Date: 10-06-2019

Case Style: Abir Cohen Treyzon Salo, LLP v. Arta Lahiji

Case Number: B291636

Judge: Hoffstadt, J.

Court: California Court of Appeals Second Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Parker Mills, and David B. Parker

Defendant's Attorney: Abir Cohen Treyzon Salo, Boris Treyzon, and Cynthia Goodman

Description: I. Facts
A. Legal representation
Nahid Lahiji (Nahid)2 retained attorney Alexander Cohen
(Cohen) and his law firm Abir Cohen Treyzon Salo, LLP (the
firm) in June 2017 to represent her in a dispute with the insurer
of her home. Nahid obtained some preliminary recovery, and
authorized the firm to retain $120,000 of that recovery. She
nevertheless became dissatisfied with the firm’s representation,
and terminated the firm in November 2017. The firm thereafter
placed a lien on any further recovery from the insurer under a
theory of quantum meruit.
B. Online posts
On November 19, 2017 (nine days after the firm asserted
its lien), a person using a Yelp account with the name “AI L.” and
with a photograph of Nahid’s daughter, Arta Lahiji (Arta), posted
1 “SLAPP” is short for Strategic Lawsuit Against Public
Participation.
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2 To avoid confusion, we use the first names for family
members who share the same last name. We mean no disrespect.
3
a review of the firm and Cohen (the Yelp review). The reviewer
recounted that she had hired Cohen to handle her “home
insurance claim” and that Cohen had (1) used a law student “case
manager” to negotiate with the insurer, (2) ignored the reviewer’s
request to inform her of expenses “over a certain threshold,” (3)
withheld disbursements to her longer than necessary, (4)
improperly deducted expenses, and (5) repeatedly yelled when
asked when checks would be cleared. The review more broadly
stated that the firm was “underhanded and shady,” was
“unprofessional and unethical,” used “scare tactics,” and had an
“awful moral compass.” The reviewer warned readers to “stay
away from this firm.”
On November 21, 2017, an “anonymous” user posted an
identical review on Avvo, an online lawyer directory.
On December 13, 2017, “Angela Helder” posted a review on
the firm’s Facebook page that read: “Unprofessional and
unethical group of attorneys . . . will botch your home owners
insurance claim.”
On December 14, 2017, reviews identical to the Yelp review
were posted on the website Ripoff Report by “Nancy” in “Redondo
Beach” and on Google by “Nahid Lahiji.”
II. Procedural Background
A. Complaint and initial discovery
On December 19, 2017, Cohen and the firm sued Arta for
defamation.3 Although the above recounted postings purported
by name or content to be from Nahid, Cohen and the firm alleged
3 Cohen and the firm also sued Thuy Tran, who had posted a
review on the firm’s Facebook page, but Tran is not at issue in
this appeal.
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a “good faith belief” that Arta was the poster. Cohen and the firm
sought compensatory damages, punitive damages and a postjudgment
order enjoining Arta from publishing further
defamatory statements and requiring her to remove the existing
posts.
In January 2015, Nahid sent an email to Cohen explaining
that she, and not her daughter, had posted the various reviews.
Rather than add Nahid as a defendant, Cohen and the firm
proceeded to promulgate discovery against Arta. Specifically,
they served her with one set of general interrogatories and with
119 special interrogatories.
B. Anti-SLAPP litigation
On March 18, 2018, Arta filed an anti-SLAPP motion
seeking dismissal of the defamation claim on the grounds that (1)
the postings constituted “protected activity” within the meaning
of the anti-SLAPP law, and (2) Cohen and the firm could not
establish that the defamation claim had minimal merit. In
support of the motion, Nahid submitted a sworn declaration
attesting that she had “left [the] reviews” underlying the
defamation claim and Arta submitted a sworn declaration
attesting that she had not “post[ed]” any of the reviews at issue
but was “aware” of Nahid’s posts on Yelp, Avvo, Ripoff Report,
and Google.
Arta’s motion triggered the anti-SLAPP law’s automatic
stay of discovery. (§ 425.16, subd. (g).) On March 26, 2018,
Cohen and the firm filed an ex parte motion to lift that stay in
order to depose Nahid and Arta and to serve Yelp with a business
records subpoena. Without waiting for the court to act on their
motion (and thus in violation of the automatic stay), Cohen and
the firm issued a subpoena on Yelp two days after they filed their
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motion to lift the stay seeking 28 categories of documents,
including the internet protocol (IP) addresses from which the
Yelp review at issue was posted. Following further briefing, the
trial court denied the motion to lift the discovery stay.
After Cohen and the firm filed their opposition to Arta’s
anti-SLAPP motion, after Arta filed a reply, and after a hearing,
the trial court granted Arta’s motion in a 15-page order. The
court ruled that posting the online reviews constituted “protected
activity” within the meaning of the anti-SLAPP law. The court
then ruled that Cohen and the law firm had not carried their
burden of showing that their defamation claim had minimal
merit. Cohen’s and the firm’s “assertions that . . . Arta
. . . posted the social media statements at the heart of [their]
[c]omplaint,” the court reasoned, “are speculative and not
supported by the evidence in the record.” The court went on to
award Arta, as the party prevailing on the anti-SLAPP motion, a
total of $36,855 in attorney fees ($12,590 at the time of the
dismissal and $24,265 in a post-judgment order).
C. Appeal
Cohen and the firm timely appealed the dismissal.
DISCUSSION
The anti-SLAPP law “provides a procedure for weeding out,
at an early stage, meritless claims arising from” activity that is
protected by the law. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
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” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056), and, if so, (2) has the nonmoving party “established . . . a
probability that [he or it] will prevail” on the challenged cause of
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action by showing that the claim has “minimal merit” (§ 425.16,
subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 93-94)? We
independently review a trial court’s resolution of each question.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3.)
I. Protected Activity
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).) As neither party
disputes on appeal, reviews posted to an Internet website meet
this definition of protected activity. (E.g., Chaker v. Mateo (2012)
209 Cal.App.4th 1138, 1145-1147; Demetriades v. Yelp, Inc.
(2014) 228 Cal.App.4th 294, 310.)
Cohen and the firm offer one argument as to why the
reviews posted in this case are not protected activity.
Specifically, they argue that the anti-SLAPP law defines
protected activity as pertaining to 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.” (§ 425.16, subd. (b)(1),
italics added.) Because Arta denies making the posts, plaintiffs
reason, their cause of action is not “aris[ing] from an[y] act [of
Arta].” We squarely rejected this precise argument in Bel Air
Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 929 (Bel Air).
Bel Air expressly held that a defendant who denies engaging in
the alleged conduct “may rely on the plaintiff’s allegations alone”
in assessing whether the conduct at issue is protected activity.
(Ibid.) That is because it is “[the] plaintiff’s complaint [that]
ultimately defines the contours of the claims.” (Id. at p. 936.)
Not allowing the defendant to rely on the allegations alone, Bel
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Air reasoned, “would have the perverse effect of making antiSLAPP
relief unavailable when a plaintiff alleges a baseless
claim, which is precisely the kind of claim that [the anti-SLAPP
law] was intended to address.” (Id. at p. 929.) We are troubled
by Cohen and the firm’s failure to cite this directly applicable
contrary authority anywhere in their briefs.
II. Minimal Merit
Once a claim is shown to fall within the ambit of the antiSLAPP
law, the burden shifts to the plaintiffs to establish a
“probability” of prevailing on that claim at trial. (§ 425.16, subd.
(b)(1); Chodos v. Cole (2012) 210 Cal.App.4th 692, 701.) In
making this assessment, “the [trial] court shall consider the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) The pleadings “frame the issue to be decided”
(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628,
655, abrogated on other grounds, Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53), and the court then
evaluates whether the evidence submitted by the parties and
admissible at trial amounts to a “‘sufficient prima facie showing
of facts to sustain a favorable judgment if the evidence submitted
by the plaintiff is credited’” or instead whether the defendant is
entitled to prevail “‘as a matter of law.’” (Tuchscher Development
Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1235 (Tuchscher), quoting Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by
statute on another point as stated in Hart v. Darwish (2017) 12
Cal.App.5th 218, 226, fn. 3; Kashian v. Harriman (2002) 98
Cal.App.4th 892, 906 (Kashian); Gilbert v. Sykes (2007) 147
Cal.App.4th 13, 26 (Gilbert) [nonmoving party must meet its
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burden with “competent and admissible evidence”].) Because
plaintiffs’ evidence must be credited, a court is not to make
credibility determinations or otherwise weigh the evidence
submitted. (Kashian, at p. 906.)
To prove defamation, a plaintiff must establish “‘(a) a
publication that is (b) false, (c) defamatory, and (d) unprivileged,
and that (e) has a natural tendency to injure or that causes
special damage.’” (Taus v. Loftus (2007) 40 Cal.4th 683, 720; Civ.
Code, §§ 44, 45, 45a.) As always, the plaintiff must establish that
the person sued is the one legally responsible for the tort. (See
Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317,
329 [lawsuit will be dismissed if plaintiff “su[es] the wrong
party”].)
We independently agree with the trial court’s conclusion
that Cohen and the firm did not make a “prima facie showing”
that Arta was legally responsible for the postings that underly
their defamation claim. The posts themselves do not establish
that Arta was the author or poster, as none of the posts are in
Arta’s name and their content suggests that the author was the
one represented by Cohen and the firm—that is, Nahid.
Cohen and the firm point to four pieces of evidence that, in
their view, constitute a “prima facie” showing that Arta was the
author.
First, they point to the fact that the Yelp account from
which the Yelp review was posted had Arta’s photograph and the
username “AI L.” However, both Arta and Nahid explained that
they shared that Yelp account and that Nahid—not Arta—had
been the one who posted the review of Cohen and the firm.
Cohen and the firm assert that Yelp’s terms of service prohibit
shared accounts, but those terms of service are not properly
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before us because the trial court ruled them inadmissible, and
that evidentiary ruling is not challenged on appeal.
Second, Cohen and the firm point to two emails sent to
them on October 6, 2017. The first email was sent from Nahid’s
email account to the firm’s “case worker” on the matter. The only
portion of that email’s content that is not redacted is the request:
“Please blind copy my mom and I on the email.” (Italics added.)
Four minutes later, Arta fired off a responsive email from her
own account to Nahid, Cohen and the case worker that reads:
“Correction: please blind copy my daughter Arta and I.” From
this email exchange, Cohen in his declaration asserted that Arta
“routinely masquerades as her mother in email and other online
communications,” and thus must have authored all of the reviews
underlying the defamation claim.
These emails do not establish a prima facie showing that
Arta authored the reviews. To begin, Cohen’s and the firm’s
theory as to why the emails show Arta’s authorship of Nahid’s
email is unsupported by the emails themselves. Their theory is
that Arta sent the first email while attempting to pose as Nahid
(which is why the first email refers to blind copying “my mom and
I”), that she realized her mistake, and that she then sent the
second email to correct it (which is why the second email asks
that “my daughter Arta and I” be “blind cop[ied]”). It is
impossible to confirm this theory from the emails themselves,
particularly because the first email is so heavily redacted and
does not even reflect who received it. This theory also make no
sense: It is far more likely that Nahid made a typographic error
when sending the first email that went to Cohen, Arta and the
case worker and that Arta, seeing the error, sent an email
replying to all from her own account correcting it, than it is that
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Arta made a “slip of the tongue” while pretending to be Nahid,
realized the error, and then for some reason logged in to her own
email account and sent a corrective email. Further, and more to
the point, even if we assume that Arta posed as her mother in the
first email, the jump from authoring that email to posting all of
the reviews at issue in this case is a leap—and a speculative one
at that—because it requires us to assume that (1) Arta’s
impersonation of Nahid in one email means she impersonates
Nahid in all Internet communications, and (2) Arta’s
impersonation of Nahid once means she always impersonates her.
As our Supreme Court recently noted, “speculative inferences not
supported by the evidence” fall short of establishing a prima facie
showing. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
795.) Cohen’s assertion in his declaration does not cure this
deficiency because the trial court struck that assertion and that
evidentiary ruling also is not challenged on appeal.
Third, Cohen and the firm point to the inconsistent use of
the first-person single (“I”) and plural (“we”) in the Yelp review as
proof that Arta wrote that review. While the posting does
sometimes use “I” and sometimes “we,” it is undisputed that
Nahid included Arta in much of her correspondence with Cohen
and the firm. More to the point, the reviewer says that “I hired
. . . Cohen” and “I signed the retainer”—acts that the parties
agree were undertaken by Nahid, not Arta.
Lastly, Cohen and the firm point to Nahid’s request for an
interpreter in the pending fee arbitration matter. However, the
trial court struck that evidence and that ruling has not been
challenged. As noted above, only admissible evidence can
support a finding of a prima facie showing.
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Cohen and the firm make three further arguments on
appeal.
First, they assert that the trial court wrongly denied them
the ability to make a prima facie showing by denying their
motion to lift the statutory stay of discovery. A trial court may
lift the statutory stay for “good cause” (§ 425.16, subd. (g); Britts
v. Superior Court (2006) 145 Cal.App.4th 1112, 1125 (Britts)),
which requires a showing that the specific discovery sought is
both “needed . . . to establish a prima facie case” and “tailored to
that end.” (Britts, at p. 1125; 1-800 Contacts, Inc. v. Steinberg
(2003) 107 Cal.App.4th 568, 593 (1-800 Contacts).) We review a
trial court’s denial of a motion to lift the stay for an abuse of
discretion. (1-800 Contacts, at p. 593.)
The trial court did not abuse its discretion in denying the
motion to lift the discovery stay. Cohen and the firm told the
trial court that deposing Nahid and Arta and subpoenaing
documents from Yelp would help them establish that: (1) Nahid
had “never used the ‘AI L.’ Yelp account,” (2) the “AI L.” Yelp
account was not a “‘shared’ account,” as Arta and Nahid stated,
(3) Nahid lacked the “computer savvy necessary to navigate” the
various websites where the reviews were posted, (4) Nahid lacked
the “command of the English language necessary to draft” the
reviews, (5) “Arta used her phone, to which Nahid does not have
access, to make the Postings,” and (6) “[s]ome, or all, of the
Postings were made from New York, New York, while Nahid was
not residing in New York, but Arta was residing there.” The first
five reasons are aimed at testing Nahid’s and Arta’s declarations,
but it is well established that “[d]iscovery may not be obtained
merely to ‘test’ the opponent’s declarations.” (1-800 Contacts,
supra, 107 Cal.App.4th at p. 593; Sipple v. Foundation for Nat.
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Progress (1999) 71 Cal.App.4th 226, 247.) The final reason might
be established by the IP addresses sought from Yelp, except that
Cohen acknowledged that Arta and Nahid “share[d] the same
[street] address” in Redondo Beach at the time the reviews were
posted, so the IP addresses corresponding to the posts would not
reveal which one of them made the post, rendering any “internet
service protocol . . . discovery . . . inconclusive.”
Second, Cohen and the firm contend that Arta’s admission
to being “aware” of Nahid’s posts means that she took “a
responsible part in [the] publication of defamatory matter.”
(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245 (Shively).)
They are wrong. While Shively provides that “each person who
takes a responsible part in a publication of defamatory matter
may be held liable for the publication” (ibid.), Cohen and the firm
cite no authority for the proposition that one person’s awareness
of another person’s tortious conduct, without more, renders them
“responsible” for that conduct.
Lastly, Cohen and the firm proclaim that Arta’s evidence
was “very weak.” What matters, however, is not the weakness of
Arta’s evidence, but the strength of all the evidence. (See Gilbert,
supra, 147 Cal.App.4th at p. 26.) Because, as we have explained,
Cohen and the firm have not advanced anything beyond
speculation that Arta was the author of the posts at issue, their
defamation suit against her lacks minimal merit regardless of the
persuasiveness of the evidence offered by Arta.
In light of our analysis, we have no occasion to discuss
Cohen’s and the law firm’s defense of other elements of their
defamation claim or the alternative bases for affirmance offered
by Arta.

Outcome: The judgment is affirmed. Arta is entitled to her costs on appeal.

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Defendant's Experts:

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