Opinion
A134931
2013-10-03
WILLIAM GWIRE, Plaintiff and Respondent, v. ELLIOT BLUMBERG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC11510305)
Plaintiff and attorney William Gwire sued his former clients, defendants Elliot Blumberg, Vigilant Investors' L.P., and Vigilant Investors' Asset Management LLC (collectively defendants) after Blumberg, an unhappy former client, posted disparaging comments about Gwire on complaintsboard.com, a web site providing a forum for the public to comment on and complain about consumer issues (complaintsboard.com or the web site).
The trial court granted defendants' anti-SLAPP motion (Code Civ. Proc., § 425.16) as to four causes of action in the operative complaint, but denied the motion as to Gwire's two defamation claims. The court concluded Gwire established a probability of prevailing on his defamation claims because Blumberg's statement that Gwire committed a "horrific fraud" against Blumberg that "irreparably damaged every aspect of [Blumberg's] life" was a false statement of fact, not opinion.
Unless otherwise noted, all further statutory references are to the Code of Civil Procedure. For an overview of the anti-SLAPP statute, see Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.
Blumberg appeals. We affirm. We conclude Blumberg's comments on complaintsboard.com, a consumer complaint web site, are protected under section 425.16, subdivision (e)(3): they are written statements made in a "public forum in connection with an issue of public interest[.]" We also conclude, however, that Gwire established a probability of prevailing on the merits of his defamation claims because Blumberg's post, in part, is susceptible to being read as containing false factual assertions. Gwire submitted sufficient evidence to satisfy his minimal burden to show a probability of prevailing on at least some aspect of his defamation claims.
FACTUAL AND PROCEDURAL BACKGROUND
Blumberg is the owner of Vigilant Investors' Asset Management, LLC and the general partner of Vigilant Investors' L.P. (collectively Vigilant or the hedge fund). Vigilant sued its then-broker before the National Association of Securities Dealers (NASD) claiming the broker incorrectly calculated the hedge fund's margin requirements, causing over $20 million in damages. The case settled in Vigilant's favor for $3.5 million, an amount apparently well below what Vigilant's attorneys predicted Vigilant would recover.
Blumberg decided to sue his NASD counsel for malpractice and hired Gwire to represent Vigilant. Vigilant's former counsel cross-claimed. An American Arbitration Association (AAA) panel rejected Vigilant's malpractice claim and awarded Vigilant's former counsel approximately $1.3 million, including unpaid attorney fees. The relationship between Gwire and Blumberg soured, each blaming the other for the adverse result. Blumberg was unhappy with Gwire's billing practices, believing Gwire committed billing fraud. Blumberg also attributed the award in favor of his prior counsel — which he called a "devastating outcome" — to Gwire's failure to: (1) conduct written discovery before the arbitration and introduce key evidence at the arbitration; and (2) understand and present a coherent damages theory to the arbitration panel. Gwire attributed the result to Blumberg's demonstrated "stunning display of a lack of self control," his erratic and "irrational" behavior[,]" his inability to cooperate with counsel or expert witnesses, and his misrepresentations about NASD counsel's performance. Gwire claimed he fired defendants as clients and sought repayment of $28,000 in costs he claimed defendants owed.
The AAA award describes Blumberg as a "difficult client." It states Blumberg disrupted the NASD hearing by, among other things, "furiously writ[ing] notes as his counsel" attempted to cross-examine a witness and by "emotionally react[ing] to questions or testimony that he did not perceive as favorable to his side of the case." Blumberg also hummed, snickered, and muttered throughout the hearing. According to the arbitration award, Blumberg "had issues with his former attorneys," "offended expert witnesses with whom his cooperation was required [and] failed to follow the advice of counsel." One of Blumberg's former expert witnesses described him as "aggressive, contentious and 'amongst the handful of the most difficult people [he'd] met in any context.'"
A few days later, Blumberg anonymously posted the following comment on complaintsboard.com, a web site billing itself as "'the most trusted and popular consumer complaints website[:]'"
"Gwire Law Offices Complaints — Gwire ruins lives —numerous cases against him "Gwire committed a horrific fraud against me that has irreparably damaged every aspect of my life. I hope this partial summary of Gwire's incredibly unethical history may help other innocent people. Gwire has been sued at least THIRTEEN times by those who have trusted him. These include at least the following ELEVEN cases.
• Clients - at least six separate cases"There is no way to know if these THIRTEEN cases against Gwire are everything, but odds are they are not, because 1) I only had time for a quick search. I did not list other cases against Gwire because there were no details online; 2) Gwire has worked in many other counties. This was just a search of SF. Given his massive record of harming others that is so easily found, he has surely harmed others as well; 3) Gwire likely damaged other clients so badly that they could not afford to file suit against him, which is what he did to me. Meanwhile, at least five different tax liens have also been filed against Gwire, in 1995, 1998, 2002, 2006 and 2007. "The following excerpts are from the most recent (known) suit against Gwire, filed by Readylink in L.A, #BC423848. Bad as this is, my experience with Gwire was worse, and other cases against Gwire appear also to be worse: "Defendants were representing Plaintiffs regarding the claims against LBBS for at least 23 months, and handling the LBBS Litigation for at least 20 months, during which time they did not conduct or defend a single deposition and did not prepare the case for trial. Defendants never completed their investigation. Defendants did not interview critical witnesses. Defendants did not review critical client files. Defendants lost control of relevant documents and failed to preserve evidence, including the files of Greg Hafif, a lawyer who had taken over the representation of ReadyLink. . . Defendants did not obtain critical third party evidence. Defendants failed to serve necessary third party discovery such that Plaintiffs later discovered that. . . records of one company were destroyed, and therefore became unavailable for use... [D]efendants allowed the case to get to the critical time frame of only. . . 3) months from a scheduled trial without preparing the case or conducting any meaningful discovery. "Defendants were unprepared to prove causation and damages. . . Among other things, Defendants had not obtained the transcript of the trial. . . and, without it, could not possibly have presented the necessary proof of the claims. . . "Despite having been engaged in July 2006, Defendants did not begin reviewing hundreds of boxes of client documents until March 2008, only three months prior to the then scheduled trial, and some 18 months after the LBBS Litigation was commenced. Defendants did not even substantively begin the process of gathering information necessary to contact key witnesses or subpoena critical documents from third parties until eighteen (18) months into the case. Defendants did not implement a discovery plan or a trial plan, and if they prepared those, they did not carry them out. The limited work that Defendants did was not useful to the clients and did not advance the prosecution or defense of the LBBS Litigation. Because of their lack of diligence and failure to honor their contractual obligations, the Defendants had to seek two continuances of the trial date."
• Clients who sued Gwire (just in SF) include at least: 1. Hallock 2. Madden 3. Scherpf 4. Chan and 5. Krantz. All of these cases are found at http://www.sfsuperiorcourt.org/index.aspx?page=467. Just enter Gwire's name. In a 6TH case, in L.A, Gwire was sued by Readylink.
• Former employees - Lara Shapiro
• Predecessor counsel - Margaret Seltzer
• Expert witnesses - Roulac Group
• Court reporters - Sheila Chase
• At least one other service provider - U.S. Legal Support.
Gwire posted a lengthy rebuttal and Blumberg posted a retort. Then Gwire — who deduced Blumberg was the anonymous author of the postings — threatened to sue Blumberg if he did not remove the post. Blumberg revised the post but did not remove it. Gwire sued defendants. The operative first amended complaint alleged six claims, including two claims for defamation based on statements appearing on the web site. In the second and third causes of action, respectively, Gwire alleged the statements about him constituted libel per se and trade libel because they were false, unprivileged, and made with actual malice. Specifically, Gwire alleged the statements, "Gwire ruins lives" and "Gwire committed a horrific fraud" against Blumberg were "demonstrably false." He alleged most of Blumberg's "explicit factual statements greatly transcend being mere opinions, and clearly are assertions of facts that are capable of being conclusively established with evidence to be either true or untrue." Gwire sought several forms of relief, including compensatory and punitive damages.
The operative complaint focuses on Blumberg's original March 12, 2011 posting. In his rebuttal, Gwire called Blumberg "not only unreliable but a proven liar." The rebuttal referred to Blumberg as "a mentally unbalanced former client . . . who has a history of taking bizarre, and even criminal actions against people he believes have hurt him." Gwire claimed Blumberg had a pattern of blaming others "for his failures." According to Gwire, Blumberg had "completely lost not one, but two fortunes entrusted to him . . . in his attempt to be a hotshot hedge fund manager[.]" Gwire also stated Blumberg's "wife has divorced him and their divorce file is replete with episodes of unstable behavior by him." Finally, Gwire accused Blumberg of "lashing out."
Defendants moved to strike the operative complaint pursuant to section 425.16. They argued Blumberg's statements were protected speech because Blumberg made them in a public forum in connection with an issue of public interest under section 425.16, subdivision (e)(3). They also argued the statements were protected as statements made before or in connection with official proceedings under section 425.16, subdivisions (e)(1) and (2). In addition, defendants claimed Gwire could not establish a probability of prevailing on his defamation claims because Blumberg's statements were "well-grounded opinions, and were not malicious" and because Gwire could not establish pecuniary loss or an intent to cause financial harm.
Defendants moved for judicial notice of various documents arising out of litigation where Gwire was a defendant, including complaints against Gwire, an order disqualifying Gwire as counsel, and a judgment against Gwire. Blumberg submitted a lengthy declaration describing Gwire's mishandling of the malpractice action and explaining why he posted on complaintsboard.com. Blumberg averred, "In my struggle to understand why Mr. Gwire acted as he did, I have learned that many others have had similar experiences with Mr. Gwire. Therefore, on or about March 12, 2011, I decided to submit a posting to the web site www.complaintsboard.com, which described some of the other cases that I had located from public records involving Mr. Gwire and included some comments regarding my opinions about his performance in the [malpractice] [a]ction." Blumberg averred it was his "true and honest belief and opinion that Mr. Gwire committed a horrific fraud and that he ruins lives, and that all of the statements in [his] posting [were] either true facts or honest opinions."
Blumberg further averred Gwire was a well-known attorney and had "sought and received positive publicity." "Given the extensive coverage Mr. Gwire had received and the praise he posted of himself on his website," Blumberg felt "it was particularly important to alert people considering retaining [Gwire] of the problems that others have had with him and to provide my own opinions of his work." Blumberg testified he believed in "the importance of the warnings regarding the potential dangers of being represented by Mr. Gwire" because Gwire was a "risky choice of counsel" with a "cynical view of his clients" and a willingness to disclose privileged client communications. Blumberg's declaration attached various documents, including the original posting on complaintsboard.com.
In opposition, Gwire argued his claims did not arise from Blumberg's protected speech. He also claimed he could establish a probability of prevailing on the merits because Blumberg's comments constituted libel per se and did "not constitute non-actionable opinions." In support of the opposition, Gwire submitted a detailed declaration averring Blumberg's statements were false and describing the "serious economic consequences" Blumberg's posting had on his law practice. Gwire's declaration noted Blumberg's post "paint[ed] an unfair and misleading picture" about the lawsuits Gwire had been involved in because the post omitted "any information about the actual disposition of the cases, especially the malpractice cases he referenced, only one of which . . . had ever gone so far as to even involve a compromise settlement[.]" Gwire also submitted a request for judicial notice of various documents in cases where he was a party. In reply, Blumberg submitted a detailed supplemental declaration countering statements in Gwire's declaration.
Following a hearing, the court granted the motion in part but denied it as to the two defamation claims. The court concluded Blumberg's post consisted of "protected and unprotected statements." The court determined Blumberg's report of lawsuits and tax liens was protected under section 425.16, subdivisions (e)(1) and (2) but that the "charge of 'horrific fraud'" was not protected under section 425.16, subdivision (e)(3) because it did not have "value beyond a personal statement in a private war." The court nevertheless found defendants satisfied their burden with respect to Gwire's defamation claims, apparently because the protected conduct was not incidental to the unprotected conduct.
The court also determined Gwire established a probability of prevailing on the merits of his defamation claims because "[t]he statement by Blumberg that 'Gwire committed a horrific fraud against me that has irreparably damaged every aspect of my life' [was] asserted as fact, not opinion. The evidence produced establishes that Gwire has sufficient evidence to convince a jury that the statement is false. An accusation that an attorney has committed a crime such as fraud is dishonest or lack[s] ethics is actionable without proof of special damages." The court determined Gwire was not a limited purpose public figure as defendants urged and, as a result, he was not required to establish Blumberg acted with actual malice. Finally, the court determined Gwire established a likelihood of prevailing on his trade libel claim because he offered sufficient evidence "from which a jury could conclude that he suffered specific pecuniary loss[,]" particularly his account of his loss of "anticipated expert witness fees."
DISCUSSION
"In ruling on a special motion to strike, the trial court follows a two-step analysis that involves shifting burdens. [Citation.] The moving defendant carries the initial burden to show the challenged cause of action arises from protected free speech or petitioning activity. [Citation.] The burden is satisfied by demonstrating that the conduct underlying the plaintiff's claim fits into a category of protected activity set forth in section 425.16, subdivision (e). [Citation.]" (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 489, fn. omitted (Castleman).)
"If the court finds the defendant's threshold showing has been made, the burden shifts to the plaintiff to produce evidence establishing a probability of prevailing on the cause of action. [Citation.] To meet this burden, the plaintiff must plead and substantiate a legally cognizable claim for relief. [Citation.] "'Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" [Citation.]" (Castleman, supra, 216 Cal.App.4th at p. 490.)
"Only a '"minimum level of legal sufficiency and triability"' is needed to satisfy the second prong of the anti-SLAPP statute. [Citation.] The evidence favorable to the plaintiff is accepted as true, while the defendant's evidence is evaluated to determine if it defeats the plaintiff's claim as a matter of law, e.g., on grounds of privilege or immunity. [Citation.] The motion will not be granted unless both prongs of the statute are established; the plaintiff's cause of action must arise from protected speech or petitioning and lack even a minimal degree of merit. [Citation.]" (Castleman, supra, 216 Cal.App.4th at p. 490.) We review an order on an anti-SLAPP motion de novo: "we engage in the same two-step process as the trial court to determine if the parties have satisfied their respective burdens." (Ibid.)
I.
Gwire's Defamation Claims Arise from Protected Activity
"A claim is subject to the anti-SLAPP statute if it arises from one of the four categories of protected activity set forth in section 425.16, subdivision (e). [Citation.] One of these categories is section 425.16, subdivision (e)(3), which describes an "'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue'" as including '. . . any written or oral statement or writing made in a . . . a public forum in connection with an issue of public interest."' (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 693 (Summit Bank).)
An Internet discussion group or bulletin board like complaintsboard.com is a public forum. "It is settled that 'Web sites accessible to the public . . . are "public forums" for purposes of the anti-SLAPP statute.'" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366, citation omitted (Wong).) "[W]e view the Internet as an electronic bulletin board open to literally billions of people all over the world. [Citation.] The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood." (Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 (Chaker); Summit Bank, supra, 206 Cal.App.4th at p. 693 ["'Rants and Raves,'" an Internet message board, is a public forum and collecting cases].)
We must determine whether Blumberg's post was made "in connection with an issue of public interest[.]" (§ 425.16, subd. (e)(3).) "Section 425.16 does not define 'public interest'" but courts have construed the phrase "'broadly' to safeguard 'the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.]" (Summit Bank, supra, 206 Cal.App.4th at pp. 693, 695 [noting the "exceedingly 'expansive interpretation of the phrase 'issue of public interest'"].) In this vein, several courts have defined an "issue of public interest" as "'any issue in which the public is interested.'" (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465, quoting Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716.)
In addition, courts considering this issue "have emphasized that the public interest may extend to statements about conduct between private individuals." (Chaker, supra, 209 Cal.App.4th at p. 1145.) Although not every web site post "'involves a public issue' . . . consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute." (Wong, supra, 189 Cal.App.4th at p. 1366.) Other courts have applied the following test to determine whether an issue is of public interest: "'[a] public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest.'" (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1215, quoting Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814.)
Applying these principles, several cases have concluded consumer information posted on a web site concerns an issue of public interest. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23 [patient's statements about a plastic surgeon were of public interest under section 425.16 because they provided information that would be material to potential consumers "contemplating plastic surgery"]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks) ["[c]onsumer information" posted on the Internet "at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest"]; Wong, supra, 189 Cal.App.4th at pp. 1366-1367 [review on Yelp criticizing dental services and discussing use of silver amalgam raised issues of public interest].)
Chaker is instructive. There, the defendant posted derogatory comments about the plaintiff and his forensics business on the web site "Ripoff Report." (Chaker, supra, 209 Cal.App.4th at p. 1146.) The defendant's statements included "'You should be scared. This guy is a criminal and a deadbeat dad. . . . 'I would be very careful dealing with this guy. He uses people, is into illegal activities, etc. I wouldn't let him into my house if I wanted to keep my possessions or my sanity.'" (Id. at p. 1142.) The defendant also accused the plaintiff of picking up streetwalkers and homeless drug addicts. (Ibid.) The appellate court had "little difficulty finding the statements were of a public interest. The statements posted to the Ripoff Report Web site about Chaker's character and business practices plainly fall within the rubric of consumer information about Chaker's 'Counterforensics' business and were intended to serve as a warning to consumers about his trustworthiness." (Id. at p. 1146.)
The same is true here. Blumberg's post on complaintsboard.com told the story of his interactions with Gwire on a consumer information web site, noted several former clients had sued Gwire, and impliedly warned consumers not to do business with Gwire. Blumberg's comment — "I hope this partial summary of Gwire's incredibly unethical history may help other innocent people" — constituted an implicit warning not to use Gwire's services and was "in the nature of consumer protection information[.]" (Chaker, supra, 209 Cal.App.4th at p. 1144, quoting Wilbanks, supra, 121 Cal.App.4th at p. 900.) In their anti-SLAPP motion, defendants established Gwire was in the public eye and that his conduct could affect a large group of people: defendants offered evidence that Gwire was a high-profile attorney who claimed to have represented at least 5,000 clients. We agree with the trial court that "[c]onsumers of legal services are entitled to as much information as possible about the lawyers they will entrust with their business. Thus, accurate information about Gwire or any lawyer is of more than trivial interest to a potentially large segment of society." (See Wilbanks, supra, 121 Cal.App.4th at pp. 898-899.) As a result, Blumberg's posting on complaintsboard.com was "directly connected to an issue of public concern." (Id. at p. 900.)
Gwire's attempts to distinguish Chaker are unsuccessful and do not diminish Chaker's persuasive authority for the proposition that internet postings about the business practices of one offering professional legal services to the general public is consumer information of public interest. (See King, Someone Online Hates You, S.F. Recorder (Aug. 19, 2013), pp. 14-15.)
Our conclusion is bolstered by Makaeff v. Trump University, LLC (9th Cir. 2013) 715 F.3d 254 (Trump University)), where the Ninth Circuit Court of Appeals held that "[u]nder California law, statements warning consumers of fraudulent or deceptive business practices constitute a topic of widespread public interest, so long as they are provided in the context of information helpful to consumers." (Id. at p. 262.) In Trump University, a "[d]isgruntled former customer of" Trump University "posted on Internet message boards about her dispute about Trump University" and later sued for deceptive business practices. Trump University counterclaimed for defamation. (Id. at pp. 258, 260.) The Ninth Circuit Court of Appeals concluded Trump University's defamation claim arose from protected speech. It determined "the postings constituted consumer protection information because they were intended as 'a warning not to use plaintiffs' services' and came in the context of information that was 'provided to aid consumers.' [Citation.]" (Fn. omitted.) The court observed the former customer's claim that she posted on the Internet "'to alert other consumers of my opinions and experience with Trump University' and to 'inform other consumers of my opinion that Trump University did not deliver what it promised'" was "plausible." (Ibid.) The Ninth Circuit concluded, "Because at least some of [the] statements were made with the intent to warn consumers about the educational experience at Trump University, we agree with the district court that Trump University's counterclaim arises from an act protected under the anti-SLAPP statute." (Ibid.)
As in Trump University, it is "plausible" to interpret Blumberg's posting as a warning to consumers. Blumberg posted his comments using the screen name "hopethishelpsyou" and stated he hoped to "help other innocent people." In his declaration in support of the anti-SLAPP motion, Blumberg averred he believed Gwire was "a serious threat to his own clients and a very risky choice of counsel" and that Gwire's actions in response to the posting "illustrate[d] the importance of the warnings regarding the potential dangers of being represented by Mr. Gwire."
Citing Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), Gwire contends Blumberg's statements "served a personal vendetta, not a public interest." In Du Charme, a union local posted a notice on its web site informing members that a former business manager had been removed for mismanagement. The notice also assured members the local's business would continue to run smoothly. (Id. at pp. 113-114.) The Du Charme court concluded the union's web site posting was not protected under section 425.16, subdivision (e)(3) because it was "unconnected to any discussion, debate or controversy." (Id. at p. 118.) The court held, "to satisfy the . . . issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Id. at p. 119, fn. omitted.) As the Du Charme court observed: "[the manager's] termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute's purpose of encouraging participation in matters of public significance [citation]." (Id. at p. 118.)
Du Charme is distinguishable for several reasons. First, courts have not applied the Du Charme rule in cases concerning consumer information. (See, e.g., Wilbanks, supra, 121 Cal.App.4th at p. 898 ["[c]onsumer information, however, at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest"]; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343 (Carver) [article involved a matter of public concern under section 425.16, subdivision (e)(4) where it warned readers not to rely on podiatrist's ostensible experience treating professional athletes and told readers what it described as "a 'cautionary tale' of plaintiff exaggerating that experience to market his practice"].)
Second, Blumberg was not merely providing informational statements about a previously-resolved issue as in Du Charme. Instead, he claimed to be providing information as a way to "help other innocent people." (See Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 738 [accusations against a current local union official were of public interest]; Carver, supra, 135 Cal.App.4th at p. 343 ["statements were a warning"].) Third, even if we assume for the sake of argument the issue is of interest only to a small group, Blumberg's statements occurred in the context of an ongoing controversy. "[W]e must broadly construe the judicially created prerequisite of an 'ongoing controversy, dispute, or discussion' . . . to safeguard the valid exercise of protected activity and further the statute's purpose of encouraging participation in matters of public significance." (See Cross v. Cooper (2011) 197 Cal.App.4th 357, 382-383.) Here, Blumberg's statements arguably contributed to a public discussion on attorney practices or, at the very least, to the importance of diligently researching an attorney before hiring him or her. (See Wong, supra, 189 Cal.App.4th at p. 1367 [Internet posting constituted protected consumer information because it "implicitly dealt with" the general issue of nitrous oxide and silver amalgam in fillings]; see also Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1363 ["the public has a well-recognized interest in knowing about the quality and contents of consumer goods"]; cf. Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1121.)
Interpreting — as we must — the phrase "issue of public interest" broadly, we conclude under the circumstances of this case Blumberg has satisfied his burden of showing his comments on Gwire's business practices on complaintsboard.com, a consumer complaint web site, are protected under section 425.16, subdivision (e)(3) because they constitute a form of consumer information that could affect a large number of people. (Summit Bank, supra, 206 Cal.App.4th at p. 695.) We do not, however, hold that any website comment criticizing one's current or former lawyer would be subject to the anti-SLAPP law. Having reached this result, we need not consider whether Blumberg's comments are protected under section 425.16, subdivisions (e)(1) and (2).
II.
Gwire Has Established a Probability of Prevailing on His Defamation Claims
Because Blumberg's Post is Susceptible to Being Read
as Containing False Factual Assertions
Having determined Gwire's defamation claims arise from activity protected by section 425.16, we now determine whether Gwire has carried his burden to establish he will probably prevail on his claims. (§ 425, subd. (b)(1).) "To satisfy this second prong of the anti-SLAPP analysis, "'"'the plaintiff "'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.]' [Citation.]'" "Thus, plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment." [Citation.] If the plaintiff fails to carry that burden, the cause of action is "'subject to being stricken under the statute." [Citation.]' [Citation.]" (Summit Bank, supra, 206 Cal.App.4th at p. 695.)
The trial court denied defendants' anti-SLAPP motion as to Gwire's defamation claims because it determined Blumberg's statement that Gwire's representation constituted a "horrific fraud against me that has irreparably damaged every aspect of my life" was "asserted as fact, not opinion" and that Gwire had produced evidence sufficient to convince a jury the statement was false. As the court explained, "[a]n accusation that an attorney has committed a crime such as fraud[,] is dishonest or lacks ethics is actionable without proof of special damages."
"Defamation requires the intentional publication of a false statement of fact that has a natural tendency to injure the plaintiff's reputation or that causes special damage." (Burrill v. Nair (2013) 217 Cal.App.4th 357, 383 (Burrill), review den. Oct. 2, 2013.) "Where a libelous statement 'is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage. [Citations.] [F]alse statements charging the commission of crime, or tending directly to injure a plaintiff in respect to his or her profession by imputing dishonesty or questionable professional conduct are defamatory per se." (Id. at pp. 350-351 [statements accusing the plaintiff "of extortion, prescribing medication without a license, perjury, and selling child custody recommendations . . . are defamatory per se"].)
Here, Blumberg claimed Gwire committed a "horrific fraud against me that has irreparably damaged every aspect of my life," but he also accused Gwire of: (1) having an "incredibly unethical history"; (2) having a "massive record of harming others"; and (3) "damag[ing] other clients so badly that they could not afford to file suit against him, which is what he did to me." Such statements, if false, are defamatory per se. (Burrill, supra, 217 Cal.App.4th at pp. 385-386.)
A.
Defamatory Nature of the Statements
Blumberg focuses on the "horrific fraud" comment and contends it was "non-actionable opinion." "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.'" (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426 (Bently Reserve), quoting Summit Bank, supra, 206 Cal.App.4th at p. 695.) "That does not mean that statements of opinion enjoy blanket protection. [Citation.] On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.] The 'crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. [Citation.] [Citation.]' 'Only once the court has determined that a statement is reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. [Citations.] [Citation.]' The question is '"whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. . . ." [Citation.] [Citation.]'" (Summit Bank, supra, 206 Cal.App.4th at p. 696.) "[I]f 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." (Bently Reserve, supra, 218 Cal.App.4th at p. 427, quoting (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 (Kahn).)
"To determine whether a statement is actionable fact or nonactionable opinion, we apply a totality of the circumstances test pursuant to which we consider both the language of the statement itself and the context in which it is made. [Citation.] On the issue of context, our Supreme Court has explained: '[W]here potentially defamatory statements are published in a . . . setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.' [Citation.]" (Summit Bank, supra, 206 Cal.App.4th at p. 696; see also Hawran v. Hixon (2012) 209 Cal.App.4th 256, 289 ["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 omitted].) Courts "have recognized that online blogs and message boards are places where readers expect to see strongly worded opinions rather than objective facts." (Summit Bank, supra, 206 Cal.App.4th at p. 697.)
Summit Bank is instructive. There an employee and stockholder of Summit Bank (the Bank) posted comments in the "Rants and Raves" section of Craigslist disparaging the Bank's management decisions and financial stability. The employee's "posts covered the following general topics: The Bank didn't pay dividends in 2009; (2) the 'bitch CEO' who runs the Bank 'thinks that the Bank is her personel [sic] Bank to do with as she pleases'; (3) the CEO should not be allowed to provide an executive position to her 'worthless, lazy fat ass son'; (4) depositors should move their accounts immediately, 'before its [sic] too late;' (5) the Bank is 'screwed up,' 'piss poor,' and a 'problem Bank;' (6) the Federal Deposit Insurance Corporation (FDIC) and California Department of Financial Institutions have 'look[ed] at Summit Bank' three times in less than one year and that is 'not a good thing;' (7) service was poor at the Bank's Hayward branch and the Bank closed it; (8) after the Hayward branch was closed, the customers 'were left high and dry;' and (9) the Bank's depositors should leave 'before they close.'" (Summit Bank, supra, 206 Cal.App.4th at p. 697.)
A division of this court concluded the Bank failed to establish a probability of prevailing on its defamation claim because a reasonable reader could not reasonably interpret the employee's statements as "implying provable assertions of fact." (Summit Bank, supra, 206 Cal.App.4th at p. 699.) First, the court examined the context of the statements and observed a reader "should be predisposed to view them with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts" because the "statements appeared in a section of the Craigslist Web site entitled 'Rants and Raves' . . . '[A]ny reader familiar with the culture of . . . most electronic bulletin boards . . . would know that board culture encourages discussion participants to play fast and loose with facts. . . . Indeed, the very fact that most of the posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly.' [Citations.]" (Summit Bank, supra, 206 Cal.App.4th at pp. 696-697, fn. omitted.)
Next, the court examined the language the employee used and concluded "Looking at the actual language used in [the] posts, it is obvious [his] messages are intended to be free-flowing diatribes (or 'rants') in which he does not use proper spelling or grammar, and which strongly suggest that these colloquial epithets are his own unsophisticated, florid opinions about the Bank and its key personnel." (Summit Bank, supra, 206 Cal.App.4th at p. 699.) In reaching this conclusion, Summit Bank concluded "courts have frequently found the type of name calling, exaggeration, and ridicule found in [the employee's] posts to be nonactionable speech." (Ibid., citing cases.)
Chaker reached a similar conclusion. It determined the defendant's derogatory comments about the plaintiff were nonactionable opinions because they "were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that [the plaintiff] is a dishonest and scary person. This overall appraisal of [the plaintiff] is on its face nothing more than a negative, but nonactionable opinion." (Chaker, supra, 209 Cal.App.4th at pp. 1149.)
As in Summit Bank and Chaker, Blumberg's statements were made on an Internet discussion group where consumers provide one-sided viewpoints and air their complaints on consumer issues. Gwire concedes the web site "[a]rguably . . . can be expected to attract disgruntled customers and dissatisfied consumers." He is correct. Posters on "message boards often make outrageous claims . . .' and '[m]ost visitors are completely aware of the unreliable nature of these posts." (Chaker, supra, 209 Cal.App.4th at p. 1148, quoting Comment, Cybersmear or Cyber-SLAPP: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation (2001) 25 Seattle U. L.Rev. 213, 217.) In the trial court, Gwire characterized the post as a "rant" and accused Blumberg of "lashing out." (See Chaker, supra, 209 Cal.App.4th at p. 1148 ["In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums"].)
The web site's terms of use state a complaint message is "only a personal opinion" and "perception" of a consumer.
Next, we examine Blumberg's language: his claims that Gwire committed a "horrific fraud" and "irreparably damaged" his life, that Gwire had "incredibly unethical history," a "massive record of harming others" and had "damaged other clients." To some extent, the accusatory and inflammatory language used throughout the post suggests the type of "rhetorical hyperbole, incapable of being proved true or false." (Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440 [attorney's use of colorful expressions such as "'dishonest'" and "'one of the worst judges in the United States'" conveyed "nothing more substantive than [attorney's] contempt for [the judge in question]"; see also Letter Carriers v. Austin (1974) 418 U.S. 264, 283-284 ["'traitor[s]'" understood to mean the plaintiffs' actions were reprehensible, not that they had committed treason]; Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14 ["'blackmail'" was a vigorous epithet used to describe unreasonable negotiations].) Gwire's response to the post — which contained equally florid language accusing his former client of being "unreliable," a "proven liar" and "mentally unbalanced"— underscores our conclusion that readers of the consumer message board at issue likely viewed the post as opinion, not fact.
Gwire, however, claims Blumberg included inaccurate, misleading, and "purposefully incomplete" information about litigation involving Gwire, suggesting to the reader that Blumberg was communicating facts — not opinions — about Gwire's reputation. Wilbanks supports Gwire's argument. In Wilbanks, the defendant posted a warning on her web site to be careful when using the plaintiff's brokerage service, stating: "'Be very careful when dealing with this broker. Wilbanks and Assoc. is under investigation by the CA dept. of insurance. The complaint originated with a California viator who won a judgment against Wilbanks. How many others have been injured but didn't have the strength to do anything about it? [¶] The company is under investigation. Stay tuned for details. [¶] Wilbanks and Associates provided incompetent advice. [¶] Wilbanks and Associates is unethical.'" (Wilbanks, supra, 121 Cal.App.4th at p. 901, italics omitted.)
A division of this court reversed the order granting the defendant's anti-SLAPP motion, concluding the defendant's statements of opinion were actionable because they "omit[ted] potentially significant facts" about the judgment against the plaintiff and about the Department of Insurance investigation. (Wilbanks, supra, 121 Cal.App.4th at p. 903.) As the Wilbanks court explained, "[a] statement of opinion may be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. '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. . . .' [Citations.]" (Id. at pp. 902-903.) The court further concluded the defendant's "position as a crusader and watchdog to the industry" demonstrated she "expected readers to rely on her opinions as reflecting the truth." (Id. at p. 904, fn. omitted.)
Bently Reserve, a case recently decided by our colleagues in Division One, reached a similar conclusion. There, the defendant posted a negative review about an apartment building at 1360 Jones Street (the Jones Building) on Yelp. The review 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.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 423.)
The plaintiff building owners sued for defamation and the trial court denied the defendant's anti-SLAPP motion. The Bently Reserve court affirmed, holding the defendant's "review, in part, is susceptible to being read as containing factual assertions, not just mere opinion[.]" (Bently Reserve, supra, 218 Cal.App.4th at p. 422.) It explained that although the defendant "used some hyperbole and name calling . . . the review also included purported facts about the Jones Building" — that plaintiffs sought to evict tenants and that plaintiffs' activities contributed to certain tenant deaths. The court also noted, "In fact, [the defendant] 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.'" (Id. at p. 428.) The court concluded the defendant's "assurances suggest facts are being communicated, not opinions." (Id. at p. 429.)
The court continued, "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. [Citation.] 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." (Bently Reserve, supra, 218 Cal.App.4th at p. 431.)
On the one hand, the average Internet reader could interpret the statements at issue as offering a subjective — and perhaps unjustified — description of Blumberg's experience with Gwire, i.e., "insulting name calling . . . which one would expect from someone who had an unpleasant personal or business experience with [Gwire] and was angry with him rather than as any provable statement of fact." (Chaker, supra, 209 Cal.App.4th at p. 1149.) In addition, Blumberg's comments about his experiences with Gwire "lack any specificity as to the time or place of [Gwire's] supposed behavior; the absence of such specificity is yet a further signal to the reader there is no factual basis for the accusations." (Id. at pp. 1149-1150.)
On the other hand, and under Wilbanks and Bentley Reserve, Blumberg's post could reasonably be perceived as containing actionable assertions of fact. As in Wilbanks, Blumberg posted incomplete information about litigation involving Gwire: he quoted from complaints filed against Gwire without noting that Gwire had prevailed in several cases, and without noting that two cases were in small claims court. By omitting the litigation's forum and outcome, Blumberg "allowed readers to assume the worst[.]" (Wilbanks, supra, 121 Cal.App.4th at p. 903.) And as in Bently Reserve, Blumberg sought to develop "credibility with his audience as to these factual assertions" by relying on "evidence" — in the form of unverified complaints — to support his comments. Blumberg stated he performed a "search" for lawsuits, suggesting he had "specialized knowledge" involving Gwire. Moreover, he characterized his post as a "summary" to "help other innocent people," akin to the research reports, bulletins and alerts, described in Bently Reserve. Here, the circumstances suggest the post could reasonably be perceived as containing actionable assertions of fact. (See also Sanders v. Walsh (Sept. 16, 2013, No. G047440) __ Cal.Rptr.3d __, __ [posts on various web sites, including Yelp were "specific factual claims" not "mere opinion"].) Under the totality of the circumstances in this case, we conclude Blumberg's posting was "'reasonably susceptible of an interpretation which implies a provably false assertion of fact.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 428, quoting Kahn, supra, 232 Cal.App.3d at p. 1608.) "Where, as here . . . the allegedly libelous remarks could have been understood by the average reader" as either fact or opinion, "the issue must be left to the jury's determination." (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682.)
B.
Falsity
Blumberg argues that even if his posting contains express or implied statements of provable fact, the gist of his post was "substantially true'" and truth is a complete defense to a libel claim. Specifically, he claims Gwire committed billing fraud.
"'[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.]" [Citation.]'" (Bently Reserve, supra, 218 Cal.App.4th at p. 434.) "'By the same token, not every word of an allegedly defamatory publication has to be false and defamatory to sustain a libel action.' [Citation.]" (Ibid.)
In his lengthy and detailed declaration in opposition to the anti-SLAPP motion, Gwire averred: (1) the information Blumberg posted about cases against him was incomplete and inaccurate; (2) he did not commit billing fraud; and (3) he competently represented Blumberg. While Blumberg responded with competing evidence regarding Gwire's prior litigation and billing practices, "the present state of the evidence is, at best, murky. It certainly is not sufficiently clear to conclude [Blumberg] is entitled to a defense judgment as a matter of law, even as to his statements about [billing fraud], on the basis of 'substantial truth.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 435.) Given these triable issues in connection with the merits of Gwire's libel claim, "a trier of fact might conclude his review was not substantially true and was defamatory." (Ibid.; see also Kahn, supra, 232 Cal.App.3d at p. 1608 [whether statement is defamatory is for jury in close cases].)
Blumberg claims Gwire cannot establish a probability of prevailing on the trade libel claim because Gwire failed to present evidence of pecuniary loss. We disagree. In opposition to the motion, Gwire submitted evidence that his email and phone traffic decreased after Blumberg posted on complaintsboard.com. as well as evidence that one prospective client declined to hire him as an expert witness after Gwire disclosed Blumberg's "disparaging internet posting."
C.
Actual Malice
The trial court concluded Gwire was not a limited purpose public figure. We assume for the sake of argument Gwire is a limited purpose public figure and must establish actual malice. To "successfully defend against [defendants'] anti-SLAPP motion, [Gwire] must 'establish a probability that [he] will be able to produce clear and convincing evidence of actual malice.' [Citation.]" (Burrill, supra, 217 Cal.App.4th at p. 390.) "'Actual malice may be proved by direct or circumstantial evidence. Factors such as failure to investigate, anger and hostility, and reliance on sources known to be unreliable or biased "may in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his [or her] publication."' [Citation.]" (Ibid.)
Here, there "is an abundance of evidence" of Blumberg's "anger and hostility" toward Gwire. (Burrill, supra, 217 Cal.App.4th at p. 391.) There is no dispute Gwire and Blumberg had a contentious relationship before Blumberg posted on complaintsboard.com. Not surprisingly, their relationship soured considerably after Blumberg posted on the web site and refused to remove the post. In a series of emails to Gwire after he posted on the web site, Blumberg accused Gwire of criminal conduct and claimed Gwire "would like to cause harm to me." In addition, Gwire's evidence allows an inference that Blumberg acted with a reckless disregard for the truth by omitting information about the results of the litigation against Gwire and the litigation forum. We conclude Gwire made a sufficient showing of actual malice. (Id. at p. 396.)
DISPOSITION
The order partially denying defendants' motion to strike is affirmed. Gwire is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
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Jones, P.J.
We concur: __________
Needham, J.
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Bruiniers, J.