Judge: David B. Gelfound, Case: 23CHCV01957, Date: 2024-06-04 Tentative Ruling

Case Number: 23CHCV01957    Hearing Date: June 4, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

SPECIAL MOTION TO STRIKE (C.C.P. Section 425.16)

Motion filed: 8/31/23

MOVING PARTY: Defendants Jerald Baker (“Mr. Baker”) and Sheila Baker (“Ms. Baker”) (collective, “Defendants”)

RESPONDING PARTY: Plaintiff Taylor Schwartz (“Plaintiff”)

NOTICE: OK. 

RELIEF REQUESTED: An order from this Court to strike the third and fourth causes of action in the Complaint, pursuant to Code of Civil Procedure section 425.16.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action stems from allegations by Plaintiff, a realtor, who claims to have sustained damages caused by Defendants’ breach of contract to sell their real property and by Defendants’ defamatory online statements against her.

On July 5, 2023, Plaintiff filed her Complaint against Defendants and Does 1 to 20, alleging the following causes of action: (1) Breach of Contract, (2) Breach of the Implied Covenant of Good Faith and Fair Dealing, (3) Libel Per Se, and (4) Trade Libel. Subsequently, on August 18, 2023, Defendants filed their Answer to the Complaint.

On August 31, 2023, Defendants filed the instant Special Motion to Strike under Code of Civil Procedure section 425.16 (the “Anti-SLAPP Motion”).

            In response, Plaintiff filed her Opposition on January 4, 2024, to which Defendants replied on January 9, 2024.

ANALYSIS

Special motions to strike pursuant to the California Anti-SLAPP Statute are considered using a two-pronged approach.  The first prong places the burden on the moving defendant(s) to prove that the allegations arise from conduct protected by the constitutional freedoms of speech or petition. If the first prong is satisfied, then the second prong shifts the burden on the opposing plaintiff to demonstrate a probability of success on the merits using credited evidence. (Code Civ. Proc., § 425.16, subd. (b).)

A.    Special Motion to Strike under Code of Civil Procedure Section 425.16

1.      Nature of the Conduct Underlying Plaintiff’s Allegations

“A cause of action. . . arising from any act of that person in furtherance of the person’s right of petition” is subject to the anti-SLAPP statute.  (Code Civ. Proc., § 425.16, subd. (b)(1).)  Protected activities include: “(1) any written or oral statement or writing made before a…judicial proceeding…, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a…judicial body…, (3) any written or oral statement…made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (Code Civ. Proc., § 425.16, subd. (e).)   

“Unlike the first and second category of statement[s] or conduct protected by section 425.16, the third and fourth categories protect only statements or conduct connected to an issue of public interest. Beyond that requirement, however, these categories are quite broad, applying by their terms to any statements made in a place open to the public or in a public forum, or any conduct engaged in, in furtherance of the rights of petition or free speech.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 893.) “The most commonly articulated definitions of “statements made in connection with a public issue” focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest.” (Id. at 898; see also Rivero v. American Federation of State, County and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913, 924.) 

i.                    Defendants’ Statements

In Plaintiff’s Complaint, the third cause of action for Libel Per Se and the fourth cause of action Trade Libel arise from Defendants’ conduct of posting two online reviews on Zillow and Yelp sites. (Compl., ¶¶ 34-35.) However, the Complaint lacks verbatim excerpts of these statements. Notably, both the moving and opposing papers include the following quotes as the basis for Plaintiff’s third and fourth causes of action:

(1)   “Unfortunately, my experience with Taylor Schwartz and Agents of LA was extremely negative. She told me one thing upfront but didn't stay true to her word. I was told that I was under no obligation to accept any offer, and she would cancel the listing agreement if we were ever dissatisfied with her services. When we asked to cancel the agreement, she told me that both parties had to agree to cancel, and her dad / attorney sent me an 80K "Demand for Payment" letter as we didn't accept her offer that didn't meet our expectations. The demand letter was unethical because she was required to try mediation. We brought that to her attention and she then proceeded with mediation. At this point, we are headed to arbitration because she still believes that she earned $80,000 in commission, even though there was not an accepted offer. ¶ In my opinion, she's a high pressure, dishonest, manipulative fraud who doesn't look out for her client's best interest. I would NOT recommend her!!!!!!” (Jerald Baker Decl., ¶ 21, Ex. “L,” Opp’n., at p. 6.)

(2)   Unfortunately, my experience with Taylor Schwartz and Agents of LA was extremely negative. She told me one thing upfront but didn’t stay true to her word. I was told that I was under no obligation to accept any offer, and she would cancel the listing agreement if we were ever dissatisfied with her services. When we asked to cancel the agreement, she told me that both parties had to agree to cancel, and her dad / attorney sent me an 80K “Demand for Payment” letter as we didn’t accept her offer that didn’t meet our expectations. The demand letter was unethical because she was required to try mediation. We brought that to her attention and she then proceeded with mediation. At this point, we are headed to arbitration because she still believes that she earned $80,000 in commission, even though there was not an accepted offer. ¶ I would NOT recommend her!!!!!! (Jerald Baker Decl., ¶ 22, Ex. “M,” Opp’n., at p. 6.)

Additionally, Defendant Mr. Baker states in his declaration that “[Exhibit “M”] is a true and correct copy of the Zillow page for Plaintiff that contains my review, as well as a separate review that I understand was posted by Ms. Baker.” (Jerald Baker Decl., ¶ 22.) However, neither party has presented the content of the “separate review” believed to be posted by Ms. Baker.

The Court will therefore focus its examination on the two statements quoted above, as acknowledged by both parties.

ii.                  Public Forum

Here, there is no dispute that the websites, Zillow and Yelp, qualify as public forums. (See e.g., D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226 [“Web sites accessible to the public are public forums for purposes of the anti-SLAPP statute.” (internal quotations omitted).])

iii.                Public Interest

“The most commonly articulated definitions of “statements made in connection with a public issue” focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.) 

Courts have recognized that reviews posted to internet websites are in connection with an issue of public interest. (See, e.g., Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 888 (Abir) [“...reviews posted to an Internet website meet this definition of protected activity.” Citing Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145-1147 (Chaker), and Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 310 (Demetriades).])

Here, Plaintiff argues that Mr. Baker’s acts of posting reviews on Internet websites cannot be characterized as in furtherance of his right to petition or free speech under the Code of Civil Procedure section 425.16, subdivision (b)(1). (Opp’n., at p. 5.) Plaintiff maintains that using the phrase “in my opinion” does not negate the factual implications contained in the statement, rendering the statements not protected. (Opp’n., at pp. 6-7.)

However, Defendants contend that whether Defendants’ statements constitute actionable opinion or factual assertions pertains more to the second prong of the analysis – the probability of prevailing on the merits – rather than the initial determination of protected activity. (Reply, at p. 3.) The Court agrees.

Plaintiff’s Complaint identifies that the defamatory statements made on Zillow and Yelp are the basis for the third and fourth causes of action (Compl., ¶¶ 34-35), yet does not effectively counter Defendants’ argument that posting review on these platforms falls within protected activity, as delineated in Abir, Chaker, and Demetriades.

Consequently, the Court concludes that Defendants have met their burden of demonstrating that the third and fourth causes of action arise from conduct protected by the constitutional free speech rights, thus shifting the burden to the Plaintiff to establish a probability of success on the merits using credited evidence. (Code Civ. Proc., § 425.16, subd. (b).)

2.      Plaintiff’s Showing of Probability of Prevailing

“Despite the fact [appellant] ... made a threshold showing that [respondent’s] action is one arising from statutorily protected activity, [respondent] may defeat the anti-SLAPP motion by establishing a probability of prevailing on [his] claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 95.) Respondent’s “second- [prong] burden is a limited one. [He] need not prove [his] case to the court [citation]; the bar sits lower, at a demonstration of ‘minimal merit’ [citation]. At this stage, ‘“[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.”’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.) “The plaintiff must demonstrate this probability of success with admissible evidence. [Citation.] ‘“The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” [Citation.]’” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 768, 244 Cal.Rptr.3d 238(Laker).)

        i.            Third Cause of Action – Libel Per Se

“Libel per se ... is based in common law defamation, and thus relates to the standing and reputation of the businessman as distinct from the quality of his or her goods.” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 381.)

Libel is a false and unprivileged written publication tending to injure a victim's occupation. (Civ. Code, § 45.) Libel is per se when the words require no explanation and thus are actionable without a showing of special damages. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 153.)

Before proceeding, the Court notes that Defendant Mr. Baker’s Yelp review of Plaintiff’s service includes the statement: “In my opinion, she's a high pressure, dishonest, manipulative fraud who doesn't look out for her client's best interest,” in contrast to his Zillow review. This is identified in the declarations and exhibits. (See Jerald Baker Decl., ¶¶ 21-22, Ex. “L,” and “M,” Compl., ¶ 32.)

Here, Defendants argue that Plaintiff cannot meet the burden of establishing a probability of prevailing based on several grounds:

(1) Plaintiff fails to identify any specific libelous statement attributable to Ms. Baker;

(2) Plaintiff does not sufficiently identify a specific libelous statement by Mr. Baker;

(3) Mr. Baker’s statement qualifies as an expression of opinion, which is substantiated by facts that are substantively true.

a)      Plaintiff fails to identify any specific libelous statement attributable to Ms. Baker.

“The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.’” (Vogel v. Felice (2005) 127 Cal.App.4th 1006 (Vogel), fn. 3, quoting Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)

Here, the Complaint alleges that Defendants, including Ms. Baker, have willingly, without justification, and without privilege, published false and defamatory statements claiming Plaintiff “dishonest, manipulative fraud” and imputing criminal conduct on Plaintiff (Compl., ¶ 32). It specifies that “some of the defamatory statements were published on Zillow” (id. ¶ 33), and that “other defamatory statements were published via a Yelp site” (id. ¶ 34.)

            However, this claim is challenged by new evidence presented by Plaintiff herself. In her Declaration, she references Ms. Baker’s statement: “I have never used the words or phrase ‘dishonest, manipulative fraud’ with respect to Taylor Schwartz.”  (Schwartz Decl., ¶ 7, Ex. “E.”)

            Given this contradiction and the lack of specification of alleged libelous statements as required, the Court concludes that Plaintiff has not met the burden of establishing a probability of prevailing on her Libel per se claim against Ms. Baker.

            Thus, the Court GRANTS the Anti-SLAPP Motion as to Ms. Baker.

b)     Plaintiff does not sufficiently identify a specific libelous statement by Mr. Baker.

Defendants argue that Plaintiff has only partially identified a statement by Mr. Baker – specifically quoting “dishonest, manipulative fraud.” However, they contend that the complete statement, as per Jerald Baker’s declaration, should read, “In my opinion, she’s a high pressure, dishonest, manipulative fraud who doesn’t look out for her client’s best interest.” (Jerald Baker Decl., Ex. “L”.)

The Court finds this argument unconvincing. The legal standard, as established in Vogel, supra, asserts that “the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Vogel, supra, 127 Cal.App.4th fn.3.) The requirement emphasizes specificity but does not necessitate completeness of the context in the initial pleading phase.

It is evident to the Court that Plaintiff’s Complaint sufficiently specifies the statements attributed to Defendant Mr. Baker’s statements, meeting the threshold for a libel claim.

Therefore, Defendants’ argument based on the alleged incompleteness of the citation fails.

c)      Mr. Baker’s statement qualifies as an expression of opinion, which is substantiated by facts that are substantively true.

“Though mere opinions are generally not actionable,” a “statement that implies a false assertion of fact is actionable.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702.) In Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 (Milkovich), the Supreme Court of the United clarified that “Simply couching such a statement in terms of opinion does not dispel these implications [of false assertion of fact].” It further states that “four factors are considered to ascertain whether, under the ‘totality of circumstances,’ a statement is fact or opinion. These factors are: (1) ‘the specific language used’; (2) ‘whether the statement is verifiable’; (3) ‘the general context of the statement’; and (4) ‘the broader context in which the statement appeared.’” (Id. at p. 9, citing Scott v. News-Herald (1986) 25 Ohio St.3d 243, 250-252.)

Applying the Milkovich criteria, the Court finds that Mr. Baker’s statements, although presented as opinions, imply assertions of facts when viewed in their totality. 

However, Defendants further argue that Mr. Baker's statements are underpinned by substantively true facts and assert it is Plaintiff’s burden to demonstrate the falsity of these statements to prevail. (Mot., at pp. 13-14.) The Court agrees with this assessment.

 Plaintiff’s Complaint merely asserts that “Defendants knew the statements were about the Plaintiff, knew the statements were false and/or failed to take reasonable care to determine the truth or falsity of the statements.” (Compl., ¶ 36.) However, her Opposition cite a “First Amended Complaint,” claiming, “By the First Amended Complaint, Plaintiff submits to the court more than mere allegations,” and “Plaintiff’s Declaration contains testimony as to the substance of her Complaint.” (Opp’n., at p. 7.) Nonetheless, the case record does not show a filed First Amended Complaint. Plaintiff’s declaration, submitted concurrently with her Opposition to the Anti-SLAPP Motion, contains merely two statements (Schwartz Decl., ¶¶ 1-2), two exhibits presented by Defendants in their moving papers (id. ¶¶ 6-7), and three additional exhibits including the Listing Agreement, Prequalified Buyer Offer to Purchase Property, and MLS Listings. (Id. ¶¶3-5.)

The Court finds the evidence presented by Plaintiff patently deficient to meet the necessary threshold to demonstrate ‘minimal merit’ that Mr. Baker’s statements imply a false assertion of fact.

Consequently, the Court GRANTS the Anti-SLAPP Motion as to the Third Cause of Action for Libel per se against Defendants.

      ii.            Fourth Cause of Action – Trade Libel

Trade libel is generally defined as “an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff.” (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 548.) To constitute trade libel, a statement must be false. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 572.)

While a cause of action for trade libel “‘resembles that for defamation ... [it] differs from it materially in the greater burden of proof resting on the plaintiff, and the necessity for special damage in all cases. ... [T]he plaintiff must prove in all cases that the publication has played a material and substantial part in inducing others not to deal with him, and that as a result he has suffered special damages.’” (Erlich v. Etner (1964) 224 Cal.App.2d 69, 73(Erlich).) At a minimum, a trade libel cause of action requires: “(1) a publication; (2) which induces others not to deal with plaintiff; and (3) special damages.” (Nichols v. Great American Ins. Companies (1985) 169 Cal.App.3d 766, 773.)

Thus, unlike a claim for defamation, trade libel requires as an essential element that the plaintiff suffered direct financial harm because someone else acted in reliance on the defendant's statement. (CACI No. 1731.) To establish this element, “‘is not enough to show a general decline in [plaintiff's] business resulting from the falsehood, even where no other cause for it is apparent, ... it is only the loss of specific sales that can be recovered. This means, in the usual case, that the plaintiff must identify the particular purchasers who have refrained from dealing with him, and specify the transactions of which he claims to have been deprived.’” (Erlich, supra, 224 Cal.App. 2d at p. 73.)

As discussed above, Plaintiff’s pleading and new evidence have not substantiated the falsity of Defendants’ statements. As a result, she cannot demonstrate a probability of prevailing on the Trade Libel claim, where the falsity of the statement is a required element.

Therefore, the Court GRANTS the Anti-SLAPP Motion as to the Fourth Cause of Action for Trade Libel.

CONCLUSION

Defendants’ Special Motion to Strike pursuant to Code of Civil Procedure section 425.16 is GRANTED.

Moving party to give notice.