the Model 300 in the United States, although sales here are down by about one third. (Declaration of Rodger Meads in Opposition to Motion for Summary Judgment at ¶ 2). The Court is unpersuaded by Solahart's contention that it was forced to sign the listing agreement due to IAPMO's market power.
        The Court finds that the clause is not "buried," is not limited to claims arising before its execution, is not unconscionable, and is not part of an adhesion contract. Accordingly, Solahart has waived its right to bring tort claims against IAPMO. IAPMO's motion for summary judgment on the fourth through sixth causes of action is hereby GRANTED.

        D. Claim for Breach of Covenant of Good Faith and Fair Dealing
        Solahart's seventh claim for relief alleges breach of the covenant of good faith and fair dealing against IAPMO. In this cause of action, Solahart asserts that "IAPMO's conduct as alleged above constitutes a breach of the implied covenant of good faith and fair dealing" and that "Solahart performed each and every covenant and condition of their agreements with IAPMO, except those that they were prevented from performing or were excused or waived by IAPMO's conduct." (Compl. at ¶¶ 65, 66.)
        Neither party has specifically addressed this claim in its papers.1 1 However, as explained above, the parties agree that Solahart's product did not comply with the requirements of IAPMO's model codes. Furthermore, at oral argument, Solahart's counsel stated that Solahart agrees that it violated the listing agreement. Solahart does not dispute that the listing agreement entitled IAPMO to make the inspection and to impound noncomplying water heaters.
        Thus, it appears that there is no issue of material fact to be decided regarding IAPMO's good faith in acting under the listing agreement. Accordingly, IAPMO's motion for summary judgment is hereby GRANTED.

        E. Claim for Declaratory Relief Regarding Trademark Infringement
        In its eighth claim for relief, Solahart states that it "has been concerned that litigation may result indirectly as a result of the IAPMO letter of December 20, 1995, attached hereto . . . . Solahart requests an adjudication that its action[s] are not a[n] infringement of IAPMO's trademarks." (Compl. at ¶ 69.) The attached letter from IAPMO states, "Please note that you are no longer authorized to use the IAPMO USEC certification mark on your products, literature or packaging. ¶ Someone from Listing Compliance will contact you to make arrangements to verify that the certification mark has been removed from existing product, packaging or literature." (Compl. at Exh. C.)
        IAPMO contends that this claim for relief must be dismissed. The Court agrees. Solahart does not allege that it continued to use the IAPMO trademark after December 20, 1995. Thus, it has failed to allege any basis on which trademark "litigation may result indirectly as a result of" the letter. Therefore, Solahart has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b) (6). IAPMO's motion to dismiss Solahart's eighth claim for relief is hereby GRANTED WITH PREJUDICE.

        F. Constitutional Claims
        In its ninth cause of action, Solahart alleges constitutional claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Commerce Clause, and the Takings Clause. It alleges that "IAPMO's continuing refusal to certify Solahart's model 300LJ and IAPMO's adoption of product standards applicable to Solahart's model 300LJ constitute state action within the meaning of the Fourteenth Amendment." (Compl. at ¶ 73.) IAPMO submits that it is a private actor.
        Solahart has made no effort to support this contention with evidence or legal authority. Indeed, it has devoted its opposition to arguing that IAPMO is a private entity subject to antitrust liability. Accordingly, IAPMO's motion for summary judgment as to the ninth cause of action is hereby GRANTED.

        III. Evidentiary Objections
        Each party has submitted various evidentiary objections to the other party's declarations. In deciding the motions before it, the Court has not relied on inadmissible evidence. Accordingly, these objections are OVERRULED.

CONCLUSION         The parties' requests for judicial notice are GRANTED. IAPMO's motion for summary judgment is GRANTED as to the first through seventh, ninth, and tenth claims. The eighth claim for relief is DISMISSED WITH PREJUDICE. The parties' evidentiary objections are DENIED.
        IT IS SO ORDERED.


        1. At oral argument, counsel for IAPMO argued that this claim is barred by (1) the waiver clause in the listing contract, (2) the statute of limitations, and (3) Noerr-Pennington immunity.
        The first two statements are inaccurate. The waiver clause specifically exempts claims based on lack of good faith. (Sandru Decl. at Exh. E, p. 5.) As to the statute of limitations, first, the only statute of limitations addressed in the briefing is that applicable to antitrust actions. Second, the California statute of limitations for claims based on a written contract is four years. Cal. Code Civ. P. § 337. To the extent that this particular claim arises from the inspection and impoundment of Solahart's product in December 1995, it is not barred by the statute.
        As to the application of Noerr-Pennington, IAPMO cites Ludwiq v. Superior Court (City of Barstow), 37 Cal. App. 4th 8, 21 n.17 (Ct. App. l995). In this footnote, the California Court of Appeal remarked that the principle of petitioning immunity "applies to virtually any tort, including unfair competition and interference with contract." Id. There are two related problems with IAPMO's argument. First, breach of the covenant of good faith and fair dealing may give rise to either a tort action or a contract action. Witkin, Summary of California Law, Contracts § 743. Even if Noerr-Pennington covers "virtually any tort," Solahart's claim could be construed to be a contract claim. More fundamentally, this claim, unlike Solahart's other claims, apparently arises out of the inspection and impoundment provisions of the listing agreement. IAPMO acknowledges that these provisions exist to enable it to monitor the use of its trademark and ensure that its certification program retains its integrity. (Def.'s Reply Mem. at 7.) IAPMO has not shown that it undertakes these activities for the purpose of influencing governments to adopt its codes.


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