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FILE9
SAN MATEO COUNTY
1 THE BIERNAT LAW GROUP
012
JAMES D. BIERNAT (SBN: 75839)
VICKY W. CHAN (SBN: 226923)
ler usuiII «r rt
\~
1633 Bayshore Hwy, ste 133 98PUTY CLERK
Burlingame, CA 94010
4 Tel: (650) 689-5160
Fax: (650) 689-5587
5
Attorney for Defendants
SOHYL MAHALLATI,individually and dba ARCH CONSTRUCTION,
[erroneously sued herein as SAYL MAHALLATIand ARCH CONSTRUCTION]
And NASSER MAHALLATI
10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
12
MONTGOMERY SANSOME, LP, LEONARD A. Case No.: CIV508839
NORD EMAN,
14 DEFENDANT SOHYL MAHALLATI'STRIAL
Plaintiffs, BRIEF
15
vs.
17 ARCH CONSTRUCTION, SAYL MAHALLATI,
NASSER MAHALLATI,and DOES 1through
100;
19
Defendants.
20
21
22
23
24
25
26
27
28
DEFENDANT'S TRIAL BRIEF
1 THE SIERNAT lAW GROUP
JAMES D. BIERNAT (SBN: 75839)
VICKY W. CHAN (SBN: 226923)
1633 Bayshore Hwy, ste 133
Burlingame, CA 94010
4 Tel: (650) 689-5160
Fax: (650) 689-5587
5
Attorney for Defendants
SOHYL MAHALLATI,individually and dba ARCH CONSTRUCTION,
[erroneously sued herein as SAYL MAHALLATIand ARCH CONSTRUCTION]
And NASSER MAHALLATI
10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
12
MONTGOMERY SANSOME, LP, LEONARD A. Case No.: CIV508839
NORD EMAN,
14 DEFENDANT SOHYL MAHALLATI'STRIAL
Plaintiffs, BRIEF
15
16
17 ARCH CONSTRUCTION, SAYL MAHALLATI,
NASSER MAHALLATI,and DOES 1through
100;
19
Defendants.
20
21
22 I. NATURE OF THE CASE
23 This is a name calling case. A mold abatement contractor Montgomery Sansome LP, and
24 its general partner, Leonard Nordeman, allege Sohyl'ahallati, d.b.a. Arch Construction: 1)
25 posted defamatory remarks on the web site YELP.corn'; and 2) made additional defamatory
26
Sohyl is pronounced "SAIL"
'The parties have stipulated asfollows "Yelp Inc. is a San Francisco company that operates
28 a website,Yelp.corn,
which is one of the new "social media" websites for people to share information online. It was founded in 2004 as a
public bulletin board to post ratingsfor businessessuch as dentists,hairstylists,
mechanics, accountants and the like.
DEFENDANT'S TRIAL BRIEF 1
1 remarks in a single telephone call to Bret Bradanini, a claims adjuster. Plaintiffs have deviously
2 attempted to add to their claims by asserting in their Second Amended Complaint a taunt
3 allegedly made by Sohyl to Montgomery Sansome's general manager, that he drive over and kick
4 Nordeman's behind. But since the new complaint was allowed a few days before the discovery
5 cut-off upon the representation it contained no new facts, and with the proviso that discovery
6 would not be re-opened, this alleged taunt is not part of this lawsuit.
8 II. PARTIES AND THEIR ATTORNEYS.
9 Plaintiff Montgomery Sansome LP is a mold abatement and licensed general contracting
10 company; Leonard Nordeman is the general partner. They are represented by Tracy Tumlin, Esq.
11 Defendant Sohyl Mahallati is a general contractor and sole proprietor of Arch
12 Construction, a DBA. Defendant isrepresented by James D. Biernat of The Biernat Law Group.
13 Defendant Nasser Mahallati is Sohyl's father. He was dismissed from this lawsuit on July
14 30, 2012. Subsequent to this dismissal, plaintiffs were allowed to file a Second Amended
15 Complaint on October 3, 2012. But the Second Amended Complaint continued to name Nasser
16 Mahallati as a defendant. Nevertheless, Nasser Mahallati was never served with the Second
17 Amended Complaint nor has he appeared in this action after being dismissed. It is apparent that
18 reference to Nasser Mahallati in the Second Amended Complaint isa drafting error, particularly
19 because plaintiffs represented to the court when seeking leave to file the Second Amended
20
21 Any person can write a review about nearly any business and post it on this site
for anyone with access to theinternet
to read.
22
Visitors to thiswebsite begin their search with the type of business they are interestedin (e.g.a barber shop) and a
23 location. Each review contains detailssuch as the address,hours, and parking, a 5-point rating system, and comments
by the reviewer about their experience with the business. These reviews are generally not censored. Business owners
24 don't own their business listings, andcan'tdelete or change them; but a business owner may comment on a review.
The people who post reviews on Yelp.corn arerequired to create a profile so that readers
can see who they are. That
profile disclosesthe number of reviews the person has posted, how long they have been posting, and it identifies the
most popular and respected reviewers as Yelp elite.
' '[t]he designation[DBA] means "doing business as" but is merely descriptiveof the person or corporation who
does business under some other name. Doing business under another name does nor create an entity distinctPom the
person operating the business.'Citation.] The business name is a fiction, and
so too is any implication that the
business Irom its owner." Pinkerton's,
is a legal entity separate Inc.v. Superior Court (1996) 49 Cal.App.4th 1342,
1348
DEFENDANT'5 TRIAL BRIEF
1 Complaint that "Defendants would not be prejudiced if the Court granted leave to amend."
3 III. PROCEDURAL STATUS OF THE CASE.
4 The complaint was filed October 4, 2011. It was stated in a single cause of action,
5 Intentional Tort: Defamation, Libel and Slander, and contained a count for Exemplary Damages.
6 The alleged defamation was a libel, i.e.,
posting comments about plaintiffs on the internet. The
7 complaint alleged general damages, loss of earning capacity, and damage to the reputation and
8 business of both plaintiffs.
9 On June 8, 2012, plaintiffsought leave to file a First Amended Complaint to add a cause of
10 action for negligence because plaintiffs stated they learned new facts constituting slander.
11 Plaintiffs averred to the court that, following the deposition of Bret Bradinini they learned that
12 the alleged defamatory statements posted on the internet were repeated in a telephone
13 conVersation to Mr. Bradinini, and that they should be allowed to include these allegedly
14 slanderous statements in their complaint for defamation and to add a cause of action for
15 negligence based on them. The Court granted the motion
16 On August 8, 2012, plaintiffs'hen attorney, Shawn Ridgell, filed a motion to be relieved
17 as counsel. On August 23, 2012, Mr. Ridgell filed another motion, to continue the trial from
18 October 15, 2012, to permit plaintiffs time to obtain new counsel. On August 24, 2012, plaintiffs'9
new counsel, Tracy Tumlin, filed a declaration in support of the motion to continue trial. On
20 August 28, 2012, the court continued the trial to December 10, 2012, with the proviso that all
21 discovery deadlines were to remain unchanged and to be calculated from the original October
22 trial date.'3
On September 17, 2012, plaintiffs'ew attorney filed a motion to again amend the
24 complaint to include two new causes of action, negligent and intentional infliction of emotional
25 distress. Mr. Tumlin represented to the Court in his pleadings the "two additional causes of
26
27 4
Plaintiffs'emorandum of Pointsand Authorities in Support of Motion for Leave to File Amended Complaint, 4:3.
Notice of Entry of Order; Order Granting Motion to Continue Trial with Limitations, Ex A to this brief.
"IT IS
FURTHER ORDERED that discovery cut-off andall other pretrial andstatutory dates and deadlines shallbe calculated
based on the original trial date
of October 15,2012."
DEF ENDANT'5 TRIAL BRIEF 3
1 action [are] based on the identical facts which gave rise to the first two causes of action. There
2 will be no additional witnesses necessary because the facts have not changed"
3 The original trial date was October 15, 2012. By statute, discovery cuts off 30 days before
4 trial. (Code of Civil Procedure section 2024.020(a).) Even though plaintiffs'iscovery responses
5 to supplemental discovery requests were due September 15, 2012, defendant acceded to Mr.
6 Tumlin's request for a two week extension because of his recent entry into the case. The
7 discovery cut-off was extended to October 1, 2012.
9 IV. FACTUAL BACKGROUND OF THE CASE.
10 The events giving rise to this lawsuit occurred in September, 2011, as a result of a dispute
11 that arose between Leonard Nordeman and Sohyl Mahallati who were working on the same
12 jobsite in San Jose, California. The jobsite was an in-patient mental health facility operated by a
13 nonprofit corporation, Momentum for Mental Health (hereinafter Momentum).
14 Momentum went through a series of catastrophes in the summer of 2011 that disrupted
15 its programs, agitated its patients, and thoroughly frustrated its staff: first abed bug epidemic,
16 then a fire, followed by flooding, and finally the discovery of mold. The sequence of losses was
17 so disheartening to the staff that the Assistant Manager Tam Chandler quit her job when the last
18 in the sequence of incidents was reported to her during lunch; she handed over responsibilities
19 on the spot to Lynn Murphy, who became program manager.
20 Following the fire and the flood during the summer of 2011, Momentum's director of
21 maintenance, Dan McCarthy hired a contractor he had used in the past, Nasser Mahallati, to
22 repair and remodel Momentum. Nasser turned the work over to his son, a young contractor
23 named Sohyl Mahallati (hereinafter Sohyl) who does business as Arch Construction, but assisted
24 him from time to time.
25 While Sohyl was on the job performing remodeling following the flooding, a kitchen
26
Plaintiffs'emorandum of Points and Authorities in Support of Motion for Leave to File Amended Complaint, filed
September 17, 2012, 3:15 — 17. Plaintiffs went on to add:"The trial is set for December 10, 2012 and allowing
plaintiffs to amend the complaint would not cause a delay in trial.
The parties have essentiallycompleted discovery
except for the depositions scheduled for the defendants of plaintiff, Nordeman on September 29, 2012 and witness
employees of Plaintiff scheduledfor Sept 19, 2012 of Eloa Sharif andEzra Chatman."
DEFENDANT'5 TRIAL BRIEF
1 employee noticed that the floor in the dining room was dramatically buckling, from one wall to
2 the other. She called maintenance director McCarthy who in turn asked Sohyl to investigate.
3 Sohyl removed some wallboard and discovered water infiltration and widespread mold.
4 Momentum immediately called its insurer, Philadelphia Insurance Company, and reported the
5 loss.
6 Philadelphia does not have a local presence in Northern California, and so it does its
7 investigation through independent adjusters. Its local contact is Summit Claims Adjusters, a sole
8 proprietorship with a single employee, Bret Bradanini. When the call came to Bradanini for an
9 emergency investigation, he was out of town; and so he called a subcontractor he used from
10 time to time, Neil Hartman, to investigate. Mr. Hartman is 68 years of age and in 2011 retired
11 from a lifetime of insurance adjusting; he accepted a single investigative assignment in 2011, the
12 subject investigation at Momentum.
13 The insurance investigation occurred in a single day, Friday, September 9, 2011. Hartman
14 did a site inspection, took photographs, drew a diagram and drafted a scope of repair report. His
15 assignment was to gather the information for the carrier to assess coverage and set any
16 necessary reserves. Because the loss posed an immediate health hazard and required
17 Momentum to shut down the dining facility —which doubled as the large meeting room for the
18 patients- the staff asked for Mr. Hartman's recommendation for a mold abatement company.
19 Bradanini testified he has a strict policy against recommending contractors —a policy he
20 communicated to Mr. Hartman. There are several reasons Bradanini will not recommend a
21 contractor to insureds, among them the possibility the insured will blame him for poor
22 workmanship, or infer there is coverage before a determination is made, or assume he receives
23 kickbacks for recommendations. Mr. Hartman is a bit more nuanced when an insured asks him
24 to recommend a contractor. He testified that he does not make 'referrals'ut that he does give
25 'recommendations'. In this case, Mr. Hartman told a person at Momentum, Jennifer Chu, that it
26 was imperative to get the mold contained immediately, that day, and he knew a company that
27 would come out immediately. Ms. Chu asked him to do so and he called a personal friend, Len
28 Nordeman, who is the principal for Montgomery Sansome. Montgomery Sansome does some
DEFENDANT'S TRIAL BRIEF
1 general construction repairs, but specializes in mold remediation.
2 Nordeman agreed to come to the site that evening, September 9, 2011. Momentum also
3 contacted Sohyl and asked him to be there at 7:00 p.m. too. When he was called, Sohyl was
4 having dinner with his fiancis, so they ate hurriedly and went to the meeting with Nordeman and
5 another Momentum representative, Lynn Murphy. Maintenance Director McCarthy had left
6 earlier in the day for a weeklong vacation.
7 Murphy admits to being very opinionated about people and free to share her opinions.
8 She got along with Nordeman, who she describes as a character, but found him to be sexist and
9 to hold outdated beliefs about the place of women. She shared this impression with Sohyl after
10 this initial meeting.
11 When Sohyl arrived with his flanch, Kathy Ewers, Nordeman began ogling her up and
12 down and remarked "Where do l sign upP Can I benext?"'ohyl and Kathy both found the
13 comments inappropriate and offensive.
14 Sohyl was told that he would have to suspend his work while the mold abatement was
15 underway. He asked Nordeman how long it would take and claims Nordeman told him
16 approximately five days —a statement Nordeman denies. Nordeman began curious questioning
17 of Sohyl about the work he was doing for Momentum and requested a copy of Sohyl's bid for the
18 work to Momentum. Sohyl was suspicious of Nordeman's motives and never gave it to him.
19 The mold abatement did not complete within five days and Sohyl was forced to delay his
20 renovation work while Momentum kept begging him to complete it. Sohyl eventually made a
21 telephone call to Nordeman to find out the status, but Nordeman did not respond immediately;
22 Sohyl asked his father, Nasser, to follow up with Nordeman. Sohyl learned from Nasser that he
23 finally spoke to Nordeman, and Nordeman yelled and swore at him. Nordeman admits using foul
24 language with Nasser, but claims it was Nasser who first yelled and swore. When Sohyl
25 eventually spoke to Nordeman Sohyl said: "you said you'd be done in a couple of weeks." To this,
26 Nordeman began yelling and swearing at Sohyl, saying "l called your f---father yesterday, when
27
28
Nordeman doesn't recall exactly what he said,but admitted: "I made comments that she was pretty, that'sall.I
certainlydidn't mean anything by that." [DT Nordeman, 9.27.12, Vol. II 61:13-15.)
DEFENDANT'5 TRIAL BRIEF 6
1 I call someone I expect to be called back the next "F---"day."
2 When Dan McCarthy returned from vacation he had occasion to speak to Mr. Nordeman.
3 McCarthy testified Nordeman slurred his speech and sounded as if he was intoxicated.
4 McCarthy told Sohyl about this encounter. McCarthy said Nordeman also asked him about
5 Sohyl's contract and criticized Sohyl's work. McCarthy too thought Nordeman was trying to steal
6 Sohyl's contract because Nordeman boasted he could do a better job and he had inside contacts
7 with the San Jose Building Inspectors and could pull strings to get building permits issued.
8 McCarthy said he was so put off by Nordeman ostentation that he would never hire Montgomery
9 Sansome.
10 As the remediation dragged on, Sohyl contacted his uncle who does legal work for a mold
11 abatement company and learned that Montgomery Sansome's procedure to monitor its own
12 work was not up to industry standard and that a certified environmental hygienist should have
13 monitored the air. He also learned that a typical project like this would only last about 5 days.
www.velo.corn:
14 On September 22, 2011, SAYL posted the following review on the website
15
16
"Montgomery Sansome LP
17 I have just gotten aff the phone with my partner about this company. Len is the
CEO of this company. Evidently Len was rude to my partner after being very rude
18 to me. Heis using foul language and being very disrespectful. On top of that, the
19
slimy bastard made sexual remarks to my girlfriend at a meeting about 2 weeks
ago. If anyone hires this company, be ready to get ripped off. They are trying ta
20 milk my clients for everything the (sic1 can. They are dishonest, rude, and should
be shut downl"
21
22 Bret Bradanini testified he doesn't read and doesn't
Ye/p.corn he recall hearing about that
posting and that the posting has not affected him in any way. However, in an email to Neil
24 Hartman dated September 23, 2011, Bret Bradanini wrote "Insured called me frantic, may call
carrier stilll He associates Len with Summit because we called them out. This claim is adenial,
he cannot charge for extra days. Iwant him out immediately. This is a big deal!" [Emohasis
added.]
28
Lyn Nordeman is arecovering alcoholic.
DEFENDANT'S TRIAL BRIEF
1 About three days after the review was posted, Sohyl received a telephone call from
2 Nordeman's employee, Eloa Sharif, demanding the review be removed or Sohyl would be sued.
3 Very shortly thereafter, Sohyl removed the review from Ye/p.corn. Nordeman sued anyway.
4 Bradanini has testified he had a conversation with Sohyl in which Sohyl said Nordeman
5 appeared to be drunk at the jobsite and was hitting on his girlfriend. Mr. Bradanini said he was
6 not influenced by this telephone callin part because he had a long relationship with Mr.
7 Nordeman and knew him well and has already formed his own opinions about him. Bradanini
8 swore he has not refused to refer business to Montgomery Sansome because of the telephone
9 call. But Mr. Bradanini admitted he has been involved in claims where Montgomery Sansome
10 was difficultto work with and that Len Nordeman involved him in a suit against an employee.
12 V. THIS IS A CASE ABOUT DAMAGE TO REPUTATION. THERE ARE TWO ALLEGED
13 DEFMATORY STATEMENTS PLED AND AT ISSUE.
14 The Second Amended Complaint alleges Sohyl Mahallati posted the following libel on
15 Yelp.corn on September 22, 2011:
16
I HAVE JUST GOTTEN OFF THE PHONE WITH MY PARTNER
17 ABOUT THIS COMPANY. LEN IS THE CEO OF THIS COMPANY.
EVIDENTLY LEN WAS RUDE TO MY PARTNER AFTER BEING
18 VERY RUDE TO ME. HE IS USING FOUL LANGUAGE AND BEING
VERY DISRESPECTFUL. ON TOP OF THAT, THE SLIMY
19 BASTARD MADE SEXUAL REMARKS TO MY GIRLFRIEND AT A
MEETING ABOUT 2 WEEKS AGO. IF ANYONE HIRES THIS
20
COMPANY, BE READY TO GET RIPPED OFF. THEY ARE TRYING
21 TO MILK MY CLIENTS FOR EVERYTHING THE CAN. THEY ARE
DISHONEST, RUDE, AND SHOULD BE SHUT DOWN!9
22
The Second Amended Complaint additionally alleges Sohyl Mahallati made the following
23
slanderous remarks to Bret Bradinini on September 23, 2011:
24
Sayl [sic] told Mr. Brandanini [sic] that plaintiff NORDEMAN
25
appeared at Momentum for Mental Health job site drunk, and
26 made sexual remarks to defendant SAYL'S [sic]
fiance.'8
27
9
SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 4:16-5:1.
SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 5:2-5
DEFENDANT'5 TRIAL BRIEF
VI. IN THEIR SECOND AMENDEO COMPLAINT, PlAINTIFFS HAVE ATTEMPTED TO
ADO A THIRD VERBAL EVENT TO THE CASE, A PREVIOUSLY UNPLED THREAT TO
KICK LEN NORDEMAN'S BKUTTOCK. THIS INCIDENT IS NOT BEFORE THE COURT
AND NO EVIDENCE SHOULD BE PERMITTED ABOUT IT BECAUSE THE PlAINTIFFS
OBTAINED LEAVE TO FILE THE SECOND AMENDED COMPLAINTAT THE
DISCOVERY DEADLINE UPON THE REPRESENTION OF COUNSEL THAT IT ADDED
TWO NEW LEGAL THEORIES BUT NO NEW FACTS.
8 The Second Amended Complaint cleverly inserted a new factual allegation not contained
in the Complaint or the First Amended Complaint:
10
'Defendants further telephoned Plaintiffs'lace of business and
threated [sic] to come to plaintiffs'lace of business and do
physical harm and injury to Leonard A. Nordeman.'3
12
This new factual allegation was not made in the original Complaint or First Amended
14 Complaint. Plaintiffs filed the request to add two new legal theories of Intentional and Negligent
Infliction of Emotional Distress, on September 17, 2012, two days before discovery closed
(however defendant then allowed plaintiff to extend the discovery cutoff to October 1, 2012 so
plaintiffs new counsel could serve some new discovery). Plaintiffs represented to the Court:
18
Here, plaintiffs seek leave to amend their complaint to and [sic] two
19 additional causes of actions [sic] based on the identical facts which
gave rise to the first two causes of action. There will be no
20 additional witnesses necessary because the facts have not
changed."
21
22 Defendant was never apprised of anew factual allegation in time to serve additional
23 written discovery or to depose additional witnesses. Defendant has moved in limine to exclude
24
reference to this new allegation. The court will be called upon to rule on this issue before jury
25
voir Ckre.
26
27
SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 6:24-26; 7:25-27
Plaintiffs'emorandum of Pointsand Authorities in Support of Motion for Leave to File Amended Complaint, filed
September 17, 2012, 3:15 — 17.
DEFENDANT'S TRIAL BRIEF 9
1 Vll. THE LAW OF DEFAMATIONAPPLICABLE TO THIS CASE
2 "Defamation is an invasion of the interest in reputation. The tort involves the intentional
3 publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure
4 or which causes special damage." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
A statement may be a libel if made in written form'nd a slander if made orally.'e
6 have both type of statements in this case, a written post on Ye/p.corn and an oral statement
made to Bret Bradanini, and they are subject to separate legal analysis
A. The entire Yelp.corn posting is protected speech under the common-interest
privilege in Civil Code g 47 (c)."
10 (i) Plaintiffs cannot recover unless they prove the Yelp.corn post was made with
Actual Malice.
12 This case is,in part, about freedom of speech to state opinions about the businesses
practices and services provided by Montgomery Sansome, in a relatively new medium, Ye/p.corn.
Civil Code $ 47 (c), the common-interest privilege, requires that a plaintiff prove a statement was
made with actual malice if it is
made in a public forum about a topic of public interest.'t has
been held and it is binding authority upon this court that Ye/p.corn is a 'public forum'."
17
Furthermore, a statement providing consumer information is entitled to protection under the
18
common-interest privilege.
19
Consumer information, however, at least when it affects a large
20 number of persons, also generally is viewed as information
concerning a matter of public interest. Paradise Hills Associates v.
21
Procel (1991) 235 Cal.App.3d 1528, 1 Cal.Rptr.2d 514 ...noted that
22 the First Amendment protected a consumer's statements about the
quality of a seller's products and service and her unhappiness with
23
24
Civil Code 545
"Civil Code 546
A privileged publication or broadcast is one made: (c) In acommunication, without malice, to aperson interested
therein, (1)by one who isalso interested....
"Under the "common-interest privilege," codified in California in Civil Code
section 47, subdivision (c) (hereafter
section 47(c)),a defendant who makes a statement to others on a matter of common interestis immunized from
liability for defamationso long as the statement is made "without malice." (Lundquist v. Reusser (1994) 7 Cal.4th
1193, 1196.)
Wong v. Jing et. al.(2010) 189 Cal.App.4 1354, 1366
DEFENOANT'5 TRIAL BRIEF 10
them, finding, in part, that the statements concerned a matter of
public interest. "Courts have recognized the importance of the
public's access to consumer information. 'The growth of
"consumerism" in the United States is a matter of common
knowledge. Members of the public have recognized their roles as
consumers and through concerted activities, both private and
public, have attempted to improve their ...positions vis-5-vis the
supplies [sic] and manufacturers of consumer goods. They clearly
have an interest in matters which affect their roles as consumers,
and peaceful activities, such as plaintiffs', which inform them about
such matters are protected by the First Amendment.'Citation.]"
(Wilbanks v. Wolk (2004) 121 Cal.App.4'83, 900.)
In this case, the law and motion department concurred that Yelp.corn is a public forum,
9
but disagreed that defendant has satisfied the burden of proof under Code of Civil Procedure
10
18
425.16, subd. (e), that the
~ ~
publication was a matter of public interest.
~ ~
With due respect, the
11
Law and Motion Department's ruling denying defendant's SLAPP motion and its unduly limited
12
reading of Wilbanks v. Walk a is neither binding on the trial court nor does it exclude the jury
13
from answering the question whether this Yelp.corn posting was a warning to consumers about a
14
mold abatement company's practices and therefore within the protection of the common-
15
interest privilege. That the Law and Motion department interpreted Wilbanks to unduly limit the
16
broad protection of Civil Code section 47 (c) is amply clear in an appellate court's analysis of
17
Wilbanks in Carver v.Bonds (2005) 135 Cal.App.4', 328, 343:
18
19
The article [in the San Francisco Chronicle specifically criticizing a
20 podiatrist] also involved "a public issue or an issue of public
interest" under subdivision (e)(4). Such an issue was found to be
21 present in an analogous situation in Wilbanks v. Wolk, supra, 121
Cal.App.4th at pp. 898-899, 17 Cal.Rptr.3d 497, where the
22
statements in question were directed against a broker of viatical
23 settlements (arrangements that allow dying persons with life
insurance policies to sell their policies to investors for a percentage
24
"The Motion to Strike is DENIED. The publication occurred in a public forum. (Wing v. Wong v. ling (2010) 189
Cal.App.4th 1354 [Yelp.corn as public forum)). However, the publication was not in connection with an issue of
public interestfor purposes of Code of Civil Procedure section 425.16, subd. (e). To be amatter of public interest,
the publication must concern something beyond just a particularincident occurring between the plaintiff and
defendant. Wing v. ling, supra
(E. g., [review pertained also to general controversies about silver amalgam and use
of nitrous oxide);Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 [web posting contained general consumer protection
information about broker fraud, of which plaintiffs business was just one example)). The alleged publication in this
matter addresses only plaintiff, but no matterof public interest."
DEFENDANT'5 TRIAL BRIEF
of the death benefits). The brokerage and its owner sued the
defendant for defamation after the defendant reported on her
Web site that the broker was being investigated by the California
Department of Insurance, warned readers to "[b]e very careful
when dealing with this broker," said that the broker had "provided
incompetent advice," and called the broker "unethical." (/d. at p.
890, 17 Cal.Rptr.3d 497.) The statements did not relate to a public
issue under commonly articulated criteria because "plaintiffs are not
in the public eye, their business practices do not affect a large
number of people and their business practices are not, in and of
themselves, a topic of widespread public interest." (Citation
omitted.) The statements were nevertheless of public concern
because they were "consumer protection information.... The
statements made by [the defendant] were not simply a report of one
broker's business practices, of interest only to that broker and to
those who had been affected by those practices. [The defendant's]
10 statements were a warning not to use plaintiffs'ervices. In the
context of information ostensibly provided to aid consumers
choosing among brokers, the statements, therefore, were directly
12 connected to an issue of public concern."
13
The Law and Motion Department seemed to read Wilbanks to require not only consumer
14
advice, but some broader topic of public concern (e.g.,viatical settlements). Carver makes clear
15
this interpretation of Wilbanks is too restrictive and that a publication is protected by the
16
common-interest privilege if it serves to warn the public of specific practitioner —there was no
17
broader issue involved in Carver, other than the qualifications of a practitioner, as the Law and
18
Motion Department would require.
19
It is therefore plaintiff's burden to prove that the Ye/p.corn posting was made with actual
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FILE9 SAN MATEO COUNTY 1 THE BIERNAT LAW GROUP 012 JAMES D. BIERNAT (SBN: 75839) VICKY W. CHAN (SBN: 226923) ler usuiII «r rt \~ 1633 Bayshore Hwy, ste 133 98PUTY CLERK Burlingame, CA 94010 4 Tel: (650) 689-5160 Fax: (650) 689-5587 5 Attorney for Defendants SOHYL MAHALLATI,individually and dba ARCH CONSTRUCTION, [erroneously sued herein as SAYL MAHALLATIand ARCH CONSTRUCTION] And NASSER MAHALLATI 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 12 MONTGOMERY SANSOME, LP, LEONARD A. Case No.: CIV508839 NORD EMAN, 14 DEFENDANT SOHYL MAHALLATI'STRIAL Plaintiffs, BRIEF 15 vs. 17 ARCH CONSTRUCTION, SAYL MAHALLATI, NASSER MAHALLATI,and DOES 1through 100; 19 Defendants. 20 21 22 23 24 25 26 27 28 DEFENDANT'S TRIAL BRIEF 1 THE SIERNAT lAW GROUP JAMES D. BIERNAT (SBN: 75839) VICKY W. CHAN (SBN: 226923) 1633 Bayshore Hwy, ste 133 Burlingame, CA 94010 4 Tel: (650) 689-5160 Fax: (650) 689-5587 5 Attorney for Defendants SOHYL MAHALLATI,individually and dba ARCH CONSTRUCTION, [erroneously sued herein as SAYL MAHALLATIand ARCH CONSTRUCTION] And NASSER MAHALLATI 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 12 MONTGOMERY SANSOME, LP, LEONARD A. Case No.: CIV508839 NORD EMAN, 14 DEFENDANT SOHYL MAHALLATI'STRIAL Plaintiffs, BRIEF 15 16 17 ARCH CONSTRUCTION, SAYL MAHALLATI, NASSER MAHALLATI,and DOES 1through 100; 19 Defendants. 20 21 22 I. NATURE OF THE CASE 23 This is a name calling case. A mold abatement contractor Montgomery Sansome LP, and 24 its general partner, Leonard Nordeman, allege Sohyl'ahallati, d.b.a. Arch Construction: 1) 25 posted defamatory remarks on the web site YELP.corn'; and 2) made additional defamatory 26 Sohyl is pronounced "SAIL" 'The parties have stipulated asfollows "Yelp Inc. is a San Francisco company that operates 28 a website,Yelp.corn, which is one of the new "social media" websites for people to share information online. It was founded in 2004 as a public bulletin board to post ratingsfor businessessuch as dentists,hairstylists, mechanics, accountants and the like. DEFENDANT'S TRIAL BRIEF 1 1 remarks in a single telephone call to Bret Bradanini, a claims adjuster. Plaintiffs have deviously 2 attempted to add to their claims by asserting in their Second Amended Complaint a taunt 3 allegedly made by Sohyl to Montgomery Sansome's general manager, that he drive over and kick 4 Nordeman's behind. But since the new complaint was allowed a few days before the discovery 5 cut-off upon the representation it contained no new facts, and with the proviso that discovery 6 would not be re-opened, this alleged taunt is not part of this lawsuit. 8 II. PARTIES AND THEIR ATTORNEYS. 9 Plaintiff Montgomery Sansome LP is a mold abatement and licensed general contracting 10 company; Leonard Nordeman is the general partner. They are represented by Tracy Tumlin, Esq. 11 Defendant Sohyl Mahallati is a general contractor and sole proprietor of Arch 12 Construction, a DBA. Defendant isrepresented by James D. Biernat of The Biernat Law Group. 13 Defendant Nasser Mahallati is Sohyl's father. He was dismissed from this lawsuit on July 14 30, 2012. Subsequent to this dismissal, plaintiffs were allowed to file a Second Amended 15 Complaint on October 3, 2012. But the Second Amended Complaint continued to name Nasser 16 Mahallati as a defendant. Nevertheless, Nasser Mahallati was never served with the Second 17 Amended Complaint nor has he appeared in this action after being dismissed. It is apparent that 18 reference to Nasser Mahallati in the Second Amended Complaint isa drafting error, particularly 19 because plaintiffs represented to the court when seeking leave to file the Second Amended 20 21 Any person can write a review about nearly any business and post it on this site for anyone with access to theinternet to read. 22 Visitors to thiswebsite begin their search with the type of business they are interestedin (e.g.a barber shop) and a 23 location. Each review contains detailssuch as the address,hours, and parking, a 5-point rating system, and comments by the reviewer about their experience with the business. These reviews are generally not censored. Business owners 24 don't own their business listings, andcan'tdelete or change them; but a business owner may comment on a review. The people who post reviews on Yelp.corn arerequired to create a profile so that readers can see who they are. That profile disclosesthe number of reviews the person has posted, how long they have been posting, and it identifies the most popular and respected reviewers as Yelp elite. ' '[t]he designation[DBA] means "doing business as" but is merely descriptiveof the person or corporation who does business under some other name. Doing business under another name does nor create an entity distinctPom the person operating the business.'Citation.] The business name is a fiction, and so too is any implication that the business Irom its owner." Pinkerton's, is a legal entity separate Inc.v. Superior Court (1996) 49 Cal.App.4th 1342, 1348 DEFENDANT'5 TRIAL BRIEF 1 Complaint that "Defendants would not be prejudiced if the Court granted leave to amend." 3 III. PROCEDURAL STATUS OF THE CASE. 4 The complaint was filed October 4, 2011. It was stated in a single cause of action, 5 Intentional Tort: Defamation, Libel and Slander, and contained a count for Exemplary Damages. 6 The alleged defamation was a libel, i.e., posting comments about plaintiffs on the internet. The 7 complaint alleged general damages, loss of earning capacity, and damage to the reputation and 8 business of both plaintiffs. 9 On June 8, 2012, plaintiffsought leave to file a First Amended Complaint to add a cause of 10 action for negligence because plaintiffs stated they learned new facts constituting slander. 11 Plaintiffs averred to the court that, following the deposition of Bret Bradinini they learned that 12 the alleged defamatory statements posted on the internet were repeated in a telephone 13 conVersation to Mr. Bradinini, and that they should be allowed to include these allegedly 14 slanderous statements in their complaint for defamation and to add a cause of action for 15 negligence based on them. The Court granted the motion 16 On August 8, 2012, plaintiffs'hen attorney, Shawn Ridgell, filed a motion to be relieved 17 as counsel. On August 23, 2012, Mr. Ridgell filed another motion, to continue the trial from 18 October 15, 2012, to permit plaintiffs time to obtain new counsel. On August 24, 2012, plaintiffs'9 new counsel, Tracy Tumlin, filed a declaration in support of the motion to continue trial. On 20 August 28, 2012, the court continued the trial to December 10, 2012, with the proviso that all 21 discovery deadlines were to remain unchanged and to be calculated from the original October 22 trial date.'3 On September 17, 2012, plaintiffs'ew attorney filed a motion to again amend the 24 complaint to include two new causes of action, negligent and intentional infliction of emotional 25 distress. Mr. Tumlin represented to the Court in his pleadings the "two additional causes of 26 27 4 Plaintiffs'emorandum of Pointsand Authorities in Support of Motion for Leave to File Amended Complaint, 4:3. Notice of Entry of Order; Order Granting Motion to Continue Trial with Limitations, Ex A to this brief. "IT IS FURTHER ORDERED that discovery cut-off andall other pretrial andstatutory dates and deadlines shallbe calculated based on the original trial date of October 15,2012." DEF ENDANT'5 TRIAL BRIEF 3 1 action [are] based on the identical facts which gave rise to the first two causes of action. There 2 will be no additional witnesses necessary because the facts have not changed" 3 The original trial date was October 15, 2012. By statute, discovery cuts off 30 days before 4 trial. (Code of Civil Procedure section 2024.020(a).) Even though plaintiffs'iscovery responses 5 to supplemental discovery requests were due September 15, 2012, defendant acceded to Mr. 6 Tumlin's request for a two week extension because of his recent entry into the case. The 7 discovery cut-off was extended to October 1, 2012. 9 IV. FACTUAL BACKGROUND OF THE CASE. 10 The events giving rise to this lawsuit occurred in September, 2011, as a result of a dispute 11 that arose between Leonard Nordeman and Sohyl Mahallati who were working on the same 12 jobsite in San Jose, California. The jobsite was an in-patient mental health facility operated by a 13 nonprofit corporation, Momentum for Mental Health (hereinafter Momentum). 14 Momentum went through a series of catastrophes in the summer of 2011 that disrupted 15 its programs, agitated its patients, and thoroughly frustrated its staff: first abed bug epidemic, 16 then a fire, followed by flooding, and finally the discovery of mold. The sequence of losses was 17 so disheartening to the staff that the Assistant Manager Tam Chandler quit her job when the last 18 in the sequence of incidents was reported to her during lunch; she handed over responsibilities 19 on the spot to Lynn Murphy, who became program manager. 20 Following the fire and the flood during the summer of 2011, Momentum's director of 21 maintenance, Dan McCarthy hired a contractor he had used in the past, Nasser Mahallati, to 22 repair and remodel Momentum. Nasser turned the work over to his son, a young contractor 23 named Sohyl Mahallati (hereinafter Sohyl) who does business as Arch Construction, but assisted 24 him from time to time. 25 While Sohyl was on the job performing remodeling following the flooding, a kitchen 26 Plaintiffs'emorandum of Points and Authorities in Support of Motion for Leave to File Amended Complaint, filed September 17, 2012, 3:15 — 17. Plaintiffs went on to add:"The trial is set for December 10, 2012 and allowing plaintiffs to amend the complaint would not cause a delay in trial. The parties have essentiallycompleted discovery except for the depositions scheduled for the defendants of plaintiff, Nordeman on September 29, 2012 and witness employees of Plaintiff scheduledfor Sept 19, 2012 of Eloa Sharif andEzra Chatman." DEFENDANT'5 TRIAL BRIEF 1 employee noticed that the floor in the dining room was dramatically buckling, from one wall to 2 the other. She called maintenance director McCarthy who in turn asked Sohyl to investigate. 3 Sohyl removed some wallboard and discovered water infiltration and widespread mold. 4 Momentum immediately called its insurer, Philadelphia Insurance Company, and reported the 5 loss. 6 Philadelphia does not have a local presence in Northern California, and so it does its 7 investigation through independent adjusters. Its local contact is Summit Claims Adjusters, a sole 8 proprietorship with a single employee, Bret Bradanini. When the call came to Bradanini for an 9 emergency investigation, he was out of town; and so he called a subcontractor he used from 10 time to time, Neil Hartman, to investigate. Mr. Hartman is 68 years of age and in 2011 retired 11 from a lifetime of insurance adjusting; he accepted a single investigative assignment in 2011, the 12 subject investigation at Momentum. 13 The insurance investigation occurred in a single day, Friday, September 9, 2011. Hartman 14 did a site inspection, took photographs, drew a diagram and drafted a scope of repair report. His 15 assignment was to gather the information for the carrier to assess coverage and set any 16 necessary reserves. Because the loss posed an immediate health hazard and required 17 Momentum to shut down the dining facility —which doubled as the large meeting room for the 18 patients- the staff asked for Mr. Hartman's recommendation for a mold abatement company. 19 Bradanini testified he has a strict policy against recommending contractors —a policy he 20 communicated to Mr. Hartman. There are several reasons Bradanini will not recommend a 21 contractor to insureds, among them the possibility the insured will blame him for poor 22 workmanship, or infer there is coverage before a determination is made, or assume he receives 23 kickbacks for recommendations. Mr. Hartman is a bit more nuanced when an insured asks him 24 to recommend a contractor. He testified that he does not make 'referrals'ut that he does give 25 'recommendations'. In this case, Mr. Hartman told a person at Momentum, Jennifer Chu, that it 26 was imperative to get the mold contained immediately, that day, and he knew a company that 27 would come out immediately. Ms. Chu asked him to do so and he called a personal friend, Len 28 Nordeman, who is the principal for Montgomery Sansome. Montgomery Sansome does some DEFENDANT'S TRIAL BRIEF 1 general construction repairs, but specializes in mold remediation. 2 Nordeman agreed to come to the site that evening, September 9, 2011. Momentum also 3 contacted Sohyl and asked him to be there at 7:00 p.m. too. When he was called, Sohyl was 4 having dinner with his fiancis, so they ate hurriedly and went to the meeting with Nordeman and 5 another Momentum representative, Lynn Murphy. Maintenance Director McCarthy had left 6 earlier in the day for a weeklong vacation. 7 Murphy admits to being very opinionated about people and free to share her opinions. 8 She got along with Nordeman, who she describes as a character, but found him to be sexist and 9 to hold outdated beliefs about the place of women. She shared this impression with Sohyl after 10 this initial meeting. 11 When Sohyl arrived with his flanch, Kathy Ewers, Nordeman began ogling her up and 12 down and remarked "Where do l sign upP Can I benext?"'ohyl and Kathy both found the 13 comments inappropriate and offensive. 14 Sohyl was told that he would have to suspend his work while the mold abatement was 15 underway. He asked Nordeman how long it would take and claims Nordeman told him 16 approximately five days —a statement Nordeman denies. Nordeman began curious questioning 17 of Sohyl about the work he was doing for Momentum and requested a copy of Sohyl's bid for the 18 work to Momentum. Sohyl was suspicious of Nordeman's motives and never gave it to him. 19 The mold abatement did not complete within five days and Sohyl was forced to delay his 20 renovation work while Momentum kept begging him to complete it. Sohyl eventually made a 21 telephone call to Nordeman to find out the status, but Nordeman did not respond immediately; 22 Sohyl asked his father, Nasser, to follow up with Nordeman. Sohyl learned from Nasser that he 23 finally spoke to Nordeman, and Nordeman yelled and swore at him. Nordeman admits using foul 24 language with Nasser, but claims it was Nasser who first yelled and swore. When Sohyl 25 eventually spoke to Nordeman Sohyl said: "you said you'd be done in a couple of weeks." To this, 26 Nordeman began yelling and swearing at Sohyl, saying "l called your f---father yesterday, when 27 28 Nordeman doesn't recall exactly what he said,but admitted: "I made comments that she was pretty, that'sall.I certainlydidn't mean anything by that." [DT Nordeman, 9.27.12, Vol. II 61:13-15.) DEFENDANT'5 TRIAL BRIEF 6 1 I call someone I expect to be called back the next "F---"day." 2 When Dan McCarthy returned from vacation he had occasion to speak to Mr. Nordeman. 3 McCarthy testified Nordeman slurred his speech and sounded as if he was intoxicated. 4 McCarthy told Sohyl about this encounter. McCarthy said Nordeman also asked him about 5 Sohyl's contract and criticized Sohyl's work. McCarthy too thought Nordeman was trying to steal 6 Sohyl's contract because Nordeman boasted he could do a better job and he had inside contacts 7 with the San Jose Building Inspectors and could pull strings to get building permits issued. 8 McCarthy said he was so put off by Nordeman ostentation that he would never hire Montgomery 9 Sansome. 10 As the remediation dragged on, Sohyl contacted his uncle who does legal work for a mold 11 abatement company and learned that Montgomery Sansome's procedure to monitor its own 12 work was not up to industry standard and that a certified environmental hygienist should have 13 monitored the air. He also learned that a typical project like this would only last about 5 days. www.velo.corn: 14 On September 22, 2011, SAYL posted the following review on the website 15 16 "Montgomery Sansome LP 17 I have just gotten aff the phone with my partner about this company. Len is the CEO of this company. Evidently Len was rude to my partner after being very rude 18 to me. Heis using foul language and being very disrespectful. On top of that, the 19 slimy bastard made sexual remarks to my girlfriend at a meeting about 2 weeks ago. If anyone hires this company, be ready to get ripped off. They are trying ta 20 milk my clients for everything the (sic1 can. They are dishonest, rude, and should be shut downl" 21 22 Bret Bradanini testified he doesn't read and doesn't Ye/p.corn he recall hearing about that posting and that the posting has not affected him in any way. However, in an email to Neil 24 Hartman dated September 23, 2011, Bret Bradanini wrote "Insured called me frantic, may call carrier stilll He associates Len with Summit because we called them out. This claim is adenial, he cannot charge for extra days. Iwant him out immediately. This is a big deal!" [Emohasis added.] 28 Lyn Nordeman is arecovering alcoholic. DEFENDANT'S TRIAL BRIEF 1 About three days after the review was posted, Sohyl received a telephone call from 2 Nordeman's employee, Eloa Sharif, demanding the review be removed or Sohyl would be sued. 3 Very shortly thereafter, Sohyl removed the review from Ye/p.corn. Nordeman sued anyway. 4 Bradanini has testified he had a conversation with Sohyl in which Sohyl said Nordeman 5 appeared to be drunk at the jobsite and was hitting on his girlfriend. Mr. Bradanini said he was 6 not influenced by this telephone callin part because he had a long relationship with Mr. 7 Nordeman and knew him well and has already formed his own opinions about him. Bradanini 8 swore he has not refused to refer business to Montgomery Sansome because of the telephone 9 call. But Mr. Bradanini admitted he has been involved in claims where Montgomery Sansome 10 was difficultto work with and that Len Nordeman involved him in a suit against an employee. 12 V. THIS IS A CASE ABOUT DAMAGE TO REPUTATION. THERE ARE TWO ALLEGED 13 DEFMATORY STATEMENTS PLED AND AT ISSUE. 14 The Second Amended Complaint alleges Sohyl Mahallati posted the following libel on 15 Yelp.corn on September 22, 2011: 16 I HAVE JUST GOTTEN OFF THE PHONE WITH MY PARTNER 17 ABOUT THIS COMPANY. LEN IS THE CEO OF THIS COMPANY. EVIDENTLY LEN WAS RUDE TO MY PARTNER AFTER BEING 18 VERY RUDE TO ME. HE IS USING FOUL LANGUAGE AND BEING VERY DISRESPECTFUL. ON TOP OF THAT, THE SLIMY 19 BASTARD MADE SEXUAL REMARKS TO MY GIRLFRIEND AT A MEETING ABOUT 2 WEEKS AGO. IF ANYONE HIRES THIS 20 COMPANY, BE READY TO GET RIPPED OFF. THEY ARE TRYING 21 TO MILK MY CLIENTS FOR EVERYTHING THE CAN. THEY ARE DISHONEST, RUDE, AND SHOULD BE SHUT DOWN!9 22 The Second Amended Complaint additionally alleges Sohyl Mahallati made the following 23 slanderous remarks to Bret Bradinini on September 23, 2011: 24 Sayl [sic] told Mr. Brandanini [sic] that plaintiff NORDEMAN 25 appeared at Momentum for Mental Health job site drunk, and 26 made sexual remarks to defendant SAYL'S [sic] fiance.'8 27 9 SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 4:16-5:1. SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 5:2-5 DEFENDANT'5 TRIAL BRIEF VI. IN THEIR SECOND AMENDEO COMPLAINT, PlAINTIFFS HAVE ATTEMPTED TO ADO A THIRD VERBAL EVENT TO THE CASE, A PREVIOUSLY UNPLED THREAT TO KICK LEN NORDEMAN'S BKUTTOCK. THIS INCIDENT IS NOT BEFORE THE COURT AND NO EVIDENCE SHOULD BE PERMITTED ABOUT IT BECAUSE THE PlAINTIFFS OBTAINED LEAVE TO FILE THE SECOND AMENDED COMPLAINTAT THE DISCOVERY DEADLINE UPON THE REPRESENTION OF COUNSEL THAT IT ADDED TWO NEW LEGAL THEORIES BUT NO NEW FACTS. 8 The Second Amended Complaint cleverly inserted a new factual allegation not contained in the Complaint or the First Amended Complaint: 10 'Defendants further telephoned Plaintiffs'lace of business and threated [sic] to come to plaintiffs'lace of business and do physical harm and injury to Leonard A. Nordeman.'3 12 This new factual allegation was not made in the original Complaint or First Amended 14 Complaint. Plaintiffs filed the request to add two new legal theories of Intentional and Negligent Infliction of Emotional Distress, on September 17, 2012, two days before discovery closed (however defendant then allowed plaintiff to extend the discovery cutoff to October 1, 2012 so plaintiffs new counsel could serve some new discovery). Plaintiffs represented to the Court: 18 Here, plaintiffs seek leave to amend their complaint to and [sic] two 19 additional causes of actions [sic] based on the identical facts which gave rise to the first two causes of action. There will be no 20 additional witnesses necessary because the facts have not changed." 21 22 Defendant was never apprised of anew factual allegation in time to serve additional 23 written discovery or to depose additional witnesses. Defendant has moved in limine to exclude 24 reference to this new allegation. The court will be called upon to rule on this issue before jury 25 voir Ckre. 26 27 SECOND AMENDED COMPLAINT FOR DAMAGES FOR IBEL & SLANDER, NEGLIGENCE. 6:24-26; 7:25-27 Plaintiffs'emorandum of Pointsand Authorities in Support of Motion for Leave to File Amended Complaint, filed September 17, 2012, 3:15 — 17. DEFENDANT'S TRIAL BRIEF 9 1 Vll. THE LAW OF DEFAMATIONAPPLICABLE TO THIS CASE 2 "Defamation is an invasion of the interest in reputation. The tort involves the intentional 3 publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure 4 or which causes special damage." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) A statement may be a libel if made in written form'nd a slander if made orally.'e 6 have both type of statements in this case, a written post on Ye/p.corn and an oral statement made to Bret Bradanini, and they are subject to separate legal analysis A. The entire Yelp.corn posting is protected speech under the common-interest privilege in Civil Code g 47 (c)." 10 (i) Plaintiffs cannot recover unless they prove the Yelp.corn post was made with Actual Malice. 12 This case is,in part, about freedom of speech to state opinions about the businesses practices and services provided by Montgomery Sansome, in a relatively new medium, Ye/p.corn. Civil Code $ 47 (c), the common-interest privilege, requires that a plaintiff prove a statement was made with actual malice if it is made in a public forum about a topic of public interest.'t has been held and it is binding authority upon this court that Ye/p.corn is a 'public forum'." 17 Furthermore, a statement providing consumer information is entitled to protection under the 18 common-interest privilege. 19 Consumer information, however, at least when it affects a large 20 number of persons, also generally is viewed as information concerning a matter of public interest. Paradise Hills Associates v. 21 Procel (1991) 235 Cal.App.3d 1528, 1 Cal.Rptr.2d 514 ...noted that 22 the First Amendment protected a consumer's statements about the quality of a seller's products and service and her unhappiness with 23 24 Civil Code 545 "Civil Code 546 A privileged publication or broadcast is one made: (c) In acommunication, without malice, to aperson interested therein, (1)by one who isalso interested.... "Under the "common-interest privilege," codified in California in Civil Code section 47, subdivision (c) (hereafter section 47(c)),a defendant who makes a statement to others on a matter of common interestis immunized from liability for defamationso long as the statement is made "without malice." (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1196.) Wong v. Jing et. al.(2010) 189 Cal.App.4 1354, 1366 DEFENOANT'5 TRIAL BRIEF 10 them, finding, in part, that the statements concerned a matter of public interest. "Courts have recognized the importance of the public's access to consumer information. 'The growth of "consumerism" in the United States is a matter of common knowledge. Members of the public have recognized their roles as consumers and through concerted activities, both private and public, have attempted to improve their ...positions vis-5-vis the supplies [sic] and manufacturers of consumer goods. They clearly have an interest in matters which affect their roles as consumers, and peaceful activities, such as plaintiffs', which inform them about such matters are protected by the First Amendment.'Citation.]" (Wilbanks v. Wolk (2004) 121 Cal.App.4'83, 900.) In this case, the law and motion department concurred that Yelp.corn is a public forum, 9 but disagreed that defendant has satisfied the burden of proof under Code of Civil Procedure 10 18 425.16, subd. (e), that the ~ ~ publication was a matter of public interest. ~ ~ With due respect, the 11 Law and Motion Department's ruling denying defendant's SLAPP motion and its unduly limited 12 reading of Wilbanks v. Walk a is neither binding on the trial court nor does it exclude the jury 13 from answering the question whether this Yelp.corn posting was a warning to consumers about a 14 mold abatement company's practices and therefore within the protection of the common- 15 interest privilege. That the Law and Motion department interpreted Wilbanks to unduly limit the 16 broad protection of Civil Code section 47 (c) is amply clear in an appellate court's analysis of 17 Wilbanks in Carver v.Bonds (2005) 135 Cal.App.4', 328, 343: 18 19 The article [in the San Francisco Chronicle specifically criticizing a 20 podiatrist] also involved "a public issue or an issue of public interest" under subdivision (e)(4). Such an issue was found to be 21 present in an analogous situation in Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-899, 17 Cal.Rptr.3d 497, where the 22 statements in question were directed against a broker of viatical 23 settlements (arrangements that allow dying persons with life insurance policies to sell their policies to investors for a percentage 24 "The Motion to Strike is DENIED. The publication occurred in a public forum. (Wing v. Wong v. ling (2010) 189 Cal.App.4th 1354 [Yelp.corn as public forum)). However, the publication was not in connection with an issue of public interestfor purposes of Code of Civil Procedure section 425.16, subd. (e). To be amatter of public interest, the publication must concern something beyond just a particularincident occurring between the plaintiff and defendant. Wing v. ling, supra (E. g., [review pertained also to general controversies about silver amalgam and use of nitrous oxide);Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 [web posting contained general consumer protection information about broker fraud, of which plaintiffs business was just one example)). The alleged publication in this matter addresses only plaintiff, but no matterof public interest." DEFENDANT'5 TRIAL BRIEF of the death benefits). The brokerage and its owner sued the defendant for defamation after the defendant reported on her Web site that the broker was being investigated by the California Department of Insurance, warned readers to "[b]e very careful when dealing with this broker," said that the broker had "provided incompetent advice," and called the broker "unethical." (/d. at p. 890, 17 Cal.Rptr.3d 497.) The statements did not relate to a public issue under commonly articulated criteria because "plaintiffs are not in the public eye, their business practices do not affect a large number of people and their business practices are not, in and of themselves, a topic of widespread public interest." (Citation omitted.) The statements were nevertheless of public concern because they were "consumer protection information.... The statements made by [the defendant] were not simply a report of one broker's business practices, of interest only to that broker and to those who had been affected by those practices. [The defendant's] 10 statements were a warning not to use plaintiffs'ervices. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly 12 connected to an issue of public concern." 13 The Law and Motion Department seemed to read Wilbanks to require not only consumer 14 advice, but some broader topic of public concern (e.g.,viatical settlements). Carver makes clear 15 this interpretation of Wilbanks is too restrictive and that a publication is protected by the 16 common-interest privilege if it serves to warn the public of specific practitioner —there was no 17 broader issue involved in Carver, other than the qualifications of a practitioner, as the Law and 18 Motion Department would require. 19 It is therefore plaintiff's burden to prove that the Ye/p.corn posting was made with actual