Filed 11/21/17 Hays v. Gagliardi CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



LARRY HAYS et al.,

Plaintiffs and Respondents,

v.

ANNA GAGLIARDI,

Defendant and Appellant.
D070211



(Super. Ct. No.
37-2015-00033280-CU-DF-CTL)


APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed with directions.

Law Office of James J. Moneer and James Moneer; Eric Austin for Defendant and Appellant.
The Osinski Firm and Michael H. Osinski for Plaintiffs and Respondents.
In 2014, Anna Gagliardi contracted with All Seasons Window & Patios (ASWP) to have a patio installed. She was dissatisfied with her experience with ASWP and its owner Larry Hays (together, Hays), and in early 2015 she posted negative reviews of her business dealing with Hays and ASWP on two web sites (Yelp and the Better Business Bureau (BBB)), and also filed a complaint against Hays with the Contractors State License Board.
Hays filed this action seeking damages from Gagliardi for defamation. Gagliardi moved to dismiss the complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The trial court granted the motion in part, but also denied the motion in part, and this appeal challenges the order insofar as it failed to grant the motion in its entirety.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Facts
Gagliardi contracted with ASWP to build a patio at her personal residence. Mr. Hays prepared the paperwork and signed the contract on behalf of ASWP, although the actual work was performed by a Mr. Swadley (a licensed contractor) and his team. The total cost for the patio was to be $4,500. One of the contract specifications was the installation of two steel footing plates.
During the construction process, Swadley determined that certain pieces originally part of the estimate should be replaced with others and that certain items were unnecessary. Because of these changes, Gagliardi was not required to pay the whole amount of the original estimate and instead paid only a discounted amount. Gagliardi subsequently posted a review on one web site (Yelp) stating she had a "negative experience" and would not recommend using ASWP, stating:
"I was oversold upgrades and given free bonuses that I did not need and did not fit together. Larry said I was getting a Cadillac and not a Ford when trying to justify the higher price. I ended up not getting all the items on the contract and they did not bother to call me to inform me of this breach of contract. For example, I was sold the large steel plate footings (that did not go with the columns), so they installed the smaller, cheaper regular steel posts that went with the columns. The only reason why I caught it, was because I happened to be watching when they were installing them; otherwise, I would never know, since the posts go inside the columns. I also did not get the larger size gutter that was on the contract because gutters don't come with this style. . . . In the end, I got the same thing, I would have gotten with another vendor but paid more. Since the owner, [Hays], made these mistakes, he was either ignorant or dishonest or both. He was also condescending in our phone conversations. I withheld $200.00 from the final payment, even though I could have withheld more. He has never called to explain or apologize. The installers and Gary were nice and good workers. My complaint is the owner, Larry. Lastly, there was a minor promise to me that they did not keep."

Gagliardi also posted a review on the BBB web site, under the category for "customer reviews" of ASWP, again stating she had a negative experience and would not recommend ASWP, and went on to state:
"I agree with both reviews below especially with Joanne's review. I had a similar bad experience with this company, especially the owner, Larry [Hays]. They installed my aluminum covered patio last fall. When I told Larry [Hays], I had chosen someone with a lower bid, (big mistake), Larry [Hays] lowered his price to get my business. Then he sold me "upgrades" and gave me free extras to justify a higher price. He said I was getting a "[C]adillac" vs. a "Ford." Then, after I signed the contract, he was condescending and rude when I called him to ask about the product. When the product came, I discovered that I was oversold some upgrades (steel footings) and extras (large gutter) I did not [need] and did not fit together. This meant I did not get everything in the contract. In short, they broke the contract and did not bother to notify me. I only found out because I happened to be watching when they were installing cheaper footings that go with this style. Had I not been watching, I would not have [heard] of this change because the footings go inside the columns. I was upset so I withheld $200.00 from the final payment even though I could have withheld more. Gary Vandergraaf saved the day. Gary and the installers were helpful and professional. Lastly, there was another minor promise [ASWP] did not keep. I should have stuck with my original decision to hire [the lower bidder] who were nicer, more professional, they take credit cards and they don't require money upfront. You pay at the end or work out a payment plan, is how confident they are of their services. I was dissatisfied with [ASWP]. In the end, I got the same thing I would have gotten with [the lower bidder] and paid more, he oversold upgrades that I did not need to justify the higher price."

These statements formed the basis for Hays's defamation claims, which are the subject of this appeal.
B. The Complaint and Anti-SLAPP Motion
Hays's defamation claims asserted Gagliardi's statements on Yelp and BBB defamed him and injured his business. Gagliardi moved to strike these claims under the anti-SLAPP statute. She argued she satisfied the first prong of the anti-SLAPP statute because the allegedly actionable statements had been posted on a web site whose purpose included compiling consumer reviews, and therefore was made in "a place open to the public" or "a public forum" in connection with an issue of public interest within the contemplation of section 425.16, subdivision (e)(3). She alternatively asserted her statements on Yelp and BBB concerned an "issue of public interest" within the meaning of section 425.16, subdivision (e)(4). Gagliardi asserted that, having satisfied her burden, the burden shifted to Hays to demonstrate likely success on the merits, and that Hays could not satisfy that burden because he could not demonstrate the "falsity" of the statements.
Hays opposed the motion, apparently contending he could demonstrate probable success on the merits because the statements about which he complained were actionable statements of fact that were demonstrably false, and therefore he had a probability of succeeding on the merits.
The trial court, although granting the motion in part, found the claims based on the Yelp and BBB postings did not arise out of protected activity, and therefore denied the anti-SLAPP motion in part without reaching the second prong of the analysis. This appeal followed.
II
APPLICABLE LAW
A. The Anti-SLAPP Statute
The anti-SLAPP law provides, in relevant part, that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Id., subd. (a).)
The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing that the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If the defendant does not demonstrate this initial arising-from prong, the court should deny the anti-SLAPP motion and need not address the second step. (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811.)
If the defendant does satisfy this first prong, the burden then shifts to the plaintiff to demonstrate there is a reasonable probability it will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that his or her claim is legally sufficient and that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In making this assessment, the court does not weigh the evidence, but does consider both the legal sufficiency of and evidentiary support for the pleaded claims. (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.)
On appeal, we review de novo the trial court's ruling on the motion to strike. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.)
B. Applicable Defamation Principles
To establish his defamation claim, Hays must prove the publication contained a statement of fact (which can support a defamation action) rather than an expression of opinion (which cannot) that was false, defamatory, unprivileged, and had a tendency to injure or cause special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Although mere opinions are generally not actionable (ibid.) a statement of opinion that implies a false assertion of fact can be actionable. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19.) However, "[a]n opinion . . . is actionable only ' "if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." ' " (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471.) Thus, the inquiry is not merely whether the statements are fact or opinion, but " 'whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.' " (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The courts apply a "totality of the circumstances" test to determine both whether (a) a statement is fact or opinion, and (b) a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385-386.) "Under the totality of the circumstances test, '[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered.' " (Id. at p. 385.) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261.)
III
ANALYSIS
A. The Court Erred by Finding Gagliardi's Yelp and BBB Postings Did Not
Fall Within the Scope of Section 425.16, Subdivision (e)(3)
"[T]he anti-SLAPP statute is designed to protect, among other acts, '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.' [¶] It is settled that 'Web sites accessible to the public . . . are "public forums" for purposes of the anti-SLAPP statute.' [Quoting Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4.]" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366.) In Chaker v. Mateo (2012) 209 Cal.App.4th 1138 (Chaker), this court agreed, consistent with the long line of other authorities (see, e.g., Wilbanks v. Wolk (2004) 121 Cal.App.4th 883), that statements posted on consumer-oriented Web sites clearly satisfy the "written . . . statement . . . made in . . . a public forum" aspect of section 425.16, subdivision (e)(3), and because Hays articulates no basis for us to depart from that conclusion, we turn to the remaining qualification necessary to satisfying the first prong under subdivision (e)(3): whether the statements were "in connection with . . . an issue of public interest."
The trial court below found the statements were not in connection with an issue of public interest, because the "postings do not concern a person or entity in the public eye, do not affect large numbers of people beyond plaintiff and defendant, and [do] not involve a topic of widespread, public interest. The postings concern defendant's opinion regarding services provided by plaintiffs . . . ." However, that same argument was rejected by this court in Chaker, supra, 209 Cal.App.4th 1138, in which the plaintiff (Chaker) filed a defamation action premised on derogatory statements about Chaker and his forensics business posted on an Internet Web site where members of the public could comment on the reliability and honesty of various providers of goods and services, as well as on a different social networking Web site, which provided an open forum for members of the public to comment on a variety of subjects. (Id. at p. 1142.) This court, citing numerous cases that "have considered the public interest requirement of the Anti–SLAPP Law [and] have emphasized that the public interest may extend to statements about conduct between private individuals" (id. at p. 1145), ultimately concluded:
"We . . . have little difficulty finding the statements were of 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. 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." (209 Cal.App.4th at pp. 1146-1147.)

We follow Chaker and conclude comments on a consumer-oriented web page devoted to providing consumers with information about businesses, such as Yelp (see Wong v. Jing, supra, 189 Cal.App.4th 1354) or BBB, when such comments provide information that could assist others in choosing whether or not to patronize that business, qualify as statements were "in connection with . . . an issue of public interest" (see Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344 [newspaper article about medical practitioner involved issue of public interest where information would assist others in choosing doctors]) within the meaning of the anti-SLAPP statute. Accordingly, we conclude the trial court erred when it found Gagliardi had not satisfied the first prong of the anti-SLAPP statute.
B. Hays Failed to Satisfy His Burden of Showing Probable Success on the
Merits
Once the defendant has shown the first prong of the anti-SLAPP statute has been met, the burden shifts to the plaintiff to show probable success on the merits. (Chaker, supra, 209 Cal.App.4th at p. 1147.) Although the burden is not a high one, he or she must nevertheless show both that the claim is legally sufficient and that there is competent and admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469.) Although the trial court (based on its erroneous finding on the first prong) did not reach the "probable success" prong, it is a question that is subject to independent review (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616), and therefore we may decide the issue in this proceeding. (Hecimovich, at p. 468.)
To establish his defamation claim, Hays must produce competent evidence the statements by Gagliardi were (1) of fact rather than an expression of opinion, (2) false, (3) defamatory, (4) unprivileged and (5) had a tendency to injure or cause special damage. (Taus v. Loftus, supra, 40 Cal.4th at p. 720.) We conclude Hays failed to demonstrate probable success on the merits. First, we are convinced he did not show, and indeed made no effort below to show, the factual statements contained in the Yelp and BBB postings—that Hays included upgraded materials in the contract that warranted a higher price than a competing bid and that were ultimately either not installed (the large steel plate footings) or were unavailable (the larger size gutter unavailable in that style), and that she discovered the errors because she was watching the installation, and that she demanded and obtained a price adjustment—were in fact false. Accordingly, those aspects of the postings cannot support Hays's defamation claims.
We are also convinced any remaining content of those postings constituted nonactionable statements of opinion. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601 [whether alleged defamatory statement constitutes fact or opinion is question of law].) In Chaker, supra, 209 Cal.App.4th 1138, this court noted that "[i]n determining whether an opinion is actionable, we must look at the totality of the circumstances which gave rise to the statements and in particular the context in which the statements were made," including the nature of the audience to whom the publication was directed (id. at p. 1147), and we further observed that "[i]n determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums [citing numerous cases]" (id. at p. 1148), in which the readers understand that the statements are hyperbolic opinions rather than assertions of provable facts. We ultimately concluded the statements about Chaker's character and business practices, appearing on a web site devoted to providing consumer information and intended to serve as a warning to consumers about his trustworthiness, was in its "overall thrust . . . that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable [,] opinion." (Id. at p. 1149.)
The same considerations compel us to conclude Gagliardi's statements were nonactionable statements of opinion. Gagliardi's statements that Hays was "condescending and rude" is clearly an impression or opinion that does not convey any statement of fact. The only other statement that could remotely comprise a defamatory statement—that "[s]ince the owner, [Hays], made these mistakes, he was either ignorant or dishonest or both"—merely synopsizes her overall opinion of Hays in light of the facts extensively discussed in the overall review. Under those circumstances, such a synopsis remains a nonactionable statement of opinion. As our Supreme Court noted in Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, "courts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed. For example, the statement in [Carr v. Warden (1984) 159 Cal.App.3d 1166] that Warden thought the planning commission had been 'bought' was deemed nonactionable opinion in part because Warden disclosed the facts on which his opinion was based—i.e., that the change in vote was too dramatic to point to any other conclusion." (Baker, at p. 266, fn. 7.)
Because Hays did not demonstrate below, nor has he explained on appeal, how any of the statements contained in the Yelp or BBB postings comprise anything other than either true statements of fact or nonactionable statements of opinion, Hays failed to carry his burden of showing probable success on the merits. Accordingly, the trial court erred insofar as it denied Gagliardi's anti-SLAPP motion as to the defamation claims premised on the Yelp or BBB postings.
DISPOSITION
The order is reversed, and the matter is remanded to the trial court with instructions to enter a new order granting defendant's anti-SLAPP motion in its entirety, and for further proceedings consistent with this opinion. Gagliardi shall recover costs on appeal.




BENKE, Acting P. J.

WE CONCUR:




NARES, J.




HALLER, J.