"Provably False" to Call Club Owner "Tragically Pathetic"?

Quite a libel lawsuit here ....

The Drake is apparently "an upscale, stylish jazz supper club" in Laguna Beach, "known for its award-winning chef and highly professional live music." Defendant allegedly posted the following review (according to plaintiff, motivated by plaintiff's earlier successful lawsuit against defendant, unrelated to the club):

Great concept but poorly executed. Egotistical condescending attitude from what appeared to be the owner whose some old dude who was strutting around like a pompous jerk who thinks that he's cool. Tragically pathetic. Food was ok but way overpriced. The singer was straight out of the wedding & Bar Mitzvah scene.

Plaintiff sued (Glasser & The Drake in Laguna, LLC v. Berzner (C.D. Cal.), just removed to federal court today), arguing among other things that,

[The statements in the review] are provably false …: 1. At no time did Glasser display an "egotistical[,] condescending attitude." 2. At no time was Glasser "strutting around like a pompous jerk who thinks he's cool." 3. At no time did Glasser display any behavior that was "pathetic." 4. In fact, at no time did Defendant even see Glasser that evening at The Drake except very briefly when Defendant was asked to leave because of his inappropriate conduct.

Not sure how these statements are provably false, as opposed to obvious opinion. Oh, and as a result of this one review, out of 171 (which amount to an impressive 4½-star average), the Complaint alleges,

Glasser has suffered loss of his reputation, shame, mortification, and hurt feelings all to his general damage,

to the tune of "general damages in the amount of $200,000," not even counting punitive damages.

Comments

[Alpheus W Drinkwater]

Does the removal to federal court protect the plaintiff from an anti-SLAPP decision? This would seem to be a case where that would be a possibility otherwise.

[Eugene Volokh]

Ninth Circuit precedent (like that in some other circuits, but unlike that in others) says that California anti-SLAPP law does apply in federal courts.

[Vandalia]

State law still applies. As a general rule defendants tend to want to have cases in federal court where judges tend to have less tolerance for B.S.

[DaivdBehar]

Gertz v. Robert Welch, Inc.

Now, everyone is a hugely public figure, with all utterances published to the entire world.

[ReaderY]

For an actor, doing tragedy with pathos might be thought an expression of praise.

[Pereours]

The one way I can imagine the claims being proved false would be to prove the owner was not walking around or evident at all.

[Ridgeway]

Defendant didn't even say that the "tragically pathetic" "old dude" was definitely the owner. Just that he appeared to be the owner.

[Dr. Ed 2]

My take on this is twofold -- first that there isn't an equal access to the courts and second, the expense of litigation becomes an aspect of the litigation.

If, hypothetically, the legal profession was like the medical profession where a lawyer had to represent any client who showed up in his office (much like a MD does) and where the lawyer was bound by the same "find someone else" rule that the MD is if he wishes to drop a patient -- AND if legal fees were calculated on a client neutral basis -- then fairness would exist.

But as neither exists -- it doesn't...

[Noscitur a sociis]

Is this comment supposed to be relevant to the post in some way?

[Dr. Ed 2]

Yes.

1: Access to counsel is more relevant than the merits of the case.

2: If #1 is not somehow checked, it will lead to a breakdown in the civil order.

[Noscitur a sociis]

Are you under the impression that either of the litigants is having trouble finding adequate representation? If so, what gave you that idea, beyond your usual penchant for being wrong?

[David Nieporent]

If, hypothetically, the legal profession was like the medical profession where a lawyer had to represent any client who showed up in his office (much like a MD does) and where the lawyer was bound by the same “find someone else” rule that the MD is if he wishes to drop a patient — AND if legal fees were calculated on a client neutral basis — then fairness would exist.

That's not how the medical profession works. Except under HIPPA, of course.

[KenveeB]

Is there some requirement that a doctor has to take all comers? Because I've known doctors who said no to patients.

[Nick Gillespie's Jacket]

Streisand Effect.
And by filing the lawsuit, he kind of confirms he’s a bit pathetic, perhaps even tragically so, even though the Yelp review seems mean spirited. I have no idea who these people are, but I can absolutely see someone who files a lawsuit over a single review being a strutter. Nothing good can come from strutting. #StopTheStrut

Now I have to go YouTube Seinfeld’s The Drake episode

[Ridgeway]

Evidently, not everybody loves the Drake.

[santamonica811]

If SLAPP does apply; I can't see how plaintiff avoids sanctions. As EV and others have noted; the only falsifiable claim is that the owner was there on that evening. And that does not seem to be in dispute...nor that the two of them interacted to some degree at that time.

[John F. Carr]

Suppose the complaint alleges there is a video of the alleged egotistical strutting, etc. Would the trier of fact be allowed to look at the video and to decide whether a reasonable person could consider that behavior to be egotistical strutting, etc.? Or does the case get dismissed on the pleadings?

[Bored Lawyer]

If the complaint made such an allegation, then the court would be entitled to review it on a motion to dismiss. And would then view it in the light most favorable to the plaintiff. Whether that would result in dismissal would depend on what was on the video.

[ReaderY]

For an actor, doing tragedy with pathos might be thought an expression of praise.