From Regulation Workplaces of Mark B. Plummer, PC. v. Nabili, determined yesterday by the California Court docket of Attraction (Justice Thomas Goethals, joined by Justices William Bedsworth & Maurice Sanchez):
After a lawyer and two former shoppers had a dispute in regards to the nonpayment of legal professional charges, the shoppers allegedly created an internet site that included disparaging statements in regards to the lawyer. The lawyer and his regulation agency sued each shoppers for defamation, interference with potential enterprise benefit, false personation, and declaratory aid.
The courtroom allowed a part of the defamation and declaratory aid claims to go ahead, however not the interference declare (which I will not focus on right here additional) or the false personation declare:
Plaintiffs’ third explanation for motion is for false personation in violation of Penal Code part 528.5. That provision authorizes a civil motion in opposition to “any one who knowingly and with out consent credibly impersonates one other precise particular person by means of or on an Web Site or by different digital means for functions of harming, intimidating, threatening, or defrauding one other particular person ….” It provides that “an impersonation is credible if one other particular person would fairly consider, or did fairly consider, that the defendant was or is the one who was impersonated.” Thus, to prevail on their third explanation for motion, Plaintiffs needed to make a prima facie displaying that Dr. Nabili credibly impersonated Plummer by means of markplummerattorney.com for the needs of harming him, and that one other particular person would fairly consider, or did consider, that Plummer created the web site.
Plaintiffs have made no such displaying. On the contrary, the content material of the web site excerpts helps the conclusion that Plaintiffs wouldn’t have created or endorsed the location. The excerpts declare “Plummer Usually Sues His Personal Shoppers” and “loses” instances. The data on the location appears to be virtually totally damaging relating to Plaintiffs. Furthermore, the web site by no means references Plummer or his associates within the first particular person.
Plummer nonetheless claims different attorneys believed he created the web site, averring in his declaration that he has had “to clarify to different attorneys, each antagonistic and non-adverse, that markplummerattorney.com is just not [his] web site.” He gives no particulars relating to these communications, nonetheless, and the choose e-mails connected as displays to Plummer’s declaration bely that declare. For instance, the e-mail connected as exhibit 1 to his declaration is an e-mail from Plummer’s opposing counsel to his cocounsel that states: “Talking of [Plummer], we got here throughout this web site at this time by likelihood: https://ww.markplummerattorney.com/. We don’t know who created the location, however it does give a revealing glimpse of who you have paired up with on this dispute.” (Italics added.)
Plummer’s declaration claims that his opposing counsel in one other case thought the statements on the web site had been true and believed markplummerattorney.com was Plummer’s web site; Plummer supported that declare by attaching the e-mail from counsel as exhibit 16. In reviewing exhibit 16, nonetheless, counsel’s e-mail doesn’t reference markplummerattorney.com, a lot much less counsel he believed Plummer created that web site.
We conclude no cheap particular person would consider Plummer created an internet site describing himself as vexatious, incompetent, or dishonest. Plaintiffs failed to determine that every other particular person truly believed Plummer created that web site. Accordingly, the reason for motion for false personation should be stricken as to Dr. Nabili.