Gwire v. Blumberg

 

 

 

 

 

 

 

 

Filed 10/3/13 
Gwire v. Blumberg CA1/5

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE
DISTRICT

DIVISION FIVE

 

 

 

 

WILLIAM GWIRE,

 

            Plaintiff and
Respondent,                                      A134931

 

            v.                                                                                 (>San Francisco> County

                                                                                                Super.
Ct.> No. CGC11510305)

ELLIOT BLUMBERG,

 

            Defendant and
Appellant.

___________________________________/

 

            Plaintiff
and attorney William Gwire sued his former clients, defendants Elliot Blumberg,
Vigilant Investors’ L.P., and Vigilant Investors’ Asset Management LLC
(collectively defendants) after Blumberg, an unhappy former client, posted
disparaging comments about Gwire on complaintsboard.com, a web site providing a
forum for the public to comment on and complain about consumer issues
(complaintsboard.com or the web site). 

The trial court granted defendants’
anti-SLAPP motion (Code Civ. Proc., § 425.16)href="#_ftn1" name="_ftnref1" title="">[1]
as to four causes of action in the operative
complaint, but denied the motion as to Gwire’s two defamation claims.  The court concluded Gwire established a
probability of prevailing on his defamation claims because Blumberg’s statement
that Gwire committed a “horrific fraud” against Blumberg that “irreparably
damaged every aspect of [Blumberg’s] life” was a false statement of fact, not
opinion.   

            Blumberg
appeals.  We affirm.  We conclude Blumberg’s comments on
complaintsboard.com, a consumer complaint web site, are protected under section
425.16, subdivision (e)(3): they are written statements made in a “public forum
in connection with an issue of public interest[.]”  We also conclude, however, that Gwire
established a probability of prevailing on the merits of his defamation claims
because Blumberg’s post, in part, is susceptible to being read as containing
false factual assertions.  Gwire
submitted sufficient evidence to satisfy his minimal burden to show a
probability of prevailing on at least some aspect of his href="http://www.mcmillanlaw.com/">defamation claims. 

FACTUAL AND
PROCEDURAL BACKGROUND

            Blumberg is
the owner of Vigilant Investors’ Asset Management, LLC and the general partner
of Vigilant Investors’ L.P. (collectively Vigilant or the hedge fund).  Vigilant sued its then-broker before the
National Association of Securities Dealers (NASD) claiming the broker
incorrectly calculated the hedge fund’s margin requirements, causing over $20
million in damages.  The case settled in
Vigilant’s favor for $3.5 million, an amount apparently well below what
Vigilant’s attorneys predicted Vigilant would recover. 

Blumberg decided to sue his NASD
counsel for malpractice and hired Gwire to represent Vigilant.  Vigilant’s former counsel cross-claimed.  An American Arbitration Association (AAA)
panel rejected Vigilant’s malpractice claim and awarded Vigilant’s former
counsel approximately $1.3 million, including unpaid attorney fees.href="#_ftn2" name="_ftnref2" title="">[2]  The relationship between Gwire and Blumberg
soured, each blaming the other for the adverse result.  Blumberg was unhappy with Gwire’s billing
practices, believing Gwire committed billing fraud.  Blumberg also attributed the award in favor
of his prior counsel — which he called a “devastating outcome” — to Gwire’s
failure to: (1) conduct written discovery before the arbitration and introduce
key evidence at the arbitration; and (2) understand and present a coherent
damages theory to the arbitration panel. 
Gwire attributed the result to Blumberg’s demonstrated “stunning display
of a lack of self control,” his erratic and “irrational” behavior[,]” his
inability to cooperate with counsel or expert witnesses, and his
misrepresentations about NASD counsel’s performance.  Gwire claimed he fired defendants as clients
and sought repayment of $28,000 in costs he claimed defendants owed. 

A few days later, Blumberg
anonymously posted the following comment on complaintsboard.com, a web site
billing itself as “‘the most trusted and popular consumer complaints
website[:]’”  

            “Gwire
Law Offices Complaints — Gwire ruins lives —numerous cases against him

 

“Gwire committed a horrific fraud
against me that has irreparably damaged every aspect of my life.  I hope this partial summary of Gwire’s
incredibly unethical history may help other innocent people.  Gwire has been sued at least THIRTEEN times
by those who have trusted him.  These
include at least the following ELEVEN cases.

 

·       
Clients - at least six separate cases

·       
Clients who sued Gwire (just in SF) include at
least: 1. Hallock 2. Madden 3. Scherpf 4. Chan and 5. Krantz. All of these
cases are found at http://www.sfsuperiorcourt.org/index.aspx?page=467.  Just enter Gwire’s name.  In a 6TH case, in L.A, Gwire was sued by Readylink.

·       
Former employees - Lara Shapiro

·       
Predecessor counsel - Margaret Seltzer

·       
Expert witnesses - Roulac Group

·       
Court reporters - Sheila Chase

·       
At least one other service provider - U.S. Legal
Support.

 

“There is no way to know if these
THIRTEEN cases against Gwire are everything, but odds are they are not, because
1) I only had time for a quick search.  I
did not

list other cases against Gwire
because there were no details online; 2) Gwire has worked in many other
counties.  This was just a search of
SF.  Given his massive record of harming
others that is so easily found, he has surely harmed others as well; 3) Gwire
likely damaged other clients so badly that they could not afford to file suit
against him, which is what he did to me. 
Meanwhile, at least five different tax liens have also been

filed against Gwire, in 1995,
1998, 2002, 2006 and 2007.

 

“The following excerpts are from
the most recent (known) suit against Gwire, filed by Readylink in L.A,
#BC423848.  Bad as this is, my experience
with Gwire was worse, and

other cases against Gwire appear
also to be worse:

 

“Defendants were representing
Plaintiffs regarding the claims against LBBS for at least 23 months, and
handling the LBBS Litigation for at least 20 months, during which

time they did not conduct or
defend a single deposition and did not prepare the case for trial.  Defendants never completed their
investigation.  Defendants did not

interview critical
witnesses.  Defendants did not review
critical client files.  Defendants lost
control of relevant documents and failed to preserve evidence, including the

files of Greg Hafif, a lawyer who
had taken over the representation of ReadyLink. . . Defendants did not obtain
critical third party evidence. 
Defendants failed to

serve necessary third party
discovery such that Plaintiffs later discovered that. . . records of one
company were destroyed, and therefore became unavailable for use…

[D]efendants allowed the case to
get to the critical time frame of only. . . 3) months from a scheduled trial
without preparing the case or conducting any meaningful

discovery.

 

“Defendants were unprepared to
prove causation and damages. . . Among other things, Defendants had not
obtained the transcript of the trial. . . and, without it, could

not possibly have presented the
necessary proof of the claims. . .

 

“Despite having been engaged in
July 2006, Defendants did not begin reviewing hundreds of boxes of client
documents until March 2008, only three months prior to

the then scheduled trial, and
some 18 months after the LBBS Litigation was commenced.  Defendants did not even substantively begin
the process of gathering information necessary to contact key witnesses or
subpoena critical documents from third parties until

eighteen (18) months into the
case.  Defendants did not implement a
discovery plan or a trial plan, and if they prepared those, they did not carry
them out.  The limited

work that Defendants did was not
useful to the clients and did not advance the prosecution or defense of the
LBBS Litigation.  Because of their lack
of diligence and

failure to
honor their contractual obligations, the Defendants had to seek two
continuances of the trial date.” 

            Gwire
posted a lengthy rebuttal and Blumberg posted a retort.href="#_ftn3" name="_ftnref3" title="">[3]  Then Gwire — who deduced Blumberg was the
anonymous author of the postings — threatened to sue Blumberg if he did not
remove the post.  Blumberg revised the
post but did not remove it.  Gwire sued
defendants.  The operative first amended
complaint alleged six claims, including two claims for defamation based on
statements appearing on the web site.  In
the second and third causes of action, respectively, Gwire alleged the
statements about him constituted libel per se and trade libel because they were
false, unprivileged, and made with actual malice.  Specifically, Gwire alleged the statements, “Gwire
ruins lives” and “Gwire committed a horrific fraud” against Blumberg were
“demonstrably false.”  He alleged most of
Blumberg’s “explicit factual statements greatly transcend being mere opinions,
and clearly are assertions of facts that are capable of being conclusively
established with evidence to be either true or untrue.”  Gwire sought several forms of relief,
including compensatory and punitive damages. 


            Defendants
moved to strike the operative complaint pursuant to section 425.16.  They argued Blumberg’s statements were
protected speech because Blumberg made them in a public forum in connection
with an issue of public interest under section 425.16, subdivision (e)(3).  They also argued the statements were
protected as statements made before or in connection with official proceedings
under section 425.16, subdivisions (e)(1) and (2).  In addition, defendants claimed Gwire could
not establish a probability of prevailing on his defamation claims because
Blumberg’s statements were “well-grounded opinions, and were not malicious” and
because Gwire could not establish pecuniary loss or an intent to cause
financial harm. 

            Defendants
moved for judicial notice of various documents arising out of litigation where
Gwire was a defendant, including complaints against Gwire, an order
disqualifying Gwire as counsel, and a judgment against Gwire.  Blumberg submitted a lengthy declaration
describing Gwire’s mishandling of the malpractice action and explaining why he
posted on complaintsboard.com.  Blumberg
averred, “In my struggle to understand why Mr. Gwire acted as he did, I have
learned that many others have had similar experiences with Mr. Gwire.  Therefore, on or about March 12, 2011, I
decided to submit a posting to the web site www.complaintsboard.com, which
described some of the other cases that I had located from public records
involving Mr. Gwire and included some comments regarding my opinions about his
performance in the [malpractice] [a]ction.” 
Blumberg averred it was his “true and honest belief and opinion that Mr.
Gwire committed a horrific fraud and that he ruins lives, and that all of the
statements in [his] posting [were] either true facts or honest opinions.” 

            Blumberg
further averred Gwire was a well-known attorney and had “sought and received
positive publicity.”  “Given the extensive
coverage Mr. Gwire had received and the praise he posted of himself on his
website,” Blumberg felt “it was particularly important to alert people
considering retaining [Gwire] of the problems that others have had with him and
to provide my own opinions of his work.” 
Blumberg testified he believed in “the importance of the warnings
regarding the potential dangers of being represented by Mr. Gwire” because
Gwire was a “risky choice of counsel” with a “cynical view of his clients” and
a willingness to disclose privileged client communications.  Blumberg’s declaration attached various
documents, including the original posting on complaintsboard.com. 

            In
opposition, Gwire argued his claims did not arise from Blumberg’s protected
speech.  He also claimed he could
establish a probability of prevailing on the merits because Blumberg’s comments
constituted libel per se and did “not constitute non-actionable opinions.”  In support of the opposition, Gwire submitted
a detailed declaration averring Blumberg’s statements were false and describing
the “serious economic consequences” Blumberg’s posting had on his law
practice.  Gwire’s declaration noted
Blumberg’s post “paint[ed] an unfair and misleading picture” about the lawsuits
Gwire had been involved in because the post omitted “any information about the
actual disposition of the cases, especially the malpractice cases he
referenced, only one of which . . . had ever gone so far as to even involve a
compromise settlement[.]”  Gwire also
submitted a request for judicial notice of various documents in cases where he
was a party.  In reply, Blumberg
submitted a detailed supplemental declaration countering statements in Gwire’s
declaration.

            Following a
hearing, the court granted the motion in part but denied it as to the two
defamation claims.  The court concluded
Blumberg’s post consisted of “protected and unprotected statements.”  The court determined Blumberg’s report of
lawsuits and tax liens was protected under section 425.16, subdivisions (e)(1)
and (2) but that the “charge of ‘horrific fraud’” was not protected under
section 425.16, subdivision (e)(3) because it did not have “value beyond a
personal statement in a private war.” 
The court nevertheless found defendants satisfied their burden with
respect to Gwire’s defamation claims, apparently because the protected conduct
was not incidental to the unprotected conduct. 


The court also determined Gwire
established a probability of prevailing on the merits of his defamation claims
because “[t]he statement by Blumberg that ‘Gwire committed a horrific fraud
against me that has irreparably damaged every aspect of my life’ [was] asserted
as fact, not opinion.  The evidence
produced establishes that Gwire has sufficient evidence to convince a jury that
the statement is false.  An accusation
that an attorney has committed a crime such as fraud is dishonest or lack[s]
ethics is actionable without proof of special damages.”  The court determined Gwire was not a limited
purpose public figure as defendants urged and, as a result, he was not required
to establish Blumberg acted with actual malice. 
Finally, the court determined Gwire established a likelihood of
prevailing on his trade libel claim because he offered sufficient evidence
“from which a jury could conclude that he suffered specific pecuniary loss[,]”
particularly his account of his loss of “anticipated expert witness fees.” 

DISCUSSION

“In ruling on a special motion to
strike, the trial court follows a two-step analysis that involves shifting
burdens.  [Citation.]  The moving defendant carries the initial
burden to show the challenged cause of action arises from protected free speech
or petitioning activity. 
[Citation.]  The burden is satisfied
by demonstrating that the conduct underlying the plaintiff’s claim fits into a
category of protected activity set forth in section 425.16, subdivision
(e).  [Citation.]”  (Castleman
v. Sagaser (2013) 216 Cal.App.4th 481, 489, fn. omitted (>Castleman).)

“If the court finds the defendant’s
threshold showing has been made, the burden shifts to the plaintiff to produce
evidence establishing a probability of prevailing on the cause of action.  [Citation.] 
To meet this burden, the plaintiff must plead and substantiate a legally
cognizable claim for relief. 
[Citation.]  “‘Put another way,
the plaintiff ‘must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.’”  [Citation.]” 
(Castleman, >supra, 216 Cal.App.4th at p. 490.)

“Only a ‘“minimum level of legal
sufficiency and triability”’ is needed to satisfy the second prong of the
anti-SLAPP statute.  [Citation.]  The evidence favorable to the plaintiff is
accepted as true, while the defendant’s evidence is evaluated to determine if
it defeats the plaintiff’s claim as a matter of law, e.g., on grounds of
privilege or immunity.  [Citation.]  The motion will not be granted unless both
prongs of the statute are established; the plaintiff’s cause of action must
arise from protected speech or petitioning and lack even a minimal degree of
merit.  [Citation.]”  (Castleman,
supra, 216 Cal.App.4th at p. 490.) 
We review an order on an anti-SLAPP motion de novo: “we engage in the
same two-step process as the trial court to determine if the parties have
satisfied their respective burdens.”  (>Ibid.)



I.

Gwire’s Defamation
Claims Arise from Protected Activity

            “A claim is
subject to the anti-SLAPP statute if it arises from one of the four categories
of protected activity set forth in section 425.16, subdivision (e).  [Citation.] One of these categories is
section 425.16, subdivision (e)(3), which describes an “‘act in furtherance of
a person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue’” as including ‘. . . any
written or oral statement or writing made
in a . . . a public forum in
connection with an >issue of public interest.’”  (Summit
Bank v. Rogers (2012) 206 Cal.App.4th 669, 693 (Summit Bank).)

            An Internet discussion group or
bulletin board like complaintsboard.com is a public forum.  “It is settled that ‘Web sites accessible to
the public . . . are “public forums” for purposes of the anti-SLAPP statute.’”  (Wong
v. Jing (2010) 189 Cal.App.4th 1354, 1366, citation omitted (>Wong).) 
“[W]e view the Internet as an electronic bulletin board open to
literally billions of people all over the world.  [Citation.] 
The Internet is a classic public forum which permits an exchange of
views in public about everything from the great issues of war, peace, and
economic development to the relative quality of the chicken pot pies served at
competing family restaurants in a single small neighborhood.”  (Chaker
v. Mateo (2012) 209 Cal.App.4th 1138, 1146 (Chaker); Summit Bank, supra, 206
Cal.App.4th at p. 693 [“‘Rants and Raves,’” an Internet message board, is a
public forum and collecting cases].)

            We must
determine whether Blumberg’s post was made “in connection with an issue of
public interest[.]”  (§ 425.16, subd.
(e)(3).)  “Section 425.16 does not define
‘public interest’” but courts have construed the phrase “‘broadly’ to safeguard
‘the valid exercise of the constitutional rights of freedom of speech and petition
for the redress of grievances.’  [Citation.]”  (Summit
Bank, supra, 206 Cal.App.4th at pp. 693, 695 [noting the “exceedingly
‘expansive interpretation of the phrase ‘issue of public interest’”].)  In this vein, several courts have defined an
“issue of public interest” as “‘any issue
in which the public is interested.’” 
(Hecimovich v. Encinal School
Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465, quoting >Rivera v. First DataBank, Inc. (2010)
187 Cal.App.4th 709, 716.)

In addition, courts considering
this issue “have emphasized that the public interest may extend to statements
about conduct between private individuals.” 
(Chaker, supra, 209
Cal.App.4th at p. 1145.)  Although not
every web site post “‘involves a public issue’ . . . consumer information that
goes beyond a particular interaction between the parties and implicates matters
of public concern that can affect many people is generally deemed to involve an
issue of public interest for purposes of the anti-SLAPP statute.”  (Wong,
supra, 189 Cal.App.4th at p. 1366.) 
Other courts have applied the following test to determine whether an
issue is of public interest: “‘[a] public issue is implicated if the subject of
the statement or activity underlying the claim (1) was a person or entity in
the public eye; (2) could affect large numbers of people beyond the direct
participants; or (3) involved a topic of widespread, public interest.’”  (D.C.
v. R.R. (2010) 182 Cal.App.4th 1190, 1215, quoting Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814.)

Applying these principles, several
cases have concluded consumer information posted on a web site concerns an
issue of public interest.  (>Gilbert v. Sykes (2007) 147 Cal.App.4th
13, 23 [patient’s statements about a href="http://www.sandiegohealthdirectory.com/">plastic surgeon were of
public interest under section 425.16 because they provided information that
would be material to potential consumers “contemplating plastic surgery”]; >Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 898 (Wilbanks) [“[c]onsumer
information” posted on the Internet “at least when it affects a large number of
persons, also generally is viewed as information concerning a matter of public
interest”]; Wong, supra, 189
Cal.App.4th at pp. 1366-1367 [review on Yelp criticizing dental services and
discussing use of silver amalgam raised issues of public interest].)

Chaker
is instructive.  There, the defendant
posted derogatory comments about the plaintiff and his forensics business on
the web site “Ripoff Report.”  (>Chaker, supra, 209 Cal.App.4th at p. 1146.) 
The defendant’s statements included “‘You should be scared.  This guy is a criminal and a deadbeat dad. .
. . ‘I would be very careful dealing with this guy.  He uses people, is into illegal activities,
etc.  I wouldn’t let him into my house if
I wanted to keep my possessions or my sanity.’” 
(Id. at p. 1142.)  The defendant also accused the plaintiff of
picking up streetwalkers and homeless drug addicts.  (Ibid.)  The appellate court had “little difficulty
finding the statements were of a public interest.  The statements posted to the Ripoff Report
Web site about Chaker’s character and business practices plainly fall within
the rubric of consumer information about Chaker’s ‘Counterforensics’ business
and were intended to serve as a warning to consumers about his
trustworthiness.”  (Id. at p. 1146.)

            The same is
true here.  Blumberg’s post on
complaintsboard.com told the story of his interactions with Gwire on a consumer
information web site, noted several former clients had sued Gwire, and
impliedly warned consumers not to do business with Gwire.  Blumberg’s comment — “I hope this partial
summary of Gwire’s incredibly unethical history may help other innocent people”
— constituted an implicit warning not to use Gwire’s services and was “in the
nature of consumer protection information[.]” 
(Chaker, supra, 209
Cal.App.4th at p. 1144, quoting Wilbanks,
supra, 121 Cal.App.4th at p. 900.) 
In their anti-SLAPP motion, defendants established Gwire was in the
public eye and that his conduct could affect a large group of people:
defendants offered evidence that Gwire was a high-profile attorney who claimed
to have represented at least 5,000 clients. 
We agree with the trial court that “[c]onsumers of legal services are
entitled to as much information as possible about the lawyers they will entrust
with their business.  Thus, accurate
information about Gwire or any lawyer is of more than trivial interest to a
potentially large segment of society.” 
(See Wilbanks, supra, 121
Cal.App.4th at pp. 898-899.)  As a
result, Blumberg’s posting on complaintsboard.com was “directly connected to an
issue of public concern.”href="#_ftn4"
name="_ftnref4" title="">[4]  (Id.
at p. 900.)

Our conclusion is bolstered by >Makaeff v. Trump University, LLC (9th
Cir. 2013) 715 F.3d 254 (Trump University)),
where the Ninth Circuit Court of Appeals held that “[u]nder California law,
statements warning consumers of fraudulent or deceptive business practices
constitute a topic of widespread public interest, so long as they are provided
in the context of information helpful to consumers.”  (Id.
at p. 262.)  In Trump University, a “[d]isgruntled former customer of” Trump
University “posted on Internet message boards about her dispute about Trump
University” and later sued for deceptive business practices.  Trump University counterclaimed for defamation.  (Id.
at pp. 258, 260.)  The Ninth Circuit
Court of Appeals concluded Trump University’s defamation claim arose from href="http://www.mcmillanlaw.com/">protected speech.  It determined “the postings constituted
consumer protection information because they were intended as ‘a warning not to
use plaintiffs’ services’ and came in the context of information that was
‘provided to aid consumers.’ 
[Citation.]”  (Fn. omitted.)  The court observed the former customer’s
claim that she posted on the Internet “‘to alert other consumers of my opinions
and experience with Trump University’ and to ‘inform other consumers of my
opinion that Trump University did not deliver what it promised’” was
“plausible.”  (Ibid.)  The Ninth Circuit
concluded, “Because at least some of [the] statements were made with the intent
to warn consumers about the educational experience at Trump University, we
agree with the district court that Trump University’s counterclaim arises from
an act protected under the anti-SLAPP statute.” 
(Ibid.)

As in Trump University, it is “plausible” to interpret Blumberg’s posting
as a warning to consumers.  Blumberg
posted his comments using the screen name “hopethishelpsyou” and stated he
hoped to “help other innocent people.” 
In his declaration in support of the anti-SLAPP motion, Blumberg averred
he believed Gwire was “a serious threat to his own clients and a very risky
choice of counsel” and that Gwire’s actions in response to the posting
“illustrate[d] the importance of the warnings regarding the potential dangers
of being represented by Mr. Gwire.” 

            Citing >Du Charme v. International Brotherhood of
Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), Gwire contends Blumberg’s statements “served a personal
vendetta, not a public interest.”  In >Du Charme, a union local posted a notice
on its web site informing members that a former business manager had been
removed for mismanagement.  The notice
also assured members the local’s business would continue to run smoothly.  (Id.
at pp. 113-114.)  The >Du Charme court concluded the union’s
web site posting was not protected under section 425.16, subdivision (e)(3)
because it was “unconnected to any discussion, debate or controversy.”  (Id.
at p. 118.)  The court held, “to satisfy
the . . . issue of public interest requirement of section 425.16, subdivision
(e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of
interest to the public at large, but rather to a limited, but definable portion
of the public (a private group, organization, or community), the
constitutionally protected activity must, at a minimum, occur in the context of
an ongoing controversy, dispute or discussion, such that it warrants protection
by a statute that embodies the public policy of encouraging >participation in matters of public
significance.”  (Id. at p. 119, fn. omitted.) 
As the Du Charme court
observed: “[the manager’s] termination was a fait accompli; its propriety was
no longer at issue.  Members of the local
were not being urged to take any position on the matter.  In fact, no
action on their part was called for or contemplated.  To grant protection to mere informational
statements, in this context, would in no way further the statute’s purpose of
encouraging participation in matters
of public significance [citation].”  (>Id. at p. 118.) 

            >Du Charme is distinguishable for several
reasons.  First, courts have not applied
the Du Charme rule in cases
concerning consumer information.  (See,
e.g., Wilbanks, supra, 121
Cal.App.4th at p. 898 [“[c]onsumer information, however, at least when it
affects a large number of persons, also generally is viewed as information
concerning a matter of public interest”]; Carver
v. Bonds (2005) 135 Cal.App.4th 328, 343 (Carver) [article involved a matter of public concern under section
425.16, subdivision (e)(4) where it warned readers not to rely on podiatrist’s
ostensible experience treating professional athletes and told readers what it
described as “a ‘cautionary tale’ of plaintiff exaggerating that experience to
market his practice”].)

Second, Blumberg was not merely
providing informational statements about a previously-resolved issue as in >Du Charme.  Instead, he claimed to be providing
information as a way to “help other innocent people.”  (See Hailstone
v. Martinez (2008) 169 Cal.App.4th 728, 738 [accusations against a >current local union official were of
public interest]; Carver, supra, 135
Cal.App.4th at p. 343 [“statements were a warning”].)  Third, even if we assume for the sake of
argument the issue is of interest only to a small group, Blumberg’s statements
occurred in the context of an ongoing controversy.  “[W]e must broadly construe the judicially
created prerequisite of an ‘ongoing controversy, dispute, or discussion’ . . .
to safeguard the valid exercise of protected activity and further the statute’s
purpose of encouraging participation in matters of public significance.”  (See Cross
v. Cooper (2011) 197 Cal.App.4th 357, 382-383.)  Here, Blumberg’s statements arguably
contributed to a public discussion on attorney practices or, at the very least,
to the importance of diligently researching an attorney before hiring him or
her.  (See Wong, supra, 189 Cal.App.4th at p. 1367 [Internet posting
constituted protected consumer information because it “implicitly dealt with”
the general issue of nitrous oxide and silver amalgam in fillings]; see also >Melaleuca, Inc. v. Clark (1998) 66
Cal.App.4th 1344, 1363 [“the public has a well-recognized interest in knowing
about the quality and contents of consumer goods”]; cf. Cole v. Patricia A. Meyer & Associates, APC (2012) 206
Cal.App.4th 1095, 1121.)   

Interpreting — as we must — the
phrase “issue of public interest” broadly, we conclude under the circumstances
of this case Blumberg has satisfied his burden of showing his comments on
Gwire’s business practices on complaintsboard.com, a consumer complaint web
site, are protected under section 425.16, subdivision (e)(3) because they
constitute a form of consumer information that could affect a large number of
people.  (Summit Bank, supra, 206 Cal.App.4th at p. 695.)  We do not, however, hold that any website
comment criticizing one’s current or former lawyer would be subject to the
anti-SLAPP law.  Having reached this
result, we need not consider whether Blumberg’s comments are protected under
section 425.16, subdivisions (e)(1) and (2). 




II.

>Gwire Has Established a Probability of
Prevailing on His Defamation Claims

>Because Blumberg’s Post is Susceptible to
Being Read

as Containing False
Factual Assertions

Having determined Gwire’s
defamation claims arise from activity protected by section 425.16, we now
determine whether Gwire has carried his burden to establish he will probably
prevail on his claims.  (§ 425, subd.
(b)(1).)  “To satisfy this second prong
of the anti-SLAPP analysis, “‘“‘the plaintiff “‘must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by
the plaintiff is credited.”  [Citations.]’  [Citation.]’” 
“Thus, plaintiffs’ burden as to the second prong of the anti-SLAPP test
is akin to that of a party opposing a motion for summary judgment.” [Citation.]  If the plaintiff fails to carry that burden,
the cause of action is “‘subject to being stricken under the statute.”  [Citation.]’ 
[Citation.]”  (>Summit Bank, supra, 206 Cal.App.4th at
p. 695.)

The trial court denied defendants’
anti-SLAPP motion as to Gwire’s defamation claims because it determined
Blumberg’s statement that Gwire’s representation constituted a “horrific fraud
against me that has irreparably damaged every aspect of my life” was “asserted
as fact, not opinion” and that Gwire had produced evidence sufficient to
convince a jury the statement was false. 
As the court explained, “[a]n accusation that an attorney has committed
a crime such as fraud[,] is dishonest or lacks ethics is actionable without
proof of special damages.” 

            “Defamation requires the intentional publication of a false
statement of fact that has a natural tendency to injure the plaintiff’s
reputation or that causes special damage.” 
(Burrill v. Nair (2013)
217 Cal.App.4th 357, 383 (Burrill),
review den. Oct. 2, 2013.)  “Where a
libelous statement ‘is defamatory on its
face, it is said to be libelous per se, and actionable without proof of
special damage.  [Citations.]  [F]alse statements charging the commission of
crime, or tending directly to injure a plaintiff in respect to his or her
profession by imputing dishonesty or questionable professional conduct are
defamatory per se.”  (>Id. at pp. 350-351 [statements accusing
the plaintiff “of extortion, prescribing medication without a license, perjury,
and selling child custody recommendations . . . are defamatory per se”].)  

Here, Blumberg claimed Gwire committed
a “horrific fraud against me that has irreparably damaged every aspect of my
life,” but he also accused Gwire of: (1) having an “incredibly unethical
history”; (2) having a “massive record of harming others”; and (3) “damag[ing]
other clients so badly that they could not afford to file suit against him,
which is what he did to me.”  Such statements, if false, are defamatory per
se.  (Burrill,
supra, 217 Cal.App.4th at pp. 385-386.)  


A.

Defamatory Nature of
the Statements

Blumberg focuses on the “horrific
fraud” comment and contends it was “non-actionable opinion.”  “To be libelous, a “‘statement must contain a
provable falsehood . . .’” and, to this end, “‘courts distinguish between
statements of fact and statements of opinion for purposes of defamation
liability.’”  (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426 (>Bently Reserve), quoting >Summit Bank, supra, 206 Cal.App.4th at
p. 695.)  “That does not mean that
statements of opinion enjoy blanket protection. 
[Citation.]  On the contrary,
where an expression of opinion implies a false assertion of fact, the opinion
can constitute actionable defamation. 
[Citation.]  The ‘crucial question
of whether challenged statements convey the requisite factual imputation is
ordinarily a question of law for the court. 
[Citation.]  [Citation.]’  ‘Only once the court has determined that a
statement is reasonably susceptible to such a defamatory interpretation does it
become a question for the trier of fact whether or not it was so
understood.  [Citations.]  [Citation.]’ 
The question is ‘“whether a reasonable fact finder could conclude the
published statement declares or implies a provably false assertion of fact. . .
.”  [Citation.]  [Citation.]’” 
(Summit Bank, supra, 206
Cal.App.4th at p. 696.)  â€œ[I]f a
statement is ‘ambiguous and cannot be characterized as factual or nonfactual as
a matter of law,’ a jury must determine whether the statement contains an
actionable assertion of fact.”  (>Bently Reserve, supra, 218 Cal.App.4th
at p. 427, quoting (Kahn v. Bower
(1991) 232 Cal.App.3d 1599, 1608 (Kahn).)

“To determine whether a statement
is actionable fact or nonactionable opinion, we apply a totality of the
circumstances test pursuant to which we consider both the language of the
statement itself and the context in which it is made.  [Citation.] 
On the issue of context, our Supreme Court has explained: ‘[W]here
potentially defamatory statements are published in a . . . setting in which the
audience may anticipate efforts by the parties to persuade others to their
positions by use of epithets, fiery rhetoric or hyperbole, language which
generally might be considered as statements of fact may well assume the
character of statements of opinion.’ 
[Citation.]”  (>Summit Bank, supra, 206 Cal.App.4th at
p. 696; see also Hawran v. Hixon
(2012) 209 Cal.App.4th 256, 289 [“rhetorical hyperbole,” “vigorous epithet[s],”
“lusty and imaginative expression[s] of . . . contempt,” and language used “in
a loose, figurative sense” have all been accorded constitutional protection,”
citations omitted].)  Courts “have
recognized that online blogs and message boards are places where readers expect
to see strongly worded opinions rather than objective facts.”  (Summit
Bank, supra, 206 Cal.App.4th at
p. 697.)

Summit
Bank is instructive.  There an
employee and stockholder of Summit Bank (the Bank) posted comments in the
“Rants and Raves” section of Craigslist disparaging the Bank’s management
decisions and financial stability.  The
employee’s “posts covered the following general topics: The Bank didn’t pay
dividends in 2009; (2) the ‘bitch CEO’ who runs the Bank ‘thinks that the Bank
is her personel [sic] Bank to do with
as she pleases’; (3) the CEO should not be allowed to provide an executive
position to her ‘worthless, lazy fat ass son’; (4) depositors should move their
accounts immediately, ‘before its [sic]
too late;’ (5) the Bank is ‘screwed up,’ ‘piss poor,’ and a ‘problem Bank;’ (6)
the Federal Deposit Insurance Corporation (FDIC) and California Department of
Financial Institutions have ‘look[ed] at Summit Bank’ three times in less than
one year and that is ‘not a good thing;’ (7) service was poor at the Bank’s
Hayward branch and the Bank closed it; (8) after the Hayward branch was closed,
the customers ‘were left high and dry;’ and (9) the Bank’s depositors should
leave ‘before they close.’”  (>Summit Bank, supra, 206 Cal.App.4th at
p. 697.)

A division of this court concluded
the Bank failed to establish a probability of prevailing on its defamation
claim because a reasonable reader could not reasonably interpret the employee’s
statements as “implying provable assertions of fact.”  (Summit
Bank, supra, 206 Cal.App.4th at p. 699.) 
First, the court examined the context of the statements and observed a
reader “should be predisposed to view them with a certain amount of skepticism,
and with an understanding that they will likely present one-sided viewpoints
rather than assertions of provable facts” because the “statements appeared in a
section of the Craigslist Web site entitled ‘Rants and Raves’ . . . ‘[A]ny
reader familiar with the culture of . . . most electronic bulletin boards . . .
would know that board culture encourages discussion participants to play fast
and loose with facts. . . . Indeed, the very fact that most of the posters
remain anonymous, or pseudonymous, is a cue to discount their statements
accordingly.’  [Citations.]”  (Summit
Bank, supra, 206 Cal.App.4th at pp. 696-697, fn. omitted.)

Next, the court examined the
language the employee used and concluded “Looking at the actual language used
in [the] posts, it is obvious [his] messages are intended to be free-flowing
diatribes (or ‘rants’) in which he does not use proper spelling or grammar, and
which strongly suggest that these colloquial epithets are his own unsophisticated,
florid opinions about the Bank and its key personnel.”  (Summit
Bank, supra, 206 Cal.App.4th at
p. 699.)  In reaching this conclusion, >Summit Bank concluded “courts have
frequently found the type of name calling, exaggeration, and ridicule found in
[the employee’s] posts to be nonactionable speech.”  (Ibid.,
citing cases.)

Chaker
reached a similar conclusion.  It
determined the defendant’s derogatory comments about the plaintiff were
nonactionable opinions because they “were made on Internet Web sites which
plainly invited the sort of exaggerated and insulting criticisms of businesses
and individuals which occurred here.  The
overall thrust of the comments attributed is that [the plaintiff] is a
dishonest and scary person.  This overall
appraisal of [the plaintiff] is on its face nothing more than a negative, but
nonactionable opinion.”  (>Chaker, supra, 209 Cal.App.4th at pp. 1149.) 

As in Summit Bank and Chaker,
Blumberg’s statements were made on an Internet discussion group where consumers
provide one-sided viewpoints and air their complaints on consumer issues.href="#_ftn5" name="_ftnref5" title="">[5]  Gwire concedes the web site “[a]rguably . . .
can be expected to attract disgruntled customers and dissatisfied
consumers.”  He is correct.  Posters on “message boards often make outrageous
claims . . .’ and ‘[m]ost visitors are completely aware of the unreliable
nature of these posts.”  (>Chaker, supra, 209 Cal.App.4th at p.
1148, quoting Comment, Cybersmear or
Cyber–SLAPP: Analyzing Defamation
Suits Against Online John Does as Strategic Lawsuits Against Public >Participation (2001) 25 Seattle U.
L.Rev. 213, 217.)  In the trial court,
Gwire characterized the post as a “rant” and accused Blumberg of “lashing
out.”  (See Chaker, supra, 209 Cal.App.4th at p. 1148 [“In determining
statements are nonactionable opinions, a number of recent cases have relied
heavily on the fact that statements were made in Internet forums”].) 

Next, we examine Blumberg’s
language: his claims that Gwire committed a “horrific fraud” and “irreparably
damaged” his life, that Gwire had “incredibly unethical history,” a “massive
record of harming others” and had “damaged other clients.”  To some extent, the accusatory and
inflammatory language used throughout the post suggests the type of “rhetorical
hyperbole, incapable of being proved true or false.”  (Standing
Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440 [attorney’s use of
colorful expressions such as “‘dishonest’” and “‘one of the worst judges in the
United States’” conveyed “nothing more substantive than [attorney’s] contempt
for [the judge in question]”; see also Letter
Carriers v. Austin (1974) 418 U.S. 264, 283-284 [“‘traitor[s]’” understood
to mean the plaintiffs’ actions were reprehensible, not that they had committed
treason]; Greenbelt Pub. Assn. v. Bresler
(1970) 398 U.S. 6, 13-14 [“‘blackmail’” was a vigorous epithet used to describe
unreasonable negotiations].)  Gwire’s
response to the post — which contained equally florid language accusing his
former client of being “unreliable,” a “proven liar” and “mentally unbalanced”—
underscores our conclusion that readers of the consumer message board at issue
likely viewed the post as opinion, not fact.

Gwire, however, claims Blumberg
included inaccurate, misleading, and “purposefully incomplete” information
about litigation involving Gwire, suggesting to the reader that Blumberg was
communicating facts — not opinions — about Gwire’s reputation.  Wilbanks
supports Gwire’s argument.  In >Wilbanks, the defendant posted a warning
on her web site to be careful when using the plaintiff’s brokerage service,
stating: “‘Be very careful when dealing with this broker.  Wilbanks and Assoc. is under investigation by
the CA dept. of insurance.  The complaint
originated with a California viator who won a judgment against Wilbanks.  How many others have been injured but didn’t
have the strength to do anything about it? [¶] The company is under
investigation.  Stay tuned for details.
[¶] Wilbanks and Associates provided incompetent advice. [¶] Wilbanks and
Associates is unethical.’”  (>Wilbanks, supra, 121 Cal.App.4th at p.
901, italics omitted.)

A division of this court reversed
the order granting the defendant’s anti-SLAPP motion, concluding the
defendant’s statements of opinion were actionable because they “omit[ted]
potentially significant facts” about the judgment against the plaintiff and
about the Department of Insurance investigation.  (Wilbanks,
supra, 121 Cal.App.4th at p. 903.) 
As the Wilbanks court
explained, “[a] statement of opinion may be actionable if it implies the
allegation of undisclosed defamatory facts as the basis for the opinion.  ‘Even if the speaker states the facts upon
which he bases his opinion, if those facts are either incorrect or incomplete,
or if his assessment of them is erroneous, the statement may still imply a
false assertion of fact.  Simply couching
such statements in terms of opinion does not dispel these implications. . .
.’  [Citations.]”  (Id.
at pp. 902-903.)  The court further
concluded the defendant’s “position as a crusader and watchdog to the industry”
demonstrated she “expected readers to rely on her opinions as reflecting the
truth.”  (Id. at p. 904, fn. omitted.)

Bently
Reserve, a case recently decided by our colleagues in Division One, reached
a similar conclusion.  There, the defendant
posted a negative review about an apartment building at 1360 Jones Street (the
Jones Building) on Yelp.  The review
read: “‘Sadly, the Building is (newly) owned and occupied by a sociopathic
narcissist—who celebrates making the lives of tenants hell.  Of the 16 mostly-long-term tenants who lived
in the Building when the new owners moved in, the new owners’ noise,
intrusions, and other abhorrent behaviors (likely) contributed to the death of
three tenants (Pat, Mary, & John), and the departure of eight more (units
1001, 902, 802, 801, 702, 701, 602, 502) in very short order.  Notice how they cleared-out all the
upper-floor units, so they could charge higher rents? [¶] ‘They have sought
evictions of 6 of those long-term tenants, even though rent was paid-in-full,
and those tenants bothered nobody.  And
what they did to evict the occupants of unit # 902, who put many of tens of
thousands of dollars into their unit, was horrific and shameful. [¶] ‘This is
my own first-hand experience with this building, and its owners.  I know this situation well, as I had the
misfortune of being in a relationship with one of the Building’s residents at
the time, have spent many days and nights over many years in the Building, and
have personally witnessed the abhorrent behavior of the owners of the
Building.’”  (Bently Reserve, supra,
218 Cal.App.4th at p. 423.)

The plaintiff building owners sued
for defamation and the trial court denied the defendant’s anti-SLAPP
motion.  The Bently Reserve court affirmed, holding the defendant’s “review, in
part, is susceptible to being read as containing factual assertions, not just
mere opinion[.]”  (Bently Reserve, supra,
218 Cal.App.4th at p. 422.)  It explained
that although the defendant “used some hyperbole and name calling . . . the
review also included purported facts about
the Jones Building” — that plaintiffs sought to evict tenants and that
plaintiffs’ activities contributed to certain tenant deaths.  The court also noted, “In fact, [the
defendant] went out of his way to win credibility with his audience as to these
factual assertions, stating: [¶] ‘This is my own first-hand experience with
this building, and its owners.  I know
this situation well, as I had the misfortune of being in a relationship with
one of the Building’s residents at the time, have spent many days and nights
over many years in the Building, and have personally witnessed the abhorrent
behavior of the owners of the building.’” 
(Id. at p. 428.)  The court concluded the defendant’s
“assurances suggest facts are being communicated, not opinions.”  (Id.
at p. 429.)

The court continued, “Internet
posts where the ‘tone and content is serious,’ where the poster represents
himself as ‘unbiased’ and ‘having specialized knowledge,’ or where the poster
claims his posts are ‘Research Reports’ or ‘bulletins’ or ‘alerts,’ may indeed
be reasonably perceived as containing actionable assertions of fact.  [Citation.] 
And while ‘generalized’ comments on the Internet that ‘lack any
specificity as to the time and place of’ alleged conduct may be a ‘further
signal to the reader there is no factual basis for the accusations,’ specifics,
if given, may signal the opposite and render an Internet posting
actionable.”  (Bently Reserve, supra, 218 Cal.App.4th at p. 431.) 

On the one hand, the average
Internet reader could interpret the statements at issue as offering a
subjective — and perhaps unjustified — description of Blumberg’s experience
with Gwire, i.e., “insulting name calling . . . which one would expect from
someone who had an unpleasant personal or business experience with [Gwire] and
was angry with him rather than as any provable statement of fact.”  (Chaker,
supra, 209 Cal.App.4th at p. 1149.) 
In addition, Blumberg’s comments about his experiences with Gwire “lack any specificity as to the time or
place of [Gwire’s] supposed behavior; the absence of such specificity is yet a
further signal to the reader there is no factual basis for the
accusations.”  (Id. at pp. 1149-1150.)

On the other hand, and under >Wilbanks and Bentley Reserve, Blumberg’s post could reasonably be perceived as
containing actionable assertions of fact. 
As in Wilbanks, Blumberg
posted incomplete information about litigation involving Gwire: he quoted from
complaints filed against Gwire without noting that Gwire had prevailed in
several cases, and without noting that two cases were in small claims
court.  By omitting the litigation’s
forum and outcome, Blumberg “allowed readers to assume the worst[.]”  (Wilbanks,
supra, 121 Cal.App.4th at p. 903.) 
And as in Bently Reserve,
Blumberg sought to develop “credibility with his audience as to these factual
assertions” by relying on “evidence” — in the form of unverified complaints —
to support his comments.  Blumberg stated
he performed a “search” for lawsuits, suggesting he had “specialized knowledge”
involving Gwire.  Moreover, he
characterized his post as a “summary” to “help other innocent people,” akin to
the research reports, bulletins and alerts, described in Bently Reserve.  Here, the
circumstances suggest the post could
reasonably be perceived as containing actionable assertions of fact.  (See also Sanders
v. Walsh (Sept. 16, 2013, No.
G047440) ___ Cal.Rptr.3d ___, ___ [2013 WL 5112143] [posts on various web
sites, including Yelp were “specific factual claims” not “mere opinion”].)  Under the totality of the circumstances in
this case, we conclude Blumberg’s posting was “‘reasonably susceptible of an
interpretation which implies a provably false assertion of fact.’”  (Bently
Reserve, supra, 218 Cal.App.4th at p. 428, quoting Kahn, supra, 232 Cal.App.3d at p. 1608.)  “Where, as here . . . the allegedly libelous
remarks could have been understood by the average reader” as either fact or
opinion, “the issue must be left to the jury’s determination.”  (Good
Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d
672, 682.)

B.

Falsity

            Blumberg
argues that even if his posting contains express or implied statements of
provable fact, the gist of his post was “substantially true’” and truth is a
complete defense to a libel claim. 
Specifically, he claims Gwire committed billing fraud. 

“‘[T]he law does not require [the
defendant] to justify the literal truth of every word of the allegedly
defamatory content, nor must we parse each word . . . to determine its
truthfulness.  “It is sufficient if the
defendant proves true the substance of the charge, irrespective of slight
inaccuracy in the details, ‘so long as the imputation is substantially true so
as to justify the “gist or sting” of the remark. . . . .’  [Citation.]” 
[Citation.]’”  (>Bently Reserve, supra, 218 Cal.App.4th
at p. 434.)  “‘By the same token, not
every word of an allegedly defamatory publication has to be false and
defamatory to sustain a libel action.’ 
[Citation.]”  (>Ibid.)

            In his
lengthy and detailed declaration in opposition to the anti-SLAPP motion, Gwire
averred: (1) the information Blumberg posted about cases against him was
incomplete and inaccurate; (2) he did not commit billing fraud; and (3) he
competently represented Blumberg.  While
Blumberg responded with competing evidence regarding Gwire’s prior litigation
and billing practices, “the present state of the evidence is, at best,
murky.  It certainly is not sufficiently
clear to conclude [Blumberg] is entitled to a defense judgment as a href="http://www.fearnotlaw.com/">matter of law, even as to his statements
about [billing fraud], on the basis of ‘substantial truth.’”  (Bently
Reserve, supra, 218 Cal.App.4th at p. 435.) 
Given these triable issues in connection with the merits of Gwire’s
libel claim, “a trier of fact might conclude his review was not substantially
true and was defamatory.”  (>Ibid.; see also Kahn, supra, 232 Cal.App.3d at p. 1608 [whether statement is
defamatory is for jury in close cases].)href="#_ftn6" name="_ftnref6" title="">[6]

C.

Actual Malice

            The trial
court concluded Gwire was not a limited purpose public figure.  We assume for the sake of argument Gwire is a
limited purpose public figure and must establish actual malice.  To “successfully defend against [defendants’]
anti-SLAPP motion, [Gwire] must ‘establish a probability that [he] will be able
to produce clear and convincing evidence of actual malice.’  [Citation.]” 
(Burrill, supra, 217
Cal.App.4th at p. 390.)  “‘Actual malice
may be proved by direct or circumstantial
evidence.  Factors such as failure to
investigate, anger and hostility, and reliance on sources known to be
unreliable or biased “may in an appropriate case, indicate that the publisher
himself had serious doubts regarding the truth of his [or her]
publication.”’  [Citation.]”  (Ibid.) 

            Here, there
“is an abundance of evidence” of Blumberg’s “anger and hostility” toward
Gwire.  (Burrill, supra, 217 Cal.App.4th at p. 391.)  There is no dispute Gwire and Blumberg had a
contentious relationship before Blumberg posted on complaintsboard.com.  Not surprisingly, their relationship soured
considerably after Blumberg posted on the web site and refused to remove the
post.  In a series of emails to Gwire
after he posted on the web site, Blumberg accused Gwire of criminal conduct and
claimed Gwire “would like to cause harm to me.” 
In addition, Gwire’s evidence allows an inference that Blumberg acted
with a reckless disregard for the truth by omitting information about the
results of the litigation against Gwire and the litigation forum.  We conclude Gwire made a sufficient showing
of actual malice.  (Id. at p. 396.)

DISPOSITION

            The order
partially denying defendants’ motion to strike is affirmed.  Gwire is entitled to costs on appeal.  (Cal. Rules of Court, rule 8.278(a).)

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Needham, J.

 

_________________________

Bruiniers, J.