Internet and Email Evidence — Circumstantial Evidence Sufficient to Show Authorship of Reviews Posted on Web and of Emails

Judge v. Randell, 2014 Cal. App. Unpub. LEXIS 4767 (Cal. Ct. App. July 7, 2014):

Lori Randell (Randell) appeals from an order denying her motion to strike a defamation cause of action from the complaint of respondent, Gregory Judge (Judge), pursuant to the "anti-SLAPP" statute. (Code Civ. Proc., 425.16 (section 425.16 [*1] ).) Randell contends the trial court erred in ruling that Judge had shown a probability of prevailing on the merits. Judge cross-appeals. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY

 Judge, proceeding in propria persona, filed a verified complaint in the Marin County Superior Court on October 29, 2012, asserting causes of action for breach of contract and defamation against Randell and Jeffrey M. Glassman (Glassman).

 A. Allegations of the Complaint

 Judge alleged that he entered into an oral contract with Randell in July 2012, by which Judge (doing business as Greg Judge Tile) would install approximately 800 square feet of flagstone onto an existing concrete slab in Randell's backyard for $7,975. Judge gave Randell a written contract to sign, but despite his repeated requests and commencement of the work, Randell declined to sign the contract, told Judge that her attorney would contact him, and expelled Judge from the job site without payment.

 On August 1, 2012, Judge allegedly [*2]  received an email from Glassman, whom Judge assumed at the time was Randell's attorney. In the email, Glassman offered partial payment if Judge would sign a "lien release." Judge declined, and the next day served Randell with a mechanics lien on her property.

 For his breach of contract claim, Judge alleged that Randell breached their oral contract and sought the $7,975 contract price plus his costs pertaining to the mechanics lien.

 Judge further alleged that Randell and Glassman, whom Judge had since come to believe are "one in the same person," thereafter barraged him with emails containing threats, disparaging remarks, profanity, and defamatory allegations intended to intimidate him into abandoning the mechanics lien. Judge asserted that Randell in fact had a practice of scamming laborers by having them render services, demanding they leave the job site for false reasons, and then negotiating a small fraction of the amount due. Paragraph 13 of his verified complaint represented that a copy of the emails he received from Randell/Glassman was contained in Exhibit C to the complaint. The last page of Exhibit C included a declaration under penalty of perjury, signed by Judge, that [*3]  Exhibit C was a "true and accurate account." [1]

 As to his defamation claim, Judge alleged that Randell/Glassman did not stop at sending emails, but proceeded to publish disparaging reviews of Greg Judge Tile on multiple Internet sites. These reviews allegedly contained false and defamatory statements and were intended to interfere with Judge's prospective economic advantage and intimidate him into abandoning the mechanics lien. Specifically, beginning around September 26, 2012, "Glassman" posted reviews on Merchantcircle.com, Manta.com, and PrimeBuyersReport.com that included the following assertions about Judge: "Inethical, Untrustrworthy [sic], Files Spurious Liens, Damages Property"; "This tile contractor lied about his license credentials"; "None of these idiots had ever seen him, or touched flagstone before"; "In a drunken rage, he maliciously damaged $1000.00 of flagstone material, which had to be entirely replaced"; "Then, the drunken moron filed a spurious lien to retaliate for not getting the job"; "This proves that he knew that his lien was spurious"; "We had to sue him to get the lien removed"; "We reported him to the CSLB and have requested that his license be permanently [*4]  revoked"; "Greg Judge misrepresented himselfv [sic] as a General Contractor, showed up DRUNK on the second day of our job, with an undocumented crew from the Home Depot line, damaged $1000.00 worth of our flagstone and filed a SPURIOUS mechanics lien when we refused to sign his contract after all that. This guy is inethical [sic] and a real loose cannon. We are suing him in Small Claims for the flagstone and in civil court for slandering our title and harassing us with a spurious lien. He has also been reported to the CSLB for abuse." Judge attached purported copies of the reviews to his verified complaint as Exhibit D. According to Judge, "These statements are libel per se."

***

a. Pseudonym Theory

 Randell argues that Judge failed to offer admissible evidence that Randell authored or posted the reviews, but merely alleged, on information and belief, that she was using Glassman as a pseudonym. Randell urges this was insufficient, because in opposing an anti-SLAPP motion to strike, "[t]he plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief." (Wong, supra, 189 Cal.App.4th at p. 1368.) In addition, Randell points out, she submitted admissible evidence that she and Glassman were not the same person.

Contrary to Randell's argument, the record contains evidence from which a trier of fact could reasonably conclude that Randell authored the reviews using Glassman's name as a pseudonym.[3] In his opposition to the motion to strike, Judge argued that emails ascribed to Glassman emanated from Randell's IP address and contained a fax number that was Randell's telephone number; in addition, Judge asserted that AOL.com allows subscribers up to 10 email accounts, which can bear any name the account owner desires, such that Randell could have created an email account using Glassman's name. The emails, attached to Judge's verified complaint and authenticated under penalty of perjury, confirmed that Randell's and Glassman's email addresses were both on AOL.com. And although Judge did not provide admissible evidence that the Glassman emails came from Randell's IP address and referred to her fax number, Randell did: in her declaration, she acknowledged that at least one email purportedly from Glassman to Judge emanated from Randell's IP address, and the fax number was indeed hers. While Randell provides an explanation for these facts, one reasonable explanation is that Randell wrote the emails using Glassman's [*16]  name, thus suggesting a practice of using Glassman's name as a pseudonym.

 Indeed, the language of the emails ostensibly authored by Glassman was similar to the language of writings attributed to Randell. For example, an email purportedly from Glassman to Judge on October 24, 2012, included the phrase, "Trust me on this one." The "Declaration of Lori Randell" submitted in support of her consumer complaint to the district attorney in November 2012 included the phrase, "Trust me on that one." The substance of the Glassman and Randell writings was similar as well. One reasonable explanation is that Randell authored both.

 Turning to the allegedly defamatory reviews themselves, the reviews bore Glassman's name and, on multiple occasions, Glassman's email address on AOL.com. The content of the reviews was similar to the content of Randell's writings. Although by no means dispositive, the evidence is susceptible to the interpretation that Randell not only used Glassman's name to write emails, she used his name to write the allegedly defamatory reviews too.

 Randell refers us to her two declarations averring she is not "one and the same person" as Glassman, Glassman is actually a longtime acquaintance [*17]  who assisted her with her patio project, and she did not fabricate Glassman in order to defame Judge. She also points to the declarations from other individuals who asserted that Glassman is a real person, as well as the prelitigation communications she purportedly received from Glassman on Facebook. Randell argues that the "inescapable inference" is that Glassman acted independently in writing the reviews. Not so.

 In the first place, Judge debates the veracity of the declarations and the Facebook pages. But even accepting Randell's contention that the evidence showed Glassman and Randell are not the same person, it does not show dispositively who actually wrote the reviews, let alone whether Randell participated in their preparation, review, and publication. In short, a finding that Randell and Glassman are not the same person would not necessarily prove that Randell did not author the reviews using Glassman's name. And while Randell averred that she was not aware of and did not participate in or authorize Glassman's posting of the reviews, her assertions merely create a dispute in the evidence.

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