After a client fired her attorney and his firm, the firm placed a lien on the client’s further recovery and then sued the client’s daughter for defaming them in several online reviews. The daughter moved to dismiss the defamation claim under our anti-SLAPP law (Code Civ. Proc., § 425.16),1 and the trial court granted the motion.
The Online Postings:
On November 19, 2017 (nine days after the firm asserted a lien on a lawsuit recovery), a person using a Yelp account with the name “AI L.” and with a photograph of Nahid’s daughter, Arta Lahiji (Arta), posted a review of the firm and Cohen (the Yelp review).
The reviewer recounted that she had hired Cohen to handle her “home insurance claim” and that Cohen had (1) used a law student “case manager” to negotiate with the insurer, (2) ignored the reviewer’s request to inform her of expenses “over a certain threshold,” (3) withheld disbursements to her longer than necessary, (4) improperly deducted expenses, and (5) repeatedly yelled when asked when checks would be cleared.
The review more broadly stated that the firm was “underhanded and shady,” was “unprofessional and unethical,” used “scare tactics,” and had an “awful moral compass.” The reviewer warned readers to “stay away from this firm.”
On November 21, 2017, an “anonymous” user posted an identical review on Avvo, an online lawyer directory.
On December 13, 2017, “Angela Helder” posted a review on the firm’s Facebook page that read: “Unprofessional and unethical group of attorneys . . . will botch your home owners insurance claim.”
On December 14, 2017, reviews identical to the Yelp review were posted on the website Ripoff Report by “Nancy” in “Redondo Beach” and on Google by “Nahid Lahiji.”
To prove defamation, a plaintiff must establish “‘(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’” (Taus v. Loftus (2007) 40 Cal.4th 683, 720; Civ. Code, §§ 44, 45, 45a.) Caveat, as always, the plaintiff must establish that the person sued is the one legally responsible for the tort. (See Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 329 [lawsuit will be dismissed if plaintiff “su[es] the wrong party”].)
Among other things, the anti-SLAPP law defines “protected activity” to include “any written . . . statement . . . made in a place open to the public or a public forum in connection with an issue of public interest.” (§ 425.16, subd. (e)(3).) As neither party disputes on appeal, reviews posted to an Internet website meet this definition of protected activity. (E.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145-1147; Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 310.)
The California Court of Appeal relied on the precise argument in Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924. Bel Air expressly held that a defendant who denies engaging in the alleged conduct “may rely on the plaintiff’s allegations alone” in assessing whether the conduct at issue is protected activity. (Ibid.) That is because it is “[the] plaintiff’s complaint [that] ultimately defines the contours of the claims.” (Id. at p. 936.) Not allowing the defendant to rely on the allegations alone, Bel Air reasoned, “would have the perverse effect of making antiSLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that [the anti-SLAPP law] was intended to address.” (Id. at p. 929.)
As to minimal merit, the court then evaluated whether the evidence submitted by the parties and admissible at trial amounts to a “‘sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’” or instead whether the defendant is entitled to prevail “‘as a matter of law.’” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1235, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on another point as stated in Hart v. Darwish (2017) 12 Cal.App.5th 218, 226, fn. 3; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906; Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26 [nonmoving party must meet its burden with “competent and admissible evidence”].) Because plaintiffs’ evidence must be credited, a court is not to make credibility determinations or otherwise weigh the evidence submitted. (Kashian, at p. 906.)
The California Court of Appeal independently agreed with the trial court’s conclusion that Plaintiff Cohen and the firm did not make a “prima facie showing” that Defendant Arta was legally responsible for the postings that underly their defamation claim.
Plaintiff’s should have added a correct DOE Defendant in this matter, and failed to do so. The trial court’s ruling was correct, and the California Court of Appeal affirmed.
If you are faced with California’s Anti-SLAPP issues, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez! 209-596-4263.
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the California Court of Appeal.