Filed 9/3/20 Eram v. TheWeatherMan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIA ERAM,

Plaintiff and Respondent,

v.

THEWEATHERMAN et al.,

Defendants and Appellants.

G057722

(Super. Ct. No. 30-2018-01001610)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed in part and reversed in part.

Syverson, Lesowitz & Gebelin and Steven T. Gebelin for Defendants and Appellants.

Kushner Carlson, Paul H. Deese, James D. Decker, and Griffin R. Schindler for Plaintiff and Respondent.

Fia Eram filed a lawsuit against 50 unknown individuals (Doe defendants), who used psuednonymous names to post defamatory comments about her on public forum Web sites such as www.ripoffreport.com (Ripoff Report). Three individuals responded to her complaint by filing a special motion to strike (anti-SLAPP motion). These defendants filed the motion using their online names, “TheWeatherMan,” “sem09” and “Elaine” (collectively Defendants unless the context requires otherwise). The court determined sem09 and Elaine did not have standing to bring the motion as Doe defendants. With respect to TheWeatherMan, the court granted the motion and struck four paragraphs, containing publicized statements, from the defamation cause of action. It denied the motion as to five paragraphs after determining Eram had a probability of prevailing on those alleged defamatory statements.

On appeal, sem09 and Elaine assert the court should have ruled on their anti-SLAPP motion. TheWeatherMan contends that while the trial court correctly determined the first prong of the anti-SLAPP statute (cause of action arose from protected activity), it erred in determining the second prong because Eram did not prove she had a probability of prevailing on her defamation claim. TheWeatherMan is partially correct, however, we conclude Eram met her burden of proving she had a probability of prevailing on one of the alleged defamatory statements. Accordingly, the court’s order is reversed in part and affirmed in part.

BACKGROUND FACTS

Eram advertised herself and her services as follows: “Fiona, known as Persian Medium, is a divinely gifted celebrity psychic medium, holistic healer, and clinical hypnotherapist.” Eram claimed she was born and raised in Iran and moved to Sweden when she turned 18 to “explore” her psychic talent and “connect with her spirituality.” She helped the Swedish police solve a missing person case, and she assisted with police investigations in the United Kingdom, Germany, Ireland, Norway, and America. After studying psychology and hypnotherapy in Sweden, she moved to the United States and started a business “using her gifts” to help others.

Eram was forthcoming about using multiple names. She was named Firozeh Johansson at birth, her Swedish passport was under the name Fia Johansson, and she legally changed her name to Fia Firozeh Johansson Eram after she was married. Her trade name was “Persian Medium; I AM POWER,” and was a service mark registered with the United States Patent and Trademark Office.

Eram joined the Web site www.keen.com (Keen) as a psychic advisor in 2012 and charged $4 per minute for her psychic medium services. Over time she raised her prices and maintained her services were in high demand. “I set my rates as high as I do to control the number of calls I would receive. If my rates were any lower, I would not be able to manage the volume of calls I would receive.” Beginning in 2016, she noticed several anonymous reviewers posted negative comments about her on the Ripoff Report and other public Web sites.

I. First Defamation Lawsuit (2017)

On August 15, 2017, Eram, using the name of Fia Johansson, filed a defamation action against 20 Doe defendants, several Web sites, and five individuals in the Orange County Superior Court (Case No. 30-2017-00937600) (The 2017 lawsuit). She alleged Susan Hodges posted content as TheWeatherMan, “‘AdamC.,’” “‘exclientnow,’” “‘lanco,’” and “‘Master Psychic 777.’” She believed Herbert J. Duggins was a nom de plume for “Hodges,” and Angela C. Popp used the name “‘Arrianna.’” She maintained Nyra Capurso was posting comments using the name “‘Hawk Spirit.’” Eram claimed she did not know the true names of Does 3 through 12, and the Doe defendants “include all persons unknown who posted defamatory material about [her on Keen, the Ripoff Report,] PaychicReview.com [(Paychic Review)], ComplaintsBoard.com [(Complaints Board)], Yelp.com [(Yelp)], or any other Web site.” Eram listed in paragraph 42 of her defamation cause of action a “sampling of defamatory remarks” from the following anonymous reviewers: lanco, exclientnow, AdamC., TheWeatherMan, Arrianne, and Hawk Spirit.

William Canter and “Psychic Master 777” (collectively referred to in the singular as Canter) filed a motion to strike portions of Eram’s 2017 complaint. Canter alleged he “never posted any defamatory comments” about Eram and did not know anyone named Fia Johansson. He alleged, “Although the complaint list[ed], at paragraph 42, all of the purportedly defamatory statements, none of them [were] attributed specifically to” Canter. Alternatively, he asserted that even if he had published defamatory statements “those statements [arose] from [his] lawful exercise of [his] constitutional right of free speech, and therefore would be protected” by the anti-SLAPP statute.

In March 2018, the court granted Canter’s anti-SLAPP motion. The court did not explain the basis for its ruling. Three months later, the court granted Canter’s motion for attorney fees and costs, ruling Eram must pay a total of $38,088.44. Eram appealed this ruling but failed to file an opening brief, resulting in its dismissal. In August 2018, the trial court dismissed the 2017 lawsuit.

II. Second Defamation Lawsuit (2018)

Meanwhile, on June 25, 2018, Eram filed the underlying action against

50 Doe defendants. Eram alleged multiple of action including, defamation, intentional/negligent interference with contractual relations and economic advantage, intentional/negligent infliction of emotional distress, and willful and malicious misappropriation. Eram asserted she was unaware of the true names of the Doe defendants but believed the negative reviews originated from either customers or competitors.

In paragraphs 8.1 through 8.17 of the complaint, Eram listed examples of defamatory statements made by “exclientnow,” “NonBeliever,” “AdamC.,” “Kdspirited H.,” “Sharon Ramella,” and “Elle M.” TheWeatherMan’s statements accounted for nine of the 17 paragraphs. These nine statements related to two central themes. First, TheWeatherMan announced Eram committed fraud by using different names and addresses. Second, TheWeatherMan asserted Eram should not be trusted due to her poor business practices and failure to timely pay her taxes. A more detailed discussion of the contents of the nine paragraphs will be discussed individually in our analysis section below.

Eram attached to her complaint the online content from three Web sites that contained the 17 statements listed in her complaint as well as other negative reviews. Statements posted on the Ripoff Report, Yelp, and the Complaint Board Web sites were attached in exhibit Nos. A, B, and C, respectively. In her complaint, Eram also alleged she received harassing and abusive e-mails from anonymous people.

Eight months after Eram filed her complaint, Defendants filed an

anti-SLAPP motion to prevent Eram from breaching their anonymity through discovery. Defendants explained the gravamen of each claim arose from their psuednonymous posts on public online forums regarding psychic services advertised by “a self-professed public figure.”

Defendants asserted the claims made against them were subject to

anti-SLAPP and Eram would be unable to establish a probability of prevailing for three reasons: (1) the claims were subject to collateral estoppel because of rulings made in the 2017 lawsuit; (2) there was no viable claim for defamation; and (3) all the other causes of actions required proof of defamatory statements.

Eram filed an opposition as well as a declaration to support her assertion there was a probability of prevailing on the merits. Defendants filed a reply and evidentiary objections to Eram’s declaration. On May 6, 2019, the court granted the motion as to paragraphs 8.6, 8.9, 8.10, and 8.12, and denied it as to paragraphs 8.4, 8.5, 8.8, 8.11, and 8.13 of the first cause of action (defamation).

DISCUSSION

I. Anti-SLAPP Law and the Standard of Review

“Subdivision (b)(1) of Code of Civil Procedure section 425.163 provides that ‘[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 under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ Subdivision (e) of section 425.16 elaborates the four types of acts within the ambit of SLAPP. [¶] . . . [¶] ‘A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff’s complaint fit one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]’” (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 198, fn. omitted (Cross).)

“‘“The Legislature enacted section 425.16 to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ [Citation.] Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘“to prevent SLAPPs by ending them early and without great cost to the SLAPP target”’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” [Citation.] [¶]

Finally, and as subdivision (a) of section 425.16 expressly mandates, the section ‘shall be construed broadly.’ [¶] ‘With these principles in mind, we turn to a review of the issues before us, a review that is de novo. [Citation.]’” (Cross, supra, 14 Cal.App.5th at pp. 198-199.)

II. First Prong

Defendants anti-SLAPP motion was based on section 425.16, subdivision (e)(3). “That subdivision provides that an act in furtherance of the right of free speech as described in section 425.16, subdivision (b)(1), includes ‘any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.’” (Cross, supra, 14 Cal.App.5th at p. 199.) The Ripoff Report, Yelp, and the Complaint Board are “[W]eb sites accessible to the public [and] . . . are ‘public forums’ for purposes of the anti-SLAPP statute. [Citation.]”