Abboud v. Khairallah

• Decision Date: 27 July 2021
• Docket Number: B302416
• Court: California Court of Appeals Court of Appeals
• Parties: JACKIE A. ABBOUD et al., Plaintiffs and Respondents, v. ADILA KHAIRALLAH, Defendant and Appellant.

JACKIE A. ABBOUD et al., Plaintiffs and Respondents, v. ADILA KHAIRALLAH, Defendant and Appellant.

B302416

California Court of Appeals, Second District, Seventh Division

July 27, 2021

NOT TO BE PUBLISHED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!” ^[1] 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!”

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.^[2]

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.”^[3] 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.”

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.^[4] Khairallah tried to post the review again, but it was removed again.

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...