Filed 3/13/20 Olson v. Kelly CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

KEN OLSON,

Plaintiff and Respondent,

v.

DAVID KELLY,

Defendant and Appellant.

E071798

(Super.Ct.No. CIVDS1819144)

OPINION

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Reversed.

Anderson LeBlanc and Jeff W. LeBlanc for Defendant and Appellant.

Ken Olson, in pro per., for Plaintiff and Respondent.

In this opinion we reverse the trial court’s erroneous denial of an anti-SLAPP motion where the defendant was sued for a consumer review posted on the Yelp website.

Defendant and appellant David Kelly, involved in an out-of-state family law case and seeking to improve his relationship with his son, attended one session of a counseling class run by plaintiff and respondent Ken Olson. Kelly did not find the session helpful, as made evident by the Yelp review he posted about it:

“Every negative review on this page is the absolute truth and I encourage everyone that has had a negative experience with Ken Olson to file their complaint with the licensing board of behavioral sciences.

“Here is the link to the complaint form: . . . .

“When completing the form for board select ‘California Board of Behavioral Sciences’ and for license type select ‘Licensed Marriage and Family Therapist[.’]

“If I had two wishes #1 would be to have Ken Olson’s license revoked so he can no longer subject people to his deplorable behavior and #2 that I had checked Yelp before I went there and was exposed to it.

“My only hope is that TOGETHER we can bring down this horrible excuse for a human being named Ken Albert Olson.”

Olson sued, and Kelly filed an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16. (Further statutory references are to the Code of Civil Procedure.) The trial court denied the motion, stating that although Yelp is a public forum, Kelly’s Yelp posting “primarily stems from his personal dispute” with Olson, and that Kelly accordingly “failed to make a showing that this involves a public issue.”

California’s anti-SLAPP law “‘provides a procedure for weeding out, at an early stage, meritless claims arising from’ activity that is protected by the law. [Citation.]

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’ [citation], 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’ [citations]? We independently review a trial court’s resolution of each question. [Citation.]” (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 887 (Abir Cohen).)

“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).)” (Abir Cohen, supra, 40 Cal.App.5th at pp. 887-888.)

Dispositive here is the fact that “reviews posted to an Internet website meet this definition of protected activity.” (Abir Cohen, supra, 40 Cal.App.5th at p. 888.) Yelp, a website that publishes user-submitted reviews of businesses, is a public forum. (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 310; see also Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 [“Web sites accessible to the public . . . are ‘public forums’ for purposes of the anti-SLAPP statute”].) Furthermore, negative reviews are effectively “warning[s] not to use” or patronize the business, and “[i]n the context of information ostensibly provided to aid consumers,” such reviews become “directly connected to an issue of public concern.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th

883, 900 (Wilbanks); see also Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146 [“We . . . have little difficulty finding the statements were of public interest. The statements posted to the Ripoff Report Web site about Chaker’s character and business practices plainly fall within the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness”].) Although “‘not every Web site post involves a public issue’ [citation], consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366; see also FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 154, 140 [context of statements matter because “our ‘primary goal is to determine and give effect to the underlying purpose of’ the anti-SLAPP statute,” which is to “‘encourage continued participation in matters of public significance’”].)

In denying the motion, the trial court relied on Carver v. Bonds (2005) 135 Cal.App.4th 328, but that case actually supports the conclusion that Kelly’s Yelp review is protected activity. Carver dealt with a newspaper article that, the Court of Appeal held, involved an issue of public interest. (Id. at p. 343.) In so holding, Carver relied on Wilbanks, supra, 121 Cal.App.4th 883, as we have also done above. (Id. at pp. 343-344 [“The same reasoning [in Wilbanks] applies equally here. The article warned readers not

to rely on doctors’ ostensible experience treating professional athletes, and told what it described as ‘a cautionary tale’ of plaintiff exaggerating that experience to market his practice.”].) Nothing in Carver or the other cases cited by Olson on appeal show that the Yelp review here is something other than protected activity. The cases either concern issues outside of the consumer protection context or, like Carver and Wilbanks, show that a Yelp review is protected activity. (See Grenier v. Taylor (2015) 234 Cal.App.4th 471, 483 [“This situation is analogous to consumer protection information. Alex and Tim were attempting to warn people away from attending the Church with Bob as the pastor. In the context of information ostensibly provided to aid consumers choosing among churches, the statements were connected to an issue of public concern.”].)

Turning to the second prong of the anti-SLAPP analysis, Olson has not shown a probability of prevailing on his challenged causes of action. (See Abir Cohen, supra, 40 Cal.App.5th at p. 887.) To begin with, the complaint is not part of the record, so we cannot clearly discern what the challenged causes of action are. Kelly’s anti-SLAPP motion, which expressly attacked the entire complaint, states that Olson’s “first cause of action reads as a defamation cause of action,” that the second is a “general negligence cause of action,” and that a third cause of action alleges “intentional interference with prospective business.” Olson’s appellate brief similarly describes his causes of action as “sounding in defamation, general negligence, and . . . intentional interference with

prospective business,” so we will take the parties at their word. Olson attempts only to show that his defamation claim has merit, however, so we need not address the other causes of action.

“The sine qua non of recovery for defamation . . . is the existence of falsehood.” (Letter Carriers v. Austin (1974) 418 U.S. 264, 283.) Here, as is often the case, “the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) Such a question is a question of law for which we consider the totality of the circumstances. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 624 (ZL Technologies).)

As one recent case has stated: “Use of ‘hyperbolic, informal’ [citation], ‘“crude, [or] ungrammatical” language, satirical tone, [or] vituperative, “juvenile name-calling”’ provide support for the conclusion that offensive comments were nonactionable opinion. [Citation.] Similarly, overly vague statements [citation], and ‘“generalized” comments . . . “lack[ing] any specificity as to the time or place of” alleged conduct may be a “further signal to the reader there is no factual basis for the accusations.”’ [Citation.] On the other hand, if a statement is ‘factually specific,’ ‘earnest’ [citation], or ‘serious’ in tone [citation], or the speaker ‘represents himself as “unbiased”’ ‘“having specialized”’ [citation] or ‘“first-hand experience,”’ or ‘“hav[ing] personally witnessed . . . abhorrent behavior”’ [citation], this may signal the opposite, rendering the statement actionable [citation].” (ZL Technologies, supra, 13 Cal.App.5th at p. 624.)

Here, the totality of the circumstances show that Kelly’s Yelp review was nonactionable opinion. Its characterizations of Olson were vituperative and juvenile (“If I had two wishes #1 would be to have Ken Olson’s license revoked so he can no longer subject people to his deplorable behavior,” “My only hope is that TOGETHER we can bring down this horrible excuse for a human being named Ken Albert Olson”), and no reasonable fact finder would conclude Kelly’s hyperbolic claim that “[e]very negative review on this page is the absolute truth” declared or implied a provably false assertion of fact. The language in Kelly’s Yelp review is similar to statements held in other cases to be nonactionable opinion. (See, e.g., Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 679, 700 [posts, including one stating that “[t]he bitch CEO that runs this Bank thinks that the Bank is her personel [sic] Bank to do with it as she pleases[;] [t]ime to replace her and her worthless son,” were nonactionable opinion]; James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 14 [statement in article describing lawyer as engaging in a “common and sleazy tactic to ruin kids as witnesses” was imaginative expression or rhetorical hyperbole].)

Olson accordingly fails to establish a probability on prevailing on his complaint.

DISPOSITION

The trial court’s order denying Kelly’s special motion to strike is reversed. The trial court is directed to enter a new order granting the motion. Kelly is awarded his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

MCKINSTER

Acting P. J.

FIELDS

J.