Law Offices of Plummer v. Nabili

Decision Date06 October 2022
Docket NumberG060354
PartiesLAW OFFICES OF MARK B. PLUMMER, PC, et al., Plaintiffs and Respondents, v. SIAMAK NABILI, Defendant and Appellant.
CourtCalifornia Court of Appeals

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County, No 30-2020-01141868 Ronald L. Bauer, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part reversed in part, and remanded with directions.

The Safarian Firm, Harry A. Safarian, Christina S. Karayan, and Hillary D. Patton for Defendant and Appellant.

Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiffs and Respondents.

OPINION

GOETHALS, J.

After a lawyer and two former clients had a dispute concerning the nonpayment of attorney fees, the clients allegedly created a website that included disparaging statements about the lawyer. The lawyer and his law firm sued both clients for defamation, interference with prospective business advantage false personation, and declaratory relief.

One of the clients filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16 (§ 425.16)), asserting the claims arise from protected activity and are unlikely to succeed on the merits. The trial court denied the anti-SLAPP motion, finding that although the claims arose from protected conduct, the lawyer and his law firm had demonstrated a probability of prevailing.

After reviewing the matter de novo, we find that the claims arise from both protected activity and unprotected activity, and the lawyer and his law firm have established a probability of prevailing on some, but not all, of the claims arising from protected activity. We therefore affirm the trial court's order in part and reverse it in part, and we remand with instructions to strike certain allegations as detailed below.

FACTS

The following facts are taken from the first amended complaint (the complaint), declarations, and other evidence submitted on the special motion to strike. (See § 425.16, subd. (b)(2) [in ruling on anti-SLAPP motion, "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based"].) We disregard the unsupported statements contained in the briefs below and on appeal; the anti-SLAPP statute does not permit us to consider such statements (see ibid.), and in any event those statements are not evidence (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590).

Mark B. Plummer is an attorney with a law firm, the Law Offices of Mark B. Plummer, PC (Plummer Law). In 2016, Siamak Nabili, M.D. and Nili N. Alai, M.D. asked Plummer to represent them in a medical malpractice case then pending in Santa Clara County Superior Court. Plummer agreed to help with expert discovery only; he disassociated from the case in March 2017 after the last expert was deposed.

Dr. Nabili and Dr. Alai allegedly refused to pay Plummer for his work, so in 2018, Plummer sued them in Orange County Superior Court. The outcome of that lawsuit is unclear from the record.

In late 2019, Plummer learned from another attorney about the existence of a website that made various disparaging statements about Plummer and his law practice. With the help of a computer expert, Plummer learned the website was hosted by networksolutions.com.

Plummer and Plummer Law (collectively, Plaintiffs) filed a complaint against networksolutions.com in Orange County Superior Court. After conducting some preliminary discovery, Plummer learned the anonymous creator of the website had the same contact information as his former clients, Dr. Nabili and Dr. Alai, so he added them as Doe defendants.

Plaintiffs' complaint asserts causes of action against the Doe defendants for (1) defamation, (2) interference with prospective business advantage, (3) false personation under Penal Code section 528.5, and (4) declaratory relief. The complaint does not identify the allegedly defamatory website by name, nor does it quote or describe the allegedly defamatory statements in any detail. It alleges in general terms that the Doe defendants "maliciously posted false and defamatory statements of fact on a website intended to defame Plaintiffs in a professional capacity, such as the claim that Plaintiffs are incompetent, dishonest, the office was unsafe and unpermitted, and the Plaintiffs are vexatious litigants, none of which are true. Said Defendants are doing this in part by illegally impersonating Plaintiffs and illegally impersonate [sic] a relationship with the State Bar." The complaint further alleges that "multiple third parties" have seen the unidentified website, which has interfered with Plaintiffs' actual and prospective client relationships.

Dr. Nabili filed an anti-SLAPP motion, and in his supporting declaration he swears he was unaware of this website and did not create any website concerning Plummer. Plaintiffs opposed the motion and submitted a declaration by Plummer providing the name of the website (markplummerattorney.com) along with four screenshots of the website, among other evidence.[1]

According to Plummer's declaration, markplummerattorney.com makes the following "objectively false statements of fact" about Plaintiffs: Plaintiffs are vexatious litigants; Plummer has filed in propria persona, and lost, more than five lawsuits in the last seven years; Plummer has violated multiple court orders and protective orders;

Plaintiffs have lost multiple cases; Plummer uses several aliases; and Plaintiffs work out of a residential garage that is unpermitted and unsafe.

Plummer's declaration explains "[t]here are a huge number of pages and links" at the website, and he attaches four pages of "excerpts" from the website as exhibit 2 to his declaration. As best we can tell, those screenshots are the only portions of the website included in the record.

Looking at the four screenshots, the website makes statements like "Plummer Regularly Sues His Own Clients," "Habitually Sues Own Associate Attorneys," "Files Vexatious and Meritless Lawsuits in pro per, which cases he also loses," "los[t] in the Court of Appeals," and was "sanctioned in Superior Court for more than $10,000." One of the screenshots includes a photograph of Plummer and a photograph of what appears to be a residential garage with a caption that reads, "Plummer Law Office [¶] This law office is a garage." The website seems to include numerous hyperlinks which include short bursts of text in blue boxes (e.g., "Plummer lost Appeals Case G057721," "WELLS FARGO CASE," and "Vexatious Pleadings"). We cannot determine from the record what content, if any, is available at each of those hyperlinks.

On the issue of falsity, Plaintiffs submitted evidence that their office is neither a garage nor unsafe. They provided no evidence refuting or otherwise addressing the website's statements concerning their litigation history or professional competency.

At the hearing on Dr. Nabili's anti-SLAPP motion, the trial court commented that Dr. Nabili "probably prevails" on the first prong of the anti-SLAPP statute (protected activity), but that Plaintiffs had established a substantial probability of prevailing on their claims. After oral argument, the court denied the motion without further explanation. Dr. Nabili appeals.

DISCUSSION
1. The Anti-SLAPP Statute

The Legislature enacted the anti-SLAPP statute to address "what are commonly known as SLAPP suits (strategic lawsuits against public participation)- litigation of a harassing nature, brought to challenge the exercise of protected free speech rights." (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) The statute authorizes a special motion to strike meritless claims early in the litigation if the claims "aris[e] from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue ...." (§ 425.16, subd. (b)(1).) The statute is "'intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.'" (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.)

When evaluating a special motion to strike, the trial court must engage in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)

"If the court determines that relief is sought based on allegations arising from activity protected by the statute the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and...

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