Bently Reserve LP v. Papaliolios

Filed 7/30/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BENTLY RESERVE L.P. et al.,
Plaintiffs and Respondents,
A136191
v.
ANDREAS G. PAPALIOLIOS, (San Francisco City & County
Super. Ct. No. CGC-12-519571)
Defendant and Appellant.
Defendant Andreas Papaliolios (Papaliolios) appeals from an order denying his
special motion to strike a libel claim under Code of Civil Procedure section 425.161 (the
―anti-SLAPP‖ statute). The claim arises from a negative review of an apartment building
Papaliolios posted to Yelp, an Internet Web site. Papaliolios asserts his review is mere
opinion or, alternatively, substantially true and, therefore, non-libelous. While many
Internet critiques are nothing more than ranting opinions that cannot be taken seriously,
Internet commentary does not ipso facto get a free pass under defamation law.
Papaliolios‘s review, in part, is susceptible to being read as containing factual assertions,
not just mere opinion, and plaintiffs submitted sufficient evidence to meet their minimal
burden under the anti-SLAPP statute to show a probability of prevailing on at least some
aspect of their libel claim. We therefore affirm the order denying Papaliolios‘s special
motion to strike.
1
All further statutory references are to the Code of Civil Procedure unless
indicated.
1
FACTUAL AND PROCEDURAL BACKGROUND
Bently Nob Hill, L.P., has owned the apartment building at 1360 Jones Street (the
Jones Building) since March 2005. Christopher Bently (Bently) is an owner and
managing partner of the limited partnership. Amber Marie Bently is Christopher‘s wife.
Bently and his wife later took up residence in the Jones Building penthouse, unit 1001.
Papaliolios moved into the Jones Building in 2004. After three years of
contentious and litigious relations with his new landlord-come-cotenant, Papaliolios left
in early 2008.
Four years later, between late February and early March 2012, Papaliolios,
employing the user name ―Sal R.,‖ posted a review of the Jones Building on Yelp, a Web
site that collects consumer reviews of businesses. The review, which appeared on a Yelp
page devoted to the Jones Building, read:
―Sadly, the Building is (newly) owned and occupied by a sociopathic narcissist—
who celebrates making the lives of tenants hell. Of the 16 mostly-long-term
tenants who lived in the Building when the new owners moved in, the new
owners‘ noise, intrusions, and other abhorrent behaviors (likely) contributed to the
death of three tenants (Pat, Mary, & John), and the departure of eight more (units
1001, 902, 802, 801, 702, 701, 602, 502) in very short order. Notice how they
cleared-out all the upper-floor units, so they could charge higher rents?
―They have sought evictions of 6 of those long-term tenants, even though rent was
paid-in-full, and those tenants bothered nobody. And what they did to evict the
occupants of unit #902, who put many of tens of thousands of dollars into their
unit, was horrific and shameful.
―This is my own first-hand experience with this building, and its owners. I know
this situation well, as I had the misfortune of being in a relationship with one of
the Building‘s residents at the time, have spent many days and nights over many
years in the Building, and have personally witnessed the abhorrent behavior of the
owners of the Building.
―There is NO RENT that is low enough to make residency here worthwhile.‖
2
Papaliolios posted substantially the same review several times.2 Each time, Bently
complained to Yelp and asked Yelp to remove the review. Each time, Yelp complied.
One version of the review, however, remained on Yelp‘s forum related to complaints
about how Yelp handles removal of reviews from its Web site.
On March 28, 2012, based on the posting quoted above, Bently, his wife, and
Bently Nob Hill (collectively, plaintiffs) sued Papaliolios for libel.3
Two months later, on May 25, 2012, Papaliolios responded with a special motion
to strike under section 425.16. Papaliolios claimed the libel cause of action was aimed at
suppressing his right to speak in an open forum about an issue of public interest, and
further claimed plaintiffs would be unable to show a probability of prevailing on their
libel claim because the statements in the review were mere opinions and thus not
provably false.
Plaintiffs opposed the motion, asserting numerous statements in the review were
indeed provably false and offering evidence of that. For instance, plaintiffs juxtaposed
these statements with evidence they submitted:
Statement Evidence
―the Building is (newly) owned and Bently‘s declaration that there is no
occupied by a sociopathic narcissist‖ such medical diagnosis for Bently or his
wife.
―the new owners‘ noise, intrusions, and Declarations of relatives and a city
other abhorrent behaviors (likely) death certificate showing Mary and
contributed to the death of three tenants John are alive, while Pat died in 2008 of
(Pat, Mary, & John)‖ pneumonia and cancer.
2
At least one version of the review substituted the word ―resulted‖ for the word
―contributed,‖ so the middle sentence of the first paragraph read: ―. . . the new owners‘
noise, intrusions, and other abhorrent behaviors (likely) resulted in the death of three
tenants (Pat, Mary, & John), and the departure of eight more (units 1001, 902, 802, 801,
702, 701, 602, 502) in very short order.‖
3
The complaint also contains a cause of action for trespass brought by another
entity, Bently Reserve, L.P., against Papaliolios. That claim is not at issue in this appeal.
3
―the new owners‘ noise, intrusions, and Bently‘s declaration that exit interviews
other abhorrent behaviors (likely) did not reveal tenants leaving for these
contributed to . . . the departure of eight reasons; the tenants in 801 and 802
more [of the 16 mostly-long-term continue to reside in their apartments;
tenants who lived in the Building when the tenants in 1001 agreed to move to
the new owners moved in] (units 1001, unit 702 in 2005 when Bently and his
902, 802, 801, 702, 701, 602, 502) in wife expressed interest in residing in
very short order‖ unit 1001, then those tenants vacated
702 in 2006 to move to the East Coast;
tenants in 902 stayed until 2009; tenants
in 602 and 502 stayed until 2007; and
Papaliolios rented 701 and stayed until
2008.
―They have sought evictions of 6 of Bently‘s declaration that plaintiffs did
those long-term tenants, even though not seek to evict any tenant except
rent was paid-in-full, and those tenants Papaliolios, and that proceeding did not
bothered nobody‖ result in his eviction (left on his own).
―they . . . evict[ed] the occupants of unit Bently‘s declaration that there was no
#902‖ eviction of the occupants of unit 902.
―they cleared-out all the upper-floor Bently‘s declaration that of the tenants
units, so they could charge higher rents‖ on floors 8, 9, and 10, only the tenants
of 902 vacated after an attempt to raise
rent.
In conjunction with his reply memorandum, Papaliolios submitted evidence he
claimed undermined plaintiffs‘ showing as to how the Jones Building tenants departed.
He contended, based on a copy of a Notice to Terminate Tenancy served in April 2005,
that the four former tenants of unit 1001 were, in fact, evicted to make room for Bently
and his wife. He provided a copy of a notice, ultimately filed with the San Francisco
Rent Stabilization and Arbitration Board, from Bently Nob Hill‘s attorney to the two
tenants of unit 402, demanding they remove a rug and chair from the foyer outside their
apartment or vacate within three days. He pointed to hearsay statements of another
tenant suggesting the tenants in 902 were forced out after Bently repeatedly hailed them
before the San Francisco Rent Control Board, assertedly to reap the benefits of $60,000
in renovations the tenants had made. He pointed to an admission by Bently Nob Hill, in
4
answering the complaint in another of the parties‘ lawsuits, that ―in August 2005 [five
months after acquiring the Jones Building], unit 802 became available for rent,‖ an
admission confirmed by the declaration of the current tenant of 802 who took possession
in September 2005. Finally, as to unit 602, Papaliolios attached a printout from the San
Francisco Rent Board showing a landlord petition filed on March 20, 2006, against that
unit‘s tenants (for unknown reasons, and with an unknown result).
The trial court heard and denied the anti-SLAPP motion on July 17, 2012. The
court concluded that, while the libel claim fell within the ambit of the anti-SLAPP statute,
plaintiffs had ―provid[ed] evidence showing‖ the ―requisite minimal merit‖ of their claim
and thus had carried their burden under the statute.
DISCUSSION
Resolving the merits of an anti-SLAPP motion under section 425.16 is ordinarily
―a two-part analysis, concentrating initially on whether the challenged cause of action
arises from protected activity within the meaning of the statute and, if it does, proceeding
secondly to whether the plaintiff can establish a probability of prevailing on the merits.‖
(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699
[61 Cal.Rptr.3d 29] (Overstock.com).) In this case, ―we bypass the initial inquiry because
everyone agrees that the first hurdle in obtaining anti-SLAPP relief has been met,‖ (ibid.)
and, indeed, the libel claim undoubtedly arises from protected activity. We therefore
focus solely on the second prong—whether plaintiffs carried their burden of showing a
probability of prevailing on the merits of their libel claim. (Ibid.)
In this regard, our review is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299,
325–326 [46 Cal.Rptr.3d 606, 139 P.3d 2]; Tutor-Saliba Corp. v. Herrera (2006)
136 Cal.App.4th 604, 609 [39 Cal.Rptr.3d 21].) We apply a ―summary-judgment-like‖
test (Taus v. Loftus (2007) 40 Cal.4th 683, 714 [54 Cal.Rptr.3d, 151 P.3d 1185]),
accepting as true the evidence favorable to the plaintiff and evaluating the defendant‘s
evidence only to determine whether it defeats the plaintiff‘s evidence as a matter of law
5
(Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [33 Cal.Rptr.2d 446],
disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 68, fn. 5). The evidence put forward at this stage must be admissible; even
allegations in a verified complaint are insufficient. (Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1212 [128 Cal.Rptr.3d 205].)
―In addition to considering the substantive merits of the plaintiff‘s claims,‖ the
court ―must also consider all available defenses to the claims . . . .‖ (No Doubt v.
Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1026.) When a cause of action
states multiple grounds for relief, ―the plaintiff may satisfy its obligation in the second
prong by simply showing a probability of prevailing on any‖ one of those grounds.
(Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1212.)
― ‗Defamation consists of, among other things, a false and unprivileged
publication, which has a tendency to injure a party in its occupation. [Citations.]‘
[Citation.] ‗ ―The sine qua non of recovery for defamation . . . is the existence of
falsehood.‘ [Citation.]‖ (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695 [142
Cal.Rptr.3d 40] (Summit Bank).) Papaliolios contends his Yelp review of the Jones
Building is, given its context, mere opinion and thus not actionable, or in the alternative,
is substantially true.
Provably False Assertion of Fact
To be libelous, a ― ‗statement must contain a provable falsehood‘ ‖ and, to this
end, ― ‗courts distinguish between statements of fact and statements of opinion for
purposes of defamation liability.‘ ‖ (Summit Bank, supra, 206 Cal.App.4th at p. 695.)
Not all statements that appear to be opinions, however, are immunized. (Summit
Bank, supra, 206 Cal.App.4th at p. 696.) ―In Milkovich v. Lorain Journal Co. (1990)
497 U.S. 1, 17 [111 L.Ed.2d 1, 110 S.Ct. 2695] (Milkovich), the United States Supreme
Court moved away from the notion that defamatory statements categorized as opinion as
opposed to fact enjoy wholesale protection under the First Amendment. Significantly,
6
the court recognized that ‗expressions of ―opinion‖ may often imply an assertion of
objective fact.‘ (Milkovich, at p. 18.) The court went on to explain: ‗If a speaker says,
―In my opinion John Jones is a liar,‖ he implies a knowledge of facts which lead to the
conclusion that Jones told an untruth. Even if the speaker states the facts upon which he
bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of
them is erroneous, the statement may still imply a false assertion of fact. Simply
couching such statements in terms of opinion does not dispel these implications . . . .‘
(Id. at pp. 18–19.)‖ (Overstock.com, supra, 151 Cal.App.4th at p. 701; cf. Weller v.
American Broadcasting Companies., Inc. (1991) 232 Cal.App.3d 991, 1004
[283 Cal.Rptr. 644] (Weller) [―we reject the notion that merely couching an assertion of a
defamatory fact in cautionary language such as ‗apparently‘ or ‗some sources say‘ or
even putting it in the form of a question, necessarily defuses the impression that the
speaker is communicating an actual fact‖].)
―Thus a false statement of fact, whether expressly stated or implied from an
expression of opinion, is actionable. (Milkovich, supra, 497 U.S. at p. 19.) The key is
not parsing whether a published 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.‘ (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385
[10 Cal.Rptr.3d 429], citing Milkovich, supra, 497 U.S. at p. 19, among other authority.)‖
(Overstock.com, supra, 151 Cal.App.4th at p. 701.) For example, ―an opinion based on
implied, undisclosed facts is actionable if the speaker has no factual basis for the
opinion‖ but ―[a]n opinion is not actionable if it discloses all the statements of fact on
which the opinion is based and those statements are true.‖ (Ruiz v. Harbor View
Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [37 Cal.Rptr.3d 133] (Ruiz).)
To decide whether a statement expresses or implies a provably false assertion of
fact, courts use a totality of the circumstances test. (Summit Bank, supra,
206 Cal.App.4th at p. 696.) ―[A] court must put itself in the place of an average reader
7
and determine the natural and probable effect of the statement . . . .‖ (ComputerXpress,
Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011 [113 Cal.Rptr.2d 625].) Thus, a court
considers both the language of the statement and the context in which it is made. (Ibid.;
Summit Bank, supra, 206 Cal.App.4th at p. 696.) ―The contextual analysis requires that
courts examine the nature and full content of the particular communication, as well as the
knowledge and understanding of the audience targeted by the publication.‖
(Overstock.com, supra, 151 Cal.App.4th at p. 701.)
The ― ‗crucial question of whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court.‘ ‖ (Summit Bank, supra,
206 Cal.App.4th at p. 696.) But if a statement is ―ambiguous and cannot be characterized
as factual or nonfactual as a matter of law,‖ a jury must determine whether the statement
contains an actionable assertion of fact. (Kahn v. Bower (1991) 232 Cal.App.3d 1599,
1607–1608 [284 Cal.Rptr. 244]; see also Summit Bank, supra, 206 Cal.App.4th at p. 696;
Carver v. Bonds (2005) 135 Cal.App.4th 328, 347 [37 Cal.Rptr.3d 480], quoting Weller,
supra, 232 Cal.App.3d at p. 1001, fn. 8; Ruiz, supra, 134 Cal.App.4th at p. 1471; accord,
Manufactured Home Communities, Inc. v. County of San Diego (9th Cir. 2008) 544 F.3d
959, 963.)
―The allocation of functions between court and jury with respect to factual content
is analogous to the allocation with respect to defamatory meaning in general. On the
latter issue, the court must first determine as a question of law whether the statement is
reasonably susceptible of a defamatory interpretation; if the statement satisfies this
requirement, it is for the jury to determine whether a defamatory meaning was in fact
conveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the
court whether a challenged statement is reasonably susceptible of an interpretation which
implies a provably false assertion of actual fact. If that question is answered in the
affirmative, the jury may be called upon to determine whether such an interpretation was
in fact conveyed.‖ (Kahn v. Bower, supra, 232 Cal.App.3d at p. 1608.)
8
Looking at the totality of the circumstances in this case, we conclude Papaliolios‘s
review was ―reasonably susceptible of an interpretation which implies a provably false
assertion of fact.‖ (Kahn v. Bower, supra, 232 Cal.App.3d at p. 1608.)
First, we look at Papaliolios‘s language. Although he used some hyperbole and
name-calling—―sociopathic narcissist,‖ ―celebrates making the lives of tenants hell,‖
―other abhorrent behaviors‖—the review also included purported facts about the Jones
Building. He asserted plaintiffs sought to evict six tenants, and further stated details
about the alleged eviction of tenants from unit 902 after they ―put tens of thousands of
dollars into their unit.‖ He further asserted plaintiffs‘ activities ―(likely) contributed‖ to
the ―deaths‖ of three particular tenants, ―Pat, Mary, and John,‖ and to the departure of
tenants in eight particular units ―(1001, 902, 802, 801, 702, 701, 602, 502) in very short
order.‖ Hedging his statements with the word ―likely‖ does not insulate them from
examination. (See Milkovich, supra, 497 U.S. at p. 18 [― ‗In my opinion John Jones is a
liar‘ . . . implies a knowledge of facts which lead to the conclusion that Jones told an
untruth.‖]; Weller, supra, 232 Cal.App.3d at p. 1004 [―we reject the notion that merely
couching an assertion of a defamatory fact in cautionary language such as ‗apparently‘ or
‗some sources say‘ . . . , necessarily defuses the impression that the speaker is
communicating an actual fact‖].) In fact, Papaliolios went out of his way to win
credibility with his audience as to these factual assertions, stating:
―This is my own first-hand experience with this building, and its owners. I know
this situation well, as I had the misfortune of being in a relationship with one of
the building‘s residents at the time, have spent many days and nights over many
years in the building, and have personally witnessed the abhorrent behavior of the
owners of the building.‖
Such assurances suggest facts are being communicated, not opinions. (See David A.
Elder, Defamation: A Lawyer‘s Guide (2012) Fact Versus Opinion, § 8:2 [representation
that speaker has ―private, firsthand knowledge‖ relevant to the fact/opinion distinction];
see also Super Future Equities, Inc. v. Wells Fargo Bank Minnesota, N.A. (N.D. Tex.
9
2008) 553 F.Supp.2d 680, 689 [where defendant ―claims to verify the accuracy of the
information he posts‖ his online ―statements are not protected opinions‖].)
We next turn to the broader context of his statements—posting on an Internet site
under an assumed user name. Papaliolios contends Internet fora are notorious as ―places
where readers expect to see strongly worded opinions rather than objective facts,‖ and
that ―anonymous, or pseudonymous,‖ opinions should be ― ‗discount[ed] . . .
accordingly.‘ ‖ (Summit Bank, supra, 206 Cal.App.4th at pp. 696–697.) However, the
mere fact speech is broadcast across the Internet by an anonymous speaker does not ipso
facto make it nonactionable opinion and immune from defamation law.
To be sure, anonymous Internet fora ―promote[] a looser, more relaxed
communication style‖ in which users may ―substitute gossip for accurate reporting and
often adopt a provocative, even combative tone.‖ (Krinsky v. Doe 6 (2008)
159 Cal.App.4th 1154, 1162–1163 [72 Cal.Rptr.3d 231] (Krinsky) [―online discussions
may look more like a vehicle for emotional catharsis than a forum for the rapid exchange
of information and ideas‖]; id. at p. 1163 [― ‗online pseudonyms tends to heighten this
sense that ―anything goes,‖ and some commentators have likened cyberspace to a frontier
society free from the conventions and constraints that limit discourse in the real
world‘ ‖]; Summit Bank, supra, 206 Cal.App.4th at p. 697; Chaker v. Mateo (2012)
209 Cal.App.4th 1138, 1148 [147 Cal.Rptr.3d 496] (Chaker).)
Thus in Krinsky, the defendant, using a concealing screen name on an Internet
discussion forum, felt free to claim a corporate president was part of a management team
of ― ‗boobs, losers, and crooks‘ ‖ and ― ‗has fat thighs, a fake medical degree, ―queefs‖
and has poor feminine hygiene.‘ ‖ (Krinsky, supra, 159 Cal.App.4th at p. 1159.) The
plaintiff served a subpoena on the forum‘s host seeking the defendant‘s identity and
defendant, appearing as ―Doe 6,‖ moved to quash. (Id. at pp. 1158–1159.) The appellate
court, viewing the defendant‘s posts in the context of what was a particularly ―[h]eated‖
discussion forum in which numerous other posts questioned defendant‘s credibility, and
10
noting the defendant‘s ―crude, ungrammatical‖ language, satirical tone, and vituperative,
―juvenile name-calling,‖ concluded the defendant‘s railing was nonactionable opinion
and ordered the subpoena quashed.4 (Krinsky, supra, 159 Cal.App.4th at pp. 1175–
1177.)
Similarly, in Summit Bank, the defendant posted under a pseudonym, ―in a section
of the Craigslist Web site entitled ‗Rants and Raves,‘ ‖ ―free-flowing diatribes (or
‗rants‘)‖ about a bank that lacked ―proper spelling or grammar.‖ The Court of Appeal
concluded readers would be predisposed to view the comments ―with a certain amount of
skepticism, and with an understanding that they will likely present one-sided viewpoints
rather than assertions of provable facts.‖ (Summit Bank, supra, 206 Cal.App.4th at
pp. 680, 696, 699 & fn. 10.) Thus, statements that the bank‘s CEO ― ‗thinks that the
Bank is her personel [sic] Bank to do with it as she pleases,‘ ‖ that the bank was a
―problem bank,‖ and that the bank left clients ― ‗high and dry,‘ ‖ were nonactionable, and
the appellate court reversed the denial of an anti-SLAPP motion. (Id. at pp. 699, 701.)
In Chaker, the court confronted a ―series of derogatory statements‖ on the Ripoff
Report ―Internet Web site where members of the public may comment on the reliability
and honesty of various providers of goods and services‖ and on Topix, ―a social
networking site.‖5 (Chaker, supra, 209 Cal.App.4th at pp. 1142, 1146.) The defendant
wrote of plaintiff: ― ‗This guy is a criminal and a deadbeat dad. As you can see, I am the
child‘s grandma so I know. If you should eve [sic] come across this person, be very
careful. He may be taking steroids so who knows what could happen.‘ ‗I would be very
4
Even the ― ‗fake medical degree‘ ‖ comment ―was only the latest entry in a
protracted online debate about whether plaintiff‘s medical degree from Spartan Health
Sciences University in the West Indies justified her use of the ‗M.D.‘ title in company
documents. No reasonable reader would have taken this post seriously . . . .‖ (Krinsky,
supra, 159 Cal.App.4th at p. 1177.)
5
It is unclear which statements appeared where and although the opinion suggests
the statements were anonymous, it does not say so.
11
careful dealing with this guy. He uses people, is into illegal activities, etc . . . .‘ ‖ (Id. at
p. 1142.) The Court of Appeal concluded ―alleged embellishments, to the effect [the
plaintiff] picks up streetwalkers and homeless drug addicts and is a deadbeat dad,‖ were
too generalized, nonspecific, and vitriolic to be actionable. (Id. at pp. 1149–1150.) ―The
only statement which might arguably fall outside the scope of nonactionable opinion or
epithet [was] the statement Mateo is a criminal. However, that statement [was] true.‖
(Id. at p. 1150.) Accordingly, the Court of Appeal affirmed the grant of an anti-SLAPP
motion. (Ibid.)
Krinsky, Summit Bank, and Chaker illustrate the significant role context plays in
distinguishing fact from opinion, but by no means do they categorically immunize
anonymous Internet speech or even give anonymity special weight. While Krinsky
recognizes the long-enduring right to speak anonymously in a lawful manner, it warns, on
the Internet, the ―informal ability to ‗sound off‘ often in harsh and unbridled invective,
. . . opens the door to libel and other tortious conduct,‖ and ―[w]hen vigorous criticism
descends into defamation, . . . constitutional protection is no longer available.‖ (Krinsky,
supra, 159 Cal.App.4th at pp. 1163–1164 [further warning ―criticism on the Internet is
often so recklessly communicated that the harm to its targets, particularly in the financial
arena, may extend far beyond what is covered by rules applicable to oral rhetoric and
pamphleteering‖].) While the defendant‘s anonymity in Krinsky may have freed him to
engage in ―crude, satirical hypberole,‖ it was the overall nature and context of his
comments, not his anonymity, that led the court to conclude the comments nonactionable.
(Id. at pp. 1175–1178.)
Likewise, in Summit Bank and Chaker, the courts examined a variety of contextual
factors. The anonymity of the defendant in Summit Bank appeared relevant to that court,
but so was the name of the forum the defendant used—―Rants and Raves‖—as well as
the posts‘ ―diatribe‖ nature, lack of formality, poor grammar and spelling. (Summit Bank,
supra, 206 Cal.App.4th at pp. 697–699.) In Chaker, the court, citing Krinsky and Summit
12
Bank, noted ―a number of recent cases have relied heavily on the fact that statements
were made in Internet forums‖ (Chaker, supra, 209 Cal.App.4th at p. 1148), but went on
to analyze other aspects of the defendant‘s speech, such as its ―angry‖ and ―generalized‖
character and ―lack any specificity.‖ (Id. at pp. 1149–1150.)
Thus, while Krinsky, Summit Bank, and Chaker allow courts to dispense quickly
with defamation claims arising from true rants and raves, they do not preclude the courts
from taking serious Internet speech seriously. Internet posts where the ―tone and content
is serious,‖ where the poster represents himself as ―unbiased‖ and ―having specialized
knowledge,‖ or where the poster claims his posts are ―Research Reports‖ or ―bulletins‖ or
―alerts,‖ may indeed be reasonably perceived as containing actionable assertions of fact.
(Overstock.com, supra, 151 Cal.App.4th at pp. 705–706.) And while ―generalized‖
comments on the Internet that ―lack any specificity as to the time and place of‖ alleged
conduct may be a ―further signal to the reader there is no factual basis for the
accusations,‖ specifics, if given, may signal the opposite and render an Internet posting
actionable. (See Chaker, supra, 209 Cal.App.4th at pp. 1149–1150 [making this
distinction but finding the comments at issue too generalized to support a defamation
claim]; cf. ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1013 [though
generally dismissing Internet postings as nonactionable, suggesting that in a ―few
instances in which the postings did contain apparent statements of facts—such as the
statement that a company owned by the former president had filed for bankruptcy‖—they
could have been actionable had there been evidence of falsehood].)
This brings us to Wong v. Jing (2010) 189 Cal.App.4th 1354 [117 Cal.Rptr.3d
747] (Wong), which dealt with more serious Internet speech and rounds out the
discussion on the topic. In Wong, the Court of Appeal affirmed the denial of an anti-
SLAPP motion in a defamation action based on a review on Yelp, the same forum
Papaliolios used. The review, of a dentist, read:
13
― ‗1 star rating. . . . [¶] Let me first say I wish there is [sic] ―0‖ star in Yelp rating.
Avoid her like a disease! [¶] My son went there for two years. She treated two
cavities plus the usual cleaning. She was fast, I mean really fast. I won‘t
necessarily say that is a bad thing, but my son was light headed for several hours
after the filling. So we decided to try another dentist after half a year. [¶] I wish I
had gone there earlier. First the new dentist discovered seven cavities. All right
all of those appeared during the last half a year. Second, he would never use the
laughing gas on kids, which was the cause for my son‘s dizziness. To apply
laughing gas is the easiest to the dentist. There is no waiting, no needles. But it is
general anesthetic, not local. And general anesthetic harms a kid‘s nerve system.
Heck, it harms mine too. Third, the filling Yvonne Wong used is metallic silver
color. The new dentist would only use the newer, white color filling. Why does
the color matter? Here is the part that made me really, really angry. The color
tells the material being used. The metallic filing, called silver amalgams [sic], has
a small trace of mercury in it. The newer composite filling, while costing the
dentist more, does not. In addition, it uses a newer technology to embed fluoride
to clean the teeth for you. [¶] I regret ever going to her office. [¶] P.S. Just want
to add one more thing. Dr Chui, who shares the same office with Yvonne Wong is
actually decent.‘ ‖ (Wong, supra, 189 Cal.App.4th at p. 1361.)
The dentist claimed the review was libelous per se because it falsely implied the
following facts: ―(1) Wong ‗had failed to tell [Jing and Ma that their] son‘s filling
contained mercury‘; (2) Wong ‗mis-diagnosed the case‘; [and] (3) Wong ‗used a General
Anesthetic,‘ ‖ something beyond her allowed scope of practice. (Wong, supra,
189 Cal.App.4th at p. 1370.) The appellate court agreed Wong had carried her burden
under the second prong of the anti-SLAPP analysis because: ―a jury reasonably could
find that the review falsely implied that Wong had failed to warn and advise about silver
amalgam and arguably better alternatives to its use‖ (id. at p. 1372); ―a reasonable person
could probably understand these statements to be criticism of Wong for working hastily,
failing to find all of the cavities that the boy had, and thereby substantially misdiagnosing
or underdiagnosing the condition of the boy‘s teeth‖ (id. at pp. 1373–1374); and ―a jury
reasonably could find that the implied assertion that to make her job easier and quicker,
Wong put defendant‘s son under general anesthesia to fill his cavities, exposed the boy‘s
14
nervous system to potential harm and harmed him was false and defamatory‖ (id. at
p. 1375).
Papaliolios‘s Yelp review is every bit as factually specific and earnest as the Yelp
review in Wong. While Papaliolios‘s review does contain epithets not meant to be taken
as serious assertions of fact, it also contains statements that could reasonably be
understood as conveying facts—each provable, and each meant to be used by prospective
tenants to evaluate the Jones Building as a future residential choice.
Papaliolios asserts Wong is distinguishable because it did not involve
―anonymous‖ speech. The review at issue in Wong ―did not state the name of the person
who wrote the review, but it did reveal the person‘s initials—T.J.‖ (Wong, supra,
189 Cal.App.4th at p. 1368.) Papaliolios wrote as ―Sal. R.‖ We see no meaningful
distinction between the identifying information in Wong and in this case—in both cases,
the consuming public had no way of identifying the poster from the reviews. Moreover,
as we have discussed, anonymity is only one of many contextual factors to be considered.
(See Krinsky, supra, 159 Cal.App.4th 1154, 1163–1164 [―targets‖ of anonymous ―online
aspersions may seek redress by filing suit against their unknown detractors‖].)6 Here,
6
Other jurisdictions concur that speaking anonymously or with a pseudonym on
the Internet does not immunize the speaker from liability. (E.g., In re Indiana
Newspapers Inc. (Ind. Ct. App. 2012) 963 N.E.2d 534, 549 [―Although free speech is
vigorously protected, a statement will not be afforded constitutional protection if it is
defamatory.‖]; Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.
(2010) 160 N.H. 227, 237 [― ‗viable causes of actions for defamation‘ ‖ against speakers
using pseudonyms ―should not be barred in the Internet context‖]; Maxon v. Ottawa Pub.
Co. (Ill. App. Ct. 2010) 402 Ill.App.3d 704, 713 [finding no ―support [for] the
proposition that anonymous Internet speakers enjoy a higher degree of protection from
claims of defamation than‖ others]; In re Greenbaum (N.Y. Sup. Ct. 2007) 18 Misc.3d
185, 187 [―cases also recognize, however, that the right of anonymous speech is not
absolute and cannot shield tortious acts such as defamation‖ ]; John Doe No. 1 v. Cahill
(Del. 2005) 884 A.2d 451, 456 [―First Amendment does not protect defamatory speech‖];
see generally Raymond T. Nimmer & Holly K. Towle, Law of Electronic Commercial
Transactions Scope Information (2007) Liability for Informational Content, ¶ 10.05[2]
[agreeing with courts finding no blanket protection for anonymous Internet speech].)
15
given other contextual considerations, Papaliolios‘s use of a pseudonym does not render
his Yelp review incapable of being reasonably susceptible of a defamatory interpretation.
Substantial Truth
Papaliolios alternatively argues that even if his review contains express or implied
statements of provable fact, and even if some of his statements are false, the gist of his
review is true, and truth is a complete defense to a libel claim. (Summit Bank, supra,
206 Cal.App.4th at p. 697.) Indeed, even ―substantial truth‖ is a defense. (Ibid.) ―[T]he
law does not require [the defendant] to justify the literal truth of every word of the
allegedly defamatory content, nor must we parse each word . . . to determine its
truthfulness. ‗It is sufficient if the defendant proves true the substance of the charge,
irrespective of slight inaccuracy in the details, ―so long as the imputation is substantially
true so as to justify the ‗gist or sting‘ of the remark . . . .‖ [Citation.]‘ ‖ (Ibid., italics
omitted.)
―By the same token, not every word of an allegedly defamatory publication has to
be false and defamatory to sustain a libel action. See Masson[ v. New Yorker Magazine,
Inc. (1991) 501 U.S. 496,] 510 [115 L.Ed.2d 447, 111 S.Ct. 2419] (interpreting California
law, the Court explained, ‗[T]he test of libel is not quantitative; a single sentence may be
the basis for an action in libel even though buried in a much longer text . . . .‘)‖ (Kaelin
v. Globe Communications Corp. (9th Cir. 1998) 162 F.3d 1036, 1040.) ― ‗Put another
way, the statement is not considered false unless it ―would have a different effect on the
mind of the reader from that which the pleaded truth would have produced.‖ [Citations.]‘
[Citation.]‖ (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 936 [19 Cal.Rptr.3d 247].)
Or yet another way, ―[i]f any material part be not proved true, the plaintiff is entitled to
damages in respect to that part.‖ (Shumate v. Johnson Publishing Co. (1956)
139 Cal.App.2d 121, 132 [293 P.2d 531], italics added.)
When evaluating an affirmative defense in connection with the second prong of
the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like
16
rubric, generally should consider whether the defendant‘s evidence in support of an
affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary
evidence, which, if accepted, would negate the defense. (Dwight R. v. Christy B. (2013)
212 Cal.App.4th 697, 715 [151 Cal.Rptr.3d 406]; Traditional Cat Assn., Inc. v. Gilbreath
(2004) 118 Cal.App.4th 392, 398, 404 [13 Cal.Rptr.3d 353].)7
Among the express and implied factual assertions made by Papaliolios, perhaps
the standout is that the ―deaths‖ of three former Jones Building tenants were ―(likely)‖
connected to plaintiffs‘ conduct. Papaliolios presented no evidence whatsoever as to the
nature and cause of these ―deaths.‖ He offered only speculation the statement was true
enough, since ―dust and debris‖ from unspecified construction at the building may have
had, or may some day have, some unspecified deleterious effects on tenants. Plaintiffs,
on the other hand, offered evidence two of the three supposedly dead tenants are, in fact,
alive, and the other died of pneumonia and cancer. We do not agree, as Papaliolios
claims, that his assertion of three ―deaths‖ connected to the plaintiffs‘ conduct is a mere
7
No Doubt v. Activision Publishing, Inc., supra, 192 Cal.App.4th at page 1029,
footnote 4, noted potentially divergent statements in appellate court decisions concerning
the operation of affirmative defenses in connection with anti-SLAPP motions. Some
courts state a defendant bears the burden of proof on an affirmative defense. (Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658,
676 [35 Cal.Rptr.3d 31]; Premier Medical Management Systems, Inc. v. California Ins.
Guarantee Assn. (2006) 136 Cal.App.4th 464, 477 [39 Cal.Rptr.3d 43]; Seltzer v. Barnes
(2010) 182 Cal.App.4th 953, 969 [106 Cal.Rptr.3d 290].) Others state the burden
ultimately remains on the plaintiff to demonstrate a defense is ― ‗ ―not applicable to the
case as a matter of law or by a prima facie showing of facts which, if accepted by the trier
of fact, would negate such defenses.‖ ‘ ‖ (Birkner v. Lam (2007) 156 Cal.App.4th 275,
285 [67 Cal.Rptr.3d 190], italics omitted, quoting Paul for Council v. Hanyecz (2001)
85 Cal.App.4th 1356, 1367 [102 Cal.Rptr.2d 864], disapproved on another ground in
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; cf. Flatley
v. Mauro, supra, 39 Cal.4th at p. 323 [―The litigation privilege . . . may present a
substantive defense a plaintiff must overcome to demonstrate a probability of
prevailing.‖].) Given the evidence presented in this case, we need not resolve any
apparent conflict.
17
― ‗slight inaccuracy.‘ ‖ (See Summit Bank, supra, 206 Cal.App.4th at p. 697.) On this
basis, alone, plaintiffs succeeded in carrying their minimal burden under the anti-SLAPP
statute as to probable merit of their libel claim.
Plaintiffs also adduced evidence raising a triable issue that tenants were not
sweepingly ―evicted,‖ as Papaliolios asserted. While Papaliolios responded with
evidence countering plaintiffs‘ evidence concerning the timing and reasons for tenant
departures, the present state of the evidence is, at best, murky. It certainly is not
sufficiently clear to conclude Papaliolios is entitled to a defense judgment as a matter of
law, even as to his statements about tenant departures, on the basis of ―substantial truth.‖
Given these triable issues in connection with the merits of plaintiffs‘ libel claim,
and the material nature of Papaliolios‘s statements to a prospective tenant, a trier of fact
might conclude his review was not substantially true and was defamatory. (Hughes v.
Hughes, supra, 122 Cal.App.4th at p. 937 [―whether a statement is true or substantially
true is normally considered to be a factual one‖]; Kahn v. Bower, supra, 232 Cal.App.3d
at p. 1608 [whether statement is defamatory is for jury in close cases].)8
In his reply memorandum in the trial court, Papaliolios included a two-sentence
footnote asserting, without citation to authority or evidence and without further
explanation, that plaintiffs ―are limited-purpose public figures and are required to provide
evidence of malice.‖ The footnote continued: ―Given [p]laintiffs have not proven simple
defamation, [Papaliolios] has not briefed the malice issue here but is prepared to provide
the Court a supplemental brief on the issue upon request.‖ There was no mention of this
8
Because we conclude Papaliolios‘s review could be defamatory on the bases just
discussed, we need not, for purposes of this anti-SLAPP analysis, analyze the showing
made as to other statements in the review. (See Masson v. New Yorker Magazine, Inc.,
supra, 501 U.S. at p. 510 [―It matters not under California law that petitioner alleges only
part of the work at issue to be false.‖]; cf. Wallace, supra, 196 Cal.App.4th at p. 1212
[―the plaintiff may satisfy its obligation in the second prong by showing a probability of
prevailing on any‖ grounds of a cause of action].)
18
point at the hearing on the special motion to strike, and no supplemental brief. Nor was
any mention made of it in the trial court‘s order denying the motion.
Nevertheless, Papaliolios attempts to raise the issue of malice on appeal, arguing
plaintiffs were limited purpose public figures because they advertised on Yelp and thus
fell short in their merits showing because they presented no evidence Papaliolios was
motivated by actual malice. Even if it were appropriate for Papaliolios to withhold a
malice argument until his trial court reply brief (see Wong, supra, 189 Cal.App.4th at
pp. 1368–1369 [suggesting arguments on ―merits‖ prong of anti-SLAPP motion need not
be raised in trial court opening brief and may be raised for first time in trial court reply
brief]), his reply brief made no intelligible malice argument, lacking any authority,
evidence, or analysis. Indeed, in that brief, Papaliolios conceded he ―ha[d] not briefed‖
the malice issue, rendering his footnote a mere placeholder. We therefore conclude
Papaliolios did not timely raise this factual issue in the trial court, and he cannot attempt
to breathe life into it for the first time in this appeal. (See Carpenter & Zuckerman LLP
v. Cohen (2011) 195 Cal.App.4th 373, 384, fn. 6 [124 Cal.Rptr.3d 598] [―Defendants did
not adequately raise this issue in the trial court and therefore forfeited the issue on
appeal.‖]; People v. Redd (2010) 48 Cal.4th 691, 731–732 & fn. 19 [108 Cal.Rptr.3d 192,
229 P.3d 101] [passing reference in pleading to argument insufficient to preserve it].)
Furthermore, while use of the media to advocate on a particular public controversy
can give rise to public figure status (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25
[53 Cal.Rptr.3d 752]), merely advertising ones goods or services does not (Hufstedler,
Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 69–70 [49 Cal.Rptr.2d
551] [―a person in the business world advertising his wares does not necessarily become
part of an existing public controversy‖]). The record before us in this appeal does not
begin to contain the evidence necessary to conclude plaintiffs‘ presence on Yelp rendered
them public figures. Finally, given the tenor of the Yelp review and evidence of the
parties‘ rancorous relationship, there is some inkling of malice here.
19
In sum, plaintiffs made the requisite minimal showing required under the anti-
SLAPP statute as to the merits of their libel claim, and Papaliolios‘s special motion to
strike was properly denied.
DISPOSITION
The trial court‘s order denying Papaliolios‘s special motion to strike is affirmed.
Respondents to recover costs on appeal.
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
20
Trial Judge: Honorable Harold E. Kahn
Trial Court: San Francisco City & County Superior Court
Stein & Lubin, Michael F. Donner and Daniel K. Slaughter for Plaintiffs and
Respondents.
Dhillon & Smith, Harmeet K. Dhillon and Nitoj P. Singh for Defendant and Appellant.
21