United States District Court, S.D. California
TARLA MAKAEFF, on Behalf of Herself and All Others Similarly Situated, Plaintiffs,
TRUMP UNIVERSITY, LLC, (aka Trump Entrepreneur Initiative) a New York Limited Liability Company, DONALD J. TRUMP, and DOES 1 through 50, inclusive, Defendants. TRUMP UNIVERSITY, LLC, Counterclaimant,
TARLA MAKAEFF, and ROES 1 through 10, inclusive, Counter Defendant
Decided: June 16, 2014.
For Tiffany Madrid, Plaintiff: Bertha L. Burruezo, LEAD ATTORNEY, Burruezo Law Firm, PLLC, Orlando, FL; Carlos J. Burruezo, Burruezo & Burruezo, PLLC, Orlando, FL.
For Hispanic Chamber of Commerce of Metro Orlando, a Florida Not-For-Profit Corporation, Defendant: Juan C. Lopez-Campillo, LEAD ATTORNEY, Jackson Lewis P.C.- Orlando, Orlando, FL.
ORDER GRANTING PLAINTIFF/COUNTER DEFENDANT'S SPECIAL MOTION TO STRIKE DEFENDANT/ COUNTERCLAIMANT'S DEFAMATION COUNTERCLAIM; [Dkt. Nos. 14, 282, 294.]
HON. GONZALO P. CURIEL, United States District Judge.
Before the Court is Plaintiff/Counter Defendant Tarla Makaeff's (" Makaeff" ) and Defendant/Counterclaimant Trump University, LLC's (" Trump University" ) supplemental briefing regarding Makaeff's special motion to strike Trump University's counterclaim, (Dkt. No. 14). (Dkt. Nos. 294; 300; 312.) The Court held a hearing on the matter on June 13, 2014. Amber Eck, Esq. and Helen Zeldes, Esq. appeared on behalf of the moving party, defamation Defendant Tarla Makaeff, who was present in court. Nancy Stagg, Esq. and Benjamin Morris, Esq. appeared on behalf of defamation Plaintiff Trump University, LLC. Having considered the Ninth Circuit's mandate, (Dkt. No. 282), the Parties' submissions, oral argument by counsel, the applicable law, and for the reasons set forth below, the Court hereby GRANTS Makaeff's special motion to
strike Trump University's counterclaim. (Dkt. No. 14.)
I. Factual History
Between August 2008 and June 2009, Makaeff attended approximately seven real estate investing and finance seminars, workshops, and classes hosted by Trump University and spent a total of approximately $60,000 on the programs. (Dkt. Nos. 4 at 9; 14-1 at 11.)
Although Trump University asserts Makaeff was satisfied with the services Trump University provided to her, noting that Makaeff frequently provided excellent reviews of the programs, (Dkt. No. 4 at 7-8), Makaeff states the Trump University programs she attended were unsatisfactory. (Dkt. No. 14-1 at 10-11.) Specifically, Makaeff alleges the programs were shorter than advertised, (Dkt. No. 14-1 at 10-11), she was provided only a toll-free telephone number instead of a one-year mentorship of " expert, interactive support," (Dkt. No. 14-1 at 10), and her Trump University mentors were largely unavailable and offered no practical advice when she did speak with them, (Dkt. No. 14-1 at 11).
In addition, Makaeff alleges she was told by Trump University staff to raise her credit card limits to purchase real estate, but once she did, she was pressured by Trump University staff to instead use her elevated credit to purchase the Trump Gold Elite seminar for $34,995. (Dkt. No. 1 at 9.) Makaeff also claims she was told by Trump University staff that her first real estate transaction after signing up for the Trump Gold Elite program would earn her approximately the amount she spent on the Trump Gold Elite program, which it did not. (Dkt. No. 1 at 17.)
Additionally, Makaeff alleges Trump University instructed her to engage in illegal real estate practices, such as posting advertising " bandit signs" on the sides of roadways. (Dkt. No. 1 at 18.) On June 18, 2009, Makaeff received a letter from the Orange County District Attorney's Office informing her that posting bandit signs in California without lawful permission could subject her to fines, a misdemeanor charge, and up to six months in jail. (Dkt. No. 294 at 8.)
Furthermore, Makaeff alleges that in 2008, Trump University Coaching provided Makaeff's personal financial information to HSBC and opened a credit card on Makaeff's behalf without her authorization. (Dkt. No. 294 at 26.) During a phone interview with a Trump University Coaching representative, Makaeff was told she was pre-approved for an HSBC/Prosper Learning credit card. (Dkt. No. 294 at 26-27.) Makaeff testified to believing that because HSBC had sufficient information to pre-approve her for a credit card, Trump University Coaching provided Makaeff's personal and financial information to HSBC without Makaeff's authorization. (Dkt. No. 294 at 27.)
In April 2009, approximately seven months after Makaeff began attending Trump University seminars, Makaeff wrote to Trump University stating she was having significant personal financial difficulties and requested a full refund. (Dkt.
No. 4 at 8.) At that time, Trump University explained to Makaeff it could not offer her a refund " after she participated in every program and received the information, skill set, and mentoring she paid for." (Dkt. No. 4 at 8.)
On or around September 10, 2009, Makaeff sent a four-page letter to Bank of America (" BofA" ), her credit card company, complaining about Trump University and requesting a refund of the money she spent on Trump University programs. (Dkt. No. 294-2, Ex. 1.) In this letter, Makaeff accused Trump University of engaging in, among other wrongs: (1) grand larceny; (2) identify theft; and the (3) unsolicited taking of personal credit and trickery into opening credit cards without approval. Specifically, Makaeff stated:
I want to make you aware that the HSBC bank has separated (March 17, 2009) from any relation with any Trump University, Trump Institute, Trump subsidiaries such as Prosper Inc., and any party related to the aforementioned because of cases such as mine in which the aforementioned companies participated in the dispersal of my personal financial information and opening of credit between a multitude of entitles including banks regulated by the FDIC. This type of fraudulent sales techniques are governed by state and federal protection consumers such as me against this outright Fraud, Grand Larceny, and Identity Theft by Trump University/Profit Publishing Group.
. . .
I was tricked into signing up for this with my information was taken under high pressure sales tactics clearly in violation of State and Federal Statutes protecting consumers from high pressure sales tactics, bait and switch, unsolicited taking of personal credit and trickery into opening credit cards without MY approval or understanding.
(Dkt. No. 294-2, Ex. 1 at 4-5) (emphases added). Trump University refers to the these three statements collectively as the " Specific Crimes."
Makaeff additionally lodged written complaints against Trump University with the Better Business Bureau Serving Metropolitan New York (" BBB" ), the New York Attorney General's office, the New York State Education Department, the New York Bureau of Consumer Protection, the New York District Attorney, the FBI, the FTC, and on an Internet message board. (Dkt. No. 14-1 at 11.) Makaeff did not accuse Trump University of the Specific Crimes in these complaints.
II. Procedural History
Makaeff brought a class action lawsuit against Trump University on April 30, 2010. (Dkt. No. 1.) On May 26, 2010, Trump University filed a defamation counterclaim against Makaeff, alleging Makaeff " published statements to third parties about Trump University orally, in writing and on the Internet that are per se defamatory, including many completely spurious accusations of actual crimes." (Dkt. No. 4 at 3.) Trump University alleges Makaeff's defamatory statements were a substantial factor in causing actual and significant economic damages amounting to or exceeding $1,000,000. (Dkt. No. 4 at 9-12.)
On June 30, 2010, Makaeff filed a special motion to strike Trump University's counterclaim on the ground the counterclaim is a strategic lawsuit against public participation, or " SLAPP suit," with the purpose of intimidating Makaeff into dropping her class action lawsuit. (Dkt. No. 14-1 at 8.) In her anti-SLAPP special motion to strike Trump University's counterclaim, ...