Judge: Mark A. Young, Case: 20SMCV01355, Date: 2022-09-22 Tentative Ruling
Case Number: 20SMCV01355 Hearing Date: September 22, 2022 Dept: M
CASE NAME: GSI Exchange
v. Cowper
CASE NO.: 20SMCV01355
MOTION: Anti-SLAPP
HEARING DATE: 9/22/2022
RECOMMENDATION
Defendant Mark Cowper’s special motion to strike is DENIED.
BACKGROUND
On September 24, 2020, Plaintiff GSI Exchange filed the
instant defamation action against Defendant Mark Cowper. The Complaint states
four causes of action for defamation – libel, defamation – libel per se, false
light, and negligence.
The Complaint alleges that GSI made certain purchases for
gold coins in August 2019. Cowper was fully aware of the inherent risks in his
investment. In December 2019, Cowper demanded that GSI purchase back the
products at the market rate at the time of purchase. To coerce Plaintiff into
this deal, Defendant instituted threatened criminal prosecution. He also made
false, defamatory posts on social media websites which suggested GSI uses
fraudulent tactics and activities to sell their products.
On December 14, 2020, Defendant filed a special motion to
strike against the complaint. Plaintiff substantively opposed. However, the
Court found that because Defendant was in default, his motion could not be
heard. The Court subsequently vacated default and re-set the instant motion for
hearing.
Legal
Standard
CCP section 425.16 permits the Court
to strike causes of action arising from an act in furtherance of the
defendant's right of free speech or petition, unless the plaintiff establishes
that there is a probability that the plaintiff will prevail on the claim.
“The
anti-SLAPP procedures are designed to shield a defendant’s constitutionally
protected conduct from the undue
burden of frivolous litigation.” (Baral
v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does
not insulate defendants from any
liability for claims arising from the protected rights of petition or speech.
It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected
activity.” (Id. at 384.)
“Resolution of an anti-SLAPP motion
involves two steps. First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. If the defendant makes
the required showing, the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court
has “described this second step as a ‘summary-judgment-like procedure.’ The
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. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].)
Analysis
First Prong
Defendant
moves to strike the entire complaint.
CCP section 425.16(e) defines
protected acts as the following: 1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law; 2) any written or oral statement or
writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law; 3) any written or oral statement or writing 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.
“A
public forum is a place open to the use of the general public for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions.” (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP
(2007) 146 Cal.App.4th 841, 846.) The term public forum is construed broadly to
include settings beyond those protected by the First Amendment. (Seeling
v. Infinity Boradcasting Corp. (2002) 97 Cal.App.4th 798, 807.) A website
can be a public forum if statements on the website are “accessible to anyone
who chooses to visit the site.” (Wong v. Tai Jing (2010) 189
Cal.App.4th 1354, 1366-1367.)
“[P]ublic interest within the
meaning of the anti-SLAPP statute has been broadly defined to include, in
addition to government matters, private conduct that impacts a broad segment of
society and/or that affects a community in a manner similar to that of a
governmental entity.(Ruiz v. Harbor View Community Assn. (2005) 134
Cal.App.4th 1456, quotations omitted, quoting Du Charme v. International
Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115.) “[I]n
cases where the issue is not of interest to the public at large, but rather to
a limited, but definable portion of the public (a private group, organization,
or community), the constitutionally protected activity must, at a minimum,
occur in the context of an ongoing controversy, dispute or discussion, such
that it warrants protection by a statute that embodies the public policy of
encouraging participation in matters of public significance.” (Du Charme,
supra, 110 Cal.App.4th at 119.)
Defendant
meets his initial burden to show that the gravamen of the complaint and each
cause of action arises from protected activity. The Complaint generally alleges
that Defendant engaged in a campaign to damage Plaintiff’s reputation by
publishing certain false statements online. (Compl., ¶¶ 10-12.) These written
statements were made on a website open to the public. (Id.) These statements
concern Plaintiff’s business practices and trustworthiness. The public is
interested in such matters. (See Chaker v. Mateo (2012) 209
Cal.App.4th 1138 [negative statements about an ex-boyfriend's character and
business practices on Ripoff Report, a website where members of the public
could comment on the reliability and honesty of various providers of goods and
services, were held as matters of public interest].) Each of the causes of
action stem from this same protected activity. (Compl., ¶¶ 17, 22, 26, 30-32.) Accordingly,
the first prong is met.
Second Prong
Plaintiff
now has the burden to show probability of success on the merits.
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. (Wong v. Tai
Jing (2010) 189 Cal.App.4th 1354, 1369.)
“Libel is a false and unprivileged
publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which
has a tendency to injure him in his occupation.” (Civ. Code, § 45; see Wong,
supra, 189 Cal.App.4th at 1369 (quoting Civil Code section 45).) Libel is per
se if the statement is defamatory on its face and nothing needs to be added to
make its defamatory meaning understood. (Civ. Code § 45a; Barnes-Hind, Inc.
v. Superior Court (1986) 181 Cal.App.3d 377, 381.) Libel per quod is all
libel that is not libel per se and would require a plaintiff to show special
damages. (Civ. Code § 48a(d)(2).)
To prevail on a false light
invasion of privacy claim, a plaintiff must show that the defendant made
statements placing him in a false light that would be highly offensive to a
reasonable person and that the defendant had knowledge of or acted in reckless
disregard as to the falsity of the statement. (Fellows v. National Enquirer,
Inc. (1986) 42 Cal.3d 234, 238.
“In order to state a cause of
action for negligence, the complaint must allege facts sufficient to show a
legal duty on the part of the defendant to use due care, a breach of such legal
duty, and the breach as the proximate or legal cause of the resulting injury.”
(Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.)
Plaintiff provides that Defendant
was initially happy with his transactions with Plaintiff, and sent a text post
stating "Hey Rick this is Mark, just want to let you know I'm really happy
about my deal that we put together couldn’t be happier thanks a lot hope you
have a great day and a fantastic Labor Day weekend." (Anderson Decl., ¶3.)
Defendant was later convinced by an acquaintance to try to get out of the deal.
(Id., ¶ 4-6.) Defendant began a campaign of spreading the assertions discussed
infra, including that that he wanted "Gold Canadian Maple Leaf” coins
despite the fact he was aware that Plaintiff did not sell such Gold Canadian
Maple Leaves, and, moreover, signed an order approving the purchase of polar
bear and cubs. (Id. ¶ 7.) Thus, Defendant’s posts concerning the Polar Bears
are false and he likely had knowledge of this falsity. (Id., ¶¶ 7-8.) Defendant
indicated his interest in pulling down the comments against Plaintiff but
represented that he did not know how to do so. (Id., ¶ 15.) Plaintiff has
suffered reputational damage, such as the loss of future business and
clientele. (Id., ¶ 17.)
This evidence establishes a prima
facie case for defamation. Plaintiff has demonstrated that Defendant published
the comments at issue, that at least some of the comments are substantively
false statements of fact. The statements concern unethical activity and reflect
on the integrity of Plaintiff. Given that the comments pertain to Plaintiff’s
trade, business and honesty, the defamation may be properly considered per se.
Defendant asserts that Plaintiff
cannot prevail since, as a matter of law, “only one” of the alleged defamatory
statements are a verifiable fact. Statements of facts are actionable, while
statements of opinion are not. (Wong, supra, 189 Cal.App.4th at
1369.) However, “where an expression of opinion implies a false assertion of
fact, the opinion can constitute actionable defamation.” (Id. at
1370.) “The critical question is not whether a statement is fact or opinion,
but ‘whether a reasonable fact finder could conclude the published statement
declares or implies a provably false assertion of fact.’” (Id.) “‘To
determine whether a statement is actionable fact or nonactionable opinion,
courts use a totality of the circumstances test of whether the statement in
question communicated or implies a provably false statement of fact.’” (Id.) “[T]he
determination of whether the allegedly defamatory statement constitutes fact or
opinion is a question of law.” (Selleck v. Globe International, Inc. (1985)
166 Cal.App.3d 1123, 1133.)
Multiple statements alleged are statements
of fact, not mere opinions. For example: 1) Defendant’s alleged statement that
Plaintiff “lied” about the gold’s value; 2) Defendant “never asked for Gold
Polar Bears” – implying that Plaintiff delivered the incorrect goods; and 3)
Plaintiff’s principal Mr. Anderson “worked for two companies prior to this that
were charged with fraud”—which fairly implies Mr. Anderson’s participation in
the fraud and impugns Plaintiff with that fraud. Defendant was aware that his
statement regarding the Polar Bears were false, since signed a purchase order
approving the purchase of the Polar Bears. Each of these examples present
verifiable statements of fact, or implied statements of fact, rather than mere
opinions.
Therefore, Plaintiff meets its
responsive burden to showing minimal merits of its defamation-based claims. As
noted, this is the gravamen of the entire action. Accordingly, the motion to
strike is DENIED.
The Court further does not find that the
motion was frivolous, given Defendant’s success on the first prong. Therefore,
no fees are awarded.