Preview
FILED
DALLAS COUNTY
11/22/2019 1:52 PM
FELICIA PITRE
DISTRICT CLERK
Margaret Thomas
CAUSE NO. DC-18-00241
BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF
PRAIRIE FAMILY DENTAL, §
§
Plaintiff, §
§ DALLAS COUNTY, TEXAS
V. §
§
SEAN GHARAVI, §
§
Defendant. § lOISt JUDICIAL DISTRICT
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL
AND, ALTERNATIVELY, FOR REMITTITUR AND MODIFICATION
AND CORRECTION OF THE JUDGMENT
Defendant Sean Gharavi (“Gharavi”) moves the Court under Texas Rules 0f Civil
Procedure 3 15 and 320- 329b to set aside the Final Judgment signed by the Court 0n October 23,
20191 and t0 (1) vacate the Final Judgment and enter a judgment that Plaintiff Behrooz
Khademazad d/b/a Grand Prairie Family Dental (“Khademazad”) take nothing by his claims, or
alternatively (2) grant a new trial, 0r alternatively (3) modify, correct 0r reform the judgment 0r
suggest a remittitur t0 conform the judgment to the evidence and controlling law.
INTRODUCTION
GharaVi was sued—and assessed with a $1.1 million Final Judgment—for doing
something that millions of people do every single day: submitting a social media post.
Khademazad’s misbegotten theory of the case is that a single post (the “Yelp Post”) by a man in
California who is not a patient and who makes no reference to dental skills somehow
1
The Final Judgment is attached as Exhibit A and incorporated in this motion for all purposes.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 1
undermined a thirty-year dental practice based in Grand Prairie, Texas. This facially implausible
claim is riddled with numerous errors that merit reconsideration.
First and foremost, the Yelp Post is not actionable. Khademazad admitted that the
statements regarding his incurring, and failing to pay, a judgment are true. The statements about
Khademazad’s trustworthiness are statements of opinion that unmistakably refer to Khademazad
himself and not his professional abilities or economic interests. And there is no evidence that the
Yelp Post was published online, seen, or believed by a single patient or potential patient.
Second, Khademazad’s claims are barred by his own agreement. Khademazad, knowing
of the posting by Gharavi, agreed before filing this lawsuit to settle and release “any and all
claims or causes of action of any kind” that were “directly or indirectly attributable to” the
transaction between him and Gharavi’s company. The Yelp Post, which is the focus of this
lawsuit, expressly referenced Khademazad’s failure to pay for that transaction and is thus
covered by the terms of the release.
Third, Khademazad failed to prove that Gharavi’s posting caused him damages. The
damages awards, and their alleged link to Gharavi’s posting, are based entirely on Khademazad’s
say-so. There is no evidence of even a single lost patient or referral source, no explanation of
why the claimed damages were caused by the Yelp Post instead of other causes, and no evidence
of the kind of mental and emotional disruption necessary to support general damages.
Khademazad’s damage calculations are similarly speculative, shot through with analytical gaps
and contradictions with the trial record that render the calculations incompetent evidence. And
there is no basis for the exemplary damages award, which is expressly forbidden under the
Defamation Mitigation Act and controlling case law from the Dallas Court of Appeals and the
Texas Supreme Court. The Act requires that a plaintiff like Khademazad request a correction,
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 2
clarification, or retraction from the defendant to obtain exemplary damages, and Khademazad
admitted at trial that he never made such a request of Gharavi.
The Court should remedy these failings by rendering judgment in Gharavi’s favor,
ordering a new trial, or modifying the judgment to conform to the evidence and controlling law.
ARGUMENT
I. Significant errors in Khademazad’s case require the Final Judgment to be set aside.
A. The Yelp Post is not actionable because it was true, contained nonactionable
opinions, and does not implicate Khademazad’s professional skills.
All of Khademazad’s claims fail because they are all based on the Yelp Post, which is not
actionable under Texas law. The Yelp Post states:
This is a review for the Grand Prairie Family Dental and Dr. Khademazad. Dr.
Khademazad is not to be trusted. Grand Prairie Family Dental and Dr.
Khademazad refused to pay money owed since 10/20/2010. Even after winning a
major court judgment in 06/16, we still haven [sp] not received a penny of what is
owed. Grand Prairie Family Dental and Dr. Khademazad can’t even be trusted
with a court order !! Why would you trust him with your health?!
To establish his claims based on those statements, Khademazad was required to show that the
statements are false assertions of fact, that they impugn his professional or economic interests,
and that the statements were published. He proved none of those things.
The Yelp Post is not actionable because the statements it contains are true. Khademazad
admitted in his pleadings and at trial that a final judgment was entered against him in favor of
Aidris, Gharavi’s company, and that he had not paid the judgment at the time the Yelp Post was
made. Accordingly, those statements cannot form the basis of Khademazad’s claims. See TEX.
CIV. PRAC. & REM. CODE § 73.005(a) (“The truth of the statement in the publication on which an
action for libel is based is a defense to the action.”); Randall’s Food Mkts., Inc. v. Johnson, 891
S.W.2d 640, 646 (Tex. 1994) (“Truth is a complete defense to defamation”).
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 3
That leaves Khademazad to rely entirely on the statements regarding his trustworthiness,
but those statements cannot support his claims for two reasons: (1) they are constitutionally
protected statements of opinion, and (2) they have no bearing on his professional and economic
interests.
First, the remaining statements are not actionable as a matter of law because they do not
“assert an objectively verifiable fact.” Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas
2011, no pet.). A statement “is not defamatory” if it “is not verifiable as false” or if “the entire
context in which it was made discloses that it is merely an opinion masquerading as a fact.”
Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). That is the case here.
Khademazad’s trustworthiness is not a question of fact that can be proven or disproven. Instead,
Gharavi’s statements are the kind of indefinite, figurative, and hyperbolic statements that Texas
courts have found to be non-actionable opinion. See Shipp v. Malouf, 439 S.W.3d 432, 441
(Tex. App.—Dallas 2012, pet. denied) (“A statement that a dentist is personally bankrupt does
not adversely affect the dentist’s fitness to practice dentistry—he may be a great dentist but a bad
businessman”—and is therefore “not defamatory per se”); Ruder v. Jordan, 2015 WL 4397636,
at *3 (Tex. App—Dallas, Jul. 20, 2015, no pet.) (statements that plaintiff was incompetent,
mentally unstable, and raging from rejection were non-actionable opinions); Falk & Mayfield
L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)
(accusation that plaintiffs committed “lawsuit abuse” was non-actionable opinion).
Second, the statements regarding Khademazad’s trustworthiness have nothing to do with
his professional skill or economic interests. In fact, the Yelp Post does not mention
Khademazad’s skill as a dentist at all. As this Court found, there “is no correlation between
refusing to pay a court order” as referenced in the Yelp Post “and being a trustworthy competent
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 4
dentist.” This finding is fatal to Khademazad’s libel per se and business disparagement claims,
both of Which require evidence of a statement disparaging the plaintiff’s professional ability 0r
economic interests. See Bedford v. Spassoff, 520 S.W.3d 901, 905 (TeX. 2017); In re Lipsky, 460
S.W.3d 579, 592 (Tex. 2015). As the Texas Supreme Court has held, the inquiry in suits
involving claims like Khademazad’s is focused not on reputation 0r truthfulness, but on Whether
the statement at issue “accuses a professional 0f lacking a peculiar or unique skill that is
necessary for the proper conduct 0f the profession.” Hancock v. Variyam, 400 S.W.3d 59, 67
(Tex. 2013). The Yelp Post does not because trustworthiness is not a peculiar 0r unique trait 0f a
dentist. Instead, a reasonable and fair—minded person would find that the Yelp Post complains of
Khademazad’s failure to pay a monetary judgment.
Khademazad’s claims also fail for the independent reason that he failed t0 prove the Yelp
Post was published online by Yelp. Khademazad relied 0n a post card he received in the mail
from Yelp containing a copy 0f the posting submitted by GharaVi along with an email from a
Yelp salesman regarding the rejection of the posting. But there is no evidence, such as page
View counts or counts 0f unique Visitors, t0 prove that the posting was actually published online
0r to otherwise establish that any patient 0r potential patient actually Viewed the Yelp Post.
B. Khademazad’s claims are barred by a release provision in his Settlement
Agreement with Gharavi’s company.
Khademazad’s claims independently fail because they are foreclosed by the Settlement
Agreement he signed after the Yelp Post was submitted. As part of the Settlement Agreement,
by which Khademazad resolved the outstanding judgment debt owed to Aidris, he released
Aidris and by extension Gharaviz from “all claims or causes 0f action of any kind whatsoever . . .
2
The release covers Aidris and “its agents, servants, employees, attorneys and all persons, natural 0r corporate, in
priVity With” Aidris. As owner and employee of Aidris, Gharavi qualifies as its agent and as a person in priVity With
Aidris.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 5
directly or indirectly attributable to the transaction or occurrences made the basis of this
lawsuit.” The lawsuit in question is the lawsuit between Aidris and Khademazad that led to the
judgment against Khademazad. That lawsuit arose because of allegations that Khademazad
failed to pay Aidris for its services (the “transaction or occurrences” referred to in the release),
which is the same “refusa[al] to pay money owed since 10/20/2010” referred to by the Yelp Post.
The Yelp Post is thus focused on “the transaction or occurrences” discussed in the release. And
because Khademazad’s claims in turn focus on the Yelp Post, they qualify as claims that are
“directly or indirectly attributable to the transaction or occurrences” and were accordingly
covered—and barred—by the release provision. See Keck, Mahin & Cate v. Nat’l Union Fire
Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000).
C. There is no legally competent evidence of damages.
Significant errors in Khademazad’s damages evidence provide another independent
ground for setting aside the Final Judgment.
First, there is no evidence that the Yelp Post caused any damage to Khademazad, much
less the $650,000 in compensatory damages awarded in the Final Judgment. The only link
between Khademazad’s claimed damages and the Yelp Post is temporal. But there is no
evidence that the Yelp Post caused Khademazad to lose profits or caused Khademazad to
refinance his loans. Khademazad did not come forward with evidence of even a single lost
patient, prospective patient, or referral source—in fact, his revenues increased in 2017 compared
to the prior year and in the months following the Yelp Post. He also failed to explain how the
Yelp Post caused the increase in expenses during April-June 2017 (nearly 25% higher than
average monthly expenses for the year) that was the cause for much of his claimed lost profits.
Khademazad’s evidence falls far short of the “objective facts, figures, or data” required to
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 6
establish lost profits to a “reasonable certainty.” Phillips v. Carlton Energy Group, LLC, 475
S.W.3d 265, 278-79 (Tex. 2015).
Nor did Khademazad rule out other possible causes for the damages he claims. Thus,
while he told the Court to pay no attention to his 2016 financial results because of his divorce, he
failed to explain why that divorce did not also affect the 2017 results he relied on, given that the
divorce was finalized in April 2017 after Yelp rejected the Yelp Post. In fact, he admitted the
negative financial impact of his divorce in August 2017. Similarly, he claimed that he sought to
refinance several loans because of the Yelp Post but failed to address other potential drivers of
that decision unrelated to the Yelp Post, including increased expenses, loans with high interest
rates, and a $100,000 loan that was due to be repaid. And he failed to adjust his lost profits
claims to account for increased 2017 expenses in areas such as depreciation, increased dental
supplies, expenses for a water leak, and a vendor demanding several months of payment, that are
completely unrelated to the Yelp Post. See El-Khoury v. Kheir, 241 S.W.3d 82, 88-89 (Tex.
App.—Houston [1st Dist.] 2007, pet. denied) (reversing damages for defamation where plaintiff
failed to rule out other possible causes of harm).
Second, Khademazad’s damage calculations are riddled with analytical gaps and are
based on premises that are contradicted by the evidence.
• Khademazad calculated his lost profits based on a comparison of net profit accrued
during the months of March-July in 2017 and 2018, but undisputed evidence
establishes that the Yelp Post was submitted in February 2017 and rejected on April
14, 2017. Khademazad provided no basis for extending his calculations months after
this date.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 7
• There is likewise no evidence that Khademazad suffered any loss at all. He focuses
on the window from March-July 2017, but his calculations for the year show that his
revenue increased during 2017, including in the months after the Yelp Post, and his
gross production was in line with his results throughout the four-year period from
2015-2018. Khademazad did not explain how this reflects lost profits.
• Khademazad artificially inflated his lost profits by including savings from the loan
refinance he claims that the Yelp Post caused. Khademazad admitted that the loan
refinance reduced his loan payments by over $5,000 each month (thereby boosting
net profits by the same amount), but he did not make any downward adjustment to
account for this benefit (over $25,500 during the comparison period of March-July
2018).
• Khademazad double-counts the balloon payment due at the end of his loan—
including it in the full amount of the loan and again as a separately refinanced item.
He further admitted at trial that refinancing the balloon payment had nothing to do
with the Yelp Post.
Texas law does not permit a party to manufacture damages through a witness’s say-so, but that is
all Khademazad offers to support his erroneous and omission-laden conclusions. See Kerr
McGee Corp. v. Helton, 133 S.W.3d 245, 257-58 (Tex. 2004.). That is fatal to his request for
special damages. See Lipksy, 460 S.W.3d at 593 (special damages “are never presumed as they
represent specific economic losses that must be proven”). Furthermore, the gaps and
contradictions in Khademazad’s evidence renders it legally insufficient to support the judgment.
See Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-33, 835
(Tex. 2014) (testimony is conclusory or speculative, and thus legally insufficient, when it suffers
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 8
from too great an “analytical gap” or when it is predicated 0n facts, data, or assumptions that do
not support the opinion or are not supported by the evidence).
Third, there is no evidence that Khademazad suffered a “substantial disruption” in his
daily routine or a “high degree” of mental pain and distress because of the Yelp Post, as required
t0 support his general damages award. See Hancock, 400 S.W.3d at 68; Service Corp.
International v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). In fact, the evidence demonstrates
just the opposite: he was able to maintain gross production in line with his results from 2015-
2018 and his revenue increased in 2017 from the previous year. And as with his special
damages, Khademazad has produced n0 evidence to distinguish any disruption or distress caused
by the Yelp Post from that experienced from his ongoing divorce, which was not concluded until
after the Yelp Post was rej ected.
Fourth, Khademazad is barred as a matter of law from recovering exemplary damages
because he failed to comply with the requirements of the Defamation Mitigation Act. The Act
requires plaintiff seeking to “maintain an action for defamation” to first request a “correction,
clarification, 0r retraction” from the defendant. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1).
Khademazad admitted at trial that he never made such a request of Gharavi. As a result, he is
barred from recovering exemplary damages. TEX. CIV. PRAC. & REM. CODE § 73.055(c); Neely
v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013); see also Hardy v. Comm’cn Workers ofAm. Local
6215 AFL-CIO, 536 S.W.3d 38, 4 (Tex. App.—Dallas 2017, pet. denied) (plaintiff bears the
burden t0 prove compliance With the Act).3
3
Khademazad’s failure also “preclude[s] the non-compliant defamation claims from proceeding to [trial].” Zoannz'
v.Hogan, 555 S.W.3d 321, 327 (Tex. App.—Houston [1st Dist] 2018, pet. filed); but see Hardy 536 S.W.3d at 48
(holding that a defamation claim is “not subj ect to dismissal solely based on the” failure t0 request a correction).
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 9
II. A new trial is required because the Final Judgment is not supported by legally and
factually sufficient evidence.
The evidence is factually and legally insufficient to support the Final Judgment on each
0f Khademazad’s claims.4 And 0n multiple claims, the evidence conclusively establishes the
opposite 0f the Final Judgment’s findings, and those findings are against the overwhelming
weight of the evidence. A new trial is therefore required.
A. A new trial is required because n0 judgment can be rendered for statutory
libel.
1. There is n0 sufficient evidence t0 support a finding of statutory libel, and that
finding is against the conclusive and overwhelming weight 0f the evidence.
2. There is no sufficient evidence that the Yelp Post injured Khademazad’s
reputation 0r exposed him t0 public hatred, contempt, or ridicule or financial injury. As a matter
of law, the evidence conclusively establishes it did not. T0 the extent that the Court found
otherwise, its finding is against the overwhelming weight of the evidence.
3. Nor is there sufficient evidence that the Yelp Post impeached Khademazad’s
honesty, integrity, Virtue, or reputation. As a matter 0f law, the evidence conclusively
establishes it did not. To the extent that the Court found otherwise, its finding is against the
overwhelming weight of the evidence.
4. And there is no sufficient evidence that the Yelp Post published Khademazad’s
natural defects or exposed him t0 public hatred, ridicule, 0r financial injury. As a matter 0f law,
the evidence conclusively establishes it did not. T0 the extent that the Court found otherwise, its
finding is against the overwhelming weight 0f the evidence.
4
In this motion, references to “sufficient” or “insufficient” evidence refer to both legal and factual sufficiency.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 10
5. As a matter of law, the Yelp Post was not reasonably capable of a defamatory
meaning, nor was its meaning reasonably capable of defaming Khademazad.
B. A new trial is required because no judgment can be rendered for libel per se.
6. There is no sufficient evidence to support a finding of libel or libel per se, and that
finding is against the conclusive and overwhelming weight of the evidence.
7. There is no sufficient evidence that the Yelp Post, or any of the statements
contained in it, is false and misleading. As a matter of law, the evidence conclusively establishes
it is neither. The Court’s contrary finding is against the overwhelming weight of the evidence.
8. Further, as a matter of law, the evidence conclusively establishes that the gist of
the Yelp Post is commentary about an unpaid judgment, and any statements contained therein are
true or otherwise statements of opinion or hyperbole. As this Court found, there “is no
correlation between refusing to pay a court order” as referenced in the Yelp Post “and being a
trustworthy competent dentist.” The evidence indisputably shows, for example, that Aidris
obtained a judgment against Khademazad, and at the time the Yelp Post was submitted,
Khademazad had not paid a penny toward that judgment. The other statements in the Yelp Post
were hyperbole and are not statements of objectively verifiable fact. To the extent that the Court
found otherwise, its finding is against the overwhelming weight of the evidence.
9. As a matter of law, the Yelp Post was not reasonably capable of a defamatory
meaning, nor was its meaning reasonably capable of defaming Khademazad.
10. There is no sufficient evidence that Gharavi submitted the Yelp Post with actual
malice, knowledge of its falsity, reckless disregard as to its truth, or negligence. As a matter of
law, the evidence conclusively establishes that he did not. The Court’s contrary finding is
against the overwhelming weight of the evidence.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 11
11. There is no sufficient evidence that Gharavi knew or should have known that the
Yelp Post would injure Khademazad in his profession. As a matter of law, the evidence
conclusively establishes that he did not. The Court’s contrary finding is against the
overwhelming weight of the evidence.
12. There is no sufficient evidence that the Yelp Post accuses Khademazad of lacking
a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. As a
matter of law, the evidence conclusively establishes that it does not. See Shipp, 439 S.W.3d at
441 (“A statement that a dentist is personally bankrupt does not adversely affect the dentist’s
fitness to practice dentistry—he may be a great dentist but a bad businessman”—and is therefore
“not defamatory per se”). To the extent that the Court found otherwise, its finding is against the
overwhelming weight of the evidence.
13. There is no sufficient evidence that Yelp actually published the Yelp Post or that
any patient or potential patient actually saw the Yelp Post.
14. There is no sufficient evidence that the Yelp Post caused Khademazad general or
special damages.
C. A new trial is required because no judgment can be rendered for business
disparagement.
15. There is no sufficient evidence to support a finding of business disparagement,
and that finding is against the conclusive and overwhelming weight of the evidence.
16. The Yelp Post is not business disparagement as a matter of law because it refers
to Khademazad personally, not his economic interests. See Hurlbut v. Gulf Atl. Life Ins., 749
S.W.2d 762, 766 (Tex. 1987).
17. There is no sufficient evidence that the Yelp Post contains false or disparaging
words about Khademazad’s economic interests. As a matter of law, the evidence conclusively
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 12
establishes that it does not. The Court’s contrary finding is against the overwhelming weight of
the evidence.
18. There is no sufficient evidence that the Yelp Post, or any statements contained in
it, is false. As a matter of law, the evidence conclusively establishes that the statements of fact
contained in the Yelp Post are true. The Court’s contrary finding is against the overwhelming
weight of the evidence. In fact, Aidris obtained a judgment against Khademazad, and at the time
the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment.
19. There is no sufficient evidence that Gharavi submitted the Yelp Post with malice.
As a matter of law, the evidence conclusively establishes that he did not. The Court’s contrary
finding is against the overwhelming weight of the evidence.
20. Relatedly, there is no sufficient evidence that, when submitting the Yelp Post,
Gharavi (1) knew the statement to be false or acted with reckless disregard for the truth, (2) acted
with ill will, or (3) intended to interfere with Khademazad’s economic interests. As a matter of
law, the evidence conclusively establishes that he did not. The Court’s contrary finding is
against the overwhelming weight of the evidence.
21. There is no sufficient evidence that Yelp actually published the Yelp Post or that
any patient or potential patient actually saw the Yelp Post.
22. There is no sufficient evidence that (1) existing patients stopped going to
Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased
or never considered referring patients to him as a result of the Yelp Post. In fact, the evidence
shows that Khademazad’s revenue increased in the months following the Yelp Post.
23. There is no sufficient evidence that the Yelp Post caused Khademazad special
damages—or any other damages.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 13
D. A new trial is required because no judgment can be rendered for negligence.
24. There is no sufficient evidence to support a finding of negligence, and that finding
is against the conclusive and overwhelming weight of the evidence.
25. As a matter of law, the negligence claim fails because it is based on the same
deficient allegations as the libel claims. See, e.g., Nelson v. Pagan, 377 S.W.3d 824, 837 (Tex.
App.—Dallas 2012, no pet.).
26. As a matter of law, Gharavi owed no duty of care to Khademazad.
27. There is no sufficient evidence to support imposing a duty of care on Gharavi. As
a matter of law, the evidence conclusively establishes that no such duty exists. The Court’s
contrary finding is against the overwhelming weight of the evidence.
28. There is no sufficient evidence that Gharavi breached any duty of care owed to
Khademazad. As a matter of law, the evidence conclusively establishes that he did not. To the
extent that the Court found otherwise, its finding is against the overwhelming weight of the
evidence.
29. There is no sufficient evidence that the Yelp Post addressed Khademazad’s
competency as a dentist or otherwise accused Khademazad of lacking a peculiar or unique skill
necessary for the proper conduct of his profession as a dentist. As a matter of law, the evidence
conclusively establishes that it did not. To the extent that the Court found otherwise, its finding
is against the overwhelming weight of the evidence.
30. There is no sufficient evidence that Yelp actually published the Yelp Post or that
any patient or potential patient actually saw the Yelp Post.
31. There is no sufficient evidence that (1) existing patients stopped going to
Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased
or never considered referring patients to him as a result of the Yelp Post.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 14
32. There is n0 sufficient evidence that the Yelp Post proximately caused
Khademazad damages.
E. A new trial is required because n0 judgment can be rendered awarding
special damages.
33. There is n0 sufficient evidence t0 support any special damages, and that award is
against the conclusive and overwhelming weight of the evidence.
34. Khademazad is not entitled t0 recover special damages as a matter of law because
he failed to establish liability on any 0f his claims.
35. There is no sufficient evidence that any actual or potential patients of
Khademazad saw the Yelp Post 0r decided not t0 use Khademazad’s services as a result 0f the
Yelp Post.
36. There is no sufficient evidence that Khademazad suffered the loss 0f existing
patients, prospective patients, patient referral sources, 0r any pecuniary loss as a result of the
Yelp Post. Khademazad put forth n0 evidence 0f the number 0f unique Visitors, patient calls,
appointments, or revenue he may have obtained but for the Yelp Post.
37. There is n0 sufficient evidence that Khademazad suffered decreased revenues as a
result of the Yelp Post. As a matter of law, the evidence conclusively establishes that he did not.
To the extent that the Court found otherwise, its finding is against the overwhelming weight of
the evidence. Indeed, Khademazad submitted evidence showing that revenue increased in
2017—including after the Yelp Post. For example:
0 Khademazad’s gross revenue calculations show that his revenues for the highlighted
timeframe of March-July 2017 were higher than revenues realized in 2016:
MARCH JULY - 2016 2017 2018
Gross Revenue $240,567.30 $244,351.66 $291,398.19
0 Khademazad’s tax forms show that his revenues in 2017 were higher than those in 2016:
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 15
YEAR 2016 2017 2018
IRS 1040 SCHEDULE C
Gross Revenue (line 1) $ 626,736.00 $ 635,171.00 Not Provideds
38. There is n0 sufficient evidence that Khademazad suffered increased expenses as a
result 0f the Yelp Post. As a matter of law, the evidence conclusively establishes that
Khademazad’s expenses increased due t0 causes unrelated to the Yelp Post, such as additional
equipment costs and increased wages. To the extent that the Court found otherwise, its finding is
against the overwhelming weight of the evidence. Khademazad testified, for example, that at
least some 0f his expenses were not caused by the Yelp RevieW—such as expenses for a water
leak and a vendor demanding several months of payment, among other things. His tax filings
show that increased expenses were unrelated t0 the Yelp Post. In 2017, he reported $160,274 in
depreciation, a $70,893 increase over the prior year of $89,381; $79,965 in Dental Supplies, a
$39,819 increase from the prior year of $40,146; and other expenses, which decreased his 2017
profit and are unrelated t0 the Yelp Post. And Khademazad failed t0 explain how significantly
increased expenses in March-July 2017 (over $26,000 higher than the combined monthly
average for those months in 2017 and $45,272.54 higher than in 2016) were caused by the Yelp
Post. Further, Khademazad did not adjust his 10st profits downward t0 account for the $5,1 1 1.50
per month in reduced monthly loan payments directly attributable to the refinance. Those
savings resulted in $25,557.50 ($5,111.50 X 5) 0f the reduced expenses (and hence net profit
increase) in 2018.
39. There is n0 sufficient evidence that Khademazad suffered lost profits as a result 0f
the Yelp Post. As a matter of law, the evidence conclusively establishes that he did not. To the
5
Khademazad’s failure t0 provide his 2018 tax forms further dooms his special damages. Khademazad calculates
lost profits by comparing 2017 (when the harm supposedly occurred) to 2018 (a supposedly normal year). Whether
this calculation is sufficient to show Khademazad’s claimed 10st profits—and it is not—the failure to provide a 201 8
tax form reflecting Khademazad’s profits 0r losses during that year is independently fatal to his lost-profits claim.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 16
extent that the Court found otherwise, its finding is against the overwhelming weight of the
evidence.
40. There is no sufficient evidence that the loan refinance was caused by the Yelp
Post. As a matter of law, the evidence conclusively establishes that it was not. To the extent that
the Court found otherwise, its finding is against the overwhelming weight of the evidence. The
evidence establishes that other causes, such as increased expenses and a $100,000 loan that was
due for repayment, led Khademazad to refinance his loans.
41. There is no sufficient evidence that it was reasonably foreseeable that submitting
the Yelp Post would cause Khademazad to lose $73,071.07, or any amount, in profits. As a
matter of law, the evidence conclusively establishes that it was not. To the extent that the Court
found otherwise, its finding is against the overwhelming weight of the evidence.
42. There is no sufficient evidence that it was reasonably foreseeable that submitting
the Yelp Post would cause Khademazad to incur costs of $477,100.14, or any amount, from a
loan refinance. As a matter of law, the evidence conclusively establishes that it was not. To the
extent that the Court found otherwise, its finding is against the overwhelming weight of the
evidence. Indeed, Khademazad admitted at trial that his loan consolidation substantially reduced
his interest rates—from between 5.5% and 9.5% to 4.69%—and thus saved him thousands of
dollars per month.
43. There is no sufficient evidence that $73,071.07, or any amount, in lost profits is
directly traceable to the Yelp Post. As a matter of law, the evidence conclusively establishes that
it is not. To the extent that the Court found otherwise, its finding is against the overwhelming
weight of the evidence. Indeed, the evidence shows that these damages are not only
unsupported, but also duplicative of other damages.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 17
44. There is no sufficient evidence that $477,100.14, or any amount, in loan refinance
costs are directly traceable to the Yelp Post. As a matter of law, the evidence conclusively
establishes that it is not. To the extent that the Court found otherwise, its finding is against the
overwhelming weight of the evidence.
45. There is no sufficient evidence to support a lost profits award in any amount.
46. There is no sufficient evidence to support an award for loan refinance costs in any
amount.
47. Khademazad omitted the impact of his divorce on his 2017 expenses, profits, and
financial position—further establishing the insufficiency of the evidence as to the amount and
causes of Khademazad’s claimed special damages. Khademazad’s divorce was ongoing at the
time the Yelp Post was made and did not conclude until April 27, 2017, two weeks after the Yelp
Post was rejected on April 14. Indeed, on August 25, 2017, Khademazad’s counsel sent an email
to Gharavi’s counsel confirming the ongoing negative impact of the divorce on Khademazad’s
finances:
Nevertheless, my offer is based on Dr. Khademazad’s ability to pay the judgment
versus simply filing bankruptcy and starting all over. His ex-wife has already
taken him to the cleaners and thus, filing bankruptcy and starting all over can
be rather appealing if his back is pushed against the wall. And then, there are
the defamation claims arising from the Yelp posting which adversely affected Dr.
Khademazad’s practice as well as his reputation. Under Defamation Per Se, Dr.
Khademazad does not have to plead and prove special damages and can recover
general damages including loss of reputation and mental anguish.
48. There is no sufficient evidence of any reasonably certain damages. Indeed,
Khademazad provided no financial expert or audited accounting proving special damages,
relying instead on evidence rife with analytical gaps and contradictions with the trial record.
49. The special damages awarded in the Final Judgment are so grossly excessive and
unsupported by the evidence that the only sufficient remedy is the granting of a new trial.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 18
F. A new trial is required because no judgment can be rendered awarding
general damages.
50. There is no sufficient evidence to support any general damages, and that award is
against the conclusive and overwhelming weight of the evidence.
51. Khademazad is not entitled to recover general damages as a matter of law because
he failed to establish liability on any of his claims.
52. There is no sufficient evidence that the Yelp Post caused a substantial disruption
in Khademazad’s daily routine.
53. There is no sufficient evidence that the Yelp Post caused a high degree of mental
pain or distress to Khademazad that is more than mere worry, anxiety, vexation, embarrassment,
or anger.
54. There is no sufficient evidence to justify an award of $100,000, or any amount, in
general damages due to emotional and financial pain and suffering.
55. The general damages awarded in the Final Judgment are so grossly excessive and
unsupported by the evidence that the only sufficient remedy is the granting of a new trial.
G. A new trial is required because no judgment can be rendered awarding
exemplary damages.
56. There is no sufficient evidence to support any exemplary damages, and that award
is against the conclusive and overwhelming weight of the evidence.
57. Khademazad is not entitled to recover exemplary damages as a matter of law
because he failed to establish liability on any of his claims.
58. There is no sufficient evidence of any of the statutory factors governing
exemplary damages, including the nature of the alleged wrong, the character of the conduct
alleged, the degree of culpability, if any, the situation and sensibilities of the parties, the extent to
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 19
which the conduct alleged offends the public sense of justice and propriety, and Gharavi’s net
worth. See TEX. CIV. PRAC. & REM. CODE § 41.011.
59. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that Gharavi committed fraud.
60. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that Gharavi acted willfully or with malice in submitting the Yelp Post.
61. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that Gharavi acted with a specific intent to injure Khademazad.
62. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that Gharavi acted with an extreme degree of risk in submitting the Yelp Post
considering the probability and magnitude of any potential harm from the Yelp Post.
63. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that Gharavi had an actual, subjective awareness of any risk from submitting the Yelp
Post, nor that he proceeded with conscious indifference to the rights, safety, or welfare of
Khademazad in submitting the Yelp Post.
64. There is no sufficient evidence—much less sufficient clear and convincing
evidence—that the Yelp Post, or any of the statements contained in it, is false. As a matter of
law, the evidence conclusively establishes that the statements of fact contained in the Yelp Post
are true. The Court’s contrary finding is against the overwhelming weight of the evidence. In
fact, Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was
submitted, Khademazad had not paid a penny toward the judgment.
65. There is no sufficient evidence that Khademazad requested a correction,
clarification, or retraction from Gharavi, precluding him from recovering exemplary damages.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 20
See TEX. CIV. PRAC. & REM. CODE § 73.055(c). As a matter of law, the evidence conclusively
establishes that Khademazad did not make any such request.
66. The exemplary damages awarded in the Final Judgment are so grossly excessive
and unsupported by the evidence that the only sufficient remedy is the granting of a new trial.
H. A new trial is required because the overwhelming evidence establishes
Gharavi’s defenses to Khademazad’s claims.
67. As a matter of law, the evidence conclusively establishes Gharavi’s defenses to
Khademazad’s claims, and the Court’s contrary finding is against the overwhelming weight of
the evidence.
68. As a matter of law, the evidence conclusively establishes that Aidris and
Khademazad entered into a valid, binding Settlement Agreement, and Khademazad knew of the
Yelp Post at the time he entered into the Settlement Agreement. As a matter of law, the evidence
conclusively establishes that Gharavi is in privity with Aidris and qualifies as its agent. Thus, as
a matter of law, the evidence conclusively establishes that the release bars Khademazad from
asserting the claims at issue in this lawsuit because those claims are directly or indirectly
attributable to the occurrences underlying the arbitration and judgment, namely, Khademazad’s
failure to pay for Aidris’s services. The Court’s contrary finding is against the overwhelming
weight of the evidence.
69. There is no sufficient evidence that Khademazad made a timely and sufficient
request for a correction, clarification, or retraction from Gharavi. As a matter of law, the
evidence conclusively establishes that Khademazad did not make any such request. Under the
Texas Defamation Mitigation Act, therefore, Khademazad is not entitled to maintain his action
against Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1); Zoanni, 555 S.W.3d at 327; but
see Hardy, 536 S.W.3d at 48.
DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 21
70. There is no sufficient evidence that the statements in the Yelp Post are false. As a
matter of law, the evidence conclusively establishes that the statements in the Yelp Post are
substantially true and protected by Gharavi’s First Amendment rights. As a matter of law, the
evidence conclusively establishes that the statements in the Yelp Post would not have a different
effect on the mind of the average reader than a true statement would. The Court’s contrary
findings are against the overwhelming weight of the evidence.
I. A new trial is required because of cumulative error.
71. Each of the individual errors detailed above warrants a new trial. A new trial is
also warranted on the independent ground that those errors collect
Preview
FILED DALLAS COUNTY 11/22/2019 1:52 PM FELICIA PITRE DISTRICT CLERK Margaret Thomas CAUSE NO. DC-18-00241 BEHROOZ KHADEMAZAD d/b/a GRAND § IN THE DISTRICT COURT OF PRAIRIE FAMILY DENTAL, § § Plaintiff, § § DALLAS COUNTY, TEXAS V. § § SEAN GHARAVI, § § Defendant. § lOISt JUDICIAL DISTRICT DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL AND, ALTERNATIVELY, FOR REMITTITUR AND MODIFICATION AND CORRECTION OF THE JUDGMENT Defendant Sean Gharavi (“Gharavi”) moves the Court under Texas Rules 0f Civil Procedure 3 15 and 320- 329b to set aside the Final Judgment signed by the Court 0n October 23, 20191 and t0 (1) vacate the Final Judgment and enter a judgment that Plaintiff Behrooz Khademazad d/b/a Grand Prairie Family Dental (“Khademazad”) take nothing by his claims, or alternatively (2) grant a new trial, 0r alternatively (3) modify, correct 0r reform the judgment 0r suggest a remittitur t0 conform the judgment to the evidence and controlling law. INTRODUCTION GharaVi was sued—and assessed with a $1.1 million Final Judgment—for doing something that millions of people do every single day: submitting a social media post. Khademazad’s misbegotten theory of the case is that a single post (the “Yelp Post”) by a man in California who is not a patient and who makes no reference to dental skills somehow 1 The Final Judgment is attached as Exhibit A and incorporated in this motion for all purposes. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 1 undermined a thirty-year dental practice based in Grand Prairie, Texas. This facially implausible claim is riddled with numerous errors that merit reconsideration. First and foremost, the Yelp Post is not actionable. Khademazad admitted that the statements regarding his incurring, and failing to pay, a judgment are true. The statements about Khademazad’s trustworthiness are statements of opinion that unmistakably refer to Khademazad himself and not his professional abilities or economic interests. And there is no evidence that the Yelp Post was published online, seen, or believed by a single patient or potential patient. Second, Khademazad’s claims are barred by his own agreement. Khademazad, knowing of the posting by Gharavi, agreed before filing this lawsuit to settle and release “any and all claims or causes of action of any kind” that were “directly or indirectly attributable to” the transaction between him and Gharavi’s company. The Yelp Post, which is the focus of this lawsuit, expressly referenced Khademazad’s failure to pay for that transaction and is thus covered by the terms of the release. Third, Khademazad failed to prove that Gharavi’s posting caused him damages. The damages awards, and their alleged link to Gharavi’s posting, are based entirely on Khademazad’s say-so. There is no evidence of even a single lost patient or referral source, no explanation of why the claimed damages were caused by the Yelp Post instead of other causes, and no evidence of the kind of mental and emotional disruption necessary to support general damages. Khademazad’s damage calculations are similarly speculative, shot through with analytical gaps and contradictions with the trial record that render the calculations incompetent evidence. And there is no basis for the exemplary damages award, which is expressly forbidden under the Defamation Mitigation Act and controlling case law from the Dallas Court of Appeals and the Texas Supreme Court. The Act requires that a plaintiff like Khademazad request a correction, DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 2 clarification, or retraction from the defendant to obtain exemplary damages, and Khademazad admitted at trial that he never made such a request of Gharavi. The Court should remedy these failings by rendering judgment in Gharavi’s favor, ordering a new trial, or modifying the judgment to conform to the evidence and controlling law. ARGUMENT I. Significant errors in Khademazad’s case require the Final Judgment to be set aside. A. The Yelp Post is not actionable because it was true, contained nonactionable opinions, and does not implicate Khademazad’s professional skills. All of Khademazad’s claims fail because they are all based on the Yelp Post, which is not actionable under Texas law. The Yelp Post states: This is a review for the Grand Prairie Family Dental and Dr. Khademazad. Dr. Khademazad is not to be trusted. Grand Prairie Family Dental and Dr. Khademazad refused to pay money owed since 10/20/2010. Even after winning a major court judgment in 06/16, we still haven [sp] not received a penny of what is owed. Grand Prairie Family Dental and Dr. Khademazad can’t even be trusted with a court order !! Why would you trust him with your health?! To establish his claims based on those statements, Khademazad was required to show that the statements are false assertions of fact, that they impugn his professional or economic interests, and that the statements were published. He proved none of those things. The Yelp Post is not actionable because the statements it contains are true. Khademazad admitted in his pleadings and at trial that a final judgment was entered against him in favor of Aidris, Gharavi’s company, and that he had not paid the judgment at the time the Yelp Post was made. Accordingly, those statements cannot form the basis of Khademazad’s claims. See TEX. CIV. PRAC. & REM. CODE § 73.005(a) (“The truth of the statement in the publication on which an action for libel is based is a defense to the action.”); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1994) (“Truth is a complete defense to defamation”). DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 3 That leaves Khademazad to rely entirely on the statements regarding his trustworthiness, but those statements cannot support his claims for two reasons: (1) they are constitutionally protected statements of opinion, and (2) they have no bearing on his professional and economic interests. First, the remaining statements are not actionable as a matter of law because they do not “assert an objectively verifiable fact.” Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.). A statement “is not defamatory” if it “is not verifiable as false” or if “the entire context in which it was made discloses that it is merely an opinion masquerading as a fact.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). That is the case here. Khademazad’s trustworthiness is not a question of fact that can be proven or disproven. Instead, Gharavi’s statements are the kind of indefinite, figurative, and hyperbolic statements that Texas courts have found to be non-actionable opinion. See Shipp v. Malouf, 439 S.W.3d 432, 441 (Tex. App.—Dallas 2012, pet. denied) (“A statement that a dentist is personally bankrupt does not adversely affect the dentist’s fitness to practice dentistry—he may be a great dentist but a bad businessman”—and is therefore “not defamatory per se”); Ruder v. Jordan, 2015 WL 4397636, at *3 (Tex. App—Dallas, Jul. 20, 2015, no pet.) (statements that plaintiff was incompetent, mentally unstable, and raging from rejection were non-actionable opinions); Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (accusation that plaintiffs committed “lawsuit abuse” was non-actionable opinion). Second, the statements regarding Khademazad’s trustworthiness have nothing to do with his professional skill or economic interests. In fact, the Yelp Post does not mention Khademazad’s skill as a dentist at all. As this Court found, there “is no correlation between refusing to pay a court order” as referenced in the Yelp Post “and being a trustworthy competent DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 4 dentist.” This finding is fatal to Khademazad’s libel per se and business disparagement claims, both of Which require evidence of a statement disparaging the plaintiff’s professional ability 0r economic interests. See Bedford v. Spassoff, 520 S.W.3d 901, 905 (TeX. 2017); In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015). As the Texas Supreme Court has held, the inquiry in suits involving claims like Khademazad’s is focused not on reputation 0r truthfulness, but on Whether the statement at issue “accuses a professional 0f lacking a peculiar or unique skill that is necessary for the proper conduct 0f the profession.” Hancock v. Variyam, 400 S.W.3d 59, 67 (Tex. 2013). The Yelp Post does not because trustworthiness is not a peculiar 0r unique trait 0f a dentist. Instead, a reasonable and fair—minded person would find that the Yelp Post complains of Khademazad’s failure to pay a monetary judgment. Khademazad’s claims also fail for the independent reason that he failed t0 prove the Yelp Post was published online by Yelp. Khademazad relied 0n a post card he received in the mail from Yelp containing a copy 0f the posting submitted by GharaVi along with an email from a Yelp salesman regarding the rejection of the posting. But there is no evidence, such as page View counts or counts 0f unique Visitors, t0 prove that the posting was actually published online 0r to otherwise establish that any patient 0r potential patient actually Viewed the Yelp Post. B. Khademazad’s claims are barred by a release provision in his Settlement Agreement with Gharavi’s company. Khademazad’s claims independently fail because they are foreclosed by the Settlement Agreement he signed after the Yelp Post was submitted. As part of the Settlement Agreement, by which Khademazad resolved the outstanding judgment debt owed to Aidris, he released Aidris and by extension Gharaviz from “all claims or causes 0f action of any kind whatsoever . . . 2 The release covers Aidris and “its agents, servants, employees, attorneys and all persons, natural 0r corporate, in priVity With” Aidris. As owner and employee of Aidris, Gharavi qualifies as its agent and as a person in priVity With Aidris. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 5 directly or indirectly attributable to the transaction or occurrences made the basis of this lawsuit.” The lawsuit in question is the lawsuit between Aidris and Khademazad that led to the judgment against Khademazad. That lawsuit arose because of allegations that Khademazad failed to pay Aidris for its services (the “transaction or occurrences” referred to in the release), which is the same “refusa[al] to pay money owed since 10/20/2010” referred to by the Yelp Post. The Yelp Post is thus focused on “the transaction or occurrences” discussed in the release. And because Khademazad’s claims in turn focus on the Yelp Post, they qualify as claims that are “directly or indirectly attributable to the transaction or occurrences” and were accordingly covered—and barred—by the release provision. See Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 697-98 (Tex. 2000). C. There is no legally competent evidence of damages. Significant errors in Khademazad’s damages evidence provide another independent ground for setting aside the Final Judgment. First, there is no evidence that the Yelp Post caused any damage to Khademazad, much less the $650,000 in compensatory damages awarded in the Final Judgment. The only link between Khademazad’s claimed damages and the Yelp Post is temporal. But there is no evidence that the Yelp Post caused Khademazad to lose profits or caused Khademazad to refinance his loans. Khademazad did not come forward with evidence of even a single lost patient, prospective patient, or referral source—in fact, his revenues increased in 2017 compared to the prior year and in the months following the Yelp Post. He also failed to explain how the Yelp Post caused the increase in expenses during April-June 2017 (nearly 25% higher than average monthly expenses for the year) that was the cause for much of his claimed lost profits. Khademazad’s evidence falls far short of the “objective facts, figures, or data” required to DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 6 establish lost profits to a “reasonable certainty.” Phillips v. Carlton Energy Group, LLC, 475 S.W.3d 265, 278-79 (Tex. 2015). Nor did Khademazad rule out other possible causes for the damages he claims. Thus, while he told the Court to pay no attention to his 2016 financial results because of his divorce, he failed to explain why that divorce did not also affect the 2017 results he relied on, given that the divorce was finalized in April 2017 after Yelp rejected the Yelp Post. In fact, he admitted the negative financial impact of his divorce in August 2017. Similarly, he claimed that he sought to refinance several loans because of the Yelp Post but failed to address other potential drivers of that decision unrelated to the Yelp Post, including increased expenses, loans with high interest rates, and a $100,000 loan that was due to be repaid. And he failed to adjust his lost profits claims to account for increased 2017 expenses in areas such as depreciation, increased dental supplies, expenses for a water leak, and a vendor demanding several months of payment, that are completely unrelated to the Yelp Post. See El-Khoury v. Kheir, 241 S.W.3d 82, 88-89 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (reversing damages for defamation where plaintiff failed to rule out other possible causes of harm). Second, Khademazad’s damage calculations are riddled with analytical gaps and are based on premises that are contradicted by the evidence. • Khademazad calculated his lost profits based on a comparison of net profit accrued during the months of March-July in 2017 and 2018, but undisputed evidence establishes that the Yelp Post was submitted in February 2017 and rejected on April 14, 2017. Khademazad provided no basis for extending his calculations months after this date. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 7 • There is likewise no evidence that Khademazad suffered any loss at all. He focuses on the window from March-July 2017, but his calculations for the year show that his revenue increased during 2017, including in the months after the Yelp Post, and his gross production was in line with his results throughout the four-year period from 2015-2018. Khademazad did not explain how this reflects lost profits. • Khademazad artificially inflated his lost profits by including savings from the loan refinance he claims that the Yelp Post caused. Khademazad admitted that the loan refinance reduced his loan payments by over $5,000 each month (thereby boosting net profits by the same amount), but he did not make any downward adjustment to account for this benefit (over $25,500 during the comparison period of March-July 2018). • Khademazad double-counts the balloon payment due at the end of his loan— including it in the full amount of the loan and again as a separately refinanced item. He further admitted at trial that refinancing the balloon payment had nothing to do with the Yelp Post. Texas law does not permit a party to manufacture damages through a witness’s say-so, but that is all Khademazad offers to support his erroneous and omission-laden conclusions. See Kerr McGee Corp. v. Helton, 133 S.W.3d 245, 257-58 (Tex. 2004.). That is fatal to his request for special damages. See Lipksy, 460 S.W.3d at 593 (special damages “are never presumed as they represent specific economic losses that must be proven”). Furthermore, the gaps and contradictions in Khademazad’s evidence renders it legally insufficient to support the judgment. See Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 832-33, 835 (Tex. 2014) (testimony is conclusory or speculative, and thus legally insufficient, when it suffers DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 8 from too great an “analytical gap” or when it is predicated 0n facts, data, or assumptions that do not support the opinion or are not supported by the evidence). Third, there is no evidence that Khademazad suffered a “substantial disruption” in his daily routine or a “high degree” of mental pain and distress because of the Yelp Post, as required t0 support his general damages award. See Hancock, 400 S.W.3d at 68; Service Corp. International v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). In fact, the evidence demonstrates just the opposite: he was able to maintain gross production in line with his results from 2015- 2018 and his revenue increased in 2017 from the previous year. And as with his special damages, Khademazad has produced n0 evidence to distinguish any disruption or distress caused by the Yelp Post from that experienced from his ongoing divorce, which was not concluded until after the Yelp Post was rej ected. Fourth, Khademazad is barred as a matter of law from recovering exemplary damages because he failed to comply with the requirements of the Defamation Mitigation Act. The Act requires plaintiff seeking to “maintain an action for defamation” to first request a “correction, clarification, 0r retraction” from the defendant. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1). Khademazad admitted at trial that he never made such a request of Gharavi. As a result, he is barred from recovering exemplary damages. TEX. CIV. PRAC. & REM. CODE § 73.055(c); Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013); see also Hardy v. Comm’cn Workers ofAm. Local 6215 AFL-CIO, 536 S.W.3d 38, 4 (Tex. App.—Dallas 2017, pet. denied) (plaintiff bears the burden t0 prove compliance With the Act).3 3 Khademazad’s failure also “preclude[s] the non-compliant defamation claims from proceeding to [trial].” Zoannz' v.Hogan, 555 S.W.3d 321, 327 (Tex. App.—Houston [1st Dist] 2018, pet. filed); but see Hardy 536 S.W.3d at 48 (holding that a defamation claim is “not subj ect to dismissal solely based on the” failure t0 request a correction). DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 9 II. A new trial is required because the Final Judgment is not supported by legally and factually sufficient evidence. The evidence is factually and legally insufficient to support the Final Judgment on each 0f Khademazad’s claims.4 And 0n multiple claims, the evidence conclusively establishes the opposite 0f the Final Judgment’s findings, and those findings are against the overwhelming weight of the evidence. A new trial is therefore required. A. A new trial is required because n0 judgment can be rendered for statutory libel. 1. There is n0 sufficient evidence t0 support a finding of statutory libel, and that finding is against the conclusive and overwhelming weight 0f the evidence. 2. There is no sufficient evidence that the Yelp Post injured Khademazad’s reputation 0r exposed him t0 public hatred, contempt, or ridicule or financial injury. As a matter of law, the evidence conclusively establishes it did not. T0 the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 3. Nor is there sufficient evidence that the Yelp Post impeached Khademazad’s honesty, integrity, Virtue, or reputation. As a matter 0f law, the evidence conclusively establishes it did not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 4. And there is no sufficient evidence that the Yelp Post published Khademazad’s natural defects or exposed him t0 public hatred, ridicule, 0r financial injury. As a matter 0f law, the evidence conclusively establishes it did not. T0 the extent that the Court found otherwise, its finding is against the overwhelming weight 0f the evidence. 4 In this motion, references to “sufficient” or “insufficient” evidence refer to both legal and factual sufficiency. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 10 5. As a matter of law, the Yelp Post was not reasonably capable of a defamatory meaning, nor was its meaning reasonably capable of defaming Khademazad. B. A new trial is required because no judgment can be rendered for libel per se. 6. There is no sufficient evidence to support a finding of libel or libel per se, and that finding is against the conclusive and overwhelming weight of the evidence. 7. There is no sufficient evidence that the Yelp Post, or any of the statements contained in it, is false and misleading. As a matter of law, the evidence conclusively establishes it is neither. The Court’s contrary finding is against the overwhelming weight of the evidence. 8. Further, as a matter of law, the evidence conclusively establishes that the gist of the Yelp Post is commentary about an unpaid judgment, and any statements contained therein are true or otherwise statements of opinion or hyperbole. As this Court found, there “is no correlation between refusing to pay a court order” as referenced in the Yelp Post “and being a trustworthy competent dentist.” The evidence indisputably shows, for example, that Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward that judgment. The other statements in the Yelp Post were hyperbole and are not statements of objectively verifiable fact. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 9. As a matter of law, the Yelp Post was not reasonably capable of a defamatory meaning, nor was its meaning reasonably capable of defaming Khademazad. 10. There is no sufficient evidence that Gharavi submitted the Yelp Post with actual malice, knowledge of its falsity, reckless disregard as to its truth, or negligence. As a matter of law, the evidence conclusively establishes that he did not. The Court’s contrary finding is against the overwhelming weight of the evidence. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 11 11. There is no sufficient evidence that Gharavi knew or should have known that the Yelp Post would injure Khademazad in his profession. As a matter of law, the evidence conclusively establishes that he did not. The Court’s contrary finding is against the overwhelming weight of the evidence. 12. There is no sufficient evidence that the Yelp Post accuses Khademazad of lacking a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. As a matter of law, the evidence conclusively establishes that it does not. See Shipp, 439 S.W.3d at 441 (“A statement that a dentist is personally bankrupt does not adversely affect the dentist’s fitness to practice dentistry—he may be a great dentist but a bad businessman”—and is therefore “not defamatory per se”). To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 13. There is no sufficient evidence that Yelp actually published the Yelp Post or that any patient or potential patient actually saw the Yelp Post. 14. There is no sufficient evidence that the Yelp Post caused Khademazad general or special damages. C. A new trial is required because no judgment can be rendered for business disparagement. 15. There is no sufficient evidence to support a finding of business disparagement, and that finding is against the conclusive and overwhelming weight of the evidence. 16. The Yelp Post is not business disparagement as a matter of law because it refers to Khademazad personally, not his economic interests. See Hurlbut v. Gulf Atl. Life Ins., 749 S.W.2d 762, 766 (Tex. 1987). 17. There is no sufficient evidence that the Yelp Post contains false or disparaging words about Khademazad’s economic interests. As a matter of law, the evidence conclusively DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 12 establishes that it does not. The Court’s contrary finding is against the overwhelming weight of the evidence. 18. There is no sufficient evidence that the Yelp Post, or any statements contained in it, is false. As a matter of law, the evidence conclusively establishes that the statements of fact contained in the Yelp Post are true. The Court’s contrary finding is against the overwhelming weight of the evidence. In fact, Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment. 19. There is no sufficient evidence that Gharavi submitted the Yelp Post with malice. As a matter of law, the evidence conclusively establishes that he did not. The Court’s contrary finding is against the overwhelming weight of the evidence. 20. Relatedly, there is no sufficient evidence that, when submitting the Yelp Post, Gharavi (1) knew the statement to be false or acted with reckless disregard for the truth, (2) acted with ill will, or (3) intended to interfere with Khademazad’s economic interests. As a matter of law, the evidence conclusively establishes that he did not. The Court’s contrary finding is against the overwhelming weight of the evidence. 21. There is no sufficient evidence that Yelp actually published the Yelp Post or that any patient or potential patient actually saw the Yelp Post. 22. There is no sufficient evidence that (1) existing patients stopped going to Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased or never considered referring patients to him as a result of the Yelp Post. In fact, the evidence shows that Khademazad’s revenue increased in the months following the Yelp Post. 23. There is no sufficient evidence that the Yelp Post caused Khademazad special damages—or any other damages. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 13 D. A new trial is required because no judgment can be rendered for negligence. 24. There is no sufficient evidence to support a finding of negligence, and that finding is against the conclusive and overwhelming weight of the evidence. 25. As a matter of law, the negligence claim fails because it is based on the same deficient allegations as the libel claims. See, e.g., Nelson v. Pagan, 377 S.W.3d 824, 837 (Tex. App.—Dallas 2012, no pet.). 26. As a matter of law, Gharavi owed no duty of care to Khademazad. 27. There is no sufficient evidence to support imposing a duty of care on Gharavi. As a matter of law, the evidence conclusively establishes that no such duty exists. The Court’s contrary finding is against the overwhelming weight of the evidence. 28. There is no sufficient evidence that Gharavi breached any duty of care owed to Khademazad. As a matter of law, the evidence conclusively establishes that he did not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 29. There is no sufficient evidence that the Yelp Post addressed Khademazad’s competency as a dentist or otherwise accused Khademazad of lacking a peculiar or unique skill necessary for the proper conduct of his profession as a dentist. As a matter of law, the evidence conclusively establishes that it did not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 30. There is no sufficient evidence that Yelp actually published the Yelp Post or that any patient or potential patient actually saw the Yelp Post. 31. There is no sufficient evidence that (1) existing patients stopped going to Khademazad, (2) prospective patients did not consider him, or (3) patient referral sources ceased or never considered referring patients to him as a result of the Yelp Post. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 14 32. There is n0 sufficient evidence that the Yelp Post proximately caused Khademazad damages. E. A new trial is required because n0 judgment can be rendered awarding special damages. 33. There is n0 sufficient evidence t0 support any special damages, and that award is against the conclusive and overwhelming weight of the evidence. 34. Khademazad is not entitled t0 recover special damages as a matter of law because he failed to establish liability on any 0f his claims. 35. There is no sufficient evidence that any actual or potential patients of Khademazad saw the Yelp Post 0r decided not t0 use Khademazad’s services as a result 0f the Yelp Post. 36. There is no sufficient evidence that Khademazad suffered the loss 0f existing patients, prospective patients, patient referral sources, 0r any pecuniary loss as a result of the Yelp Post. Khademazad put forth n0 evidence 0f the number 0f unique Visitors, patient calls, appointments, or revenue he may have obtained but for the Yelp Post. 37. There is n0 sufficient evidence that Khademazad suffered decreased revenues as a result of the Yelp Post. As a matter of law, the evidence conclusively establishes that he did not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. Indeed, Khademazad submitted evidence showing that revenue increased in 2017—including after the Yelp Post. For example: 0 Khademazad’s gross revenue calculations show that his revenues for the highlighted timeframe of March-July 2017 were higher than revenues realized in 2016: MARCH JULY - 2016 2017 2018 Gross Revenue $240,567.30 $244,351.66 $291,398.19 0 Khademazad’s tax forms show that his revenues in 2017 were higher than those in 2016: DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 15 YEAR 2016 2017 2018 IRS 1040 SCHEDULE C Gross Revenue (line 1) $ 626,736.00 $ 635,171.00 Not Provideds 38. There is n0 sufficient evidence that Khademazad suffered increased expenses as a result 0f the Yelp Post. As a matter of law, the evidence conclusively establishes that Khademazad’s expenses increased due t0 causes unrelated to the Yelp Post, such as additional equipment costs and increased wages. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. Khademazad testified, for example, that at least some 0f his expenses were not caused by the Yelp RevieW—such as expenses for a water leak and a vendor demanding several months of payment, among other things. His tax filings show that increased expenses were unrelated t0 the Yelp Post. In 2017, he reported $160,274 in depreciation, a $70,893 increase over the prior year of $89,381; $79,965 in Dental Supplies, a $39,819 increase from the prior year of $40,146; and other expenses, which decreased his 2017 profit and are unrelated t0 the Yelp Post. And Khademazad failed t0 explain how significantly increased expenses in March-July 2017 (over $26,000 higher than the combined monthly average for those months in 2017 and $45,272.54 higher than in 2016) were caused by the Yelp Post. Further, Khademazad did not adjust his 10st profits downward t0 account for the $5,1 1 1.50 per month in reduced monthly loan payments directly attributable to the refinance. Those savings resulted in $25,557.50 ($5,111.50 X 5) 0f the reduced expenses (and hence net profit increase) in 2018. 39. There is n0 sufficient evidence that Khademazad suffered lost profits as a result 0f the Yelp Post. As a matter of law, the evidence conclusively establishes that he did not. To the 5 Khademazad’s failure t0 provide his 2018 tax forms further dooms his special damages. Khademazad calculates lost profits by comparing 2017 (when the harm supposedly occurred) to 2018 (a supposedly normal year). Whether this calculation is sufficient to show Khademazad’s claimed 10st profits—and it is not—the failure to provide a 201 8 tax form reflecting Khademazad’s profits 0r losses during that year is independently fatal to his lost-profits claim. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 16 extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 40. There is no sufficient evidence that the loan refinance was caused by the Yelp Post. As a matter of law, the evidence conclusively establishes that it was not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. The evidence establishes that other causes, such as increased expenses and a $100,000 loan that was due for repayment, led Khademazad to refinance his loans. 41. There is no sufficient evidence that it was reasonably foreseeable that submitting the Yelp Post would cause Khademazad to lose $73,071.07, or any amount, in profits. As a matter of law, the evidence conclusively establishes that it was not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 42. There is no sufficient evidence that it was reasonably foreseeable that submitting the Yelp Post would cause Khademazad to incur costs of $477,100.14, or any amount, from a loan refinance. As a matter of law, the evidence conclusively establishes that it was not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. Indeed, Khademazad admitted at trial that his loan consolidation substantially reduced his interest rates—from between 5.5% and 9.5% to 4.69%—and thus saved him thousands of dollars per month. 43. There is no sufficient evidence that $73,071.07, or any amount, in lost profits is directly traceable to the Yelp Post. As a matter of law, the evidence conclusively establishes that it is not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. Indeed, the evidence shows that these damages are not only unsupported, but also duplicative of other damages. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 17 44. There is no sufficient evidence that $477,100.14, or any amount, in loan refinance costs are directly traceable to the Yelp Post. As a matter of law, the evidence conclusively establishes that it is not. To the extent that the Court found otherwise, its finding is against the overwhelming weight of the evidence. 45. There is no sufficient evidence to support a lost profits award in any amount. 46. There is no sufficient evidence to support an award for loan refinance costs in any amount. 47. Khademazad omitted the impact of his divorce on his 2017 expenses, profits, and financial position—further establishing the insufficiency of the evidence as to the amount and causes of Khademazad’s claimed special damages. Khademazad’s divorce was ongoing at the time the Yelp Post was made and did not conclude until April 27, 2017, two weeks after the Yelp Post was rejected on April 14. Indeed, on August 25, 2017, Khademazad’s counsel sent an email to Gharavi’s counsel confirming the ongoing negative impact of the divorce on Khademazad’s finances: Nevertheless, my offer is based on Dr. Khademazad’s ability to pay the judgment versus simply filing bankruptcy and starting all over. His ex-wife has already taken him to the cleaners and thus, filing bankruptcy and starting all over can be rather appealing if his back is pushed against the wall. And then, there are the defamation claims arising from the Yelp posting which adversely affected Dr. Khademazad’s practice as well as his reputation. Under Defamation Per Se, Dr. Khademazad does not have to plead and prove special damages and can recover general damages including loss of reputation and mental anguish. 48. There is no sufficient evidence of any reasonably certain damages. Indeed, Khademazad provided no financial expert or audited accounting proving special damages, relying instead on evidence rife with analytical gaps and contradictions with the trial record. 49. The special damages awarded in the Final Judgment are so grossly excessive and unsupported by the evidence that the only sufficient remedy is the granting of a new trial. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 18 F. A new trial is required because no judgment can be rendered awarding general damages. 50. There is no sufficient evidence to support any general damages, and that award is against the conclusive and overwhelming weight of the evidence. 51. Khademazad is not entitled to recover general damages as a matter of law because he failed to establish liability on any of his claims. 52. There is no sufficient evidence that the Yelp Post caused a substantial disruption in Khademazad’s daily routine. 53. There is no sufficient evidence that the Yelp Post caused a high degree of mental pain or distress to Khademazad that is more than mere worry, anxiety, vexation, embarrassment, or anger. 54. There is no sufficient evidence to justify an award of $100,000, or any amount, in general damages due to emotional and financial pain and suffering. 55. The general damages awarded in the Final Judgment are so grossly excessive and unsupported by the evidence that the only sufficient remedy is the granting of a new trial. G. A new trial is required because no judgment can be rendered awarding exemplary damages. 56. There is no sufficient evidence to support any exemplary damages, and that award is against the conclusive and overwhelming weight of the evidence. 57. Khademazad is not entitled to recover exemplary damages as a matter of law because he failed to establish liability on any of his claims. 58. There is no sufficient evidence of any of the statutory factors governing exemplary damages, including the nature of the alleged wrong, the character of the conduct alleged, the degree of culpability, if any, the situation and sensibilities of the parties, the extent to DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 19 which the conduct alleged offends the public sense of justice and propriety, and Gharavi’s net worth. See TEX. CIV. PRAC. & REM. CODE § 41.011. 59. There is no sufficient evidence—much less sufficient clear and convincing evidence—that Gharavi committed fraud. 60. There is no sufficient evidence—much less sufficient clear and convincing evidence—that Gharavi acted willfully or with malice in submitting the Yelp Post. 61. There is no sufficient evidence—much less sufficient clear and convincing evidence—that Gharavi acted with a specific intent to injure Khademazad. 62. There is no sufficient evidence—much less sufficient clear and convincing evidence—that Gharavi acted with an extreme degree of risk in submitting the Yelp Post considering the probability and magnitude of any potential harm from the Yelp Post. 63. There is no sufficient evidence—much less sufficient clear and convincing evidence—that Gharavi had an actual, subjective awareness of any risk from submitting the Yelp Post, nor that he proceeded with conscious indifference to the rights, safety, or welfare of Khademazad in submitting the Yelp Post. 64. There is no sufficient evidence—much less sufficient clear and convincing evidence—that the Yelp Post, or any of the statements contained in it, is false. As a matter of law, the evidence conclusively establishes that the statements of fact contained in the Yelp Post are true. The Court’s contrary finding is against the overwhelming weight of the evidence. In fact, Aidris obtained a judgment against Khademazad, and at the time the Yelp Post was submitted, Khademazad had not paid a penny toward the judgment. 65. There is no sufficient evidence that Khademazad requested a correction, clarification, or retraction from Gharavi, precluding him from recovering exemplary damages. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 20 See TEX. CIV. PRAC. & REM. CODE § 73.055(c). As a matter of law, the evidence conclusively establishes that Khademazad did not make any such request. 66. The exemplary damages awarded in the Final Judgment are so grossly excessive and unsupported by the evidence that the only sufficient remedy is the granting of a new trial. H. A new trial is required because the overwhelming evidence establishes Gharavi’s defenses to Khademazad’s claims. 67. As a matter of law, the evidence conclusively establishes Gharavi’s defenses to Khademazad’s claims, and the Court’s contrary finding is against the overwhelming weight of the evidence. 68. As a matter of law, the evidence conclusively establishes that Aidris and Khademazad entered into a valid, binding Settlement Agreement, and Khademazad knew of the Yelp Post at the time he entered into the Settlement Agreement. As a matter of law, the evidence conclusively establishes that Gharavi is in privity with Aidris and qualifies as its agent. Thus, as a matter of law, the evidence conclusively establishes that the release bars Khademazad from asserting the claims at issue in this lawsuit because those claims are directly or indirectly attributable to the occurrences underlying the arbitration and judgment, namely, Khademazad’s failure to pay for Aidris’s services. The Court’s contrary finding is against the overwhelming weight of the evidence. 69. There is no sufficient evidence that Khademazad made a timely and sufficient request for a correction, clarification, or retraction from Gharavi. As a matter of law, the evidence conclusively establishes that Khademazad did not make any such request. Under the Texas Defamation Mitigation Act, therefore, Khademazad is not entitled to maintain his action against Gharavi. TEX. CIV. PRAC. & REM. CODE § 73.055(a)(1); Zoanni, 555 S.W.3d at 327; but see Hardy, 536 S.W.3d at 48. DEFENDANT SEAN GHARAVI’S MOTION FOR NEW TRIAL PAGE 21 70. There is no sufficient evidence that the statements in the Yelp Post are false. As a matter of law, the evidence conclusively establishes that the statements in the Yelp Post are substantially true and protected by Gharavi’s First Amendment rights. As a matter of law, the evidence conclusively establishes that the statements in the Yelp Post would not have a different effect on the mind of the average reader than a true statement would. The Court’s contrary findings are against the overwhelming weight of the evidence. I. A new trial is required because of cumulative error. 71. Each of the individual errors detailed above warrants a new trial. A new trial is also warranted on the independent ground that those errors collect