Judge Mark H. Epstein, Case Number: 24SMCV03987, Date: 2024-12-30 Tentative Ruling

Judge: Mark H. Epstein, Case: 24SMCV03987, Date: 2024-12-30 Tentative Ruling

Case Number: 24SMCV03987 Hearing Date: December 30, 2024 Dept: I

Plaintiff sues defendant for defamation. Defendant demurs and plaintiff opposes. The demurrer is OVERRULED (except as to the fourth cause of action, which is deemed MOOT). The motion to strike is DENIED. Defendant has 30 days to answer.

Plaintiff runs a coffee shop called Good People Coffee. Plaintiff alleges that he enjoys a good reputation in the community. Plaintiff asserts that on or about July 13, 2024, at about 10:00 pm, defendant published untruthful and defamatory statements regarding plaintiff’s sexual actions and history by placing stickers in the area. The stickers, of which there are photos, say things like “Good Pedofile,” and “buy from a registered sex offender.” (Emphasis omitted.) Plaintiff claims to have surveillance camera footage of the posters being placed. When confronted, defendant allegedly promised to stop, but plaintiff says that defendant returned on or about August 3, and did it again. That led to the suit.

Before addressing the merits, defendant asserts that the opposition ought not be considered because it was filed a day late. That is because the opposition must be filed nine court days before the hearing. December 25, 2024, was (of course) a court holiday, and that meant that plaintiff mis-calculated the due date. Defendant states that defendant was prejudiced by the untimely filing because defendant had less time to reply, although defendant did reply. The court must confess that it did read the opposition (and the reply), but given the defendant’s statement, the court will DISREGARD the opposition (and therefore the reply as well) and rule based solely on the moving papers and the complaint itself. But speaking of technical rules, defendant’s demurrer violates one. A demurrer can be to the entire complaint or to particular causes of action. If the former, the demurrer fails if any part of the complaint would survive. If the latter, the demurrer must set forth in separate paragraphs each ground for demurrer and the specific cause of action to which that allegation pertains. Defendant failed to separate out the causes of action or grounds, and thus the court could consider this just a general demurrer. That said, turnabout is fair play and if the court will consider the motion even though the opposition was late (even though the court will not consider the opposition itself), the court will consider the demurrer even though it is not in the format defendant should have used. Both parties need to pay more attention to the rules in the future.

Defendant’s main contention as to defamation is that there is not enough to show that the statement was of and concerning the plaintiff. Defendant is right that the statement must be such that at least one third person would have understood the statement as pertaining to the plaintiff. (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138.) Thus, if a person said “I know a crook,” it would be hard for a plaintiff to sue for defamation without some explanation as to how people would know that the defendant was referring to the plaintiff. Here, defendant is correct that the plaintiff’s actual name is not used. But the posters were affixed outside of plaintiff’s coffee shop and they expressly referred to buying coffee or the coffee shop’s name. That is enough such that a reasonable person would understand that defendant was referring to the owner or proprietor of this particular coffee shop. Defendant also argues that the allegations are not sufficient as to the other elements. The court disagrees. No great detail is needed to explain how the statement is defamatory; it is defamatory per se. The court can fairly infer that plaintiff alleges that the statement is false. And the complaint also fairly alleges that the defendant knew that the statement was false when made. And, because plaintiff is not a public figure, regular intent or even malice is not required; a lesser standard is required, although even if actual malice were required the court believes it was sufficiently alleged. Nor does the complaint fail by an asserted failure to allege that some third party saw the publicly placed posters. The demurrer is, frankly, not even close and it is OVERRULED.

Defendant claims that the second cause of action is duplicative. That might or might not be, but it does no mischief at this point. The court will not allow a double recovery such that plaintiff recovers twice for the same injury. The demurrer on that ground is OVERRULED. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858.) The third cause of action is for intentional infliction of emotional distress. At least as a pleading matter, the court has no trouble concluding that being publicly and falsely accused of being a pedophile—that is, sexually abusing children—is enough to cause severe emotional distress and the accusation is, at least for purposes of the pleadings, sufficiently outrageous conduct to qualify. The fourth cause of action is for an injunction. The court agrees that the use of a prior restraint is disfavored even to the point of being presumptively invalid. Generally, one must sue after the fact. (Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135.) But there are exceptions and there are times when an injunction will lie. The real problem is that injunction is not a cause of action, it is a remedy. The court, however, construes the fourth cause of action not as a standalone cause of action or tort, but rather as an improperly labeled part of the prayer. The demurrer is MOOT on that ground. The court will not issue an injunction if no underlying cause of action is made out.

Defendant also moves to strike the requests for punitive damages and attorneys’ fees. As to the former, the allegations, if proven, could warrant punitive damages. The motion in that regard is DENIED. The court agrees that attorneys fees ought not be awarded absent a legal basis to do so, and the court assures the defense that unless plaintiff prevails and is able to explain to the court the legal basis why fees are appropriate here, fees ought not and will not be awarded. But it is premature to make that determination as a pleading matter. The motion in that regard is DENIED as well.

Although the court assumes it would go without saying, the court will say it anyway. Overruling the demurrer and denying the motion to strike is in no way an indication of the court’s view on the merits. It might well be that in light of the evidence there is no tort here. But this is not the way to get at that issue; for these purposes, the court presumes the complaint’s allegations to be true.