Sep 30, 2014

TENTATIVE RULINGS

LAW & MOTION CALENDAR

WEDNESDAY, September 24, 2014, 3:30 P.M.

Courtroom 18 – Honorable Nancy Case Shaffer

3055 Cleveland Avenue, Santa Rosa

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, September 23, 2014.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.

1.  MCV-231692; Midland Funding LLC v. Espana

Plaintiff Midland Funding LLC moves for judgment on the pleadings on the grounds that the complaint states facts sufficient to constitute a cause of action against defendant and the answer does not state facts sufficient to constitute a defense. (CCP § 438(c)(1)(A).)

On March 4, 2014, plaintiff filed a complaint alleging that within the last four years defendant became indebted to plaintiff in the amount of $9,739.69 on a credit account with Wells Fargo.

On May 9, 2014, defendant filed an answer admitting that all the statements in the complaint are true except that he disputes the total amount due.

Plaintiff cites Adjustment Corp. v. Hollywood Hardware & Paint Co. (1939) 35 Cal.App.2d 566, for the proposition that “a motion for judgment on the pleadings may be granted when the defendant denies the allegations of the complaint but admits the indebtedness.”

In Adjustment Corp. v. Hollywood etc. Co., the controlling point was that the answer was evasive and failed to raise a material issue as it did not sufficiently deny all the material allegations of the complaint. (Id. at 569.)

Plaintiff is not entitled to a judgment on the pleadings if the answer denies and thereby presents an issue as to one or more material allegations. (Adjustment Corp., supra, at 569.) Here, the answer sufficiently denies that defendant owes plaintiff the amount of $9,739.69.

The answer sufficiently puts a material fact at issue. (See CACI 373.) Therefore, the motion for judgment on the pleadings is denied.

Defendant is to submit a written order consistent with this ruling.

2.  SCV-245829; King v. Cruz

Since this OSC re Contempt was filed against Defendant Susan Blumenfeld, the court granted Blumenfeld’s request to continue the trial in this matter to October 31, 2014, based on the opinion of her health care provider that she was unable to go forward with the trial at this time.  Accordingly, this motion will be continued to October 31, 2014 at 8:30 in Department 18 to be heard prior to the re-trial in this matter.

Plaintiff is to submit a written order consistent with this ruling.  Defendant Blumenfeld shall provide a written notice of receipt of the order, which may be served by first class mail.  If Defendant fails to provide written notice of receipt of the order continuing this motion not later than five days after the date of service of the order by first class mail, plus five additional days for mailing pursuant to CCP § 1013(a), Blumenfeld will be responsible for paying any costs reasonably incurred by plaintiff to serve the order by personal service.

3.  SCV-251946; Tejeda v. Bank of America

Due to calendar congestion, these motions are continued to December 10, 2014.

4.  SCV-252775; Garcia v. Husary

Due to calendar congestion, this motion is continued to December 10, 2014.

5.  SCV-253402; Starski v. Costco

Defendant’s Motion for Summary Judgment is continued to October 29, 2014. Plaintiff’s Motion for Order Permitting Withdrawal of Requests for Admission Deemed Admitted is advanced to October 15, 2014.

6.  SCV-254483; Lawson v. Chaves

Defendant Jesus Chavez moves for a preliminary injunction against plaintiff Sonja Joy Lawson restraining plaintiff from selling or disposing of defendant’s assets. Defendant also requests that the court enter judgment on the parties’ settlement agreement.

With regard to the injunction, defendant has not established irreparable injury, a requirement for a preliminary injunction. (Costa Mesa City Employees' Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305.) Pursuant to the agreement attached as an exhibit to defendant’s motion, all the parties’ assets were to be liquidated. As money is fungible, there is no irreparable injury.

With regard to the requested judgment based upon the parties’ settlement agreement attached to the declaration of William Paynter as Exhibit H, CCP § 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” This is interpreted to mean that the settlement must be signed by both the party seeking to enforce the agreement under § 664.6 and the party against whom it is to be enforced. (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 305; Sully-Miller Contracting Co. v. Gledson/Cashman Const., Inc. (2002) 103 Cal. App. 4th 30, 37.) The agreement is not signed by both plaintiff and defendant. The motion denied without prejudice.

7.  SCV-254697; Wright v. Pheffer

Anti-SLAPP motions:

Defendants Joseph Pheffer and Randy Warren move to strike plaintiff’s complaint pursuant to CCP § 425.16.

Defendant Pheffer’s objections to Plaintiff’s Request for Judicial Notice are overruled.

Defendant’s objections to the Exhibits to the Supplemental Aiona Declaration are sustained. Defendant’s objections to the Aiona Declaration are overruled. Defendant’s objections numbers 1-10 to the Adamson Declaration are overruled; objection Number 11 is sustained. Defendant’s objections numbers 1-11 to the Martin Declaration are overruled; numbers 12-13 are sustained. Defendant’s objections numbers 9, 13, 16, 17, 21, 22, 23, 26, 30 to the Wright declaration are overruled; Numbers 11, 12, 14, 15, 18, 19, 20, 27 are sustained.    

The parties agree that this action arises out of defendants’ petition rights. Therefore, the burden shifts to plaintiff to establish a “probability” that plaintiff will prevail on the claims she has asserted against defendant. (See CCP § 425.16(b).)

To establish a “probability” of prevailing on the merits, plaintiff must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by plaintiff is credited. (Navellier v. Sletten (2002) 29 Cal. 4th 82, 89, 93; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 291.)

For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. In making this assessment it is the court's responsibility to accept as true the evidence favorable to the plaintiff. The plaintiff need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, at 291.)

In order to establish a cause of action for malicious prosecution a plaintiff must plead and prove that the prior proceeding, commenced by or at the direction of the malicious prosecution defendant, was: (1) pursued to a legal termination favorable to the plaintiff; (2) brought without probable cause; and (3) initiated with malice. (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335.)

Favorable Termination:  Here, due to the voluntary dismissal, there is a presumption of a termination favorable to plaintiff. Defendants’ claim that the action was dismissed for economic reasons is an issue for the jury. (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185, disapproved on other grounds in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 882; Lackner v. LaCroix (1979) 25 Cal.3d 747, 750-751; Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 129.) Plaintiff has established a likelihood that she will prevail on this disputed issue.

Lack of Probable Cause: To prevail on her malicious prosecution claim plaintiff is required to show only that defendants lacked probable cause for any of the causes of action in the underlying action.  (Soukup, supra, at 293.) Plaintiff has made a prima facie showing that the underlying lawsuit was devoid of evidence supporting a cause of action for defamation against Patricia Wright.  Where there is a complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 292, citing Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 597.) Defendants maintained an action against plaintiff Wright for four years.  Thus, Plaintiff has demonstrated a likelihood that she will prevail on this disputed issue.

Malice:  Additionally, Plaintiff’s evidence, if accepted by the trier of fact, would establish that defendant Pheffer’s volatile and hostile relationship with Adamson extended to close associates of Adamson’s; that years after filing the action, when no evidence had surfaced establishing any liability on plaintiff’s party, defendant Warren sought to settle the underlying suit with plaintiff Wright’s attorney.  These facts, together with the lack of evidence to bring or maintain the suit, may establish an improper motive for pursuing or maintaining the action against Wright.  Plaintiff has established a likelihood that she will prevail on this disputed issue.

Plaintiff Wright has established that her claim for malicious prosecution has at least minimal merit, as required to defeat a SLAPP motion, both motions are denied.

Plaintiff is to draft an order consistent with this ruling.

Demurrer

Defendant Randy Warren demurs to plaintiff’s complaint on the ground that plaintiff’s cause of action for malicious prosecution fails to state facts upon which relief can be granted.

Defendant argues that the complaint does not allege termination in plaintiff’s favor. In order for the termination of a lawsuit to be considered favorable with regard to a malicious prosecution claim, the termination must reflect on the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit. ( Lackner v. LaCroix (1979) 25 Cal.3d 747, 750.) However, due to the voluntary dismissal, there is a presumption that of a termination favorable to the plaintiff. Defendants’ claim that the action was dismissed for economic reasons is an issue for the jury. (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 112.) Accordingly, the demurrer is overruled.

Plaintiff is to draft an order consistent with this ruling

Motion to Strike

Defendant Joe Pheffer moves to strike certain portions of plaintiff’s complaint on the grounds that they are irrelevant and improperly inserted into the pleadings.

Defendant argues that the allegations in paragraphs 12, 13 and 14 of the complaint and Exhibits F and G to the complaint are privileged pursuant to Civil Code section 47 and inadmissible under Evid. Code section 1152 (offers to compromise) as the letters between attorneys were settlement negotiations. Defendant has not established that the letters constitute settlement negotiations. Moreover, the litigation privilege does not prevent the use of statements made in settlement negotiations to show the motive or intent of the attorney or party involved. (See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal. 3d 1157, 1168)

Next, defendant argues that paragraphs 17 and 19 should be stricken as irrelevant. The court disagrees.

Defendant’s motion is denied.

Plaintiff is to draft an order consistent with this ruling.

8.  SCV-255157; Verbish v. Verbish

The motion to be relieved as counsel brought by attorney Steven Taxman is continued to December 10, 2014 at 3:30 p.m. in Department 18.  Counsel must specify grounds for requesting a non-consensual dismissal.

9. SCV-255949; Hetzer, et al. v. Northern California Conference of Seventh-Day Adventists

Plaintiffs’ motion to consolidate this action with MCV-233282 is granted. The court will also sever the issue of title from plaintiff’s emotional distress claim.  A Case Management Conference in SCV-255949 is set for October 9, 2014 at 9:00 a.m. in Department 18.

Plaintiff is to submit a written order consistent with this ruling.

10.  SCV-255398; Bolt v. Shantz   


Defendant David Shantz moves to strike plaintiff’s entire complaint on the ground that plaintiff has filed a SLAPP suit. Defendant argues that the conduct complained of implicates defendant’s rights of petition and free speech and is thus subject to California’s Anti-SLAPP statute.

Conventional Internet venues such as Yelp constitute a “public forum” or a place “open to the public” within the meaning of Code of Civil Procedure section 425.16. (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1366; see also Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 693.)  And, as the review provides consumer information for those trying to choose among attorneys, the statements relate to a public issue. (Wong, supra, at 1366; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343–344; Wilbanks v. Wolk (2004) 121 Cal.App.4th at 883, 898; Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145; See also Gilbert v. Sykes (2007) 147 Cal.App.4th 13, citing Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808 [The public interest requirement of section 425.16, subdivision (e)(3) must be “ ‘construed broadly’ so as to encourage participation by all segments of our society in vigorous public debate related to issues of public interest.”] Therefore, defendant has established that plaintiff's lawsuit “arises from” defendant's exercise of free speech or petition rights as defined in Code of Civil Procedure section 425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 61.)

As defendant has established the first prong of the test, the burden shifts to plaintiff to establish a “probability” that he will prevail on his claims against defendant. (See CCP § 425.16(b).)  Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute. (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 681, citing Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)

First, plaintiff is not a limited purpose public figure who invited public attention and comments regarding consumer’s decisions in deciding between attorneys. Thus, in proving the merit of his case, he does not have to establish malice. (See Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577; Copp v. Paxton, supra, at 845, citing Reader’s Digest Assn. v Superior Court (1984) 37 Cal. 3d 244, 254-255.)

Plaintiff’s complaint alleges that on October 27, 2013, defendant published a defamatory Yelp review of plaintiff in his profession as an attorney at law in Sonoma County. (Complaint, pg. 4.) Plaintiff does not specify what within the review plaintiff considers defamatory; rather, he attaches the entire review to the complaint. (Complaint, Ex. A.) Plaintiff claims that the statements contained therein are false; libelous on their face; and clearly exposes plaintiff to hatred, contempt, ridicule and obloquy. (Complaint, pg. 5.)

‘Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.’ [Citation.] ‘There can be no recovery for defamation without a falsehood. [Citation.] Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false. (emphasis in original) [Citation.] ‘Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “‘reasonably [be] interpreted as stating actual facts' about an individual.’” [Citations.] Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of ... contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection. [Citations.]’ [Citations.] The dispositive question after the Milkovich case is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” ’ [Citation.]” (Gilbert v. Sykes, supra, 147 Cal.App.4th at 27.) (underscore emphasis added).

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.)

A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo, or other extrinsic fact, is said to be a libel on its face.  Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.  Special damage is defined in Civil Code section 48a. (Civ. Code § 45a.)

The Yelp review which is the subject of the complaint is an “Updated review,” which incorporates defendant’s original review.  The original review stated that defendant hired plaintiff as an attorney and expresses defendant’s view that plaintiff is not a very high level attorney, that he is overpriced, and that he is lazy and lacks drive. This is not actionable speech. (See Summit Bank v. Rogers (2012) supra, 206 Cal.App.4th 696-697.)

More specifically, the original review states that during the lawsuit in which defendant was represented by plaintiff the “opposition attorney walked all over him in depositions, while [plaintiff] sort of sat there”; defendant had to “bring in a separate labor law specialist and for the most part had to drive the case in general – from finding witnesses and really anything that was not routine court paperwork”; and when “defendant proposed settling for less than the estimated trial costs, and [plaintiff] realized there would be no trial fees – he hit [defendant] with a $15k bill for less than seven days of trial prep work…and threated legal action if [defendant] took the dispute to the Bar Assoc. even though [defendant] had expressedly [sic] asked to be informed if the bill ever went over $5k in a billing cycle.” Then, defendant expresses his dismay that it cost him $36,000 to defend a “meritless” case that did not go to trial.

On December 27, 2012, plaintiff wrote a response on Yelp to defendant’s review, which was subsequently removed, apparently by Yelp.  Plaintiff’s response stated: “Previous review by David [S]chantz is fiction. He was sued among other claims for assault and battery on a woman employee. He insisted on settling out of court years ago.  He is obsessed.” (Shantz Dec., Ex. E.)

Thereafter, on October 27, 2013, defendant provided the review at issue in this case in the form of an “Updated review” responding to plaintiff’s poste comment.  The “Updated review” stated: “My first review was fair and accurate as well as being verifiably truth. [sic] [Plaintiff’s] review here, of himself was not so much a rebuttal or argument against the facts, but an attempt to smear the reviewer for the very things he was hired to defend against…Can you imagine, that’s from an attorney…which I would regard as the best evidence of what I’m saying.” (Complaint, Ex. A.)

To state a libel claim which is not defeated by the freedom of speech protections of the First Amendment, plaintiff must allege a statement that is provably false.  (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. 2695.)  Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts' about an individual.” (Ibid., citing Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50.)

The factual statements are:  plaintiff charges $200 an hour; he charged $15,000 for less than seven days of trial prep work; it cost $36,000 to defend the case. Second, the essentially factual statements are: defendant had to—or felt compelled to under the circumstances based upon his opinion that plaintiff was not performing satisfactorily—bring in a separate labor law specialist and “for the most part had to drive the case in general—from finding witnesses and really anything that was not routine court paperwork;” and, defendant asked to be informed if the bill went over $5,000 in a billing cycle [but plaintiff did not comply with this request]. These statements demonstrate defendant’s opinion and expression of his discontent with plaintiff’s services. The gist of the review is that plaintiff is not worth the money paid because he is incompetent or lazy.  Last, is the statement that plaintiff threatened legal action if defendant took the fee dispute to the Bar Association.  The gist is that plaintiff acted improperly in trying to dissuade defendant from pursuing legitimate means of resolving a dispute that plaintiff padded his legal fees.  Imputing lack of ethics to an attorney may be actionable because it tends to injure him in his occupation.  Defendant’s original and updated reviews on Yelp reasonably appear to have been intended to deter others from hiring Plaintiff. 

An alternative interpretation of the statements is that when defendant proposed settling for less than the estimated trial costs and plaintiff realized he would not get trial fees, plaintiff padded his fees: he “hit” defendant with a $15,000 bill “for less than seven days of trial prep work.”

In reviewing an alleged defamatory meaning, “‘the context in which the statement was made must be considered.... [¶] This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.’” (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th at 1057, 1064–1065.)

Here, the review and update were published on Yelp.com.  Courts and commentators have recognized that internet postings are full of strongly worded opinions, sometimes facilitated by use of pseudonymous screen names. (Summit Bank v. Rogers, supra, 206 Cal.App.4th at 697.)   In this case, Defendant posted his review under his own name and, in the “Updated review,” he has asserted that his initial review was not merely a statement of opinion; that his negative comments were, in addition to being “fair and accurate”—qualities which might be ascribed to an opinion—were also “verifiably truth. [sic].”  Thus, defendant sought to present himself as not just a person with an opinion but also as a reporter of a series of “true facts” about Plaintiff.

Plaintiff has provided evidence that shows the action has at least the minimal merit required to defeat a SLAPP motion.  He has provided evidence that he billed defendant correctly for work done. Additionally, and significantly, he has provided evidence that he did not threaten to sue defendant if defendant disputed the fees. (See Bolt Dec.)

Defendant’s original review was published more than one year prior to the filing of this action. Absent republication, any claim based on the original review is barred by the statute of limitations.  (CCP § 340(c); Traditional Cat Ass'n, Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 399-403 (“Traditional Cat”.)

Plaintiff claims that defendant’s updated review on October 27, 2013, stating that defendant’s first review is “fair and accurate” and “verifiable truth” is a new publication which substantially alters and modifies the previous publication and adds new defamation.  Defendant contends that the “Updated review” added nothing to the original review.

Plaintiff cites the holding in Traditional Cat, supra, in support of his contention that the update to the Yelp review constitutes a republication of the original review similar to the republishing of a new edition to a book.  

Under the general rule, a new cause of action for defamation arises each time the defamer ‘repeats or recirculates his or her original remarks to a new audience. [Citations.](Ibid.; Newell, Libel and Slander (2d. ed. 1898) Publication of Defamatory Matter, § 23, p. 243 [“Every sale or delivery of a written or printed copy of a libel is a fresh publication....”].) (Hebrew Acad. of S.F. v. Goldman (2007) 42 Cal.4th 883, 891).  The single-publication rule, which holds that a cause of action for defamation based upon a statement in a book or newspaper accrues when the book or newspaper is first generally distributed to the public, is an exception to the general rule.  California has adopted the “single publication” rule.  (Civ.C. § 3425.3; (Shively v. Bozanich (2003) 31 Cal.4th 1230; Christoff v. Nestle, USA, Inc. (2009) 47 Cal.4th 468, 476).   In order to apply the single publication rule, a court must first determine what constitutes a “single integrated publication.”  As the Ninth Circuit observed in its decision in Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076, in which it was required to interpret California law: “[a]pplying the single-integrated-publication test to nontraditional publications can be tricky.”  (Yeager v. Bowlin, supra, 693 F.3d at 1082, citing Christoff v. Nestle, USA, Inc., supra,  47 Cal.4th 468 [Supreme Court remanded to develop record on whether different components of advertising campaign constituted a single integrated publication).  The Yeager case involved the question of whether any modification of a website containing allegedly defamatory content constituted a republication.  The Ninth Circuit noted that California courts had not squarely addressed this issue, although the lower appellate court decision in Christoff had stated, in dicta, that “‘[t]he modification of a Web site does not constitute a republication.’“ (Yeager v. Bowlin, supra, 693 F.3d at 1082; see also, Traditional Cat Ass'n, Inc. v. Gilbreath, supra,118 Cal.App.4th at 402.)  In Yeager, as in a number of other internet defamation cases, an initial publication of allegedly libelous or defamatory material was not held to have been republished simply because unrelated updates or changes were made to the website where the material was published.  (Yeager v. Bowlin, supra, 693 F.3d at 1082-1083, and cases cited).   However, in reaching this holding, the Ninth Circuit also noted: “substantive changes or updates to previously hosted content that are not ‘merely technical’ may sufficiently modify the content such that it is properly considered a new publication.”  (Yeager v. Bowlin, supra, 693 F.3d at 1082, citing Oja v. United States Army Corps of Engineers (9t Cir. 2006) 440 F.3d 1122, 1132).

Defendant is not alleged to own or control Yelp.com.  He posted his reviews on Yelp—a “public forum” or a place “open to the public.”  It was thus published to and for any member of the public visiting the Yelp website.

Defendant’s “Updated review” was intended for a new audience and it constituted a substantive update.  The new audience was anyone who had read plaintiff’s response to defendant’s original review.  Also, Defendant’s “Updated review” did three things that substantively changed the original review.  First, it strongly criticized plaintiff’s posted response, which augmented the criticisms in his original review.  Second, it republished and reaffirmed defendant’s original statements to the new audience of those who had read plaintiff’s response to defendant’s original review.  Third, the “Updated review” assured readers that defendant’s statements were not mere opinion, that the factual allegations he made were verifiably truthful.  This was a substantive modification of his original publication and thus constituted a new publication.  The statements made by defendant in his “Updated review” imply a provably false factual assertion. (Gilbert v. Sykes, supra, 147 Cal.App.4th at 27.)  Accordingly, the republication created a new cause of action, which is not time-barred.  Plaintiff filed the complaint on May 2, 2014, which is within one year from the date defendant posted his “Updated review” on October 27, 2013.  Accordingly, the motion is denied in its entirety.

As analysis of defamation claims based on internet posting is a developing area of the law, the court does not find that defendant’s special motion to strike was frivolous or solely intended to cause delay.  Therefore, although plaintiff has prevailed on this motion, plaintiff is not entitled to recover an award of his attorney fees. (CCP § 425.50(f).)

Rulings on evidentiary objections

1. Evidence defendant claims consist of improper legal conclusions and legal arguments (Evid. Code sections 800, 803:

Objection overruled as the statements are merely plaintiff’s point of view, position, or evidence, or because the statement objected to is not at the page cited: Dec. of Bolt, 2:7; 3:13; 3:18; 5:7-8; 8:6-7; 8:7-8; 9:21-22; 10:6-7; 12:3-5; 15:18-19; 15:21; 16:1-3; 16:17; 16:21-23; 17:1-11; 17:16-18; 18:3-4; 18:11-2; 4:12-14; 16:6-8; and 16:25.

Objection sustained: 10:8 (“he contradicts himself”); 10:7-8 (“patently ridiculous and defamatory”); 11:6-7, 11:15-20 (“they became statements of fact”);  12:11 (“he defamed me”); 12:15-19 (discussing waiver, estoppel, statute of limitations); 14:12-16 (discussing opinion vs. fact); 15:4-12 (“that is a false and defamatory statement”); 17:21-23; 19:8-13 (discussing standards for private/public figures).

2. Exhibits as Inadmissible hearsay, not authenticated:

Objection sustained: Exhibits A, B, and C.

3. Speculation

Objection overruled: 3:16-17.

Objection sustained: 10:3-5; 18:20-22

4. Foundation, Hearsay, Lack of personal knowledge:

Objection overruled: 14:17-20; 14:25 to 15:1-4; 19:3-5.

5. References to Attorney-Client privilege:

Objection sustained: Exhibits A, B to Memorandum of points and authorities.

Objection overruled: Exhibit J; Pages of Bolt dec.: 1, 2, 3, 4, 5 (lines 1-7, 12-25); 6 (lines 1-13, 19-25); 7 (lines 1-5, 10-25); 8 (lines 1-5, 14-25); 9 (lines 1-8); 10 (lines 13-17, 21-25); 16 (lines 2-8, 17-23); 17 (lines 5-11).

6. Failure to authenticate documents:

Objection sustained: Exhibits B-K. Plaintiff fails to properly authenticate the documents.

Objection overruled: Exhibit A.

7. Objection to Exhibit C to the MPA:

Overruled.

Plaintiff is to submit a written order consistent with this ruling.

 

 

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