Opinion
A147316
04-17-2017
MARK HOOSHMAND, Plaintiff, Respondent and Cross-Appellant, v. KARLEEN LATORYA GRIFFIN, Defendant, Appellant and Cross-Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 City & County Super. Ct. No. CGC 15-546624)
Attorney Mark Hooshmand sued a former client, Karleen Latorya Griffin, over negative internet postings Griffin made after she became unhappy with Hooshmand's handling of a lawsuit against her landlord. Griffin made a special motion to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16), which the trial court denied as to Hooshmand's causes of action for libel per se and false light (and for injunctive relief associated with these two claims) and granted as to Hooshmand's cause of action for intentional infliction of emotional distress. Griffin appeals as to the libel and false light claims; Hooshmand cross-appeals as to the intentional infliction of emotional distress claim. We affirm.
We conclude this case is amenable to disposition by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1.
As we explained in Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 422, 425 (Bently), in which we affirmed the denial of a special motion to strike in a defamation case based on negative online postings by an unhappy tenant, "[r]esolving the merits of an anti-SLAPP motion under [Code of Civil Procedure] 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 . . . (Overstock.com).)"
While Hooshmand contends Griffin's special motion to strike should have failed under the first part of the analysis and therefore the trial court should not even have reached the second part of the inquiry, this contention is meritless. There is now a well-established body of law recognizing that consumer Internet postings are protected speech activities under the anti-SLAPP law. (E.g., Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366-1367 (Wong); see Bently, supra, 218 Cal.App.4th at p. 425 [parties did not dispute tenant's Internet postings qualified as protected activity under the statute].)
We therefore focus, as did the trial court, on the second prong—whether Hooshmand carried his burden of showing a probability of prevailing on the merits of his claims. "In this regard, our review is de novo. We apply a 'summary-judgment-like' test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant's evidence only to determine whether it defeats the plaintiff's evidence as a matter of law. The evidence put forward at this stage must be admissible; even allegations in a verified complaint are insufficient." (Bently, supra, 218 Cal.App.4th at pp. 425-426.) " 'In addition to considering the substantive merits of the plaintiff's claims,' the court 'must also consider all available defenses to the claims . . . .' " (Id. at p. 426.)
Libel and False Light (and Injunctive Relief)
"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." ' [¶] Not all statements that appear to be opinions, however, are immunized. 'In Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17 . . . , 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." The court went on to explain: "If a speaker says, 'In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications . . . ." ' (Overstock.com, supra, 151 Cal.App.4th at p. 701 . . . ; cf. Weller v. American Broadcasting Companies., Inc. (1991) 232 Cal.App.3d 991, 1004 . . . ['we reject the notion that merely couching an assertion of a defamatory fact in cautionary language such as "apparently" or "some sources say" or even putting it in the form of a question, necessarily defuses the impression that the speaker is communicating an actual fact'].)" (Bently, supra, 218 Cal.App.4th at pp. 426-427; see Wong, supra, 189 Cal.App.4th at pp. 1369-1370.)
" 'Thus a false statement of fact, whether expressly stated or implied from an expression of opinion, is actionable. The key is not parsing whether a published statement is fact or opinion, but "whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." ' " (Bently, supra, 218 Cal.App.4th at p. 427; see Wong, supra, 189 Cal.App.4th at pp. 1369-1370.)
To establish a false light invasion of privacy claim, a plaintiff must similarly demonstrate that a publication is false, defamatory, unprivileged, and has a tendency to injure or cause special damage. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16 (Kapellas); Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 149.) "In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person." (Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 238.) A false light claim requires proof of malice where the published matter is of public interest. (Kapellas, at p. 35, fn. 16.) In the First Amendment context, malice is established if the record shows that the statement was false or made with a "reckless disregard of whether it was false or not." (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280.)
The Yelp Posts
According to Hooshmand, Griffin's first post on Yelp was made on November 22, 2014, and contained the following false statements: (1) the lawyers in his firm kept changing "[p]erhaps . . . because they find out how illegal this man operates"; (2) Hooshmand filed her lawsuit "incorrectly" because her children were not named plaintiffs and then "refused to amend" the lawsuit to include the children; and (3) Hooshmand "falsified legal documents" and "also created a false $5,000.00 Medi-Cal report" for her son. This post was apparently "updated" the following day, with statements that Hooshmand had asked Griffin to withdraw the post and she suspected he was going to post his own comment, which she asserted would be "[m]ore false crap to defend his actions and the actions of his unprofessional attorneys." The trial court discounted this supposed initial post and update because Hooshmand's declaration, while identifying an exhibit as the "original posting," did not go on to explain that the exhibit (which was not a copy of the Yelp review, itself) was a word document Hooshmand had created by copying the text from Yelp (an explanation he provided at the hearing but never provided in proper evidentiary form).
At some point, Griffin changed her "original" posting, so what is shown on Yelp as her "[p]revious review" of November 22, 2014, does not contain all of the statements recounted in the preceding paragraph. Instead, this revised "[p]revious review" is as follows:
"This law firm deserves 0 stars, but you can only post if you give at least one.
"Leslie K is 100% correct about Hooshmand Law Group, particularly Mark Hooshmand. I have no idea how many attorneys' I spoke with via email during my time with that firm. The lawyers kept changing. Extremely frustrating.
"When I began digging into the facts of my case, he began taking the attorney's off of the emails, only to address me personally. Anytime he made a threat, no one else was copied on email.
"I had a case against a former landlord. In short, Mark Hooshmand took our case. The case was suppose[d] to include my two children and I. Months into our case I received an email from Mark Hooshmand stating opposing counsel found that Hooshmand Law filed our case incorrectly with the courts. The children were not added to the case correctly. I begged Mr. Hooshmand to 'amend' the children, but he refused. Refused! Instead, he filed a separate case, meaning the kids had a case and I had a case. Later, the cases was jointed. Although he apologized if the circumstances were private and sensitive, he had to ask me about my children's father; a man, who had nothing to do with the case, but could possibly be entitled to the outcome of our case (I have so[l]e/legal custody of my children). According to Mr. Hooshmand, his firm had not gone through this process before. Total nightmare! Because we were months in and fees were accruing, finding another attorney would have been a nightmare. Keep in mind ALL fees have to be paid back if your case settles. Two cases more fees!
"After reviewing the initial complaints filed by his office on our behalf, I found that he'd falsified legal documents. Also there was a $5000.00 Medi-Cal lien in my son's name that Mr. Hooshmand refused to fight on our behalf after me telling him countless times my son wasn't treated for injuries related to the case.
"After conversing with Medi-Cal for weeks and getting a letter from my son's therapist stating that my son did not receive therapeutic services due to the landlord, Medi-Cal reversed the lien. Even Medi-Cal was shocked at the accusations this man made on my son's behalf. After finally reviewing our case files, I couldn't believe all the things they said the land[l]ord had done to my disabled son and the dollar amounts that those things were worth. Information about the Medi-Cal lien inclu[ding], date of injuries (even physical injury) was signed off by his office. I guess the more medical damages you have, perhaps opposing counsel takes your case more seriously. The medical info., sent to Medi-Cal stated thousands in injury, none of which were true. Also, in the initial claim Hooshmand office said I was on medication due to the landlord. False! The landlord entered our unit w[ith]out permission. False! There were electrical and wiring problems. False. The list goes on. False claims filed in the courts!
"Dealing with Mark Hooshmand was worse than dealing with the landlord. This man bullies you, threatens you and finds a way to drop you, causing you to seek another attorney, while he collects his money. After getting
Medi-Cal to reverse the 'lien,' Mark Hooshmand decided to 'terminate' services. The offer was on the table. Extremely low offer compared to what he originally told me to ask for. That's right. During my deposition I was told to ask for one thing, but when it came down to the settlement it was a different story all together. If you look at the initial claims filed by his office, he tallied damages close to a million dollars! After asking questions about this and other matters of my case, he told me that if we did not settle, he would terminate my case. I have countless emails of him threatening to terminate and not show up for mediation. So, to get him off our backs and out of our lives, we settled for close to nothing! Terrible. Settle or find another attorney. I think he takes on many cases, builds your case up, drops you, let other attorneys do the work and then he collects. That's what almost happened in our case. The only thing is I didn't get another attorney after he terminated his services. The cases were dismissed after I didn't show up due to being sick & depressed over our case. A WIN WIN in my book! Almost two years of wasted time. Well, not really; was just happy to get him out of our lives. Oh, did I mention, his office prepped my mother, sister and boyfriend at the same time during a conference call for their depositions? Talk about contaminating a case.On April 26, 2015, Griffin posted the following "update":
"Keep a paper trail of EVERYTHING!
"Go on sfsuperiorcourt.org website and put in his name. He's the Plaintiff of many lawsuits, I wonder why.
"View: CONNIE TOMCIK et al VS. MARK HOOSHMAND et al
"Case Number: CGC 12 521832. Here's the link! This woman sued him!
"Webaccess.sftc.org/Scrip
"Do your research people! Find another attorney! Read less."
"UPDATE-(READ & PLEASE READ MY PREVIOUS POST) After I posted my Yelp review 11/2014, I received three emails from Mark Hooshmand sent to my personal email address.
"The first [i]s him asking me to show compassion and remove my Yelp posting. The second is him stating my children and I could likely still recover funds from the defendants. The third was a threatening email that came along w[ith] an attached lawsuit he said he'd file against me (6 pages). In the body of the email, he state's that he'd notify me of a date to appear in court shortly as he would be seeking an application over the next two weeks for the Judge to order me to remove my posting. He then states that should I choose to voluntarily remove the posting immediately, he will determine if he'll move forward with the lawsuit. I finally responded as I
did not respond to his previous emails—I demanded that he refrain from contacting me and that if he did not, I would be forced to contact authorities, news stations etc., regarding his harassment(s)!
"I then mentioned ANTI-SLAPP, which is a law that protects our right to free speech[.] (If what I've posted is false, why haven't I been sued for defamation? He sent the 6 pages to my personal email address. Why not file? I'm happy to produce my information in the court of law[.]) The emails stopped. Do your research. Before you remove the truth, contact an Anti-Slapp attorney. These types of threats are tactics used to scare you. Not sure what a 'false fact,' is—seems like a contradiction. In his comments. he doesn't address the false $100,000 notice my kids and I supposedly owe or the threat of suing us for my Yelp posting. The only solution to this situation is to stop harassing a mom and her two children and allow us to tell our story. It's our right. The case ended over a year ago. Why he's still coming after us is unheard of.
"So, I just received a Notice of Client's Right to Fee Arbitration, from Mr. Hooshmand. Mind you, my case was dismissed 1 year 3 months ago, he terminated the case 1 year 8 months ago. The notice states there is an outstanding balance for fees/and or cost for professional services in the amount of $100,000. I'm not sure how cost in the amount of $1,994.22 and 40% of NO RECOVERY=$100.000.
"So, just so you understand, if you do not dispute the amount that is supposedly owed, which is 5% of amounts owed $10,000 or LESS AND 7% of amounts owed at $10,000 or MORE. In my case $7,000.00 to dispute, you lose your right to arbitrate[] under this program and can now be sued. This is the first step before you're sued by the accuser. You have 30 days to file. Well, my family and I (children, parents, boyfriend, sister) have been through the war with this firm and it appears, we have to go again as we do not back down. It started with a Yelp post! Thank you Yelp for giving us a platform to tell our stories as no one should endure this type of harassment. Nor will I back down or fear the actions of this attorney.
"On 9/17/12 I received an email from Mark informing me that Esther Kim, one of the attorney's on my case at the time, took a job in New York, when in fact, she works in SF according to her State Bar #. All attorney's handling my case at the time (so many) are gone including Michael Scott Smith (now in San Ramon) who prepped my family at the same time exposing my personal business; 98% of them, new! Secretary, (gone-in So[uthern California]).
"I've been a Yelper for 9 years. View my post. They're very descriptive, but most importantly, they're real. I am a real person, not someone creating
emails to post things to help boost the ratings of a friends business (who needs to see the same attorney, several times for several matters?). Do your research. I wish I had before we decided to pick this law firm. Had I gone on sf superior court website and saw what this attorney had/has been accused of, or the fact that he's a Plaintiff against so many he's had as clients, we would never have trusted him or his company to defend us against our former landlord (acts like this is called Vexatious litigation). Dealing with Mark was far worst. Someone reached out to me on Yelp, because she'd gone through similar situations with Mark. Her name will remain confidential (but I still have her phone number). At any rate, her posting review of Mark is gone, but apparently, she received the same law suit threat I received as she was sued by Mark. All SF law suits are public record. You have every right to view them. Check your attorney out. Do your research. Check the SF Superior court, not just Yelp. Know what your getting yourself into, otherwise you might find yourself dealing this type of stuff years later. Just like me and my children. This single mom will not back down. It's my right to tell my story to the world, if I choose to. Thank you for reading and I hope you attract an Attorney that really has your best interest in mind. You deserve it. Read less."
Hooshmand also submitted a copy of a second "update" dated July 6, 2015, wherein Griffin stated she had been sued by Hooshmand, and she stood "firmly by [her] postings 100% and will not remove them despite his tactic." Because this "update" occurred after Hooshmand filed his complaint, the trial court did not consider it as a basis for his claims.
Lawyer Rating Sites
Griffin also posted comments on two lawyer rating sites in December 2014. One was on LawyerRatingz.com and stated:
"Mark Hooshmand represented my two children and I. Months into our case he tells me opposing counsel found that he (Mark Hooshm[an]d) had not included my children in the case correctly. Instead of amending the children like I begged, he filed a separate case, so my children had a case & so did I. If you settle ALL fees have to be paid back; 2 cases two set of fees. His office also prepped my boyfriend, mother & sister together, exposing all of my personal business among them all. Humiliating. While reviewing my case file after he terminated services, I found that in the initial complaint he filed in the courts, he stated false claims on our behalf (I didn't know)—he said my son was physically injured, I was on medication d[ue] to the landlord, I had wiring issues, the landlord entered our unit w[ith]out permission. ALL FALSE. I was threaten and bullied by
him. He threatened not to show up to mediation & constantly said he'd terminate our case, which he ultimately did. Horrible experience."The other was on Avvo.com and stated:
"Bad Experience
"I had a case against a former landlord. In short, Mark Hooshmand took our case. The case was supposed to include me and my two children; one who was/is disabled. Months into our case I received an email from Mark Hooshmand stating opposing counsel found that Hooshmand Law filed our case incorrectly with the courts. My children were not added to the case correctly. I begged Mr. Hooshmand to 'amend' the children but he refused. Instead, he filed a separate case. Meaning the kids had a case and I had a case. Later, the cases were jointed. Although he apologized if the circumstances were private and sensitive, he had to ask me about my children's father; a man who had nothing to do with the case, but could possibly be entitled to the outcome of our case even though I had/have sole/legal custody of my children. According to Mr. Hooshmand, his firm had not gone through this process before. Because we were months in and fees were accruing, finding another attorney would have been a nightmare for my family and I. Not to mention all fees have to be paid back if your case settles. Two cases more fees!
"There was a $5000.00 Medi-Cal lien in my son's name that Mr. Hooshmand refused to fight on our behalf after me telling him countless times my son wasn't, treated for injuries related to the case. I was forced to reach out to Medi-Cal myself, who initially couldn't speak with me because the lien was filed by Mark Hooshmand of Hooshmand Law Group.
"After conversing with the Director of Medi-Cal for weeks and getting a letter from my son's therapist stating that my son did not receive therapeutic services due to the landlord, Medi-Cal reversed the lien. After Medi-Cal reversed the lien, Mark Hooshmand terminated representation shortly after.
"I then requested our case files, which were mailed to me by Hooshmand Law Group. After finally reviewing our case files, I couldn't believe all the things Mark Hooshmand said the landlord had done to my disabled son and the dollar amounts that those things were worth. Information about the Medi-Cal lien including a date of injury (even a 'physical injury') was signed off by his office. I never signed off on this information nor did I know about it. I never stated that my son had a physical injury nor did my son have a [¶] physical injury. The Special Damages (medical expenses & future expenses) of the Statement of Damages documents Hooshmand Law Office sent to opposing counsel on my children and my behalf totaled
$795,000 was sent without my knowledge nor were the amounts on the document true.
"When I viewed the initial complaints filed in the courts by his office on our behalf, which are public record, I found that Mark Hooshmand falsified legal documents. The claim states I was on medication due to the landlord. False. The landlord entered our unit w[ith]out permission. False. There were electrical and wiring problems (when asked by Hooshmand office via email about wiring issues I specifically [i]ndicated my family and I did not have wiring issues, yet, the initial claim filed in the courts state otherwise). False. Also, all claims, including the false claims made on my case and my children's case tallied at over a milllon dollars!
". . . I was humiliated as there were things about me that were private, now revealed to my boyfriend and mother and being threatened by Mr. Hooshmand too many times to count, I settled. We never collected as I didn't have an attorney to help with the [m]inor's comprise [sic] and was too ill and depressed from this case, that I didn't make the court date. The case was dismissed."
Realizing that Hooshmand could proceed on his libel per se and false light causes of action if he made a merits showing as to any of the myriad statements in Griffin's posts (see Bently, supra, 218 Cal.App.4th at p. 435 & fn. 8), the trial court ultimately focused on Griffin's statements in both her YELP and lawyer rating posts that she "begged" Hooshmand to add her children to her lawsuit and he "refused."
First, the court observed Hooshmand had provided copies of e-mails between him and Griffin about adding her children as named plaintiffs. Hooshmand advised Griffin to seek a second opinion if she had concerns about filing a second lawsuit on behalf of the children. Griffin did and told Hooshmand other attorneys would have filed a motion to amend, rather than filing a second lawsuit. However, Griffin's last communication to Hooshmand was that if he did not "see a difference" in how the issue about the children was handled procedurally, then she was agreeable to moving forward as things stood— i.e., moving forward with her lawsuit and filing a second lawsuit on behalf of the children. Thus, as the court stated, this evidence suggests Griffin did not "beg" and Hooshmand did not "refuse[]" to add her children as plaintiffs to her lawsuit. Accordingly, the trial court ruled Griffin's statements in this regard could reasonably be viewed as statements of fact, provably true or false.
Apparently this issue was raised when the defendant landlord objected to any claimed damages by the children as they were not named plaintiffs in the lawsuit. Hooshmand told Griffin she would need to be appointed their guardian ad litem and initially suggested their father might need to be named a defendant. Griffin told Hooshmand the father was an "evil, manipulating & abusive" man and she and her children were "hidden."
We are considering this e-mail chain only for purposes of analyzing Hooshmand's libel and false light claims and are making no pronouncement as to the wisdom or merits of how Hooshmand proposed handling the children's claims.
Second, the trial court concluded a reasonable trier of fact could conclude Griffin's assertions that Hooshmand turned a deaf ear to her imploring to add her children as plaintiffs was tantamount to saying Hooshmand ignored client concerns and cavalierly rejected client requests—matters impugning his skills as a lawyer and damaging him professionally. (See Civ. Code, § 45 [libel includes false and unprivileged statement which "has a tendency to injure him in his occupation"]; see also Wong, supra, 189 Cal.App.4th at p. 1372; see also Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 348 (Barker) [suggestion of lack of honesty, incompetence or reprehensible trait supports libel per se].)
Third, the trial court concluded Hooshmand also made a sufficient showing of malice (i.e., that Griffin made the statements with knowledge of their falsity or in reckless disregard of the truth) and offensiveness, both required elements of a false light claim. While the issues are debatable, given the e-mails and Griffin's essentially acceding to Hooshmand's suggestion that the children be plaintiffs in a separate lawsuit, the court concluded a reasonable person could find Griffin knew perfectly well she had not repeatedly "begged," and Hooshmand had not "refused," to add her children as plaintiffs and that Griffin's accusations to the contrary were highly offensive.
We agree with the trial court's assessment of Griffin's statements about Hooshmand's handling of claims by her children and conclude, as the trial did, that they can support a claim of libel and false light. As the courts have observed, to overcome a special motion to strike, the plaintiff's burden is " ' "not high." ' " (Barker, supra, 240 Cal.App.4th at p. 348.)
In her opening brief, the only statements Griffin specifically defends are those in which she accused Hooshmand of "falsifying" documents. She contends the "unqualified evidence presented" established the truth of her assertions. As we have discussed, the trial court did not focus on those statements. And because the issue before us is whether Hooshmand made a sufficient showing for his libel and false light causes of action to survive a special motion to strike, and because we have concluded Griffin's statements concerning adding her children as plaintiffs suffice, we likewise need not consider her falsification statements. We are compelled to point out, however, that Griffin did not make an evidentiary showing sufficient to conclusively establish, at this juncture at least, the "truth" of her accusations. In her reply brief, Griffin does address the statements the trial court actually considered. But for the reasons we have discussed above, we do not agree with her assertion that these statements could not reasonably be found to be libelous. (See Wong, supra, 189 Cal.App.4th at pp. 1372-1373 [sufficient showing to defeat special motion to strike libel per se claim where Yelp review could be reasonably understood to state, by implication, that plaintiff dentist failed to warn and advise patient about dental treatment].)
In the trial court, Griffin also claimed her posts were protected by the "common interest" privilege. The trial court rejected this contention, and Griffin has not advanced it on appeal.
Griffin also contends Hooshmand is a "limited purpose public figure" and therefore was required to make a heightened showing of malice. The trial court rejected this assertion, concluding an attorney does not, merely by advertising, ascend to the ranks of a public figure. We agree. Indeed, Griffin has not cited a single case supporting classifying Hooshmand, on this record, as a limited purpose public figure. (Cf. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25 [prominent plastic surgeon who thrust himself into public debate over plastic surgery procedures by appearing on television shows and authoring numerous articles in medical journals and beauty magazines was limited purpose public figure].)
In sum, we reject Griffin's assertion that her reviews were merely "hyperbolic critiques," consisting solely of nonactionable "opinions and conclusions." While Griffin freely utilized loaded language and many of her assertions are nonactionable opinion, we note she, herself, essentially proclaimed on more than one occasion that what she said was true. For example, in her Yelp "update" commenting on Hooshmand's e-mail asking her to remove her posting, she stated: "If what I've posted is false, why haven't I been sued for defamation?" And in her subsequent update, commenting on Hooshmand's lawsuit, she stated "I stand firmly by my postings." She also sent Hooshmand a letter responding to what she described as a "false" claim for $100,000 in fees and costs, stating her "accusations" against him were "true" and inviting him to "review a fraction [of] my proof," which she had enclosed. Griffin cannot repeatedly assert she was setting the factual record straight, and then turn around and claim she was lampooning Hooshmand with factually groundless opinion. As the trial court concluded, some of her assertions may reasonably be understood as statements of fact which are probably true or false.
While in some cases, courts have concluded the context and circumstances are such that no reasonable person could view challenged Internet postings as anything other than nonactionable ranting (see Bently, supra, 218 Cal.App.4th at pp. 429-431 [discussing cases]), as we explained in Bently, not all Internet postings can—or should—be excused as unchecked railing that any reasonable person would ignore. (Id. at pp. 431-433.) Nor does the fact a poster attempts to hide in anonymity categorically exempt him or her from the reach of defamation law. (Id. at p. 433.) When false factual statements on the Internet are injurious to their target, the law provides recourse.
Because the trial court ruled that Hooshmand's libel and false light claims survived, it also ruled his accompanying claim for injunctive relief survived. Griffin asserts injunctive relief is a "prior restraint" and abridges her right of free speech, and claims Hooshmand is demanding that all of her posts be removed in their entirety. As the trial court observed, however, the claim for injunctive relief is, by its nature, tied directly to Hooshmand's libel and false light claims and is essentially an additional form of relief sought in connection with those substantive claims. Any injunction, perforce, will pertain only to matters a trier of fact finds to be libelous or as placing Hooshmand in a false light.
Given our conclusion as to Hooshmand's libel and false light causes of action, we need not, and do not, reach his assertion the trial court abused its discretion in denying his request for discovery as to malice.
Intentional Infliction of Emotional Distress
As far as Hooshmand's cross-appeal from the grant of Griffin's special motion to strike his cause of action for intentional infliction of emotional distress (IIED), we agree with the trial court that he did not make a sufficient showing of the kind of outrageous behavior or the severe emotional suffering required to support such a cause of action. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [listing elements of cause of action], disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4; Barker, supra, 240 Cal.App.4th at pp. 355-356.)
As a preliminary matter, Hooshmand claims Griffin's motion to strike failed to address his IIED cause of action. That is not the case. Griffin's motion expressly stated it was directed to the entire complaint and she was moving to strike all four causes of action. Griffin's initial moving papers focused, appropriately, on the "first prong" of the anti-SLAPP analysis and argued all the causes of action were based on protected activity and therefore were subject to a special motion to strike. Hooshmand was therefore on notice he had to make a "second prong" merits showing as to all his causes of action, including for IIED.
Hooshmand's claim that he should have been granted leave to amend because he was not on notice that he had to make a sufficient showing on his IIED claim therefore is also unavailing, even assuming leave to amend to augment merit allegations, following an offer of proof, are proper. (See Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 869-872.) --------
We agree with the trial court's assessment that Griffin's allegedly libelous statements are not sufficiently outrageous no reasonable person in civilized society should be expected to endure them. (See Barker, supra, 240 Cal.App.4th at p. 356.) The record before the trial court does not reflect an individual wracked with emotional trauma, notwithstanding Hooshmand's conclusory assertion of severe distress. While Hooshmand may have found Griffin's accusations upsetting and galling, that is not enough to support a cause of action for IIED. (See Wong, supra, 189 Cal.App.4th at pp. 1376-1377.)
DISPOSITION
The trial court's order denying Griffin's special motion to strike as to Hooshmand's libel and false light causes of action and granting her motion as to his cause of action for intentional infliction of emotional distress is affirmed. Parties to bear their own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.