Opinion
G053172
03-06-2018
LENORE ALBERT, Plaintiff, Cross-defendant and Appellant, v. DAVID SEAL, Defendant, Cross-complainant and Respondent.
Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff, Cross-defendant and Appellant. Law Office of David Seal and David Seal for Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00738725) OPINION Appeal from an order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed in part and reversed in part with directions. Law Offices of Lenore Albert and Lenore L. Albert for Plaintiff, Cross-defendant and Appellant. Law Office of David Seal and David Seal for Defendant, Cross-complainant and Respondent.
This is the third of three appeals arising out of an omnibus complaint (Orange County Superior Court case No. 30-2014-00738725) filed by attorney Lenore Albert against multiple persons and entities she alleges have defamed her. We call that complaint and the ensuing litigation the "725 action." This appeal concerns but a single defendant in the 725 action, attorney David Seal.
By way of background, it was not until Albert's second amended complaint in the 725 action that Seal was even mentioned by name. In the wake of that second amended complaint Seal brought an anti-SLAPP motion against Albert, the substance of which we discuss in what we call the Hannah appeal, G052748. In that appeal we affirm the trial court's grant of Seal's anti-SLAPP motion against Albert, with the sole exception of her claims he defamed her by telling people she was having sex with family members, a particular individual, and her dog.
And then just barely. He's neither in the caption nor in the first paragraph of the second amended complaint. It is not until paragraph 91 that he is referred to as "Defendant David Seal," and that in the context of having made phone calls to the Westminster Police Department.
The anti-SLAPP statute is section 425.16 of the Code of Civil Procedure. SLAPP, as thousands of cases, including this one, now perfunctorily recite, stands for Strategic Lawsuit Against Public Participation. All references to the anti-SLAPP statute are to section 425.16 of the Code of Civil Procedure, and all undesignated statutory references are to the Code of Civil Procedure. Any undesignated reference to a subdivision is to section 425.16 of the Code of Civil Procedure.
When we refer to "prong one" of the antiSLAPP statute we refer to whether a given claim qualifies for antiSLAPP treatment in the first place. When we refer to "prong two" of the antiSLAPP statute, we refer to whether the claim is sufficiently viable to withstand antiSLAPP treatment. (See Armin v. Riverside Community Hospital (2016) 5 Cal.App.5th 810, 820, fn. 10.)
This appeal is the obverse of Seal's anti-SLAPP motion in the Hannah appeal. Here we consider Albert's anti-SLAPP motion against a cross-complaint filed by Seal in the wake of Albert's third amended complaint.
The chronology is: Albert filed a third amended complaint in the 725 action in late July 2015, Seal filed a cross-complaint in early November 2015, Albert filed her anti-SLAPP motion against the cross-complaint in early December 2015, and the trial court ruled on that anti-SLAPP motion in January 2016.
We conclude all but one of Seal's defamation claims against Albert should have been stricken. All that survives is a single accusation that Albert falsely claimed Seal was a computer hacker and sent a message to Albert on Facebook to the effect that Seal could see all of Albert's posts. These claims do not involve an issue of public interest or comment on litigation-related matters that would qualify them for anti-SLAPP treatment. We also leave intact the trial court's determination that two causes of action for goods and services allegedly rendered by Seal to Albert (contract and promissory estoppel) were not subject to the anti-SLAPP motion. The rest of the anti-SLAPP order is reversed with directions to enter an order in favor of Albert.
I. BACKGROUND
Our rendition of the facts alleged in this appeal is as pared down as we can make it and still provide sufficient information to evaluate the trial court's ruling. To be candid, the pleadings and record are full of extraneous information of the "I never knew that person, yes you did, no I didn't" variety. The case as a whole is too reminiscent of two kids on a playground suing each other for calling each other names. But these kids are lawyers, and appellant Albert has the statutory right to have the denial of her anti-SLAPP motion evaluated by an appellate court. (See Code Civ. Proc., § 425.16, subd. (i ) and § 904.1, subd. (a)(13)[orders granting or denying anti-SLAPP motions are appealable].)
In August 2014, Albert filed the 725 action against five individuals and two businesses (Yelp, Inc. and Xcentric Ventures). Essentially, Albert alleged the individuals had engaged in a conspiracy to defame her on internet sites, including Yelp's business review page.
David Seal was not initially named as a defendant. He did not, in fact, appear in the caption until Albert's third amended complaint, filed in July 2015. Seal was added as yet another person who had allegedly conspired to defame Albert. In Seal's case, though, Albert also alleged intentional infliction of emotional distress based on Albert having sent her an allegorical poem about a bird that is caught in a tree and dies.
According to Albert's opening brief, "Seal was Doed into this action" one year after she filed her initial complaint, a statement for which there is no record reference. We see no Doe substitution form in the appellant's appendix. The discrepancy turns out, in any event, to be irrelevant to this appeal.
Seal filed a cross-complaint in November 2015, alleging six causes of action: (1) defamation, (2) intentional infliction of emotional distress or "IIED," (3) false light, (4) breach of contract, (5) promissory estoppel, and (6) abuse of process. Albert filed her own anti-SLAPP motion in early December.
The trial court analyzed (1) Seal's defamation claim by breaking it down into four discrete statements: (a) Albert had accused Seal of being a "sovereign citizen"; (b) she had accused him of being a computer hacker and in particular of penetrating her Facebook page without her permission; (c) she had minimized Seal's experience as a foreclosure attorney by publishing a misleading list of his cases that appeared to show no foreclosure experience; and (d) she had accused Seal of being, in effect, a double agent who posed as a friend of distressed homeowners but who in reality was working with house flippers to the detriment of those distressed homeowners.
The court denied Albert's anti-SLAPP motion as to all of the (1) defamation causes of action, reasoning that the accusations were insufficiently connected to an issue of public interest or court proceeding. The same reasoning was also applied to (3), the false light cause of action. There, the court reasoned Albert had not carried her burden of showing Seal's (allegedly distorted) litigation history was sufficiently litigation specific or involved a matter of public interest sufficient to justify anti-SLAPP protection.
The court denied Albert's anti-SLAPP motion as to (2), IIED, as insufficiently related to activity protected by the anti-SLAPP statute. Likewise Seal's claims as to (4) and (5) were held not protected by the anti-SLAPP statute, as arising out of what was fundamentally a contract between Albert and Seal for services to be rendered by Seal.
Albert was victorious on (6), the abuse of process claim. The trial court reasoned the claim arose out of protected activity - in particular, Albert's legal representation of her own inactive non-profit corporation, the "Justice Protection Project" in the 725 action itself.
Albert timely appealed from the order. Seal has filed no cross-appeal from Albert's victory on the abuse of process claim.
II. DISCUSSION
A. Preliminaries
We reverse the trial court's denial of Albert's anti-SLAPP motion in regard to most of Seal's (1) defamation and (2) IIED causes of action, and all of his (3) false light cause of action. However, for the sake of completeness we begin by summarily disposing of a number of Albert's arguments made in her opening brief that are not persuasive.
First, it makes no difference that Seal's cross-complaint may have been filed in violation of section 428.50, that is, filed months after Seal had filed an answer to Albert's complaint having (apparently) been "Doed in." Any problem involving the time of the filing of Seal's cross-complaint is not before us because it was not part of Albert's anti-SLAPP motion. The only appealable matter before us (that is, over which we have jurisdiction in this interlocutory proceeding) is the order on Albert's anti-SLAPP motion. (See § 425.16, subd. (i).)
The statute provides a deadline to file any cross-complaints (the time of the answer) but provides for leave to amend to be granted at any time in the "interest of justice."
"An order granting or denying a special motion to strike shall be appealable under Section 904.1."
Next is Albert's unfounded insinuation of judicial bias, which relies on matters not before the trial court on the anti-SLAPP motion, but occurrences after the notice of appeal was filed, specifically a case management conference held in May 2016). As the Supreme Court said in In re Zeth S. (2003) 31 Cal.4th 396, 405: "It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.]" (Italics added.) It appears to us that Judge Glass has been patient and persevering in working through the mass of jumbled and desultory claims that make up the action.
Third is Albert's argument that Seal sued merely to retaliate against her for having sued him first. It is irrelevant that Seal might not have filed his own cross-complaint if Albert had not filed her complaint first. The anti-SLAPP statute only protects statements "made in a place open to the public or a public forum in connection with an issue of public interest." There is nothing in it that makes relevant any underlying subjective motive for filing the suit in the first place. (§ 425.16, subd. (e).)
From page 11 of the opening brief: "Nevertheless, the court allowed David Seal to allege that everything Ms. Albert alleged about David Seal in her pleadings and in court was a purported lie and that it defamed him and put him in a false light. This is wrong. What he is really complaining about is protected activity during litigation."
Fourth, we dispense - with a single exception - with Albert's argument that the trial court improperly sustained a number of Seal's evidentiary objections to various statements in Albert's declaration in support of her anti-SLAPP motion. With that single exception, Albert does not quote or paraphrase any of the statements to which the trial court sustained objections, and certainly does not attempt to articulate any reason for concluding the trial court somehow abused its discretion in sustaining those objections. Her briefing, in short, is inadequate to review those objections. (See City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 ["Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt."].)
Fifth, we now dispense with the exception. As part of her papers in support of her anti-SLAPP motion, Albert stated: "On January 26, 2015 I received a poem from David Seal about a bird that gets stabbed by a branch and bleeds to death called the Whangy tree. He told me I was the bird. Attached hereto and fully incorporated herein as Exhibit 3 is a true and correct copy of the email I received from David Seal on January 26, 2015 with the poem."
Seal objected to the paragraph on relevance grounds, inter alia. Albert mistakenly claims, on page 17 of her opening brief, that the trial court sustained the objection to the poem on hearsay grounds. In fact, the trial court sustained the objection based on relevance.
Albert says the poem was relevant to show that it was Seal who was harassing Albert, not vice versa, but that only goes to Seal's subjective motive in exercising his right to sue Albert, a topic which, as we explained above, is not properly at issue.
We need not quote the entire poem, but it has been given so much attention we feel we must address it. Here are a few lines:
"The woggly bird sat on the whango tree,
"Nooping the rinkum corn,
"And graper and graper, alas! grew he,
"And cursed the day he was born"
We will burble no more in the Tulgey Wood than necessary, and let devotees of Lewis Carroll decide the degree to which Seal owes a literary debt to Jabberwocky. In any case the poem was assuredly not relevant to whether Seal's cross-complaint was based on some public statement of Albert's concerning an issue of "public interest." And the issue of whether any allegory directed at Albert herself was sufficiently outrageous to justify an intentional infliction of emotional distress claim on her part is not before us in this appeal.
Sixth, Albert's argument that there was some error in failing to stay the case after she filed a notice of appeal from the denial of her anti-SLAPP motion against Seal, like her charge of bias, involves matters that occurred after the trial court decision and notice of appeal. (See again In re Zeth S., supra, 31 Cal.4th at p. 405.)
And, finally, seventh, Albert's argument about the one claim on which she did prevail, Seal's (6) abuse of process claim, is not well taken. Albert argues on appeal that the trial court got to the right result for the wrong reason. She maintains the court should have stricken the abuse of process claim on the theory that it showed Seal was really only retaliating for her filing suit first. This is merely a variation of Albert's subjective motivation theory. In any event Albert is not an aggrieved party on the abuse of process issue and thus lacks standing to argue the trial court erred. (E.g., In re A.K. (2017) 12 Cal.App.5th 492, 500 [party has no standing to assert error on issue where party is not aggrieved].) B. Seal's Contract Claims That Survive
Albert's argument as to Seal's (4) contract and (5) promissory estoppel claims rely on the connection to the activity that formed the backdrop for those claims, namely political rallies and proposed legislation Albert was allegedly promoting. There is, of course, no question that political rallies and proposed legislation are matters of public interest under the anti-SLAPP statute. But Albert confuses the originating motive for a contract with activity protected by the First Amendment. A property owner might want to build a newspaper office, but if the owner reneges on a promise to pay the contractor, that does not make the reneging itself an exercise of freedom of the press. Likewise, if a publisher asks a writer to produce a political book for a certain remuneration and the publisher then reneges on its promise to pay, the publisher can't claim the breach of its promise involved any public statements about politics. It is just a failure to honor a promise for a given service. And that is precisely the relationship between Albert, who allegedly promised to pay for Seal's time and efforts, and Seal, who allegedly took her up on her promise, but who allegedly wasn't paid or reimbursed for his efforts. Those claims are not susceptible to an anti-SLAPP motion. C. The Defamation, IIED and False Light Claims That Should be Stricken
We now come to the main event in this appeal, Seal's own claims against Albert for allegedly false statements she made about him. Though we reverse the trial court on this matter, we are indebted for its hard work in imposing order on the various claims in the 725 action.
We part company with the trial court on the topic of whether the three of the four categories of statements it isolated from Seal's cross-complaint are not eligible for anti-SLAPP treatment under prong one. We conclude they are. Further, we conclude those statements are not actionable because they are either not capable of falsification, or are otherwise too vague.
1. The Sovereign Citizen Accusation
The topic of the "sovereign citizen" movement is probably worth at least its own essay in a political magazine of some kind. The subject has certainly been hovering in the political press for a long time. "The sovereign citizen movement is a loose grouping of litigants, commentators, and tax protesters who often take the position that they are not subject to state or federal statutes and proceedings." (See United States v. Weast (5th Cir. 2016) 811 F.3d 743, 746.) So-called "sovereign citizens" will sometimes show up in court, asserting various theories to the effect the court itself has no jurisdiction over them. (Id. at p., 746, fn. 5].)
We will attempt no taxonomy or analysis of the sovereign citizen movement. We are not even sure whether to describe the movement with capital or lower case letters. We can say, however, that as a political movement and category it is self-evidently a topic of public interest, similar to that of communism, fascism, the tea party movement, Rinos, the Occupy movement, Antifa, or similar political groups or ideological movements.
Seal alleges Albert falsely claimed Seal was a sovereign citizen or - we deliberately use the old school phrase - a fellow traveler of sovereign citizens. As such, Albert's statement about Seal readily satisfies prong one of the anti-SLAPP statute for a comment under subdivision (e)(4) of the anti-SLAPP statute ["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"]). Accusing someone of being a communist, a fascist (or, as Albert correctly noted in her trial court anti-SLAPP motion) a member of the tea party, is part of the "heat of the political kitchen." (Lam v. Ngo (2001) 91 Cal.App.4th 832, 849.) And just as inherently debatable.
The accusation further satisfies prong two of the anti-SLAPP statute, since political characterizations are the classic example of non-falsifiable statements of opinions. (See generally Buckley v. Littell (2d Cir. 1976) 539 F.2d 882, 890-895 [charge that political commentator William F. Buckley, Jr., was "fellow traveler of fascism" not actionable]; see also Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 390 [some accusations are inherently too vague to be actionable defamation].) It is one thing, to use an overwrought example, to accuse someone of having attended a rally of the Ku Klux Klan dressed in Klan garb on a certain date. That's an assertion that is falsifiable. The person was there or not there, in our out of garb. But an accusation that someone harbors some sort of Klan "sympathies" is far too vague and debatable for falsification. The same applies to the even vaguer political appellation "sovereign citizen." The trial court should thus have granted Albert's motion as to the "sovereign citizen" accusation.
2. Computer Hacker and Facebook Voyeur
The trial court rejected Albert's anti-SLAPP motion on the computer hacking and alleged penetration of Albert's Facebook page as not being related to an issue of public interest. On this point we must agree with the trial court. Though these allegations might indeed be too vague to be actionable defamation (and therefore susceptible to an ordinary summary judgment motion), we can think of no reason Seal's computer skills, or his facility with the Facebook website, should beckon any public attention. The accusation fails to satisfy prong one.
3. The Minimizing of Foreclosure Experience and the Double Agent Accusation
a. Prong One
We treat categories (c) and (d) - the minimization of Seal's experience in foreclosure law and the allegation he is effectively a double agent - together for purposes of prong one, because they stem from the same issue of public interest - the "foreclosure crisis" that occurred in the wake of the recession that began in 2008.
Legal databases, at the time of our writing, number no less than 1,300 hundred articles that use the phrase "foreclosure crisis." Federal courts have used the phrase over 200 times, and the phrase has even shown up at least 10 times in published California decisions, most notably our Supreme Court's recent explication of foreclosure law, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 928 [noting "the copious litigation" that has arisen "out of the recent foreclosure crisis"].)
Wrongful foreclosure and bankers' behavior, in particular, have come to be a major focus of the fallout of the recent recession. (E.g., Chad J. Pomeroy, Well Enough Alone: Liability for Wrongful Foreclosure (2017) 68 Ala. L.Rev. 943, 945 [noting that in the "current environment," "banks and their officers and directors are under the spotlight and face an increasing amount of pressure due to their perceived role in the instigation of the Great Recession"].)
Context is everything, and critically import in defamation law. (See Reed v. Gallagher (2016) 248 Cal.App.4th 841, 859; Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 67 ["distinction between a statement of fact and one of opinion is frequently difficult" and context of statements is important].) The context of Albert's accusations was as a part of Albert's broader thesis that Seal was a kind of double agent whose sympathies truly did not lie with distressed homeowners undergoing foreclosure. Rather, she saw him aligned with predatory house flippers and financial interests generally.
Whatever else, Albert's accusations against Seal concerning his bona fides as being on the side of the angels (at least by Albert's lights) in the foreclosure crises are integral to the rough-hewn ideology of the anti-bank, anti-foreclosure movement on which Albert has sought to build her own reputation. For Albert, Seal had allied himself with the bad guys - and in particular with those she perceives as vulture-like house flippers - who would swoop down on people like her clients in the aftermath of foreclosure. (Cf. Creola Johnson, Fight Blight: Cities Sue to Hold Lenders Responsible for the Rise in Foreclosures and Abandoned Properties (2008) 2008 Utah L.Rev. 1169, 1197, fn. 174 ["Non-resident real estate investment firms also are violators and are expected to pose a growing problem due to lenders selling, for pennies on a dollar, blighted properties to these investors, who in turn flip the properties.]; see Kermit Lind & Joe Schilling, Abating Neighborhood Blight with Collaborative Policy Networks - Where Have We Been? Where Are We Going? (2016) 46 U. Mem. L.Rev. 803, 833 ["Even suburban cities with very good enforcement programs in traditionally stable communities, such as Shaker Heights and South Euclid, were challenged with how to effectively identify, locate, and take code enforcement actions against banks, flippers, and institutional investors."].) Prong one is satisfied. b. Prong Two
We must, however, separate the accusation of unfairly minimizing Seal's foreclosure law experience from the accusation that he is really on the side of the banks for purposes of prong two.
The former matter is relatively straightforward. Seal alleged in paragraph 51 of his cross-complaint that Albert published "an edited and incomplete listing of cases that" he "had handled in Orange County, which consisted only of traffic tickets and a couple of old unlawful detainer cases, and represented it to be [his] entire litigation history." However, when Albert brought her anti-SLAPP motion, Seal's declaration in opposition made no attempt to quote or even paraphrase the allegation or explain how, in context, it was defamatory, or showed him in a false light. Neither Seal's own declaration, nor any of its exhibits "A" through "J," appear to say anything about the "incomplete" listing allegation. Rather (with the exception of an apparent detour regarding certain distasteful posts to Facebook by a person named Marco) Seal's evidence focused on what we have called the double agent allegation.
The closest we have found is Seal's exhibit F, which is part of a listserve exchange. In that exhibit Albert says: "Look up David Seal in the Orange County Superior Court and Federal Courts. How many cases where he represents the homeowners from wrongful foreclosures? It is a public record." The statement, as far as we can ascertain, is mere rhetoric, implying that the quantity of Seal's representation of homeowners in wrongful foreclosure actions in Orange County just isn't up to Albert's level. There's no falsifiable statement of fact there, simply Albert's low opinion of Seal's past experience. --------
When it comes to prong two, a plaintiff (or cross-complainant) cannot simply rely on its pleadings, even if verified (and Seal's cross-complaint wasn't). (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017 ["The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence."]; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010 ["the plaintiff 'cannot simply rely on the allegations in the complaint' [citation.]"].) Here, because Seal presented no evidence at all in his opposition on the incomplete listing allegation, we conclude prong two was also met and the motion should have been granted as to that allegation.
In contrast with the minor skirmish over Albert's allegedly "incomplete" history of Seal's litigation experience, the big battle is over Albert's allegation that Seal is really on the side of the big banks in the foreclosure crisis. There are two sources provided by Seal. One consists of Facebook posts. The other was an exchange that occurred around mid-day on November 20, 2014.
We will begin with the two Facebook posts by Albert, which we will call the "NoBullies" and "Big Way" posts, respectively. Here is the language in the "NoBullies" post: "I am deleting a ton of people off my friends list because I received another private message from David Seal, Esq. stating he can still see my messages on my wall. This means he has taken someone's identity on here, and I do not know who. Private message me if I delete you, and you can verify that you are not David Seal, and want to be back on my wall. [¶] #FukkSovereignCitizens [¶] #NoStalking [¶] #NoBullies"
The "Big Way" post grew out of an anti-Albert post apparently from someone who considered himself or herself a "sovereign citizen," which described Albert as a "Blonde Headed Snake." That post had accused Albert of defaming a certain "Private Attorney General" and something called the "Common Law Office of America." The Big Way post had the word "SCAM" in the upper left corner. Albert appears to have responded to that post with her own photo of a "mamaba" [sic: probably mamba] snake and the message: "If Sovereign Citizen militia would invest $35.00 and buy their own phone, instead of spending all of their time trying to figure out how to cheat and fool people by creating nonsensical pages like this, maybe this meme wouldn't be about them."
Seal was not mentioned until an exchange after the dueling SCAM-Mamaba posts. The exchange consisted of one of Albert's correspondents asking, "David Seal is an opponent?" to which Albert responded, "Yes, in a big way."
The November 20 exchange was a CAMFFG (a listserve group). It began with Seal asking the CAMFFG group as a whole if they knew a "good loan agent" who might help clients in foreclosure sell their homes to preserve what equity they had in their property. (CAMFFG stands for Consumer Attorneys Mortgage Fraud Focus Group.) After a few messages from other members on that theme, Albert apparently perceived the possibility that Seal might have the ulterior motive of interfering with one of her own clients. Here is what she wrote at 11:07 a.m. on November 22, 2014: "If my client's home at [specific address in Orange County] is sold by anyone being referred here - I will sue each and everyone of you. This is your notice. BACK OFF - stop helping being trying [sic] flip foreclosed homes. [¶] Lenore Albert, Esq."
Seal replied within 20 minutes, disavowing any ulterior motive to flip property: "As usual Ms. Albert, you misconstrue things to somehow conclude you are at the center of a vast conspiracy. Get over yourself and please stop personal attacks and defamation on this list serve. [¶] There are innumerable cases in which a house being sold to preserve equity, or for other reasons, is the best option. I thought it would be very helpful to start a thread in that regard and it already has been very helpful. For reasons that have nothing to do with you or your clients, who I wish the best of luck."
Albert replied within the next 20 minutes, with apparent reference to Seal's presence at a recent court hearing involving Albert: "Then why were you at my hearing yesterday and consulting with the opposing parties in the hall and sitting on their side while they told the judge they needed to sell my clients' home? You are just like a bank lawyer but you represent private 'investors' who swindle little old ladies who have stage 4 cancer from their homes. Admit it and get off this listserve David Seal."
Seal's reply came by noon: "I was at a hearing where other attorneys were seeking a restraining order against you. Your local antics have become so well known that there were numerous people there to watch, not because of any affiliation with any opposing attorney or party, or due to being in any way opposed to your clients who seem like nice people, but rather because you have become a nuisance to them and they (like me) were curious when a restraining order was sought against a local attorney. I talked, not consulted with, everyone including people who were there with you, said hello to your clients, and even met for the first time the supposedly dastardly young woman lawyer who was seeking to restrain your conduct. Spin it all you want."
By 12:36 p.m. Albert wrote the CAMFFG group as a whole, obviously referring to Seal: "HE is working the OTHER SIDE of the BAR. Why do you guys don't get that? He was there yesterday - working with [two individuals we do not need to name]. He is the other side!!!!"
Seal retorted almost immediately: "Good lord. What a bunch of crap. I am sorry to the rest of the folks on this list serve that they have to read this nonsense."
Albert quickly shot back: "You are a liar. Yes, I had a series of TROS [temporary restraining orders] thrown against me and my clients. By [individuals who need not be named here, including one who Albert said was], a realtor who had the note forged and stole my client's home and the listing agent. Mine were ALL DENIED> The judge even asked . . what makes this property so special. [¶] THREE lawyers and a listing agent and realtors there. I will name them. [Two names omitted] AND DAVID SEAL. [The two names again plus an LLC based on a home in Orange County] (nice name David Seal - was that your idea?) [Two more people] were there too. David Seal consulted with [the two names first mentioned] who had to go into the hallway because they were potential witnesses. All working for the people stealing homes. They pretend to be hard money lenders but they don't lend any money and then they steal the home through forged Notes and foreclosures. You are truly a sick person David Seal. Look up David Seal in the Orange County Superior Court and Federal Courts. How many cases where he represents the homeowners from wrongful foreclosures? It is a public record. They pulled out 10 TROS. 2 Against me and 2 against each family member that was wrongfully foreclosed on. Only sick and greedy people would do that. It takes a sicker person to cheer them on, advise them behind the scenes, and then come onto this listserve and suggest a true advocate for homeowners gets kicked off of it. [¶] Why you guys side with people working the other side and having them here on the listserve is beyond me. I am truly and utterly distressed and sickened over this."
Finally, a moderator on the CAMFFG listserve asked both Albert and Seal to "stop sending out posts regarding their personal dispute." But Seal made one last post in the chain, the gravamen of which was that he had no ulterior motives in observing the hearing regarding Albert and disavowing the insinuation he had any "investor clients." Addressing Albert he wrote, "You will note I am taking the high road here. It is you Ms. Albert who is hurling accusations, and I am just defending myself. Please knock it off and take it off the list serve. It is rude to everyone but to me especially."
That was the last post in the chain, as reflected in our record. The CAMFFG war of words, which had begun a few minutes after 11 in the morning on November 22, 2014, was over by 1 p.m.
We have detailed the (minimal) Facebook posts and (alas, not minimal) CAMFFG exchange to underscore one point: There is nothing in either that reflects any falsifiable statement of fact. At the most, Albert accuses Seal of being in some sort of existential sense "an opponent," or on "the other side," or being "just like a bank lawyer" or fraternizing with enemy lawyers during proceedings in which Albert was involved. These comments are mere partisan polemics about loyalties during the foreclosure crisis and are manifestly insufficient as actionable defamation. They are mere statements of opinion, and nonactionable.
The next question is how our determination that only the computer hacking and Facebook trespassing allegations survive affects Seal's IIED claim against Albert. As noted in the Hannah appeal, most of the bases for Albert's IIED claim against Seal survived Seal's anti-SLAPP motion.
Seal's IIED claim is structured in two parts. First, he makes a stalking accusation in paragraph 67 of his cross-complaint: "Albert even had Seal followed to determine where he lived, and on two occasions was heard or observed walking right past the house where Seal was living. This resulted in Seal having to move his residence."
The stalking allegation survives Albert's anti-SLAPP, since it is not itself litigation-related or an exercise of free speech. It makes no difference that it might have been a ground for a restraining order, the actual allegation is independent of any litigation or issue of public interest. And, since that basis for the IIED claim does not meet prong one, we do not need to evaluate it on its prong two merits. As this court said in Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 32: [I]f the moving defendant cannot meet the threshold showing, then the fact that he or she might be able to otherwise prevail on the merits under the 'probability' step is irrelevant."].)
The rest of the bases of Seal's IIED claim, however, don't survive. As our Supreme Court made clear in Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 245: "'[T]o allow an independent cause of action for the intentional infliction of emotional distress, based on the same acts that would not support a defamation claim, would allow plaintiffs to do indirectly what they could not do directly. It would also render meaningless any defense of truth or privilege.' [Citation.]" Having determined that Albert's accusations against Seal for his supposedly sovereign citizen sympathies, or his lack of fealty to the anti-foreclosure movement, are not actionable defamation, they cannot be a basis for an IIED claim either.
III. DISPOSITION
We affirm the court's rulings pertaining to:
- Seal's causes of action (4) and (5) for breach of contract and promissory estoppel.
- The part of Seal's cause of action for defamation that is based on the allegation that Albert falsely accused him of being a computer hacker and of somehow unfairly penetrating her Facebook page.
- The part of Seal's cause of action for IIED that is based on the allegation that Albert falsely accused him of being a computer hacker and of somehow unfairly penetrating her Facebook page and also that part of his IIED cause of action based on Albert having allegedly stalked him and discovered his personal residence.
We reverse and direct the court to strike the following:
- Seal's (1) defamation cause of action to the extent it relies on anything other than the computer and Facebook hacking allegations.
- Seal's IIED cause of action to the degree it relies on anything other than the computer and Facebook hacking allegations or the stalking allegations.
- All of Seal's false light cause of action.
In light of this mixed result, our cost order parallels the one involving Seal in the related Hannah appeal. In the interests of justice no costs on appeal are awarded now.
However, the trial court will have discretion to award appellate costs (or not as the case may be) after the denouement of what has survived of Seal's cross-complaint.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.