Defendant Andreas G. Papaliolios (Papaliolios) appeals from an order denying his special motion to strike a libel claim under Code of Civil Procedure section 425.16
Bently Nob Hill, LP, 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-cum-cotenant, Papaliolios left in early 2008.
"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."
Papaliolios posted substantially the same review several times.
On March 28, 2012, based on the posting quoted above, Bently, his wife, and Bently Nob Hill (collectively, plaintiffs) sued Papaliolios for libel.
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
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:
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
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.
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.)
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, 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
"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.)
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 actual 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 many of tens of thousands of dollars into their unit." He further asserted plaintiffs' activities "(likely) contributed" to the "deaths" of three particular tenants, "Pat, Mary, & John," and to the departure of tenants in eight particular units "(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 v. Lorain Journal Co., 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
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); see id. at p. 1163 ["online discussions may look more like a vehicle for emotional catharsis than a forum for the rapid exchange of information and ideas ..."]; ibid. 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 the 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 the defendant's credibility, and noting the defendant's "crude, ungrammatical" language, satirical tone, and vituperative, "juvenile name-calling," concluded
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." (Summit Bank, supra, 206 Cal.App.4th at pp. 696, 699.) 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 p. 696; see p. 680 & 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. 698, 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."
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
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 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 [of] any specificity." (Id. at pp. 1149-1150.)
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: "`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
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, 1164 ["targets" of anonymous "online aspersions may seek redress by filing suit against their unknown detractors"].)
"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.)
Plaintiffs also adduced evidence raising a triable issue that tenants were not sweepingly "evict[ed]," 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].)
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
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].)
The trial court's order denying Papaliolios's special motion to strike is affirmed. Respondents to recover costs on appeal.
Margulies, Acting P. J., and Dondero, J., concurred.