“or those that are sick at least one day every week. “
woah
its almost like
people can have health problems??? that are personal??? but you cant understand that because you’re a gin soaked pickle from the 60’s who’s bitter about everything???

Here is the entire judge’s preliminary ruling – you don’t need to post it. But please forward to Tim so he can call one of the lawyers involved (maybe the Glassdoor lawyer) and get a comment. This could be big stuff if the review websites have to pick and chose what is potentially defamatory and not….

DEPARTMENT 34 LAW AND MOTION RULINGS
The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.
________________________________________
Case Number: BC618139 Hearing Date: August 16, 2016 Dept: 34
SUBJECT: Special motion to strike

Moving Party: Defendants Does 1, 3, 4, and 7-12

Resp. Party: Plaintiffs Philip J. Layfield and Layfield & Barrett, APC

The motion is GRANTED in its entirety as to Does 3, 7, 8, 10, and 12.

The motion to strike the first cause of action for violation of the UCL is GRANTED as to all defendants. The motion to strike the second cause of action for false advertising is GRANTED as to all defendants.

The motion to strike the third, fourth, and fifth causes of action as to Does 1, 4, 9 and 11 is GRANTED in part and DENIED in part. The Court DENIES the motion as to the following statements:

• “Phil loses more cases than he wins” (stated by Doe 1)
• “[b]onuses and advancement potential exist only in theory” (stated by Doe 4);
• “the firm is breaking a lot of laws” (stated by Doe 9);
• “clients are threatening to sue” (stated by Doe 9);
• Doe 11 claims to have been an former employee of Layfield & Barrett who worked for the law firm for “more than 10 years” (stated by Doe 11);
• Plaintiffs condone “sexual harassment, racism, bait and switch, and abuse” (stated by Doe 11).

The motion is GRANTED as to the other alleged statements, and the Court strikes these statements from the complaint.

Plaintiffs’ “Objections to the Untimely Declaration of Robert A. Leonard, Ph.D” is DENIED as MOOT, because the Court did not rely on this declaration in its decision.

BACKGROUND:

Plaintiffs commenced this action on 4/25/16 against defendants for: (1) unfair business practices; (2) false advertising; (3) false light; (4) libel per se; and (5) injunctive relief. Plaintiffs are an attorney and a law firm. (Compl., ¶¶ 1-2.) Plaintiffs allege that defendants posted false statements about plaintiffs on the website http://www.glassdoor.com. (Id., ¶¶ 6-17.)

ANALYSIS:

As an initial matter, the Court disregards plaintiffs’ argument that defendants may not proceed as Doe defendants. The Court previously denied plaintiffs’ ex parte application to strike the instant motion. The Court’s order states that the parties stipulated that defense counsel has accepted service for the defendants. (See Minute Order dated 7/26/16.) Plaintiffs have not brought a noticed motion requesting an order that defendants proceed under their real names.

The California Supreme Court recently summarized the showings and findings required for a motion under Code of Civil Procedure section 425.16(b).

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (Cal., Aug. 1, 2016, No. S225090) 2016 WL 4074081, at *13. See also Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150-151.)

Commercial speech exception

In the opposition, plaintiffs raise the issue of the commercial speech exemption under Code of Civil Procedure section 425.17. “Before engaging in this two-step analysis, a court must consider any claims by the plaintiff that a statutory exemption contained in section 425.17 applies.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622.) Section 425.17 provides, in relevant part:

“Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist:

“(1) The statement or conduct consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services, or the statement or conduct was made in the course of delivering the person’s goods or services.

“(2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.” (Code Civ. Proc., § 425.17(c).)

Section 425.17(c) has been interpreted

“to exempt from the anti SLAPP law a cause of action arising from commercial speech when (1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person’s or a business competitor’s business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services or in the course of delivering the person’s goods or services; and (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17(c)(2).” (Simpson Strong Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 30.)

Plaintiffs’ argument is not well taken because there is no showing that defendants are primarily engaged in the business of selling or leasing goods or services or that the statements were made for the purposes of obtaining approval for, promoting, or securing sales or leases of or commercial transactions in the defendants’ goods or services.

First Step – Defendants’ Burden Of Showing Protected Activity

In determining whether a defendant seeking to strike a claim under the anti SLAPP statute has made a prima facie showing that the plaintiff’s action arises from activity protected by statute, the critical consideration is whether the plaintiff’s cause of action itself, and the act which the plaintiff complains of, is based on an act taken by defendant in furtherance of his right of petition or free speech. (See, e.g., Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281.) “The anti SLAPP statute’s definitional focus is not on the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [emphasis in original].) The statute is to be broadly applied and includes four categories of protected conduct:

“(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16(e).)

Defendants argue that the statements were protected because they were made on the internet (a public forum) and concerned an issue of public interest. (See Code Civ. Proc., § 425.16(e)(3), (4).)

The alleged defamatory statements were all made on the website http://www.glassdoor.com. (See Compl., ¶¶ 6-17.) Glassdoor’s Deputy General Counsel declares that the website “provides a publicly accessible forum for current and former employees of businesses to anonymously voice opinions of those companies.” (O’Brien Decl., ¶¶ 1-2.) “An Internet website that is accessible to the general public is a public forum.” (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1121. See also Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, 950; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41) Because the alleged statements were made on publicly accessible website, they were made in a public forum.

It must next be determined whether the alleged statements concerned an issue of public interest. In Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, the court discussed the standard for whether a statement concerned a matter of public interest.

“Like the SLAPP statute itself, the question whether something is an issue of public interest must be “ ‘ “construed broadly.” ’ ” [Citations.] An “ ‘issue of public interest’ ” is “ ‘ any issue in which the public is interested.’ ” [Citations.] A matter of “ ‘ “public interest should be something of concern to a substantial number of people. [Citation.] … [T]here should be some degree of closeness between the challenged statements and the asserted public interest [citation]…. [T]he focus of the speaker’s conduct should be the public interest….” ’ [Citation.] Nevertheless, it may encompass activity between private people.” [Citation.]

“We look for “the principal thrust or gravamen of plaintiff’s cause of action.” [Citation.] We “‘do not evaluate the first prong of the anti-SLAPP test solely through the lens of a plaintiff’s cause of action.’” [Citation.] The “critical consideration” is what the cause of action is “ based on.” (Id. at pp. 464-465.)

In Chaker v. Mateo (2012) 209 Cal.App.4th 1138, the defendant (Mateo) posted a series of derogatory comments about the plaintiff (Chaker) and his business on a website where members of the public could comment on the reliability and honesty of providers of goods and services, as well as on another social networking site which allowed members of the public to comment on a variety of subjects. (Chaker, 209 Cal.App.4th at p. 1142.) The court had “little difficulty concluding that [Mateo]’s statements were made in a public forum” (Id. at p. 1146.) The court also found that the statements pertained to matters of public interest.

“The statements posted to the “Ripoff Report” Web site about Chaker’s character and business practices plainly fall within in the rubric of consumer information about Chaker’s “Counterforensics” business and were intended to serve as a warning to consumers about his trustworthiness. The remaining statements were posted to the “topix” Web site, which identified itself as a social networking site (“Join the Topix Community”) and permitted users to create their own profile and post information on its forum. These statements also fall within the broad parameters of public interest within the meaning of section 425.16. Of particular significance is the fact that it appears from the record Chaker became the subject of statements on the “topix” Web site only after he posted a profile on the Web site and it generated responses from other members of the community, including apparently statements from Wendy. Having elected to join the topix Web site, Chaker clearly must have recognized that other participants in the Web site would have a legitimate interest in knowing about his character before engaging him on the Web site. Thus, here Chaker himself made his character a matter of public interest as the term has been interpreted.” (Id. at pp. 1146-1147.)

Similarly, in Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, the court found that statements posted by the defendant on a website regarding the plaintiff’s business constituted protected activity. (See id. at pp. 889-890, 900.) The court noted that “[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.” (Id. at p. 898.) The court noted that the defendant’s statements were not simply of interest only to the plaintiff or those affected by the plaintiff’s practices, but were instead “a warning not to use plaintiffs’ services.” (Id. at p. 900.)

Pursuant to the analysis in Chaker and Wilbanks, the Court finds that defendants’ alleged comments constitute a matter of public interest. The fact that the statements consisted of reviews by employees and not consumers is a distinction without a difference. The statements did not merely discuss a private dispute between the parties and the persons affected by and interested in the statements are not limited to plaintiffs or its current employees. (See Rivero v. AFSCME (2003) 105 Cal.App.4th 913, 924 [statements in a Union publication concerning the supervision of eight employees was not protected where the only individuals involved in and affected by the situation were the plaintiff and the eight employees].) Instead, they provided information as to plaintiffs’ business and were intended to warn other potential employees about employment with plaintiffs. The reviews also could have been helpful to consumers considering doing business with plaintiff. Other users of http://www.glassdoor.com who research plaintiffs’ business would have a legitimate interest in knowing about defendants’ experience before seeking employment with or services from plaintiffs.

Accordingly, defendants sufficiently meet their burden of showing that the complaint is based on their protected activity.

Second Step – Plaintiff’s Showing That The Claims Are Legally And Factually Sufficient

Once a defendant has established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “[A] 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

“[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus (2007) 40 Cal.4th 683, 729.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) The opposing parties’ burden as to an anti SLAPP motion is like that of a party opposing a motion for summary judgment. (See, e.g., DaimlerChrysler Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 352.) The court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326 [internal quotations omitted].) Whether complainants have satisfied their burden is a question of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Further, “[w]hether or not the evidence is in conflict, if the plaintiff has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the plaintiff is entitled to proceed.” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 193.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; see also Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98 [proof cannot be made by declaration based on information and belief]; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38 [documents submitted without proper foundation could not be considered in determining plaintiff’s probability of prevailing on its claim].)

A plaintiff need not establish a probability of prevailing on all theories presented. As long as the plaintiff “shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106 [italics in original].)

Fourth cause of action

“Libel is a false and unprivileged publication by writing … which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injury him in his occupation.” [Citation.] However, “… there is no such thing as a false idea” [Citation.] A publication “ ‘must contain a false statement of fact’ to give rise to liability for defamation.” [Citations.] Even if they are objectively unjustified or made in bad faith, publications which are statements of opinion rather than fact cannot form the basis for a libel action. [Citation.]
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“In drawing the distinction between opinion and fact “‘California courts have developed a ”totality of the circumstances“ test ….’ [Citation.] The court must put itself in the place of an ‘ ” ‘average reader’ “ ‘ and decide the ‘ ” ‘natural and probable effect’ “ ‘ of the statement. [Citations.] The words themselves must be examined to see if they have a defamatory meaning, or if the ‘ ” ‘sense and meaning … fairly presumed to have been conveyed to those who read it’ “ ‘ have a defamatory meaning. [Citations.] Statements ‘ ” cautiously phrased in terms of apparency“ ‘ are more likely to be opinions. [Citations.] [¶] In addition to the language, the context of a statement must be examined. [Citation.] The court must ‘look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.’ [Citation.]” (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 577-778.)

“An opinion or legal conclusion is actionable only “ ‘if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.’ ” [Citation.] Thus, an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion. [Citation.] An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true. [Citation.] An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false. [Citation.] In determining whether a statement is actionable opinion, we examine the totality of the circumstances, starting with the language of the allegedly defamatory statement itself. [Citation.]” (Ruiz v. Harbor View Community Ass’n (2005) 134 Cal.App.4th 1456, 1471.)

“ ‘[R]hetorical 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.]’ [Citation.] The dispositive question … is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048.) “To decide whether a statement is fact or opinion, a court must put itself in the place of an average reader and determine the natural and probable effect of the statement, considering both the language and the context.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.) “Whether a statement is nonactionable opinion or actionable misrepresentation of fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1081.)

Plaintiffs allege that defendants made the following statements:

Doe 1 posted a review entitled, “Bad place to work (this company just changed its name) Research Layfield & Wallace.” In that review, Doe 1 stated, “Phil loses more cases than he wins.” (Complaint, ¶ 6.)

Doe 3 posted a review entitled, “You will HATE working here. Please read all the reviews.” In that review, Doe 3 stated, “Philip Layfleld, the managing partner, is the main con and the cause of all the firm’s problems;” “Layfield mocks and insults every person in the firm;” Layfield “screams during meetings because nothing is ever good enough;” “[t]his causes huge turnover and leads to cases just sitting and gathering dust;” “90% of my coworkers were miserable and planning on leaving as soon as possible;” and “all the cases are a mess.” (Complaint, ¶ 8.)

Doe 4 posted a review entitled, “Working here is Psychological Torture.” In that review, Doe 4 stated that “You will receive no guidance whatsoever;” “[b]onuses and advancement potential exist only in theory” at the firm; “[y]ou might be asked to do something that compromises your ethics.” (Complaint, ¶ 9.)

Doe 7 posted a review entitled “Anyone who give this place a full rating has literally just started working there.” In that review, Doe 7 stated that “There is growth opportunity if you can learn to become an overworked brown noser;” “Cons — Everything. Deranged partner belittles his inexperienced staff constantly and has unhinged sense of hatred for anyone he thinks is inferior to him, which is everyone.” (Complaint, ¶ 12.)

Doe 8 posted a review entitled “Working for Philip J. Layfield (a.k.a. Philip S. Pesin) was pure misery.” In that review, Doe 8 stated, “The firm’s founder Philip Layfield, was the most abusive, hateful and unprofessional person I have ever worked for”; Layfield “would ridicule and shame well-meaning employees in front of others and throw childish tantrums over the most minor mistakes;” and Layfield’s “constant name-calling and whining. . . greatly damaged employee morale.” (Compliant, ¶ 13.)

Doe 9 posted a review entitled “Horrible place to work. Unreasonably Cruel.” In that review, Doe 9 stated, “The firm is breaking a lot of laws;” “clients are threatening to sue;” and “[p]eople quit or get fired on a daily basis.” (Complaint, ¶ 14.)

Doe 10 posted a review entitled “Phil Layfield Changed his Name from Phil Pesin for a Reason.” In that review, Doe 10 stated, “You get to work for a guy who changed his name to outrun his past;” and Layfield “stiff[s]” young attorneys on “pay and then leaves them with a crap resume and no job reference.” (Compliant, ¶ 15.)

Doe 11 posted a review entitled “Layfield & Barrett, wallace pesin STAY AWAY!!! BAD BOSS.” In that review, Doe 11 stated “I worked for Layfield & Barrett (more than 10 years)”; that employees “[l]earn how to lose cases;” “[i]f you last longer than six months you will need a PSTD (sic) evaluation;” plaintiffs condone “Sexual Harassment, Racism Bait and switch, Abuse;” Layfield is a “sociopath” and “c-c-c-crazy!!!!” (Complaint, ¶ 16 and Exh. C to Complaint.)

Doe 12 posted a review entitled “Don’t let the name change fool you, read the reviews for Layfield & Wallace. This is Phil Pesin’s way of ‘starting fresh’.” In that review, Doe 12 stated that Layfield is “incompetent” and plaintiffs have “people in place that are clearly not qualified for the job.” (Complaint, ¶ 17.)

A review of these statements alleged to have been made by Does 1, 3, 4 and 7-12 shows that some of the statements could be found by a reasonable trier of fact to be provably false statements, while others clearly constitute rhetorical hyperbole, figurative expressions of contempt or non-actionable statements of opinion.

The following statements declare or imply facts capable of being proven false:

• “Phil loses more cases than he wins” (stated by Doe 1)
• “[b]onuses and advancement potential exist only in theory” (stated by Doe 4);
• “The firm is breaking a lot of laws” (stated by Doe 9);
• “clients are threatening to sue” (stated by Doe 9);
• Doe 11’s claim to have been an former employee of Layfield & Barrett who worked for the law firm for “more than 10 years” (stated by Doe 11);
• Plaintiffs condone sexual harassment, racism, bait and switch, and abuse (stated by Doe 11).

Conversely, the following statements do not constitute provably false statements. Instead, these statements are unprovable, constitute hyperbole, figurative expressions, predictions or statements of opinion:

• “Philip Layfleld, the managing partner, is the main con and the cause of all the firm’s problems”
• “Layfield mocks and insults every person in the firm”
• Layfield “screams during meetings because nothing is ever good enough” which “causes huge turnover and leads to cases just sitting and gathering dust”
• “90% of my coworkers were miserable and planning on leaving as soon as possible”
• “all the cases are a mess”
• “You will receive no guidance whatsoever”
• “[y]ou might be asked to do something that compromises your ethics.”
• “There is growth opportunity if you can learn to become an overworked brown noser”
• “Cons — Everything. Deranged partner belittles his inexperienced staff constantly and has unhinged sense of hatred for anyone he thinks is inferior to him, which is everyone”
• “The firm’s founder Philip Layfield, was the most abusive, hateful and unprofessional person I have ever worked for”
• Layfield “would ridicule and shame well-meaning employees in front of others and throw childish tantrums over the most minor mistakes”
• Layfield’s “constant name-calling and whining. . . greatly damaged employee morale”
• “[p]eople quit or get fired on a daily basis”
• “You get to work for a guy who changed his name to outrun his past”
• Layfield “stiff[s]” young attorneys on “pay and then leaves them with a crap resume and no job reference”
• Employees “[l]earn how to lose cases”
• “If you last longer than six months you will need a PSTD (sic) evaluation;”
• Layfield is a “sociopath” and “c-c-c-crazy!!!!”
• Layfield is “incompetent” and plaintiffs have “people in place that are clearly not qualified for the job.”

A few of the above statements, might, at first glance, appear to be assertions that could be proved false. For instance, the statement made by Doe 10 that “You get to work for a guy who changed his name to outrun his past” might appear to be an assertion of fact. However, the context of the statement undermines this first impression. The review in question discusses “pros” and “cons” of working for the law Layfield and Wallace. This statement is listed under the “pro” section. The entire statement is “You get to work for a guy who changed his name to outrun his past. Kinda like Don Draper. And the office is close to the beach with plenty of good bars.” (See Complaint, Exh. B.) In context, this is not a factually provable, defamatory statement.

Similarly, the statement made by Doe 12 that Layfield is “incompetent” and plaintiffs have “people in place that are clearly not qualified for the job” might appear to be an assertion of fact. However, it is important to read this snippet in the context of Doe 12’s entire web posting which states:

“Pros: Free and water coffee [sic] that’s about it and maybe a couple of employees who you can get along with.”

“Cons: The biggest con is Phil – he is incompetent, disrespectful and the biggest a-hole I have ever met. He is a materialistic person and not a people person. He constantly throws fits and yells for his puppets – ‘Rita!’ ‘Todd!’ ‘Andy!’ like the wimp that he is. He does all his yelling on skype from the privacy of his gated private security home but never in person. He is a coward and his firm is a total clown show. He has people in place that are clearly not qualified for the job – hence the hipster in pre-litigation with no experience to do his job. Just delegates work tasks and doesn’t get his hands dirty. This place does not even deserve one star. Do yourself a favor and don’t work for this clown show.” (See Complaint, Exh. C.)

In context, this is clearly not a statement that Layfield has not passed the bar or that he is hiring, e.g., paralegals to pose as attorneys. These statements are the hyperbolic rantings of a disgruntled employee, not factually provable statements.

The Court must also consider the forum in which the statements were made to determine if they are protected speech or provably false defamatory statements. These statements were posted on the internet, in a forum and on a website in which employees are encouraged to anonymously air gripes about their employer. On the internet – as in modern political campaigns – it is not uncommon to see “‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of … contempt,’ and language used ‘in a loose, figurative sense’.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048.)
Because the alleged statements of Does 3, 7, 8, 10 and 12 consist solely of hyperbole, opinions or non-factual unprovable assertions, plaintiffs fail to show a probability of prevailing as to these Does. For the other defendants, plaintiff must make a prima facie showing of the other elements of libel (defamation) as to all of the alleged factual statements.

“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) A statement is defamatory where it lowers the esteem of the person in the community or deters people from associating with the person. (Wiseman & Reese, Cal. Prac. Guide: Pro. Trial Claims and Def. (The Rutter Group 2015) ¶ 4:335.)

Plaintiffs provide evidence which show that the following statements could be false:

• “Phil loses more cases than he wins” (stated by Doe 1)
• “[b]onuses and advancement potential exist only in theory” (stated by Doe 4);
• “the firm is breaking a lot of laws” (stated by Doe 9);
• “clients are threatening to sue” (stated by Doe 9); and
• Plaintiffs condone “sexual harassment, racism, bait and switch, and abuse” (stated by Doe 11).
(See Layfield Decl., ¶¶ 9-19; Wakefield Decl., ¶¶ 8-16; Mims Decl., ¶¶ 9-17.) Plaintiffs provide evidence suggesting that plaintiffs have suffered harm as a result of these statements. (See Layfield Decl., ¶¶ 6-7, 20; Wakefield Decl., ¶¶ 5-6; Mims Decl., ¶¶ 5-6.)

(Even if the Court were to find that the alleged statements concerning abusive statements were provable and hence could be defamatory, plaintiffs have not provided evidence suggesting that these statements are false. The only evidence provided by plaintiffs are identical statements from Wakefield and Mims that the allegations are “inconsistent with my own experience in the workplace and my observations of the workplace generally” and that they have seen nothing which suggests that the firm is outside the norm or provides an abusive environment for employees. (See Wakefield Decl., ¶ 7; Mims Decl., ¶ 7.) At most, this evidence suggests that two employees did not experience or observe abusive behavior during their employment; it does not establish that the alleged abuse did not occur. The Court notes that the declarations suggest that both of these employees have worked for plaintiffs for less than a year. (See Wakefield Decl., ¶ 1; Mims Decl., ¶ 1.) These declarations are not sufficient to support a reasonable determination that the allegations of abusive behavior are false.)

Therefore, plaintiffs have sufficiently established a probability of prevailing on the libel claim as to the following statements only:

• “Phil loses more cases than he wins”;
• “[b]onuses and advancement potential exist only in theory”;
• “the firm is breaking a lot of laws”;
• “clients are threatening to sue”; and
• Plaintiffs condone “sexual harassment, racism, bait and switch, and abuse”.
These statements were allegedly made by Does 1, 4, 9 and 11.

Second cause of action for false advertising

The elements of a claim for false advertising under Business and Professions Code section 17500 are: (1) defendant intended to dispose of real or personal property or perform services; and (2) defendant publicly disseminated advertising containing an untrue or misleading statement; (3) defendant knew, or should have known, it was untrue or misleading; and (3) it concerned the real or personal property or services or their disposition or performance; or (4) defendant publicly disseminated advertising with the intent not to sell the property or services at the price stated or as advertised. (Bus. & Prof. Code, §17500.)

Plaintiffs’ second cause of action appears to be based on the underlying libel claim. Though plaintiffs provide admissible evidence that some of the statements were untrue, plaintiffs provide no evidence suggesting that defendants are competitors who intended to sell property or perform services or that the statements constituted advertising concerning defendants’ property or services. Therefore, plaintiffs fail to make a prima facie showing to support their second cause of action.

First cause of action for unfair business practices

California Business and Professions Code section 17200 permits recovery for “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) To state a cause of action under Business and Professions Code section 17200, et seq., plaintiff must show: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) authorized remedy. (Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.) “A plaintiff alleging unfair business practice under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) To support this cause of action, plaintiff must allege a statutory section that has been violated and describe with particularity any supporting violation. (See 5 Witkin, Cal. Procedure (5th ed. 2008), § 779, p. 196 [citing Khoury, 14 Cal.App.4th at p. 619].)

To have standing to sue under the UCL, a private plaintiff must allege he or she “has suffered injury in fact and has lost money or property.” (Bus. & Prof. Code § 17204.) To satisfy the standing requirement of section 17204, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.) As stated above, plaintiffs provide evidence that they have suffered monetary injuries as a result of the statements. (See, e.g., Layfield Decl., ¶¶ 6-7, 20.)

Nonetheless, this cause of action cannot stand. Plaintiff’s first cause of action – for violation of the UCL – is premised on defendants’ alleged false advertising. (See Opp., p. 12:8-17.) As indicated above, plaintiffs fail to make a prima facie showing to support their cause of action for false advertising.

Plaintiffs alternatively argue that the predicate “bad acts” underlying the UCL cause of action are Does’ defamatory statements. But this argument doesn’t help plaintiffs. The premise of a UCL violation is that the alleged bad act is an unfair business practice. (See Bus. & Prof. Code § 17200 – “any unlawful, unfair, or fraudulent business act or practice.”) There is no showing that any of the Doe defendants are engaged in a business. While the reach of section 17200 is expansive, the UCL is not so elastic that it can be stretched to turn every defamatory statement made by a private citizen against a business entity into an unfair business practice.

Third cause of action for false light

A claim for false light invasion of privacy requires a showing of a false, unprivileged publication that exposes the plaintiff to hatred, contempt, ridicule, or obloquy, or which causes person to be shunned or avoided, or which has a tendency to injure person in his occupation. (Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 543 [overruled on other grounds by Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 697]; Fellows v. Nat’l Enquirer (1986) 42 Cal.3d 234, 239; M.G. v. Time Warner (2001) 89 Cal.App.4th 623, 636. See also Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 239 [“Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well.”].)

Plaintiffs’ third cause of action is based on the same alleged libel as the fourth cause of action. (See Compl., ¶¶ 30-32.) As discussed above, plaintiffs have made a prima facie case that some of the statements are false and caused damages. This is sufficient to support the third cause of action as to these statements and those Does.

Fifth cause of action for injunctive relief

“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) As discussed above, plaintiffs have made a prima facie showing to support the third and fourth causes of action as to some of the statements. There is no showing that plaintiffs cannot seek injunctive relief based on these claims.

Although the Court will not strike this cause of action in response to the anti-SLAPP motion, the Court notes that any prospective injunction sought by plaintiffs that would bar future statements would probably run afoul of the First Amendment.