Judge: H. Jay Ford, III, Case: 23SMCV01747, Date: 2024-06-06 Tentative Ruling

Case Number: 23SMCV01747    Hearing Date: June 6, 2024    Dept: O

Case Name:  Weiss v. Horowitz, et al.

SUBJECT:                 DEMURRER W/O MOTION TO STRIKE

MOVING PARTY:   Defendant Venable LLP (Defendant Horowitz was dismissed on in motion to quash)

RESP. PARTY:         Plaintiff Marvin Weiss

TENTATIVE RULING

            Defendant Venable LLP’s Demurrer to Plaintiff Marvin Weiss’s Complaint is SUSTAINED without leave to amend as to the 1^st and 3^rd causes of action. Defendant’s alleged defamatory statement is non-actionable opinion and cannot be the basis of the defamation claim, or negligence claim based on the alleged defamatory statement. Additionally, the litigation privilege bars the claims.

            Defendant Venable LLPs Demurrer to Plaintiff Marvin Weiss’s Complaint is SUSTAINED without leave to amend as to the 2^nd cause of action. Plaintiff agreed to dismiss the cause of action in a meet and confer, the litigation privilege bars the action, and there was no actual breach plead in the complaint

            Defendant Venable LLP’s RJN 1–6 is GRANTED.

            Defendant Venable’s RJN 7 is GRANTED.  Plaintiff does not dispute the accuracy of the email chain within Ex. 7 in Plaintiff’s opposition, and Plaintiff incorporates an email within the email chain as part of the Complaint. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760–761, as modified on denial of reh'g (Apr. 16, 2013) [“judicial notice can be taken of matters not reasonably subject to dispute”]; see also Ingram v. Flippo, (1999) 74 Cal. App. 4th, 1285 fn.3 [taking judicial notice under Evidence Code Section 452(h) of two documents summarized and quoted in the complaint and that “form[ed] the basis of the allegations in the complaint”].) The full email chain and attachments are vital for the Court to understand the context in which the alleged defamatory statement was made. (See Complaint, Ex. 5; see Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1338 [“[A] defamatory meaning must be found, if at all, in a reading of the publication as a whole.”].) However, the truth of the facts asserted in the email chain will not be judicially noticed.

I.                Demurrer to 1^st cause of action for Libel and 3^rd cause of action for Negligence  - SUSTAINED without leave to amend

            “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. ‘In general, … a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.’ The defamatory statement must specifically refer to, or be ‘ “of [or] concerning,” ’ the plaintiff.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259, internal citations omitted.) “A statement is defamatory when it tends directly to injure [a person] in respect to [that person's] office, profession, trade or business, either by imputing to [the person] general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to [the person's] office, profession, trade, or business that has a natural tendency to lessen its profits.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702, internal citation omitted.) “[Name of plaintiff] may also recover damages to punish [name of defendant] if [he/she/nonbinary pronoun] proves by clear and convincing evidence that [name of defendant] acted with malice, oppression, or fraud.” (CACI 1704.)

            “The critical determination of whether an allegedly defamatory statement constitutes fact or opinion is a question of law for the court [citations] and therefore suitable for resolution by demurrer. [Citation.] If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury. (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) “In drawing the distinction between opinion and fact, California courts apply the totality of the circumstances test to determine whether an allegedly defamatory statement is actionable,” and “editorial context is regarded by the courts as a powerful element in construing as opinion what might otherwise be deemed fact. (Ibid; Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1338 [“[A] defamatory meaning must be found, if at all, in a reading of the publication as a whole.”].)

“Part of the totality of the circumstances used in evaluating the language in question is whether the statements were made by participants in an adversarial setting. ‘[W]here potentially defamatory statements are published in a ... setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.’ [Citation.]” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 686–687.)

“Deprecatory statements regarding the merits of litigation are “nothing more than ‘the predictable opinion’ of one side to the lawsuit” and cannot be the basis for a defamation claim.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156; see Ferlauto, supra, 74 Cal.App.4th at p. 1403 [the numerous descriptions of the lawsuit and the motion as “stupid,” “laughed at,” “a joke,” “spurious,” and “frivolous,” are common characterizations which are nothing more than “the predictable opinion” of one side to the lawsuit . . . .  Use of such descriptive terms does not improperly attack appellant's competence or ethics and cannot be the basis for a defamation claim.”)

A demurrer will be sustained without leave to amend when there is no reasonable possibility that the defect can be cured. (See Blank v. Kirwan (1985)39 Cal. 3d 311, 318.)

Defendant Venable LLP (“Venable”) shows that the basis for the libel and negligence causes of action is a non-actionable deprecatory statement from an attorney regarding the merits of litigation, and thus is predictable opinion. (See GetFugu, Inc., supra, 220 Cal.App.4th at p. 156.) Plaintiff Marvin Weiss’s (“Weiss”) defamation and negligence causes of action are based on the allegedly defamatory statement: “I’ve attached a copy of Stewart Webb’s letter to Marvin Weiss on May 24, 2022, which addresses Mr. Weiss’ groundless assertions.” (Compl. ¶¶ 24, 33, 38.) The context of the email exchange shows the statement was made in response to the merits of a fee dispute related to prior litigation.

The statement “groundless assertions” is similar to statements such as “stupid, laughed at, a joke, spurious, and frivolous,” made in a similar context in Ferlauto.  (Ferlauto, supra, 74 Cal. App. 4th at p. 1403.) The Court in Ferlauto held these similar statements were “predictable opinion” that “cannot be the basis for the defamation claim.” (Ibid [“Use of such descriptive terms does not improperly attack appellant's competence or ethics and cannot be the basis for a defamation claim.”].)  Thus, the statement “groundless assertion” written in the context of a fee dispute between attorneys is predictable opinion.

Weiss argues the alleged defamatory statement was made by an attorney to laypersons which thus “carries the force of a factual assertion,” citing to Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, for support. However, Franklin does not support this argument, and Weiss does not include any other supportive authority. The Court in Franklin does not suggest that a statement is factual because it is made by an attorney to a layperson, but that one aspect of the totality of circumstances test is noting whether the speaker purported to be an attorney or not. (See Franklin, supra, 116 Cal.App.4th at pp. 386–389.)

Thus, there is no reasonable possibility that the 1^st and 3^rd causes of action can be cured on amendment. The demurrer to the 1^st and 3^rd causes of action is SUSTAINED without leave to amend.

II.             Demurrer to 2^nd cause of action for Intentional Interference with Contractual Relations – SUSTAINED without leave to amend

Intentional interference requires “(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Reeves v. Hanlon, 33 Cal. 4th 1140, 1148 (2004).

Weiss does not plead facts to show an actual breach or disruption of the contractual relationship between Weiss and his clients other than conclusory language stating Weiss was damaged by the alleged defamatory statement. (Compl., ¶ 34.)

Additionally, Venable declares that Weiss agreed to dismiss this cause of action during the meet and confer process. (McLaughlin Decl., ¶ 5.) Weiss does not dispute this claim, and in fact states in the opposition that he indeed agreed to dismiss the claim. (See Oppo, p. 4, fn. 2 [“However, in a good faith effort to meet and confer regarding the demurrer, Plaintiff agreed to dismiss [the Intentional Interference with Contractual Relations] COA.”]

Further, the litigation privilege bars this action as discussed below. (See infra, Section III.)

Thus, the Demurrer to the 2^nd cause of action is SUSTAINED without leave to amend.

III.           Defendant’s Affirmative Defense – Litigation Privilege

Venable demurs to the complaint based on the litigation privilege affirmative defense. “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal. 4th 1232, 1241 (quoting Silberg v. Anderson (1990), 50 Cal. 3d 205, 216 as modified (Mar. 12, 1990).) “[D]emand letters and like communications between litigants or their attorneys which are directed toward settlement of a pending or anticipated lawsuit” are within the litigation privilege. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1148.) Courts give the litigation privilege a “broad interpretation” in order to further its principle purpose of protecting “ ‘access to the courts without fear of ... derivative tort actions.’ ” (Action Apartment, supra, 41 Cal.4th at p. 1241.)

            Venable shows that the email with the alleged defamatory statement was made with “some relation to an anticipated lawsuit,” since the email was related to a fee dispute. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) Venable shows that the statement was made by a litigant since Horowitz was speaking on behalf of Venable in the email chain. Venable shows that the communication is related to litigation under serious and good faith consideration because the email chain involved a fee dispute whereby former Venable clients represented by Weiss failed to meet an agreed up on payment plan and refused to make future payments based on separate accusations. (RJN, Ex. 7.) Within the email chain, Venable reminds the former clients that the payment obligation is joint and several, and “hope[d] to avoid the need to escalate [Venable’s] collection efforts.” (Ibid.) The Court finds that the statements within this email chain fall squarely within the broad interpretation of the litigation privilege.

            Weiss argues that the litigation privilege does not apply because the alleged defamatory statement was not made in reasonable and actual anticipation of litigation because, but that litigation was merely a possibility. (See Diamond Resorts U.S. Collection Development, LLC v. Pandora Marketing, LLC (C.D. Cal. 2021) 541 F.Supp.3d 1020, 1026 [“the court held that statements were not privileged because the defendants had failed to establish “anything more than the mere possibility that appellants might consider litigation.” And in Dickinson v. Cosby . . . the court held that a demand letter written by an attorney did not fall within the litigation privilege because, by the time of the court's decision, the demand letter had not resulted in litigation.”].)  This argument is not persuasive because whether a lawsuit is brought is “relevant to the determination of whether one contemplat4ed in good faith at the time of demand letter,” but is “not dispositive.” (Dickinson, supra, 17 Cal. App. 5th at p. 683.) Further, the litigation privilege has been upheld when actual litigation has not occurred. (Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1242-45, 1247 [“we decline to recognize a broad exception to the litigation privilege for any party who did not participate in the underlying litigation.”]; see also Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 171 [litigation privilege barred action arising from demand letter to city attorney regarding easement dispute because they were in “contemplation of litigation,” although litigation was not ultimately required).)

            The alleged defamatory statement within the context of the email chain shows that the statement was made in the midst of a fee dispute between attorneys. Venable’s statement regarding avoiding escalation of the collection efforts clearly shows the anticipation of litigation within the email exchange. Thus, the litigation privilege applies.  All three claims in Weiss’s Complaint are based on the alleged defamatory statement barred by the litigation privilege, and thus all three claims are barred by the privilege.