Judge: Robert B. Broadbelt, Case: 22STCV27317, Date: 2023-04-17 Tentative Ruling

Case Number: 22STCV27317    Hearing Date: April 17, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Diana Lee

RESPONDING PARTY:        Unopposed       

Demurrer to Complaint

The court considered the moving papers filed in connection with this demurrer.  No opposition papers were filed.

BACKGROUND

Plaintiffs Orange County Liposuction Centers, Inc. (“Liposuction Centers”) and Robert Hashemiyoon (“Dr. Hashemiyoon”) (collectively, “Plaintiffs”) filed this defamation action against Diana Lee (“Defendant”) on August 23, 2022.

Plaintiffs allege three causes of action for (1) defamation (Civ. Code, § 46), (2) libel per se, and (3) slander.

Defendant moves the court for an order sustaining the demurrer to each cause of action alleged in Plaintiffs’ Complaint.

DEMURRER

The court sustains Defendant’s demurrer to Plaintiffs’ first cause of action for defamation at common law and Civil Code section 46—false and unprivileged publications because it does not state facts sufficient to constitute a cause of action since it is duplicative of the second cause of action for libel per se.  (Code Civ. Proc., § 430.10, subd. (e); Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 [court may properly sustain demurrer on the ground that the cause of action is duplicative of another].)

The court overrules Defendant’s demurrer to Plaintiffs’ second cause of action for libel per se because it states facts sufficient to constitute a cause of action since Plaintiffs have sufficiently alleged that Defendant made false assertions of fact about them.  (Code Civ. Proc., § 430.10, subd. (e).)

Although Defendant argues that the allegedly defamatory statements are no more than nonactionable opinion, the court disagrees.  “‘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.  [Citation.]’”  (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [internal citation omitted].)  “Though mere opinions are generally not actionable [citation], a statement of opinion that implies a false assertion of fact is actionable.”  (Ibid. [internal citation omitted]; Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 685 [“Statements of opinion do not enjoy blanket protection[;]” instead, “‘[s]tatements of opinion that imply a false assertion of fact are actionable’”].)

The court finds that the Complaint sufficiently alleges that Defendant published written statements that imply false assertions of fact about Plaintiffs.  As to Dr. Hashemiyoon, Plaintiffs allege that Defendant published statements that (1) Dr. Hashemiyoon “behaves in poor conduct[,]” which implies an assertion of fact concerning Dr. Hashemiyoon’s behavior, and (2) Dr. Hashemiyoon “failed” to adhere to his “oath to practice ethically and morally,” which implies an assertion of fact as to whether Dr. Hashemiyoon acted unethically and immorally in his medical practice and as a physician.  (Compl., ¶ 40.)  As to Liposuction Centers, Plaintiffs allege that Defendant published statements that (1) she felt “completely scammed,” and (2) advised others to “be aware of this shady and dishonest business[,]” which implies an assertion of fact as to whether Liposuction Centers engages in dishonest business practices and “scam[s]” its customers.  (Compl., ¶ 40.) 

The court notes that Defendant separately argues that Liposuction Centers has not stated facts sufficient to constitute a cause of action because it was not expressly mentioned in the publication.  A “defamatory statement must specifically refer to, or be ‘ “of and concerning,” ’ the plaintiff.”  (Issa, supra, 31 Cal.App.5th at p. 702.)  However, “the plaintiff need not be mentioned by name, but may be identified by clear implication.”  (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1044, fn. 1.)  Plaintiffs have alleged that the December 21, 2021 statements were made “of and concerning” plaintiff Liposuction Centers and specifically charged it as a “dishonest business.”  (Compl., ¶ 13.)  The court therefore finds that Liposuction Centers has sufficiently alleged that the defamatory statements were made about it, either specifically or by clear implication.  (Blatty, supra, 42 Cal.3d at p. 1044, fn. 1.)

The court sustains Defendant’s demurrer to the third cause of action for slander because it does not state facts sufficient to constitute a cause of action since (1) slander is statutorily defined as “a false and unprivileged publication, orally uttered,” and (2) Plaintiffs have not alleged facts establishing that Defendant made oral defamatory statements about Plaintiffs, and have instead alleged only that Defendant published written defamatory statements “on Yelp and other channels of publications….”  (Code Civ. Proc., § 430.10, subd. (e); Civ. Code, § 46 [emphasis added]; Compl., ¶¶ 10, 12-13, 49 [alleging the same defamatory statements that were published on Yelp], 52 [quoting same defamatory statements published on Yelp and stating that “[t]he slanderous statements consisted of, knowingly false, and unprivileged communications in writing”] [emphasis added].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)¿ The court finds that Plaintiffs have not met their burden to articulate how they could amend their first and third causes of action to render them sufficient.  The court therefore sustains the demurrer to those causes of action without leave to amend.

ORDER

The court sustains defendant Diana Lee’s demurrer to plaintiffs Orange County Liposuction Centers, Inc., and Robert Hashemiyoon’s first cause of action for defamation at common law and Civil Code section 46 and third cause of action for slander without leave to amend.

The court overrules defendant Diana Lee’s demurrer to plaintiffs Orange County Liposuction Centers, Inc., and Robert Hashemiyoon’s second cause of action for libel per se.

The court orders defendant Diana Lee to file an answer to plaintiffs Orange County Liposuction Centers, Inc., and Robert Hashemiyoon’s Complaint within 10 days of the date of this order.

The court orders defendant Diana Lee to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 17, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court