A U.S. District Court in the Central District of California has declared cancel culture a Constitutional Right to Free Speech. The notion of cancel culture is not new. The Mullahs of the Islamic Republic of Iran attempted to destroy Persepolis but were driven away by local residents. See, https://en.wikipedia.org/wiki/Sadegh_Khalkhali. ISIS destroyed the cultural heritage of Syria. See, https://en.wikipedia.org/wiki/Destruction_of_cultural_heritage_by_ISIL. ANTIFA toppled the statutes of Lincoln and Roosevelt. See, https://thehill.com/homenews/state-watch/520577-portland-protesters-topple-statues-of-lincoln-roosevelt-in-day-of-rage. The Court now joins this ominous group by dismissing Plaintiffs’ Complaint, albeit, the Plaintiffs never raised the issue of cancel culture in their Complaint, their opposition to Defendant’s anti-SLAPP motion, or anywhere in the record.
In granting the anti-SLAPP motion brought by Defendant against a small business owner who fought to protect her reputation, the Court stated: “This motion is about canceling a complaint that alleges its filer is a victim of cancel culture.” (Case No. 8:21-cv-00224-DOC (JDEx) (Emphasis added.) Disguised as Defendant’s Constitutional Right to Free Speech, the Court championed cancel culture as a form of free speech and, therefore, protected by the First Amendment to the United States Constitution. The Court interposed its own support for cancel culture to silence the Plaintiffs and those who might oppose it. The Court effectively closed its doors to small business owners by awarding Defendant an exorbitant attorney fees, and by doing so, warned small business owners not to protest against the Court’s mission to legitimize cancel culture as a Constitutional Right.
The case, entitled Oumere LLC and Wendy Ouriel, v. Calliope “Calli” Zarpas, was about an up-and-coming cosmetics company whose brand is built around the expertise, in cellular biology, of its owner, Wendy Ouriel. Ms. Ouriel is a scientist holding a Master of Science and a Bachelor of Science with a concentration in cellular biology. She utilized her expertise to develop Oumere’s state-of-the-art skincare products.
Defendant Zarpas is a freelance blogger for companies such as Rosetta Stone, Inc. She was, admittedly, a “fan” of Ms. Ouriel, had read many of Ms. Ouriel’s articles on the science of cellular biology as applied to skincare products, and a satisfied customer of Oumere’s. Ms. Zarpas emailed Ms. Ouriel to express her pleasant experience with Oumere’s products and at the same time offer her blog writing services to Oumere but was disappointed when Oumere refused. Rejected, Zarpas became irate and decided to retaliate. She posted a review on Reddit, falsely accusing Ms. Ouriel of being a fraud, her company Oumere of being a scam, and their products of causing her pimples even though she suffers from chronic acne.
When Plaintiffs demanded that Zarpas remove the post and retract, the latter complied with the removal of the review but refused to retract, prompting Plaintiffs to file their Complaint. Nowhere in the Complaint or anywhere in the file, had Plaintiffs referred to, objected to, or otherwise protested against cancel culture. Plaintiffs’ only objective was to protect their reputation and brand, and to defend against Zarpas’ unjustified, extortionist, and defamatory statements. The Court, however, had its own agenda. It ignored admissible evidence. It decided to use Plaintiffs’ case to promote cancel culture and to make an example of Plaintiffs as a way of warning other small business owners who might contemplate protesting against cancel culture.
The gravamen of Plaintiffs’ causes of action was grounded in Zarpas’ provably false factual assertions that Ms. Ouriel lacks the claimed expertise. The statements read, in part: “the skincare company Oumere is a scam. I always do a ton of research before buying any product and I was obsessed with the founder, Wendy, and her blog. Her blog posts always seemed research-backed and as a skincare biologist, I felt she was providing a lot of good info you couldn’t find elsewhere with skin care chemists.”
Reading the entire review in context, Plaintiffs asserted that considering the totality of the circumstances, Ms. Zarpas made (1) defamatory statements directed at Ms. Ouriel and (2) defamatory statements directed at Oumere’s products. The Court, however, completely ignored the defamatory statements that were directed at Ms. Ouriel, and devoted its entire legal analysis solely on the defamatory statements toward Oumere’s products. In doing so, the Court seems to have carved out a cancel culture exception to the defamation cause of action, to wit, a defamatory statement which promotes cancel culture is protected under the First Amendment regardless of whether or not it implies a provably false factual assertion.
In Wong v. Tai Jing, 189 Cal.App.4th 1354, 1361(Cal. Ct. App. 2010), a Yelp reviewer began a review of a dentist by stating: “Let me first say I wish there is ‘0’ star in Yelp rating. Avoid her like a disease!” Ibid. The appellate court expressly relied upon those introductory statements as part of the circumstances that would support a fact finder’s determination the review had falsely implied the plaintiff engaged in specific acts of professional wrongdoing even though the review did not explicitly state she had done those things. Id. at pp. 1371-1372.
Here, the Plaintiffs asserted that Ms. Zarpas falsely claimed that Ms. Ouriel does not have the scientific credentials and expertise which the latter claims to have used to build the Oumere’s brand. The Court, however, rejected Plaintiffs’ interpretation of the review, even though Plaintiffs produced admissible evidence that supported their position. The Court ignored the evidence so that the case would not be decided by a jury.
Plaintiffs asserted that Zarpas’ statements were directed at Ms. Ouriel’s expertise and credentials. The Court, however, read and understood the statements as being solely directed at Oumere’s skincare products. To support their interpretation of the review and its impact on the public, Plaintiffs produced email messages from Plaintiffs’ clients, discussed infra, who had read the review on Reddit and terminated their relations with Plaintiffs. The Court, however, decided to ignore Plaintiffs’ evidence in order to prevent the jury to ever hear the case, in contravention of Plaintiffs’ Constitutional right to a trial by a jury of their peers, likely to include small business owners.
California courts have held that if there is evidence which shows the statements were read and understood by an average person to be defamatory, the judge must refrain from rendering judgment and allow the jury to hear and determine liability. “This conclusion is not contrary to our statement in Gregory that the distinction between fact and opinion is a question of law; that remains the rule if the statement unambiguously constitutes either fact or opinion. Where, as here, however, the allegedly libelous remarks could have been understood by the average reader in either sense, the issue must be left to the jury’s determination.” Good Government Group of Seal Beach v. Superior Court, 22 Cal.3d 672, 682 (Cal. 1978). When the record includes evidence that shows even a single individual read and understood the statement as defamatory, the Court must refrain from imposing its own opinion, in this case championing the cancel culture narrative, and allowing the jury to decide liability. See, e.g., Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6 (1970). Plaintiffs produced two email messages from two customers that showed Zarpas’ statements were read and understood to be directed at Ms. Ouriel’s credentials and expertise. But the Court ignored them and proceeded to analyze only those statements that pertained to Oumere’s products.
Moreover, the Court’s position in dismissing the case was based on its own interpretation of the review as being a pure expression of opinion. “[T]o support a defamation claim, the alleged statement must be one that is reasonably interpreted as stating actual facts that are provably false.” Yelp Inc. v. Superior Court of Orange Cnty., 17 Cal.App.5th 1, 16 (Cal. Ct. App. 2017) (Emphasis original). “While it is true that pure expressions of opinion are not actionable, ‘[t]hat does not mean that statements of opinion enjoy blanket protection. To the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.’” Ibid. (Quoting, GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156). Plaintiffs made several arguments to show that the statements constituted provably false factual assertions. The Court simply ignored Plaintiffs’ arguments and would not even bother to make legal analyses to counter those of Plaintiffs’. The Court further deprived Plaintiffs of their day in court by declining to hear oral arguments. It created its own reality about Plaintiffs’ reaction to cancel culture to justify its ruling. Plaintiffs, on the other hand, were only protecting their reputation, having no interest in the politics of cancel culture.
In one instant, Plaintiffs made a legal analogy between a case involving strikingly similar defamatory statements that impacted the reader’s religious beliefs, and this case which involved defamatory statements that impacted the reader’s scientific beliefs. Specifically, in Erlich v. Etner, 224 Cal.App.2d 69, 73 (Cal. Ct. App. 1964), defendant rabbi falsely publicized in the Jewish community that plaintiff butcher sold non-kosher chickens to the public. The publication caused purchasers to refrain from purchasing plaintiff’s chickens, solely based on their belief in the Jewish religion.
Here, Zarpas wrongfully accused Plaintiffs of selling non-scientific skincare products to purchasers whose decision to purchase is solely based on their belief in science. Indeed, one customer had emailed Plaintiffs to say: “I was just about to order your products because I found your company from the blog and I thought this was a scientific company. Now I know I was scammed because after doing a quick google search of your company I found this article . . . I am glad that I found this factual reporting of your company…I thought after reading the blog your founder was an actual scientist but this post is pretty telling of how she lies about her science to MISLEAD AND SCAM CUSTOMERS. Does she even have a degree or did she lie about that too? I wont be buying from you ever.” In deciding to ignore Plaintiffs’ arguments and to promote cancel culture, the Court seems to have rejected the notion that a woman business owner can ever be a scientist.
California courts have recognized that anti-SLAPP motions have been misused to shakedown unsuspecting business owners. All the defendant needs to do is submit self-serving affidavits from his/her attorney to justify his/her attorney fees. See, Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283 (“ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse”]) (emphasis added).
As if to add insult to injury, the Court awarded $160,095 to Defendant as “reasonable” attorney fees under the guise of California anti-SLAPP statute. Plaintiffs asserted that reasonable attorney fees would be approximately $21,000 based on Plaintiffs’ attorney time of approximately 46 hours spent to oppose the anti-SLAPP motion. Defendant asserted that reasonable attorney fees should be $246,300 based on approximately 122 hours spent on the anti-SLAPP motion. Plaintiffs produced evidence that Defendant’s attorney time was inflated and implored the Court to use its discretion to arrive at a reasonable attorney fees.
The prevailing party is entitled to a reasonable award (Ketchum v. Moses, 24 Cal.4th 1122, 1133 (Cal. 2001)). The trial court need not simply award the sum requested. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361). Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum, at p. 1132; Maughan v. Google Technology, Inc. 143 Cal.App.4th 1242, 1252). Trial judges are entrusted with this discretionary determination because they are in the best position to assess the value of the professional services rendered in their courts. (Ketchum, at p. 1132; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096). See, also, Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623 (“trial court has its own expertise” on the question of fees). Contrary to the California anti-SLAPP statute which seeks to compensate the defendant for his/her attorney fees, the Court decided to punish Plaintiffs, and reward Zarpas with a windfall for promoting cancel culture.
Relying on a case where the dispute was based on a hotly fought and protracted dispute involving several online reviews and litigated by several attorneys from two big law firms, the Court reasoned that a small business owner must be prepared to pay $160,095 to his/her attorney, just to survive an anti-SLAPP motion. The Court, however, is oblivious to the fact that no small business owner can afford to pay $160,095 for a motion at the beginning of the case, and have enough money left to continue the litigation to trial. Such an exorbitant attorney fees was not warranted in this case involving opening and reply briefs of standard length with only 4 exhibits consisting of website printouts. Apparently, even the Defendant believed the attorney fees was excessive because she settled for a fraction of that amount.
As such, the Court is out of touch with the realities of small business owners fighting to protect their online reputations. It has, thusly, sent a loud message that its doors are closed to small business owners.
The above analysis begs the question: why would the Plaintiffs not appeal the Court’s decision? The reason is that Plaintiffs would still have to pay the attorney fees to Defendant or post a bond before the appellate court decides the appeal, which, on average, can take 2 years or more to be issued. “[W]e interpret section 917.1(d) as requiring an appeal bond or undertaking to stay enforcement of a judgment for reasonable attorney fees and costs awarded to a prevailing SLAPP defendant under subdivision (c) of section 425.16.” Dowling v. Zimmerman, 85 Cal.App.4th 1400, 1431-32 (Cal. Ct. App. 2001).
In this case, Plaintiffs did file a notice of appeal but following the Court’s award of $160,095 attorney fees, they were forced to dismiss their appeal and settle the case with Defendant, lest being haled into Court and forced to pay Defendant $160,095 or post a bond. Suffice it to say, by awarding such a large and unjustified attorney fees, the Court rendered any appeal from its decision a futile exercise for the Plaintiffs, thereby, rendering its agenda to champion cancel culture unchallenged.
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