Abir Cohen Treyzon Salo, LLP v. Lahiji

40 Cal.App.5th 882

254 Cal.Rptr.3d 1

ABIR COHEN TREYZON SALO, LLP, et al., Plaintiffs and Appellants,

v.Arta LAHIJI, Defendant and Respondent.

B291636

Court of Appeal, Second District, Division 2, California.

Filed October 3, 2019

Parker Mills, and David B. Parker, Los Angeles, for Plaintiffs and Appellants.

Abir Cohen Treyzon Salo, Boris Treyzon, and Cynthia Goodman, Los Angeles, for Plaintiffs and Appellants.

Schlichter & Shonack, Jamie L. Keeton, El Segundo, and Jeremy P. Cowan, for Defendant and Respondent.

HOFFSTADT, J.

* * * * * * After a client fired her attorney and his firm, the firm placed a lien on the client’s further recovery and then sued the client’s daughter for defaming them in several online reviews. The daughter moved to dismiss the defamation claim under our anti-SLAPP law ( Code Civ. Proc., § 425.16 ),¹ and the trial court granted the motion. The trial court’s ruling was correct, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Legal representation

Nahid Lahiji (Nahid)² retained attorney Alexander Cohen (Cohen) and his law firm Abir Cohen Treyzon Salo, LLP (the firm) in June 2017 to represent her in a dispute with the insurer of her home. Nahid obtained some preliminary recovery, and authorized the firm to retain $120,000 of that recovery. She nevertheless became dissatisfied with the firm’s representation, and terminated the firm in November 2017. The firm thereafter placed a lien on any further recovery from the insurer under a theory of quantum meruit.

B. Online posts

On November 19, 2017 (nine days after the firm asserted its lien), a person using a Yelp account with the name "AI L." and with a photograph of Nahid’s daughter, Arta Lahiji (Arta), posted a review of the firm and Cohen (the Yelp review). The reviewer recounted that she had hired Cohen to handle her "home insurance claim" and that Cohen had (1) used a law student "case manager" to negotiate with the insurer, (2) ignored the reviewer’s request to inform her of expenses "over a certain threshold," (3) withheld disbursements to her longer than necessary, (4) improperly deducted expenses, and (5) repeatedly yelled when asked when checks would be cleared. The review more broadly stated that the firm was "underhanded and shady," was "unprofessional and unethical," used "scare tactics," and had an "awful moral compass." The reviewer warned readers to "stay away from this firm."

On November 21, 2017, an "anonymous" user posted an identical review on Avvo, an online lawyer directory.

On December 13, 2017, "Angela Helder" posted a review on the firm’s Facebook page that read: "Unprofessional and unethical group of attorneys ... will botch your home owners insurance claim."

On December 14, 2017, reviews identical to the Yelp review were posted on the website Ripoff Report by "Nancy" in "Redondo Beach" and on Google by "Nahid Lahiji."

II. Procedural Background

A. Complaint and initial discovery

On December 19, 2017, Cohen and the firm sued Arta for defamation.³ Although the above recounted postings purported by name or content to be from Nahid, Cohen and the firm alleged a "good faith belief" that Arta was the poster. Cohen and the firm sought compensatory damages, punitive damages and a post-judgment order enjoining Arta from publishing further defamatory statements and requiring her to remove the existing posts.

In January 2015, Nahid sent an email to Cohen explaining that she , and not her daughter, had posted the various reviews.

Rather than add Nahid as a defendant, Cohen and the firm proceeded to promulgate discovery against Arta. Specifically, they served her with one set of general interrogatories and with 119 special interrogatories.

B. Anti-SLAPP litigation

On March 18, 2018, Arta filed an anti-SLAPP motion seeking dismissal of the defamation claim on the grounds that (1) the postings constituted "protected activity" within the meaning of the anti-SLAPP law, and (2) Cohen and the firm could not establish that the defamation claim had minimal merit. In support of the motion, Nahid submitted a sworn declaration attesting that she had "left [the] reviews" underlying the defamation claim and Arta submitted a sworn declaration attesting that she had not "post[ed]" any of the reviews at issue but was "aware" of Nahid’s posts on Yelp, Avvo, Ripoff Report, and Google.

Arta’s motion triggered the anti-SLAPP law’s automatic stay of discovery. ( § 425.16, subd. (g).) On March 26, 2018, Cohen and the firm filed an ex parte motion to lift that stay in order to depose Nahid and Arta and to serve Yelp with a business records subpoena. Without waiting for the court to act on their motion (and thus in violation of the automatic stay), Cohen and the firm issued a subpoena on Yelp two days after they filed their motion to lift the stay seeking 28 categories of documents, including the internet protocol (IP) addresses from which the Yelp review at issue was posted. Following further briefing, the trial court denied the motion to lift the discovery stay.

After Cohen and the firm filed their opposition to Arta’s anti-SLAPP motion, after Arta filed a reply, and after a hearing, the trial court granted Arta’s motion in a 15-page order. The court ruled that posting the online reviews constituted "protected activity" within the meaning of the anti-SLAPP law. The court then ruled that Cohen and the law firm had not carried their burden of showing that their defamation claim had minimal merit. Cohen’s and the firm’s "assertions that ... Arta ... posted the social media statements at the heart of [their] [c]omplaint," the court reasoned, "are speculative and not supported by the evidence in the record." The court went on to award Arta, as the party prevailing on the anti-SLAPP motion, a total of $36,855 in attorney fees ($12,590 at the time of the dismissal and $24,265 in a post-judgment order).

C. Appeal

Cohen and the firm timely appealed the dismissal.

DISCUSSION

The anti-SLAPP law "provides a procedure for weeding out, at an early stage, meritless claims arising from" activity that is protected by the law. ( Baral v. Schnitt (2016) 1 Cal.5th 376, 384, 205 Cal.Rptr.3d 475, 376 P.3d 604.) Accordingly, a trial court tasked with ruling on an anti-SLAPP motion must ask two questions: (1) has the moving party "made a threshold showing that the challenged cause of action arises from protected activity" ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713 ), and, if so, (2) has the nonmoving party "established ... a probability that [he or it] will prevail" on the challenged cause of action by showing that the claim has "minimal merit" ( § 425.16, subd. (b)(1) ; Navellier v. Sletten (2002) 29 Cal.4th 82, 93-94, 124 Cal.Rptr.2d 530, 52 P.3d 703 )? We independently review a trial court’s resolution of each question. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, 46 Cal.Rptr.3d 638, 139 P.3d 30.)

I. Protected Activity

Among other things, the anti-SLAPP law defines "protected activity" to include "any written ... statement ... made in a place open to the public or a public forum in connection with an issue of public interest." ( § 425.16, subd. (e)(3).) As neither party disputes on appeal, reviews posted to an Internet website meet this definition of protected activity. (E.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1145-1147, 147 Cal.Rptr.3d 496 ; Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 310, 175 Cal.Rptr.3d 131.)

Cohen and the firm offer one argument as to why the reviews posted in this case are not protected activity. Specifically, they argue that the anti-SLAPP law defines protected activity as pertaining to 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." ( § 425.16, subd. (b)(1), italics added.) Because Arta denies making the posts, plaintiffs reason, their cause of action is not "aris[ing] from an[y] act [of Arta]." We squarely rejected this precise argument in Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 929, 230 Cal.Rptr.3d 71 ( Bel Air ). Bel Air expressly held that a defendant who denies engaging in the alleged conduct "may rely on the plaintiff’s allegations alone" in assessing whether the conduct at issue is protected activity. ( Ibid. ) That is because it is "[the] plaintiff’s complaint [that] ultimately defines the contours of the claims." ( Id. at p. 936, 230 Cal.Rptr.3d 71.) Not allowing the defendant to rely on the allegations alone, Bel Air reasoned, "would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that [the anti-SLAPP law] was intended to address." ( Id. at p. 929, 230 Cal.Rptr.3d 71.) We are troubled by Cohen and the firm’s failure to cite this directly applicable contrary authority anywhere in their briefs.

II. Minimal Merit

Once a claim is shown to fall within the ambit of the anti-SLAPP law, the burden shifts to the plaintiffs to establish a "probability" of prevailing on that claim at trial. ( § 425.16, subd. (b)(1) ; Chodos v. Cole (2012) 210 Cal.App.4th 692, 701, 148 Cal.Rptr.3d 451.) In making this assessment, "the [trial] court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ( § 425.16, subd. (b)(2).) The pleadings "frame the issue to be decided" ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, 49 Cal.Rptr.2d 620, abrogated on other grounds, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685 ), and the court then evaluates whether the evidence submitted by the parties and admissible at trial amounts to a " ‘sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’ " or instead whether the defendant is entitled to prevail " ‘as a matter of law.’ ...