The Volokh Conspiracy

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Free Speech

Obvious Gripe Site Isn't "False Personation"

“We conclude no reasonable person would believe Plummer created a website describing himself as vexatious, incompetent, or dishonest.”


From Law Offices of Mark B. Plummer, PC. v. Nabili, decided yesterday by the California Court of Appeal (Justice Thomas Goethals, joined by Justices William Bedsworth & Maurice Sanchez):

After a lawyer and two former clients had a dispute concerning the nonpayment of attorney fees, the clients allegedly created a website that included disparaging statements about the lawyer. The lawyer and his law firm sued both clients for defamation, interference with prospective business advantage, false personation, and declaratory relief.

The court allowed part of the defamation and declaratory relief claims to go forward, but not the interference claim (which I won't discuss here further) or the false personation claim:

Plaintiffs' third cause of action is for false personation in violation of Penal Code section 528.5. That provision authorizes a civil action against "any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person …." It adds that "an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated." Thus, to prevail on their third cause of action, Plaintiffs had to make a prima facie showing that Dr. Nabili credibly impersonated Plummer through for the purposes of harming him, and that another person would reasonably believe, or did believe, that Plummer created the website.

Plaintiffs have made no such showing. To the contrary, the content of the website excerpts supports the conclusion that Plaintiffs would not have created or endorsed the site. The excerpts claim "Plummer Regularly Sues His Own Clients" and "loses" cases. The information on the site seems to be almost entirely negative regarding Plaintiffs. Moreover, the website never references Plummer or his affiliates in the first person.

Plummer nevertheless claims other attorneys believed he created the website, averring in his declaration that he has had "to explain to other attorneys, both adverse and non-adverse, that is not [his] website." He provides no details regarding those communications, however, and the select e-mails attached as exhibits to Plummer's declaration bely that claim. For example, the e-mail attached as exhibit 1 to his declaration is an e-mail from Plummer's opposing counsel to his cocounsel that states: "Speaking of [Plummer], we came across this website today by chance: We have no idea who created the site, but it does give a revealing glimpse of who you've paired up with in this dispute." (Italics added.)

Plummer's declaration claims that his opposing counsel in another case thought the statements on the website were true and believed was Plummer's website; Plummer supported that claim by attaching the e-mail from counsel as exhibit 16. In reviewing exhibit 16, however, counsel's e-mail does not reference, much less suggest he believed Plummer created that website.

We conclude no reasonable person would believe Plummer created a website describing himself as vexatious, incompetent, or dishonest. Plaintiffs failed to establish that any other person actually believed Plummer created that website. Accordingly, the cause of action for false personation must be stricken as to Dr. Nabili.