Filed 2/10/20 Cowan v. Lopez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN COWAN,

Plaintiff and Respondent,

v.

DANIEL LOPEZ,

Defendant and Appellant.

A153720 & A154202

(San Francisco City & County

Super. Ct. No. CGC-13-531107)

TIMOTHY BRODERICK,

Plaintiff and Respondent,

v.

DANIEL LOPEZ,

Defendant and Appellant.

A153720 & A154202

(San Francisco City & County

Super. Ct. No. CGC-13-531107)

In these consolidated appeals (appeals No. A153720 & No. A154202), defendant Daniel Lopez challenges (1) an order finding him in violation of the consent judgment he entered into to resolve plaintiff Timothy Broderick’s defamation claims against him and (2) an order awarding Broderick attorney fees and costs incurred in enforcing the judgment. We affirm both orders.

BACKGROUND

This lawsuit began when John Cowan, an attorney who once represented Lopez, sued his former client for defamatory internet postings. Cowan retained Broderick to prosecute the case.

Lopez then took aim at Broderick and also defamed him through internet postings. Broderick, himself, then sued Lopez for defamation.

On the day set for trial, the parties agreed to resolve the defamation claims and entered into a consent judgment filed on January 4, 2017.

The judgment states in pertinent part:

“6. Defendant [Lopez] states that he has authored content about Plaintiffs [Cowan and Broderick] and [Broderick’s law partner, Katrina] Saleen that the parties agree are defamatory and that these defamatory contents have been published in various online reviews and websites, including those listed below in section 7a and 7b (‘Defamatory Content’).

“7. Based on the foregoing, the parties consent as follows:

a. Plaintiffs and Saleen are hereby granted permanent injunctive relief enjoining and restraining Defendant and . . . those persons in active concert or participation with him, from making, either directly or indirectly, any statements containing defamatory content as defined by California Civil Code Section 45 regarding Plaintiffs and Katrina Saleen, their attorneys, their services, their financial information, their business relationships, and/or their business conduct.

b. Plaintiffs and Saleen are hereby granted permanent injunctive relief by which Yelp and all active search engines, including without limitation, Google, Yahoo, and Bing, be required to block, de-index, de-list, and otherwise remove the Defamatory Content and any related URL addresses referencing the Defamatory Content from internet searches, including, but not limited to the following sites:

i. www.johncowan-lawyerreviews.com [¶] . . . [¶]
ii.

x. www.ripoffreport.com/r/katrina-saleen/palo-alto-california-94306/katrina-saleen-beware-of-the-lawyer-katrina-saleen-palo-alto-california-1321598 . . .

c. Defendant shall provide, at the request of Plaintiffs and/or Saleen, documents, letters, emails, and/or declarations necessary for the search engines to de-list and for webhosts to takedown any sites listed above in subsection 7b. Plaintiffs and/or Saleen shall make the request(s) to Defendant’s counsel at either (415) 797-8828 or at ilson@ilsonnewlaw.com. Defendant shall respond to the request(s) within 10 days. The obligations under 7c commence from the date the order is entered and expires one year from the date of order’s entry.

d. Judgment shall be entered in favor of Plaintiffs and against Defendant. Pursuant to C.C.P. § 664.6, this Court shall retain jurisdiction over the subject matter hereof and the parties hereto for the purposes of enforcing this Consent Judgment and Order.

e. This Consent Judgment and Order constitutes a final judgment. Each party shall bear its own costs and attorney’s fees incurred in connection with this case. However, in the event of a failure by Defendant to adhere to the provisions of this Order, Plaintiffs will be entitled to an award of attorney’s fees incurred in the enforcement and to an award of damages.”

Ten months later, in October 2017, Broderick and Saleen applied for an order to show cause (OSC) against Lopez for violating the consent judgment and refusing to provide the assistance necessary to de-list and take down Web sites posting the defamatory material. In his supporting declaration, accompanied by extensive exhibits, Broderick averred he had succeeded in getting 62 defamatory posts removed, but the offensive material continued to resurface through new webhosts in different countries. Lopez refused to send e-mails to the webhosts stating he was the author of the material and requesting its removal.

Broderick chronicled in detail his efforts to rid the ether-world of Lopez’s defamatory postings. The following is an excerpt:

“I took all steps within his power to mitigate by having the defamatory sites removed from webhosts, and succeeded with all but timothybroderick-lawyerreviews.com. When I am successful in getting the site removed, the Lopez camp[ ] has a pattern and practice of then reposting the site a few weeks later with a webhost in a different country. Since its inception, the site has jumped from the United States to Malaysia, then to Russia, and then to Bulgaria. In January 2017, after the Consent Order was entered, I had counsel in Malaysia get the site removed by the Malaysian webhost. After the site was moved to Russia I went through great time and expense and sent notarized documents translated into Russian to Hostkey to obtain removal. I simultaneously communicated with the search engines, and succeeded in getting Bing and Yahoo to block the sites. It was not until August 16, 2017 that I discovered that the site had again been reposted through Lir, a webhost in Bulgaria. I immediately took steps to contact Lir by having my firm research Lir’s contact information and emailing a demand for removal that same day. I followed up with emails to later discovered email addresses and via an online submission form in September 2017. . . . I did not receive a response from Lir. In addition to the above-mentioned webhosts removing the site in response to my demands, the site has also gone offline a handful of times, presumably due to nonpayment by the Lopez camp to the webhosts. In these instances, the site resurfaced within about a month. Within the last week, the site has again gone offline. The parallel site about Cowan has also gone offline. Because I only requested the removal of timothybroderick-lawyerreviews.com, and not the site defaming Cowan, it seems this latest removal is likely again due to a nonpayment issue, and is likely to resurface in the next few weeks, as has happened in the past. [¶] . . . [¶]

. . . After extensive efforts to have the site permanently removed and/or blocked on the internet were unsuccessful, I again reached out to Defendant Lopez. On August 23, 2017, I sent an email to Ilson New requesting that Defendant Lopez send an email to Lir, the host in Bulgaria . . . confirming he is the author of the content of the site and demanding its removal. I further requested that Defendant Lopez send information regarding who reposted and paid for the hosting of the site. Defendant Lopez repeatedly refused to send an email acknowledging that he is the author, despite the fact that the Consent Order confirms he is the author. . . .”

The trial court issued an OSC on October 23, 2017 and set the matter for hearing on November 20.

A week later, Lopez, now proceeding in propria persona, filed a document entitled “Response to Amended Judgment and Declaration of Non-Delivery of Court Notices,” claiming, as pertinent here, he had not been served with “process” pertaining to the issuance of the OSC. (Boldface omitted.) Saleen responded with a declaration detailing the service effected on Lopez.

In response, Lopez filed a document entitled “Notice of Motion and Motion To Set Aside Void Order Under CCP 437(d) . . . And As Procured By Extrinsic Fraud or Mistake,” claiming, as pertinent here, he had been unable to present his defense to the issuance of the OSC. (Boldface omitted.) The thrust of the motion was, again, that Lopez had not been properly served with the application for the OSC. The motion was scheduled for hearing on January 3, 2018.

At Broderick’s request, the court continued the hearing on the OSC for a month, to December 18.

Lopez then filed written opposition to the OSC. He made five claims: (1) In seeking the OSC, Broderick had violated the confidentiality provisions of the consent judgment; (2) He (Lopez) had only “admitted to some unidentified defamatory web postings” and had not admitted authoring “all defamatory postings”; (3) Broderick was now demanding that he admit authoring “a web site,” but he made no such admission; (4) the consent judgment resolved all litigation between the parties, but Broderick was now engaging in litigation as to “authorship of web sites”; and (5) Broderick could not “demand” that Lopez “confess to acts for which he could be criminally prosecuted.”

After considering the parties’ written submissions and hearing argument, the trial court, finding good cause, extended the duration of section 7c of the consent judgement by one year, until January 4, 2019 (hereinafter “OSC order”). Broderick sought no other specific relief, and the court granted none, commenting Broderick had shown remarkable restraint in the relief requested. The court was also “extremely sympathetic” to the requested extension of the provision requiring Lopez to cooperate with Broderick’s efforts to rid the internet of the defamatory material. The court denied Broderick’s request for costs and fees incurred in bringing the OSC, however, stating they should be sought in a separate motion supported with appropriate declarations and exhibits.

The court rejected Lopez’s assertions that he was wrongly being asked to “make a confession” and that an extension of the injunctive relief provisions of the consent judgment exceeded “the contract” to which he and Broderick had agreed. The court agreed there was a “contract,” but found “the clear intent of the contract was for [Lopez] to acknowledge what needed to be acknowledged, so that there were not websites and other material on the Internet that was defamatory towards Mr. Broderick.” In fact, it appeared to the court that Lopez had “sought even at some length to evade” his obligations under the judgment and “strongly” encouraged Lopez to cooperate with Broderick and Broderick’s lawyers “to fulfill not just what you see as the written word of the agreement but the clear intent of the agreement.”

Broderick subsequently moved for, and was granted, $14,523.83 in attorney fees and costs.

In the meantime, Lopez appealed from the order extending the time for his obligations under section 7c of the consent judgement (appeal No. A153720). Believing this divested the trial court of jurisdiction to rule on Broderick’s fee motion, Lopez did not file opposition or appear on the motion. Lopez subsequently appealed from the fee order (appeal No. A154202).

DISCUSSION

OSC Order (Appeal No. A153720)

Mootness

Because the extended time for compliance with section 7c of the consent judgment expired a year ago, on January 1, 2019, Broderick claims Lopez’s appeal from the OSC order is moot and should be dismissed.

Ordinarily an appeal that cannot result in any effective relief should be dismissed as moot. (See Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [if no effectual relief can be granted, an appeal will be dismissed as moot]; Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 96 [“ ‘pivotal question in determining if a case is moot is . . . whether the court can grant . . . any effectual relief’ ”].)

However, in appropriate circumstances, we have discretion to decide the merits of an otherwise moot issue. We exercise that discretion here, given that the OSC order has become moot solely due to the passage of time and not because of an act by either party, and because the OSC order underlies the fee order from which Lopez timely appealed. (See Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280, 296 [court may exercise its discretion to decide issue “ ‘when, despite the happening of a subsequent event, material questions remain for the court’s determination’ ”; this exception to dismissal for mootness “ ‘has been applied to declaratory relief actions on the basis that the court must do complete justice once jurisdiction has been assumed,’ ” quoting Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 867].)

Merits of OSC Order

The parties do not dispute that the trial court retained jurisdiction, pursuant to Code of Civil Procedure section 664.6, to enforce the provisions of the consent judgment. The standard of review of an order enforcing a judgment is well-established. A trial court’s determination of factual matters is reviewed for substantial evidence. (Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1116.) Legal questions, however, are reviewed de novo. (Ibid.; Williams v. Saunders (1997) 55 Cal.App.4th 1158, 1162.)

Specific Findings

Before turning to the substance of the trial court’s OSC order, we address Lopez’s complaint that the court should have issued express findings “on all material issues.” The difficulty with Lopez’s assertion is that he never asked the court to make any such findings, and therefore has waived the issue on appeal. F.P. v. Monier (2017) 3 Cal.5th 1099, which Lopez cites, is of no assistance to him. In that case, unlike here, the defendant specifically requested that the trial court issue a statement of decision, but the court failed to do so. The Supreme Court, resolving a long-running debate in the lower appellate courts, held a “trial court’s error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review.” (Id. at p. 1108.)

In this case, given Lopez’s failure to ask for any express findings and the absence of such, we must presume the trial court made all findings necessary to support the judgment for which substantial evidence exists in the record. (See LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067, 1076; Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148, fn. 11.)

Substantial Evidence

Lopez improperly devotes a considerable portion of his briefing to a less than veiled attack on the merits of the defamation claims advanced by Cowan and Broderick and resolved against him in the consent judgment. He further attempts to undermine the judgment by painting himself as a “French born and schooled 50+ year old airport baggage handler,” who was brow-beaten by two attorneys and finally succumbed to “the weight and force of the litigation against him.” He dismisses as utterly absurd that he could have mounted a “sophisticated, well-financed internet campaign, the likes of which are comparable on a much smaller scale to that of the Russian disinformation activities associated with the 2016 Presidential election in the United States.”

The trial court certainly did not perceive Lopez to be the victim in this case, and its view is amply supported by the record that is relevant—namely, the consent judgment, itself, and the OSC proceedings that followed.

Contrary to Lopez’s assertion in his opening brief, the “17 volumes of the court record” preceding the judgment were not relevant to the court’s ruling on the OSC, and his assertion that these 17 volumes show Broderick faced “evidentiary problems of authentication and third-party access to confidential files,” and the trial court, in ruling on the OSC, should have reviewed these volumes and understood Broderick could not have proven his defamation claims at trial, wholly misses the mark. The only materials that were relevant to the trial court’s disposition of the OSC were the consent judgment and the papers filed in support of, and in opposition to, Broderick’s motion to enforce the judgment.

Turning to the provisions of the consent judgment, itself, Lopez accuses Broderick of trying to rewrite the judgment in light of an amendment eliminating Google, a nonparty, from the relief provisions. Broderick sought this amendment through a stipulation with Google, and the trial court issued the amendment the same day the court issued the OSC against Lopez. Because Broderick could no longer seek relief directly from Google, Lopez claims Broderick took aim at him, instead.

According to Lopez, Broderick employed a sleight of hand during the OSC proceedings by characterizing Lopez as “the author of entire web sites,” whereas, in the consent judgment, Lopez admitted only that “he has authored content about Plaintiffs and Saleen that the parties agree are defamatory and that these defamatory contents have been published in various online reviews and websites.” Lopez endeavors to refute this supposed trickery with an argument distinguishing between “a definite article and [a] zero article,” and accuses Broderick of needing “to find someone to confess to the definite article as opposed to the zero article”—that someone being Lopez.

But as the trial court expressly clarified on the record, Broderick did not seek any new admission by Lopez, let alone an admission that Lopez had authored an “entire web site[].” Rather, the only relief Broderick sought, and the only relief the court granted, was to extend, for one year, the existing provisions of section 7c of the consent judgment.

Furthermore, and regardless of Lopez’s efforts to now backpedal from the consent judgment, the judgment plainly stated Lopez is the author of defamatory “content” published “in various online reviews and websites, including those listed . . . in section 7a and 7b.” Section 7b, in turn, granted injunctive relief by which “all active search engines” are “required to block, de-index, de-list, and otherwise remove the Defamatory Content and any related URL addresses referencing the Defamatory Content from internet searches, including, but not limited to the following sites: . . . [ten specifically identified sites].” And section 7c required Lopez, for one year following entry of judgment, to “provide, at the request of Plaintiffs and/or Saleen, documents, letters, emails, and/or declarations necessary for the search engines to de-list and for webhosts to takedown any sites listed . . . in subsections [sic] 7b. (Italics added.) The trial court did not misconstrue the substance of any of these provisions in ordering Lopez’s obligations under section 7c to continue for an additional year in an effort to finally rid the internet of the defamatory content he authored.

That Broderick’s supporting points and authorities sometimes referred to Lopez as having “authored [the] listed defamatory sites,” rather than having authored the defamatory content, is of no material consequence. The substance of Broderick’s complaint during the OSC proceedings was that the defamatory content Lopez admittedly authored continued to appear on Web sites and Lopez was refusing to provide the documents, e-mails or declarations “necessary” to force search engines to de-list and webhosts to take down sites like those listed in section 7b. For example, Broderick stated he had “gotten three webhosts to remove the defamatory site timothybroderick-lawyerreviews.com [one of the sites expressly listed in the consent judgment], but within a month of going offline, the site has consistently resurfaced, with a pattern of reappearing on a new webhost in a different country.” Although Broderick repeatedly requested Lopez’s assistance in removing the material, Lopez “refused to send an email to the current webhost company stating that he authored the site and demanding its removal. . . . [He] would only agree to send an email to the host if he does not have to state he is the author.” In short, whether the defamatory content appears as a “post” or a “website” is beside the point—Lopez is, pursuant to the consent judgment, the author of the offending content, and he is obligated, pursuant to the judgment, to assist Broderick in getting it removed from the internet.

As for Lopez’s claim that no “evidence” supports a finding he created any of the offending Web sites that surfaced after entry of the consent judgment, he disregards the inferences from the record evidence that he had a ready hand in their seriatim appearance. This includes evidence that the offensive content was identical, that a new site would appear when another was taken down and this was consistent with what occurred prior to the consent judgment (as related by Broderick in his declaration) and as demonstrated by the list of sites identified in the judgment, and that the site triggering the OSC (timothybroderick-lawyerreviews.com) was expressly identified in the consent judgment. In any case, Lopez cannot refuse to assist in the removal of the defamatory content he authored, regardless of who may have had a hand in resurrecting its existence on the internet. (See Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 75 [“ ‘original defamer is liable if either “the repetition was authorized or intended by the original defamer” [citation] or “the repetition was reasonably to be expected” [citation]’ ”].)

In sum, the trial court did not err in granting Broderick’s motion to enforce the provisions of the consent judgment and continuing the provisions of section 7c for one additional year.

Fee and Cost Order (Appeal No. 154202)

As we have observed, Lopez’s appeal from the fee and cost order is strictly derivative—that is, his sole argument on appeal is that the trial court erred in ruling against him in connection with the OSC and therefore the fee and cost order cannot stand. Since we have rejected Lopez’s challenge to the OSC order, his challenge to the ancillary fee and cost order likewise fails, and we need not, and do not, address that order further.

DISPOSITION

The trial court’s order filed on December 18, 2017 enforcing the consent judgment (and challenged in appeal No. A153720) is AFFIRMED. The trial court’s order filed on February 20, 2018 awarding fees and costs (and challenged in appeal No. A154202) is also AFFIRMED. Respondent to recover costs in both appeals.

 

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Sanchez, J.

A154202/A153720, Cowan v. Lopez