Judge: Kenneth J. Medel, Case: 37-2022-00050103-CU-DF-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Defamation SLAPP / SLAPPback Motion Hearing 37-2022-00050103-CU-DF-CTL SHEETS VS STALEY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 03/24/2023

Defendant's Motion to Strike Complaint based on CCP 425.16 is DENIED.

This is a defamation case. The Complaint alleges that defendant posted defamatory statements online regarding plaintiffs' moving business.

Based on the allegations in the Complaint, Plaintiffs Jonathan Sheets and Leah Sheets originally met Defendant Erik Staley in running group but had a falling out related to the running group.

While they were friends, defendant employed plaintiffs' company, Superior Movers LLC. At the time, defendant expressed satisfaction and thanked plaintiffs for their professionalism. However, after the falling out in the running group, defendant's story changed. Defendant allegedly became hostile towards Jonathan and Leah and, two years after the move, began to express his dissatisfaction with the services Plaintiffs provided him. Specifically, Defendant filed a small claims legal action against Plaintiffs dealing with Plaintiffs' licensing discrepancies. The small claims action ultimately resolved in favor of Plaintiffs after an appeal to Superior Court. Consequently, Defendant began to publicly lash out against Plaintiffs and their business by posting online reviews containing false and defamatory accusations.

Plaintiffs allege that the accusations posted online were false assertions that attacked Plaintiffs' character, profession, and legitimacy. Plaintiffs brought this defamation action as a result.

Defendant now brings this instant motion to strike under the California Code of Civil Procedure section 425.16 et seq.

Standard California Code of Civil Procedure § 425.16 (so-called 'anti-SLAPP statute') authorizes a special motion to strike a cause of action against a person arising from 'any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.' (Cal. Civ. Proc. Code ('CCP') § 425.16(b)(1).) In considering an anti-SLAPP motion, the court employs a two-step process. First, the moving party must make a prima-facie showing that the challenged claims arise from an alleged act that was taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.' (Equilon Enterprises v. Consumer Cause, Inc. (2002), 29 Cal.4th 53, 67; CCP § 425.16(b)(1).) If the moving party meets this burden, then second, the non-moving party must establish that there is a probability that it will prevail on the challenged claims. (Id.) 'In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (Id.) Prong-One: Are the challenged claims within the purview of the statute? CCP 425.15 is triggered when a cause of action asserted against a defendant 'arise[es] from any act of that [defendant] in furtherance of the [defendant's] right of petition or free speech...in connection with a public issue' including those made in an official proceeding. (CCP § 425.16(e)(1)-(2). Statements, writing, or other conduct not made or occurring in an official proceeding are protected only if made in a Calendar No.: Event ID:  TENTATIVE RULINGS

2954576  44 CASE NUMBER: CASE TITLE:  SHEETS VS STALEY [IMAGED]  37-2022-00050103-CU-DF-CTL public place and 'in connection with an issue of public interest.' (CCP § 425.16(e)(3).) Other conduct in furtherance of the right of free speech is protected only of made in connection with a public issue or an issue of public interest.' (CCP §425.16(e)(4).) Websites open to the public are a public forum for the purpose of section 425.16. (See Barrett v. Rosenthal (2006) 40 Cal.4th 30, 33.) However, 'not every web site post involves a public issue.' (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1230.) 'Not all statements made in a public forum, and not all conduct in furtherance of the rights of petition or free speech, fall under section 425.16....' (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) Section 425.16 requires that speech made in a public forum is in connection with an issue of public interest. (CCP § 425.16(e)(3).) Defendant relies heavily on Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.

(2005) 129 Cal.App.4th 1228, 1247, where the Court held that review sites intended to be trafficked by the public are public forums. (see Def. Mtn. p. 6.) In that case, the plaintiffs agreed that the issue was public interest, but disputed that the site was a public forum. The opposite is the case here: plaintiffs agree that the review site may be public forum but dispute the public interest of the statements.

Were the Statements made within the public interest? The Complaint alleges: Defendant retaliated by posting 1-Star reviews on Yelp and Google. In his different reviews, Defendant made several non-factual, defamatory assertions about Jonathan Sheets, Leah Sheets, Superior Movers, and Superior Movers' employees. These defamatory statements were made from January 2022 through at least June 2022. The statements are identified in an exhibit the Complaint which shows the posts.

In opposition, plaintiffs identify the following statements that were made: a. The owners 'were bandit movers for years, only recently getting the required California permit, which got suspended at least once since. In business since 2011? Ha – completely unlicensed most of that time;' b. 'The owners (Jonathan and Leah Sheets) will act oh so nice. They fawned all over me in Carlsbad through a social group and buttered me up for their scam. Jonathan quoted about $400 for my move;' c. '...the move was already off to a bad start when I had the tell them no to the driver they were sending, because I'd seen him snorting lines of something recently. (Neither Jonathan or Leah were physically involved in the move, which was good, because they're usually high on mushrooms or ecstasy – I'd also regularly witnessed that;' d. 'I later learned that they weren't even licensed by the State of California, probably had no insurance, and definitely didn't have workers comp;' e. Defendant had 'sued them all, and won;' and f. Plaintiffs 'go to great lengths to dodge process servers.' (Complaint at ¶ 36; Jonathan Decl. at ¶ 10; Leah Decl. at ¶ 8; NOL Ex. H.) While the statute itself does not define 'public interest,' California courts have recognized several guiding principles to determine whether a statement serves the public interest for the purpose of protected activity under the section 425.16. (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 972.) In making this determination, the California Supreme Court has also recognized a two-prong test. First, the Court must look at what 'public interest or issue of public interest the speech in question implicates' by looking at the content of the speech. (FilmOn.com Inc. v. Double Verify Inc.

(2019) 7 Cal.5th 133, 149.) Second, the Court must look at 'what functional relationship exists between the speech and the public conversation about some matter of public interest.' (Id. at 149-150.) At this prong, the 'context of a defendant's statement is relevant' and useful. (Id. at 140.) 'The focus of the speaker's conduct should be in the public interest rather than a mere effort to 'gather ammunition for another round of [private] controversy....'' (Price, supra at 972 [quoting Weinber v. Feisel (2003) 110 Cal.App.4th 1122, 1132.].) Defendant contends the statements, especially regarding Plaintiffs' licensing, was for the purpose of protecting other consumers from Plaintiffs' business. (Def. Mtn. at p. 8.) Focusing on content, most of the online statements do not concern issues regarding Plaintiffs' licensing, but include allegations of private concerns that do not concern the public interest.

Licensing is arguably with the public interest, but the context shows that defendant was not motivated by the public interest. First, Defendant knew at the time he made such statements that Plaintiffs were properly licensed and insured. (Johnathan Dec. at ¶ 13; Leah Decl. at ¶ 9.) Defendant's statements of his 'terrible' experience is entirely contradictory to his prior text messages that he had sent to Jonathan after Plaintiffs' services claiming how they were 'top notch professionals.' (Jonathan Decl. at ¶ 4; Leah Calendar No.: Event ID:  TENTATIVE RULINGS

2954576  44 CASE NUMBER: CASE TITLE:  SHEETS VS STALEY [IMAGED]  37-2022-00050103-CU-DF-CTL Decl. at ¶ 4; NOL Ex. C.) Apparently, Defendant was so satisfied with Plaintiffs that he even hired Plaintiffs for another service on January 7. 2019, which they provided for free. (Jonathan Decl. at ¶ 6; NOL Ex. E.) Rather, Defendant's statements in question were made after his fallout and the Superior Court's September 27, 2021 Order in Defendant's favor. (Jonathan Decl. at ¶ 8; Leah Decl. at ¶ 6; NOL Ex. F.) The timing of Defendant's fabricated statements and personal issues with Plaintiffs strongly implies that Defendant's posting of Plaintiffs' business and reputation was done in vengeance and motivated by other personal private reasons, rather than to protect the public.

Based on the above, it does not appear that the statements alleged are within the public interest.

Probability of Prevailing Assuming that the above analysis is incorrect and that the statements fall within the 'public interest', the burden shifts to establish that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'' (Navallier v. Sletten (2002) 29 Cal.4th 82, 88-89 [citing Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821] [quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.].) By doing so, Plaintiffs may defeat the anti-SLAPP motion though establishing a probability of prevailing on their claims. (Navallier, supra at 95; see, Equilon, supra 29 Cal.4th at 63.) '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 damages.' (Taus v. Loftus (2007) 40 Cal.4th 683, 720; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782).

Defendant contends that the disputed statements regarding Plaintiffs and their business were mere opinions, rather than facts. (Def. Mtn. at p. 12.) However, Defendant's statement implies false assertions that remain actionable. 'While mere opinions are not generally actionable, a statement of opinion that implies a false assertion of fact is actionable.' (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [citing Taus, 40 Cal.4th at 720]; see also, McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) This requires an analysis of whether a 'reasonable fact finder could conclude that the statements 'as a whole, or any of its parts, directly or sufficiently implied a false assertion of defamatory fact that tended to injure 'plaintiff's reputation.'' (Issa, supra at 703 [quoting James v. San Jose Mercury News, Inc.

(1993) 17 Cal.App.4th 1, 13.].) Overall, to determine whether the statements are of opinion or fact, it must be looked under a 'totality of the circumstances;' determining whether the statement 'declares or implies a provably false factual assertion.' (Issa, supra at 703 [citing Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261.].) Therefore, courts must look at the 'words of the statement itself and the context in which the statement was made.' (Id.) In this case, defendant states Plaintiffs are 'shady bandit movers that overcharged' and are 'predatory people, ready to victimize consumers because Plaintiff allegedly quoted Defendant $400, when he was billed $1800.' (Complaint at ¶ 36.) This statement implies that Plaintiffs are scammers and will steal from customers. However, the statement is false. (Jonathan Dec. at ¶ 12.) Plaintiffs provide declarations to support that factually, plaintiff never quoted Defendant $400, but instead provided Defendant with a rough estimate of about $800 – based on Defendant's estimate that the move would take 4 hours. (Id. at ¶ 3.) But, due to Defendant's lack of preparation, Plaintiffs needed five movers and spent nearly 8.5 hours to complete the move. (Id. at ¶ 4; NOL. Ex. C.) Second, in both of Defendant's Google and Yelp reviews, Defendant states that Plaintiffs were unlicensed, uninsured, and lacked workers compensation (Complaint at ¶ 36; Jonathan Decl. at ¶¶ 9-10; Leah Decl. at ¶¶ 7-8.) Again, this is a factual claim, implying an illegitimate business. The declarations provided indicate, that, at best, the claim is misleading. (At the time Plaintiffs provided services to Defendant they were unaware that they needed to be licensed through the PUC or the Bureau of Household Goods & Services. However, Plaintiffs were still licensed to operate their business in California and had obtained proper moving services insurance. (Jonathan Decl. at ¶ 13; Leah Decl. at ¶9.) Regardless, Plaintiffs obtained their license from the BHGS on January 13, 2020 – even before Defendant posted his online statements. (Id.; NOL Ex. I.)) The declarations indicate that the statement that Plaintiffs did not have workers compensation was also false and misleading because it was not required because Plaintiffs hired independent contractors to provide their services. (Jonathan Decl. at ¶ 13) Defendant's January 2022 review goes beyond stating his mere opinion by implying that Plaintiffs' employees were using narcotics during Plaintiffs' services. (Complaint at ¶ 37; Jonathan Decl. at ¶ 10; Leah Decl. at ¶ 8.) Defendant's statement goes further by stating that both Jonathan and Leah are also Calendar No.: Event ID:  TENTATIVE RULINGS

2954576  44 CASE NUMBER: CASE TITLE:  SHEETS VS STALEY [IMAGED]  37-2022-00050103-CU-DF-CTL known to use drugs like mushrooms and ecstasy. (Id.) These statements are not Defendant's opinions but are false assertions that attack Plaintiffs' moral and character. Plaintiffs' employees did not do any drugs on the day they provided services to Defendant, nor did Defendant ever report that such instance occurred. (Jonathan Decl. at ¶ 14; Leah Decl. at ¶ 10.) Defendant's January 2022 online post also referred to Defendant's small claims dispute against Plaintiffs, in which he stated that he sued Plaintiffs and 'won.' (Complaint at ¶ 36.) Plaintiffs state this is false. Defendant's small claims order was reversed after Plaintiffs' Appeal. (Jonathan Dec. at ¶ 15; Leah Decl. at ¶ 11.) Ultimately, the judgment was entered in favor of Plaintiffs and awarded them costs. (Id.) Courts have recognized that 'false statements...tending directly to injure a plaintiff in respect to his or her profession by imputing dishonesty or questionable conduct [are] defamatory per se.'' (Balla v. Hall (2021) 59 Cal.App.5th 652, 686 [quoting Burrill v. Nair (2013) 217 Cal.App.4th 357, 383]; Cal. Civ. Code, § 45 subd. 3.) Defendant's online statements concerning Plaintiffs and their business is a direct injury to Plaintiffs' profession, trade, and business. (Jonathan Dec. at ¶ 17; Leah Decl. at ¶ 13.) Based on the above, plaintiffs have met their burden of showing a probability of prevailing on their defamation claim.

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