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Bently Reserve L.P. v. Papaliolios

California Court of Appeals, First District, First Division

July 30, 2013

BENTLY RESERVE L.P. et al., Plaintiffs and Respondents,
v.
ANDREAS G. PAPALIOLIOS, Defendant and Appellant.

San Francisco City & Superior Court County, No. CGC-12-519571 Honorable Harold E. Kahn J.

Stein & Lubin, Michael F. Donner and Daniel K. Slaughter for Plaintiffs and Respondents.

Dhillon & Smith, Harmeet K. Dhillon and Nitoj P. Singh for Defendant and Appellant.

Banke, J.

Defendant Andreas Papaliolios (Papaliolios) appeals from an order denying his special motion to strike a libel claim under Code of Civil Procedure section 425.16[1] (the “anti-SLAPP” statute). The claim arises from a negative review of an apartment building Papaliolios posted to Yelp, an Internet Web site. Papaliolios asserts his review is mere opinion or, alternatively, substantially true and, therefore, non-libelous. While many Internet critiques are nothing more than ranting opinions that cannot be taken seriously, Internet commentary does not ipso facto get a free pass under defamation law. Papaliolios’s review, in part, is susceptible to being read as containing factual assertions, not just mere opinion, and plaintiffs submitted sufficient evidence to meet their minimal burden under the anti-SLAPP statute to show a probability of prevailing on at least some aspect of their libel claim. We therefore affirm the order denying Papaliolios’s special motion to strike.

Factual and Procedural Background

Bently Nob Hill, L.P., has owned the apartment building at 1360 Jones Street (the Jones Building) since March 2005. Christopher Bently (Bently) is an owner and managing partner of the limited partnership. Amber Marie Bently is Christopher’s wife. Bently and his wife later took up residence in the Jones Building penthouse, unit 1001.

Papaliolios moved into the Jones Building in 2004. After three years of contentious and litigious relations with his new landlord-come-cotenant, Papaliolios left in early 2008.

Four years later, between late February and early March 2012, Papaliolios, employing the user name “Sal R., ” posted a review of the Jones Building on Yelp, a Web site that collects consumer reviews of businesses. The review, which appeared on a Yelp page devoted to the Jones Building, read:

“Sadly, the Building is (newly) owned and occupied by a sociopathic narcissist—who celebrates making the lives of tenants hell. Of the 16 mostly-long-term tenants who lived in the Building when the new owners moved in, the new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants (Pat, Mary, & John), and the departure of eight more (units 1001, 902, 802, 801, 702, 701, 602, 502) in very short order. Notice how they cleared-out all the upper-floor units, so they could charge higher rents?

“They have sought evictions of 6 of those long-term tenants, even though rent was paid-in-full, and those tenants bothered nobody. And what they did to evict the occupants of unit #902, who put many of tens of thousands of dollars into their unit, was horrific and shameful.

“This is my own first-hand experience with this building, and its owners. I know this situation well, as I had the misfortune of being in a relationship with one of the Building’s residents at the time, have spent many days and nights over many years in the Building, and have personally witnessed the abhorrent behavior of the owners of the Building.

“There is NO RENT that is low enough to make residency here worthwhile.”

Papaliolios posted substantially the same review several times.[2] Each time, Bently complained to Yelp and asked Yelp to remove the review. Each time, Yelp complied. One version of the review, however, remained on Yelp’s forum related to complaints about how Yelp handles removal of reviews from its Web site.

On March 28, 2012, based on the posting quoted above, Bently, his wife, and Bently Nob Hill (collectively, plaintiffs) sued Papaliolios for libel.[3]

Two months later, on May 25, 2012, Papaliolios responded with a special motion to strike under section 425.16. Papaliolios claimed the libel cause of action was aimed at suppressing his right to speak in an open forum about an issue of public interest, and further claimed plaintiffs would be unable to show a probability of prevailing on their libel claim because the statements in the review were mere opinions and thus not provably false.

Plaintiffs opposed the motion, asserting numerous statements in the review were indeed provably false and offering evidence of that. For instance, plaintiffs juxtaposed these statements with evidence they submitted:

Statement

Evidence

“the Building is (newly) owned and occupied by a sociopathic narcissist”

Bently’s declaration that there is no such medical diagnosis for Bently or his wife.

“the new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants (Pat, Mary, & John)”

Declarations of relatives and a city death certificate showing Mary and John are alive, while Pat died in 2008 of pneumonia and cancer.

“the new owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to... the departure of eight more [of the 16 mostly-long-term tenants who lived in the Building when the new owners moved in] (units 1001, 902, 802, 801, 702, 701, 602, 502) in very short order”

Bently’s declaration that exit interviews did not reveal tenants leaving for these reasons; the tenants in 801 and 802 continue to reside in their apartments; the tenants in 1001 agreed to move to unit 702 in 2005 when Bently and his wife expressed interest in residing in unit 1001, then those tenants vacated 702 in 2006 to move to the East Coast; tenants in 902 stayed until 2009; tenants in 602 and 502 stayed until 2007; and Papaliolios rented 701 and stayed until 2008.

“They have sought evictions of 6 of those long-term tenants, even though rent was paid-in-full, and those tenants bothered nobody”

Bently’s declaration that plaintiffs did not seek to evict any tenant except Papaliolios, and that proceeding did not result in his eviction (left on his own).

“they... evict[ed] the occupants of unit ...


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