Piping Rock Partners v. David Lerner Associates , 609 F. App'x 497 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIPING ROCK PARTNERS, INC., a No. 13-16110
California corporation; CHRISTOPHER
K. GERMAIN, an individual, D.C. No. 3:12-cv-04634-SI
Plaintiffs - Appellees,
MEMORANDUM*
v.
DAVID LERNER ASSOCIATES, INC., a
New York corporation; DAVID LERNER,
an individual; GEORGE DOBBS, an
individual,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Submitted July 9, 2015**
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The David Lerner Associates (DLA) defendants appeal the district court’s
denial of their consolidated anti-SLAPP motions to strike Christopher Germain and
Piping Rock’s libel claim, which arose from an online statement posted by former
DLA employee George Dobbs (the “Dobbs Post”). The district court denied the
motions on the ground that Germain and Piping Rock have shown a reasonable
probability of prevailing on the merits of their libel claim. See Makaeff v. Trump
Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). This court has jurisdiction under
28 U.S.C. § 1291. See United States ex rel. Newsham v. Lockheed Missiles &
Space Co., Inc., 190 F.3d 963, 973 (9th Cir. 1999). Reviewing de novo, Makaeff,
715 F.3d at 261, we affirm.
1. Appellants characterize the Dobbs Post as “an anonymous post on a
disreputable message board that was disbelieved by the readers of the post.” On
this basis, appellants argue the post constitutes nonactionable opinion. See Baker
v. L.A. Herald Examiner, 721 P.2d 87, 90 (Cal. 1986). Notwithstanding hyperbole,
anonymity, or disrepute, the Dobbs Post contained sufficient provably false
statements of fact to reasonably be considered actionable. See Wong v. Tai Jing,
117 Cal. Rptr. 3d 747, 762 (Cal. Ct. App. 2010). For example, the Post falsely
stated that Dobbs had invested in a share of property, that Piping Rock had
performed poorly, and that Germain had subsequently conducted misleading
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communications about the investment. Therefore, a reasonable jury could find that
the Dobbs Post constitutes actionable libel per se. See Cal. Civ. Code §§ 45, 45a;
Sanders v. Walsh, 162 Cal. Rptr. 3d 188, 196 (Cal. Ct. App. 2013) (finding that
exaggerated, grammatically incorrect statements posted online to
RipoffReport.com constituted actionable libel because the statements described
specific factual instances of fraud and perjury).
2. Appellants next argue that Germain and Piping Rock’s libel claim is
unlikely to prevail because it is barred by the doctrine of unclean hands.
Appellants refer to Germain’s copying and re-posting of the Dobbs Post, while
replacing his and Piping Rock’s names with DLA’s and certain of its employees’.
However, the current record permits competing inferences with respect to the
nature of Germain’s misconduct and the relationship of Germain’s misconduct to
the alleged libel. See Kendall-Jackson Winery, Ltd. v. Superior Court, 90 Cal.
Rptr. 2d 743, 749 (Cal. Ct. App. 1999) (citing Blain v. Doctor’s Co., 272 Cal. Rptr.
250, 256 (Cal. Ct. App. 1990)). Because the doctrine of unclean hands is a fact-
specific inquiry, Kendall-Jackson, 90 Cal. Rptr. 2d at 749, the district court
properly denied the affirmative defense at the current stage of the proceedings.
AFFIRMED.
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