Opinion
B302416
07-27-2021
JACKIE A. ABBOUD et al., Plaintiffs and Respondents, v. ADILA KHAIRALLAH, Defendant and Appellant.
Andrews & Hensleigh and Joseph Andrews for Defendant and Appellant. Jackie A. Abboud for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC708663, Susan Bryant-Deason Judge. Reversed.
Andrews & Hensleigh and Joseph Andrews for Defendant and Appellant.
Jackie A. Abboud for Plaintiffs and Respondents.
SEGAL, J.
INTRODUCTION
Jackie A. Abboud and her law firm, Jackie A. Abboud APLC (collectively, Abboud), sent a cease-and-desist letter to Adila Khairallah on behalf of Khairallah's adult daughter, asking Khairallah to stop harassing the daughter. After an unpleasant email exchange with Abboud, Khairallah posted two comments about Abboud on the internet and filed two lawsuits against her, one seeking a restraining order and one in small claims court. The superior court ultimately denied the request for a restraining order, and Khairallah dismissed her small claims action.
Unhappy with Khairallah's conduct, Abboud sued Khairallah for defamation and intentional infliction of emotional distress. The trial court found in favor of Abboud on both causes of action, awarded her $250,000 in damages, and issued an injunction ordering Khairallah to remove any internet postings by her about Abboud and prohibiting her from posting new or similar “defamatory” statements about Abboud.
Khairallah argues her postings about Abboud were either constitutionally protected opinions or not defamatory. We agree. The postings did not support the cause of action for defamation or intentional infliction of emotional distress, nor was an injunction appropriate. Therefore, we reverse the judgment and direct the trial court to enter a new judgment in favor of Khairallah.
FACTUAL AND PROCEDURAL BACKGROUND
A. Abboud Sends a Cease-and-desist Letter to Khairallah, Which Prompts a Series of Exchanges
In May 2017 Khairallah's daughter, Amal, obtained a restraining order against Khairallah. Amal retained Abboud to send Khairallah a letter stating that Khairallah had violated the restraining order by harassing Amal, Amal's husband, and Amal's daughter. Abboud sent the letter, printed on Abboud's law firm letterhead, by mail and email on October 6, 2017.
Three days letter, Khairallah responded by sending a series of three emails to Abboud within a span of 15 minutes. The first stated: “Hello Jackie, I am serving your client Amal Khairallah through you her attorney. Thank you.” Khairallah attached to the email various pages from what appeared to be a request for a temporary restraining order against Amal. The other two emails had the subject line “cont. other email. ” Neither had text in the body of the email, but each attached several similar pages.
Abboud did not respond well. She sent Khairallah two emails resplendent with capital letters and exclamation points. The first email stated: “Ms. Khairallah, [¶] Please do NOT contact me and stop sending me these emails. You are now harassing me. I simply sent you a letter to cease and desist from harassing your daughter and her family. [¶]... [¶] PLEASE STOP!” Apparently believing this was not forceful enough, four minutes later Abboud sent another email to Khairallah, this time with the subject line “PLEASE DO NOT SEND ME ANY EMAILS!” Abboud wrote: “If you send me any more emails, I will be seeking a restraining order against you. [¶]... [¶] I am not your client's attorney yet. I have not been officially retained as to any matter except for the CEASE AND DESIST letter. [¶] Your daughter is in the process of retaining defamation lawyer and possibly other lawyers to deal with your harassing conduct. [¶] Again, DO NOT SEND ME ANY MORE EMAILS!”
Which was odd, because an attorney who sends a cease-and-desist letter by email should expect a response of some kind, and probably by email.
The following day Abboud learned someone had posted a review on the Google.com webpage for Abboud's law firm using the name “Hanan Kh.” The reviewer gave Abboud two of five stars and stated in the review: “She is unprofessional attorney I have never came across anyone as her. She is rude and I trusted. I had a very bad experience with her. I don't recommend her even to my enemy.”
Two days later, on October 12, 2017 Khairallah filed an action in small claims court against Abboud, seeking $10,000 in damages, which Khairallah subsequently dismissed. Khairallah also filed a request for a restraining order against Abboud, which after a few continuances the court denied.
Apparently suspecting Khairallah had posted the review by Hanan Kh, Abboud posted the following response on her Google page, approximately eight weeks after the review appeared: “HANAN, ANGELA, ADILA, you know this is a FAKE review and you have NEVER been my client. I intend to file a defamation action shortly, and if the review is not removed immediately, I will be seeking all available legal remedies, including monetary and punitive damages against you. Thank you.”
B. Abboud Sues Khairallah and Learns of a New Internet Review
Sure enough, in June 2018 Abboud filed the threatened action (this one), asserting causes of action for defamation and intentional infliction of emotional distress. In addition to alleging Khairallah posted the Hanan Kh review, Abboud alleged a Doe defendant posted a similar review on the website Avvo.com using the name “Michael Lee.” That review accused Abboud of being “[v]ery unprofessional, ” having “issues, ” getting into “shouting matches with the judge, ” being “unprepared for court” and “never [having] the correct papers ready, ” and being the “least greatest” attorney the reviewer had worked with.
Abboud again posted a response, this time stating: “This is a FAKE review. This reviewer was never my client. This matter is being investigated and the proper legal action will be taken against this imposter. NONE of my clients would post such a review as this one.”
On April 15, 2019 a person using the name “Bryan Wilkins” posted a review on Abboud's Google page. The reviewer gave Abboud a one-star rating and stated: “Attorney Jackie when a disabled Arab received desist and resist from you on behalf of her family member. She was trying to serve her family member protection order long before her family member posted one on her. she consulted a professional about sending you an order to serve your client. it was 10 pages and it was sent in attachments-and here is you response to her one time e.mail.” Within hours, Abboud posted a response: “This review is posted by the same FAKE reviewer who goes by the aliases Hanan, Adila, Angela, who gave me the previous two-star review. This person has never been my client. I have filed a defamation action against her, which is currently set for trial.”
The promised response did not actually make it into the review.
Abboud retained a service to have Google remove the Hanan Kh and Bryan Wilkins reviews, but the service was only able to have the Bryan Wilkins review removed. Khairallah tried to post the review again, but it was removed again.
There was no evidence at trial about the fate of the Michael Lee review.
C. The Court Awards Abboud $250,000 in Damages and Issues an Injunction Against Khairallah
Amal testified at the court trial that her relationship with Khairallah began deteriorating several years ago and that Khairallah “goes and she targets” anyone “who is linked” to Amal by, for example, contacting them through social media. Amal also testified that Khairallah's relatives call her Hanan and that she sometimes uses that name (which, along with the first two letters of her last name, suggested Khairallah wrote the review by Hanan Kh). Abboud produced evidence the email address associated with the Google user who posted the Hanan Kh review was the same email address from which Khairallah sent Abboud the request for a restraining order.
Abboud called Khairallah as a witness only to verify she sent Abboud the various emails. Otherwise, Khairallah did not testify. Abboud did not present any evidence Khairallah posted the Michael Lee review.
On the issue of damages, Abboud introduced little evidence. She submitted several positive, five-star reviews that she said clients posted on her Google page. She also stated that her income decreased approximately $40,000 between 2017, the year Khairallah posted the Hanan Kh review, and 2018, but Abboud did not explain how her loss of income was related to the posting. When the court asked Abboud whether she could tell how many people clicked on the postings, Abboud stated she could not without hiring an expert at additional expense.
The trial court ruled in favor of Abboud on her causes of action for defamation and intentional infliction of emotional distress. The court found Khairallah “engaged in a malicious and vicious and defamatory campaign” by publishing the Hanan Kh and Bryan Wilkins reviews. The court found that the reviews were false because “Khairallah never retained Plaintiff Abboud” and “used fake names so that she could not be traced” and that Abboud “did not engage in any unethical conduct as alleged” by Khairallah. The court also found Abboud was a “well-thought-of lawyer” with “excellent ratings posted online by former clients.” The court, having stated “it is hard to measure the legal damages in a situation like this, ” found Khairallah's conduct caused Abboud to suffer “loss of income, reputation, shame, mortification, and injury... to her feelings and her business” and awarded Abboud $250,000 in damages.
The court also issued an injunction ordering Khairallah to remove “any and all statements published by her regarding” Abboud, including the Hanan Kh review. Finally, the court found that, because of Khairallah's prior defamatory reviews of Abboud, Khairallah was reasonably likely to make similar statements. Therefore, the court enjoined Khairallah “from making new or substantially similar defamatory statements” in the future. The court entered judgment against Khairallah, and Khairallah timely filed a notice of appeal.
DISCUSSION
A. The Trial Court Erred in Ruling the Hanan Kh Review Supported Abboud's Defamation Claim
Khairallah contends the trial court erred in ruling the Hanan Kh review-the first review Khairallah posted, which stated Abboud was rude and unprofessional-was defamatory. Khairallah argues her statements about Abboud were constitutionally protected statements of opinion, not actionable falsehoods. Khairallah is correct.
1. Applicable Law and Standard of Review
“Defamation ‘“involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.”'” (Balla v. Hall (2021) 59 Cal.App.5th 652, 675; see Taus v. Loftus (2007) 40 Cal.4th 683, 720; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259.) Because defamation “‘must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.'” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1163; see Taus, at p. 720; Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862.) But “[n]ot all statements that appear to be opinions... are immunized” from defamation liability. (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426; see Dickinson, at p. 1163 [“Statements of opinion... do not enjoy blanket protection.”].) A “‘statement that implies a false assertion of fact, even if couched as an opinion, can be actionable.'” (Dickinson, at p. 1163; accord, Issa v. Applegate (2019) 31 Cal.App.5th 689, 702; see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19 [110 S.Ct. 2695, 111 L.Ed.2d 1] [there is no categorical First Amendment protection for defamatory opinions that imply an assertion of objective fact].)
Courts “‘apply a ‘“totality of the circumstances'” test to determine... whether 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.' [Citation.] Under this 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.'”'” (Balla v. Hall, supra, 59 Cal.App.5th at p. 678; accord, Dickinson v. Cosby, supra, 37 Cal.App.5th at p. 1163; Issa v. Applegate, supra, 31 Cal.App.5th at p. 703.) “‘[T]he question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.'” (Hoang v. Tran (2021) 60 Cal.App.5th 513, 532; see Dickinson, at p. 1163; Bently Reserve LP v. Papaliolios, supra, 218 Cal.App.4th at p. 427.) “‘Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.'” (Balla, at p. 678; see Issa, at p. 703; GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156.)
2. Analysis
Khairallah argues her description of Abboud as “rude” and “unprofessional, ” and her statement that she “had a very bad experience” with Abboud and would not “recommend her even to [her] enemy, ” were “generalizations, elastic terms, ” and subjective statements not susceptible to proof. We agree. Generally, “‘hyperbolic, imaginative, or figurative statements are protected because “the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.”'” (Hoang v. Tran, supra, 60 Cal.App.5th at p. 584.) The same is true of “subjective judgments.” (Reed v. Gallagher (2016) 248 Cal.App.4th 841, 857.) And in particular, “negative statements concerning a lawyer's performance, ” at least those stated in general terms, “are generally not actionable since they are not ordinarily ‘susceptible of being proved true or false, '” “even if made explicitly....” (Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1157.) Khairallah's statements that Abboud was rude and unprofessional and that Khairallah trusted her, had a bad experience, and would not recommend her, are the type of figurative and subjective judgments that are protected. No reasonable reader would seriously understand these statements as conveying factual assertions about Abboud that could be proven true or false. (See Reed, at pp. 858 859 [political candidate's characterization of his opponent as an “unscrupulous lawyer” and a “crook” were protected opinions]; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270 [statement that a priest was “extremely rude” was not a factual assertion “capable of being proven true or false”]; Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1403 [statements that a lawsuit was “‘spurious'” and “‘frivolous, '” that a lawyer's motion was “‘stupid, '” and that the judge “‘laughed at'” and thought the “‘motion was a joke'” were protected opinions that did “not improperly attack [the lawyer's] competence or ethics”].)
Abboud contends, however, that Khairallah's posting as Hanan Kh implied she was a client of Abboud-a relationship Khairallah “fabricated.” According to Abboud, a reasonable reader would understand the “reviewer was Abboud's client and had a negative experience with Abboud.”
It is possible that a reasonable reader could infer, based on the context and content of the review, that the person who posted the Hanan Kh review was Abboud's client. The review appeared on the Google webpage for Abboud's law firm, where-as Abboud demonstrated-most of the other postings appeared to be reviews from Abboud's clients. And Khairallah stated in the review that she trusted Abboud, had a bad experience with her, and would not recommend her-the type of opinions and judgments one might expect a client to have about an attorney with whom the client was not satisfied.
But that a reasonable reader could infer the person who made the Hanan Kh posting was Abboud's client is not enough to convert Khairallah's subjective judgments about Abboud from protected opinion to actionable statements. Whether Abboud in fact represented Khairallah is not, in and of itself, defamatory. And Abboud does not develop, or cite any relevant authority in support of, her argument that Khairallah's otherwise protected opinion about Abboud could support a defamation claim simply because Khairallah may have implied she was Abboud's client.
Moreover, the Hanan Kh review is devoid of any specific factual content supporting Khairallah's opinions about Abboud as rude, unprofessional, and unworthy of a recommendation. While neither party cites any California or other authority addressing this issue, several courts have held that fake reviews about a business's services can expose the speaker to defamation liability. But the reviews in these cases contained verifiably false statements about the businesses' practices, not solely the (fake) reviewers' subjective judgments about the business. (See, e.g., RingCentral, Inc. v. Nextiva, Inc. (N.D.Cal. Apr. 29, 2020, No. 19-cv-02626-NC) 2020 WL 2065701, p. 2 [“fake, negative reviews of [business's] services on various [online] review platforms” were not protected opinions where “the speakers intended to convey objective truths about their experience with [the defendant's] services” and the reviews were “not so hyperbolic as to negate the impression that the reviewers were asserting objective facts”]; Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC (S.D.N.Y Feb. 29, 2016, No. 08cv0442(DLC)) 2016 WL 815205, p. 9 [fake reviews of a laser hair removal treatment center posted on an internet forum were not protected because they described “fictitious treatments” by treatment center that caused injuries, which were “readily capable of being proven false”].) In contrast, Khairallah did not make any statements about her experience with Abboud or Abboud's legal services that could be proven true or false; to the contrary, the entirety of the review consisted of hyperbole and Khairallah's subjective judgments about Abboud. (See ZL Technologies, Inc. v. Does 1 7 (2017) 13 Cal.App.5th 603, 624 [“‘“juvenile name-calling, ”'” “overly vague statements, ” and “‘“generalized” comments... “lack[ing] any specificity as to the time or place of” alleged conduct'” indicate protected opinion]; Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 191 [“broad, unfocused and wholly subjective comment[s]” about councilman were protected opinion]; see also Gursten v. Doe 1 (Mich.Ct.App. Mar. 18, 2021 No. 352225) 2021 WL 1056081, at p. 4 [“a one-star wordless review” posted on an attorney's Google webpage was protected opinion as a matter of law, regardless of whether the review falsely implied the speaker “had an actual attorney-client experience and received legal services” from the attorney].)
Finally, even assuming the Hanan Kh review was not protected opinion to the extent it falsely implied the reviewer was Abboud's client and had a bad experience with Abboud, such an implication is not defamatory on its face. “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face.” (Civ. Code, § 45a; see Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1226.) A publication is libelous if it tends “to injure [a person] in his occupation.” (Civ. Code, § 45; see Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242 [“In general, ... a written communication that is false... and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.”]; Jackson v. Mayweather, supra, 10 Cal.App.5th at pp. 1259 1260 [same].) But “‘[i]f no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject's reputation... then there is no libel at all.'” (Bartholomew, at p. 1226; see Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 351.) “The determination as to whether a publication is libelous on its face is one of law, and must be measured by ‘the effect the publication would have on the mind of the average reader.'” (Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994, 1010 [applying California law]; see Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1132 [“The initial determination as to whether a publication is libelous on its face, or libelous per se, is one of law.”].)
Because Abboud did not prove she suffered any special damages as a result of Khairallah's online postings, Abboud can only prevail on her claim if the postings were defamatory on their face. (See Civ. Code, § 45a; Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1226.)
We understand why Abboud would not want a nonclient to post a negative opinion about her that falsely implied the reviewer was in fact one of Abboud's clients. But in this case, the Hanan Kh review did not plausibly or meaningfully tend to harm Abboud's reputation in the mind of an average reader. At best, the Hanan Kh review implied only that a single client had a negative experience with Abboud. As the Restatement explains, generally a “statement imputing a single mistake or act of misconduct... in the conduct of a business or profession is actionable... only if the act fairly implies a habitual course of similar conduct, or the want of the qualities or skill that the public is reasonably entitled to expect of persons engaged in such a calling.” (Rest.2d Torts, § 573, com. d.) This is because “the fallibility of even the most skillful practitioners is such that [a single] mistake, if any, may have been an entirely reasonable one.” (Ibid.; see ibid. [“So too, a statement that a lawyer has erred in the handling of a particular case does not necessarily imply that he is unlearned or incapable of adequately protecting his clients.”].) The Hanan Kh review implies only that there is a single dissatisfied client, not that Abboud regularly fails to adequately represent her clients' interests or that Abboud engaged in any specific misconduct one would expect a lawyer not to commit.
Moreover, the Hanan Kh review was published on a consumer review website-a medium that “‘“encourages discussion participants to play fast and loose with facts”'” (ZL Technologies, Inc. v. Does 1 7, supra, 13 Cal.App.5th at p. 625), where “readers expect to see strongly worded opinions” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 697). And Khairallah published the review using a pseudonym rather than her full name, further suggesting an average reader would view the post “with a certain amount of skepticism.” (Id. at p. 696; see also id. at pp. 696 697 [“‘the very fact that... posters remain anonymous, or pseudonymous, is a cue to discount their statements accordingly'”].)
Khairallah posted a single, negative review about Abboud on Abboud's Google webpage, a forum open to the public for comment, which expressed only generalized, subjective judgments, and included a fair amount of hyperbole. The review was devoid of any factual content, and failed to even explain the basis for the negative opinion. Any reasonable reader would have viewed the review with skepticism, both as to who posted the review and why. The review could not have meaningfully harmed Abboud's reputation-even nominally-in the mind of an average reader.
B. The Bryan Wilkins Posting Was Neither Defamatory Nor False
Khairallah also contends the trial court erred in ruling the Bryan Wilkins review was defamatory. Khairallah is correct again.
As discussed, to be libelous the review must have tended “to injure [Abboud] in [her] occupation.” (Civ. Code, § 45; see Shively v. Bozanich, supra, 31 Cal.4th at p. 1242; Jackson v. Mayweather, supra, 10 Cal.App.5th at pp. 1259 1260.) The only part of the Bryan Wilkins review that even arguably tended to injure Abboud's reputation is the one-star rating. The rating, however, is unquestionably an opinion; it is nothing more than a subjective judgment that is not capable of being proven true or false. (See Reed v. Gallagher, supra, 248 Cal.App.4th at p. 857; Gallagher v. Connell, supra, 123 Cal.App.4th at p. 1270.)
The remainder of the posting is not opinion. But it is also not defamatory. It is simply a recitation of Khairallah's interaction with Abboud. Khairallah stated that a “disabled Arab” (presumably Khairallah) received a “desist letter” from Abboud on behalf of a family member, that Khairallah was trying to serve the family member with a “protection order” and consulted with a professional, that she sent 10 pages to Abboud in an email, and that Abboud responded to Khairallah's email. Nothing about this interaction tended to harm Abboud's reputation.
Abboud argues that, like a reader of the Hanan Kh review, a reasonable reader of the Bryan Wilkins review would understand the reviewer was a client of Abboud. Not so. The Bryan Wilkins posting did not state that the reviewer “trusted” Abboud, nor did it contain any other suggestion the reviewer had an attorney-client relationship with Abboud. And more importantly, the facts described in the review indicated the reviewer was almost certainly not one of Abboud's clients. The reviewer described the experience of someone who received a cease-and-desist letter from Abboud and who sent a “one-time” email to Abboud in an attempt “to serve [Abboud's] client.” A reasonable reader would understand the one-star review likely came from a person dealing with Abboud from the other side of counsel table, not from a client of Abboud.
Khairallah also correctly argues that, even if the posting had tended to injure Abboud's reputation, the posting was substantially true. “‘“In all cases of alleged defamation, ... the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.”'” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 28; see Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180.) “‘California law permits the defense of substantial truth and would absolve a defendant even if she cannot “justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.”'” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 691; accord, Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 697.) “Where an imputation is substantially true so as to justify the ‘gist or sting' of the remark, the truth defense is established.” (Summit Bank, at p. 697; see Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1133.)
The evidence was undisputed that Abboud sent a cease-and-desist letter to Khairallah on behalf of Khairallah's daughter, Amal; that Khairallah responded by sending a three-part email to Abboud attaching a request for a restraining order against Amal; and that Abboud responded by sending Khairallah two emails, three minutes apart, accusing Khairallah of harassing Abboud, demanding in capital letters not to send her any more emails, and threatening to seek a restraining order against Khairallah. Although Khairallah did not necessarily prove every single factual detail in the Bryan Wilkins review (for example, whether she had any disabilities), the gist of the statements in the review was true.
C. The Trial Court Erred in Ruling in Favor of Abboud on Her Cause of Action for Intentional Infliction of Emotional Distress
Khairallah argues that, regardless of whether her postings about Abboud were defamatory, they were not sufficiently “[e]xtreme and outrageous” to support a cause of action for intentional infliction of emotional distress. She also argues Abboud failed to show she suffered severe emotional distress. Khairallah is entirely correct on both points.
1. Khairallah's Google Postings Were Not Sufficiently Outrageous
“A cause of action for intentional infliction of emotional distress exists when there is ‘“‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”'”' [Citations.] A defendant's conduct is ‘outrageous' when it is so ‘“‘extreme as to exceed all bounds of that usually tolerated in a civilized community.'”'” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 1051; accord, Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001; Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1164.)
“‘“[T]he requirements [for establishing actionable conduct] are rigorous, and difficult to satisfy....” [Citations.] [¶] On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.'” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597; see Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129.) “‘“[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”' do not constitute extreme and outrageous conduct.” (Okorie, at p. 597; accord, Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; see Yurick, at p. 1123 [“Mere insulting language, without more, ordinarily does not constitute outrageous conduct.”].) “It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1265.)
Khairallah's reviews of Abboud are the type of trivial insults, indignities, and annoyances that cannot support a cause of action for intentional infliction of emotional distress. Courts have routinely held that far more insulting language is insufficient. (See Hughes v. Pair, supra, 46 Cal.4th at pp. 1049 1051 [trustee's threat, using “vulgar and highly offensive” language, “to deny [the decedent's wife's] requests for funds” unless the decedent's wife “granted him sexual favors” was not sufficiently outrageous]; Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1124, 1129 [supervisor's statement that employee was “senile and a liar, ” made in the presence of others, was not sufficiently outrageous]; cf. Crouch v. Trinity Christian Center of Santa Ana, Inc., supra, 39 Cal.App.5th at pp. 1007 1008 [“Flying into a tirade at a 13-year-old girl who had been drugged and raped and yelling at her that she was stupid and it was her fault is extreme and outrageous conduct that exceeds [the] bounds of decency tolerated in a civilized community.”]; Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1129 1130 [“employer's use of racial slurs, against an employee who is susceptible to such slurs, may constitute ‘outrageous' conduct”].)
Like any professional, Abboud would prefer not to receive a one-star rating or be called rude and unprofessional. But Abboud “must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496)-especially as a practicing family law attorney in California. (See id. at p. 498 [“feuds are often accompanied by an exchange of hostile unpleasantries which are intended to sting whoever sits at the delivery end, ” which “the tort of intentional infliction of emotional distress was never intended” to address].) At worst, Khairallah's statements fall on the low end of the spectrum of offensive conduct (even assuming she falsely implied she was Abboud's client); they certainly do not fall on the “extremely offensive” end necessary to support a cause of action for intentional infliction of emotional distress. (Cf. Grenier v. Taylor (2015) 234 Cal.App.4th 471, 478, 486 [defamatory statements on a website that repeatedly accused a pastor of child molestation, stealing money from church, smuggling drugs, and other criminal conduct were sufficiently outrageous to support a cause of action for intentional infliction of emotional distress].)
Abboud argues the trial court properly ruled in her favor because Khairallah engaged in a “malicious and vicious” campaign to harass her, which included filing the small claims action and petition for a restraining order. This argument is meritless. As Khairallah points out, those actions were privileged under Civil Code section 47, subdivision (b). The litigation privilege of section 47, subdivision (b), generally “bars a civil action for damages for communications made ‘[i]n any... judicial proceeding....'” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) As the California Supreme Court has stated, there is arguably “no communication that is more clearly protected by the litigation privilege than the filing of a legal action.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249).
“The privilege established by [Civil Code section 47, subdivision (b)] often is referred to as an ‘absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution” (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360)-a claim Abboud neither alleged in her complaint nor sought to prove at trial. And in particular, “[i]t is well settled that the litigation privilege” in section 47, subdivision (b), “bars causes of action for intentional infliction of emotional distress.” (Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 341; see Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1242.) Khairallah's filing of the petition for a restraining order and the small claims action against Abboud does not support Abboud's cause of action for intentional infliction of emotional distress.
2. Abboud Did Not Show She Suffered Severe Emotional Distress
“With respect to the requirement that a plaintiff show severe emotional distress, [the California Supreme Court] has set a high bar. ‘Severe emotional distress means “‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.'”'” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051; see Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1265.) “‘“[I]t is for the court to determine whether on the evidence severe emotional distress can be found.”'” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376; see Fletcher v. Western National Life Ins. Co. (1970)10 Cal.App.3d 376, 397.)
And here there was no such evidence. There was only Abboud's testimony that Khairallah's negative online reviews caused her distress and Abboud's tears on the witness stand. This is not evidence of distress of such substantial or enduring quality that no reasonable person should be expected to endure it. (See Wong v. Jing, supra, 189 Cal.App.4th at p. 1377 [dentist's testimony that a negative professional review on a website “‘was very emotionally upsetting to [her], '” and “‘caused [her] to lose sleep, have stomach upset and generalized anxiety, '” was insufficient to show severe emotional distress]; see also Hughes v. Pair, supra, 46 Cal.4th at p. 1051 [statement by the decedent's wife “that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation as the result of” the trustee's vulgar and offensive comments was insufficient to show severe emotional distress]; Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235, 1246 [under California law, an employee's testimony that she suffered “‘[a]nxiety, sleeplessness, upset stomach, [and] sometimes muscle twitches'” was insufficient to show severe emotional distress].)
Because Khairallah's litigation conduct was protected under Civil Code section 47, subdivision (b), Abboud cannot recover for her claimed distress at having to go to court to prosecute her case against Khairallah.
DISPOSITION
The judgment is reversed. The trial court is directed to enter a new judgment in favor of Khairallah and against Abboud. Khairallah is to recover her costs on appeal.
We concur: PERLUSS, P. J., FEUER, J.