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Construction Contractor “Mean Tweets” Edition


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Back in the day, if someone had a problem with you the rules of school yard jungle dictated that they had better tell it to your face or you had the right to call them out on it. That, of course, was back then. These days, with social media seemingly everywhere (e.g., Yelp, Twitter, Facebook, etc.), if someone has a problem with you they tell you . . . as well as the rest of the world . . . to your digital face. Jimmy Kimmel has even made it a “thing” with his celebrity “Mean Tweets” segments. 


In Paglia & Associates Construction, Inc. v. Hamilton, 98 Cal.App.5th 318 (2023), homeowner Vanessa Hamilton was sued by her contractor Paglia & Associates Construction, Inc. doing business as Protech Construction after she posted critical comments to her blog and on Yelp about work performed by Paglia at her home.


The Paglia Case


In or about 2016, after a tree fell on her house, Hamilton’s insurer, Safeco, recommended Paglia to perform the repairs. Paglia and Hamilton entered into a repair contract in 2016 but Paglia did not finish the work until sometime in 2017 claiming that the repair was extensive because Hamilton’s circa 1923 home was in poor condition and current building codes required extensive reconstruction.


Hamilton, unhappy with the work performed by Paglia, filed a complaint with the Contractors State License Board claiming that Paglia failed to level the front and back yards, failed to install attic vents, and failed to provide a proper driveway width.

Beginning in 2019 and continuing through 2021, Hamilton made critical remarks of Paglia on her blog and on Yelp. These included comments such as:


  • “[T]urned my life upside down. . . . Paglia committed ‘hard fraud’ in that he destroyed undamaged structures. He also submitted a different set of plans to Public Works in order to get a rebuild permit that he misused to build this piece of junk structure that stands in place of my 1923 Rambler cottage . . .”

  • “Lessons learned from Protech Protech is Deceptive and Threatening Lesson #1 Contractors and Insurance Adjusters maintain confidential relationships that exclude the consumer. . . . This structure is all laminate and used goods that came from other projects Protech was working on in the area. Protech left me with no owners manuals, warranties, or receipts, but they took money that I did not authorize[] they be paid. Lesson #4 Never use[] a contractor from Protech.”


In 2021, Paglia sued Hamilton for libel per se alleging that Hamilton’s blog posts and Yelp postings were false and defamatory. Paglia’s complaint identified more than 20 statements it claimed constituted libel. In response, Hamilton filed a special motion to strike seeking to strike Paglia’s complaint in its entirety. The trial court denied Hamilton’s motion and Hamilton appealed.


The Appeal

Hamilton’s special motion to strike is also known as an anti-SLAPP motion. “SLAPP” stands for Strategic Lawsuits Against Public Participation, and the essence of an anti-SLAPP motion is that a lawsuit seeks to chill free speech and that it should be dismissed because it is a strategic lawsuit against public participation in free speech.


Anti-SLAPP motions are governed under Code of Civil Procedure section 425.16 and involves a two-step process. First, the party claiming that his or her free speech rights are being chilled, must establish that the challenged allegations or claims arise from “protected activity.” Second, for each claim that arises from protected activity, the party bringing the claim must show that the claim has at least “minimal merit.”  


The 2nd District Court of Appeal focused on the second step of the process, namely, whether Paglia demonstrated a probability of success. In this “summary-judgment-like process,” explained the Court,:


[C]ourts do not weigh evidence or resolve conflicting factual claims. Instead they evaluate whether plaintiffs like Paglia have produced evidence to support legally sufficient claims. Accepting that evidence as true, courts decide whether the motion defeats the plaintiff’s claims as a matter of law. The motion fails if the lawsuit has minimal merit. Appellate review is independent.

Here, explained the Court of Appeal, “Paglia sued Hamilton for libel. Libel is a false and unprivileged written publication tending to injure a victim’s occupation. (Civ. Code, § 45.) Libel is per se when the words require no explanation and thus are actionable without a showing of special damages,” and here held the Court, “[a] customer’s false public statement that her contractor committed “hard fraud” is libel as a prima facie matter, for that statement would tend to injure the contractor’s occupation.”


However, Hamilton, focusing on the fact that she had filed a complaint with the CSLB, argued that Paglia had failed to establish that its case had minimal merit because:


  1. The litigation privilege protected her;

  2. Paglia’s complaint did not allege Hamilton’s statements were unprivileged;

  3. Her statements were true; and

  4. Her statements were merely her opinions, which are inactionable. 


As to Hamilton’s claim that the litigation privilege protected her, the Court of Appeal explained that Civil Code section 47 provides that “[a] privileged publication or broadcast is one made: (a) In the proper discharge of an official duty [or] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, . . . .” (Italics added.). The litigation privilege, explained the Court, “applies to any communication made in judicial or quasi-judicial proceedings by litigants or other participants to achieve the objects of litigation that has some connection or logical relation to the action.”  


Here, however, held the Court of Appeal, Hamilton’s blog posts and Yelp postings “were not letters to board officials asking them to investigate Paglia. They were not filings with the contractor’s board. They were not messages between counsel or parties in the course of litigation.” Rather, held the Court, “Hamilton’s posts were merely public denunciations of Paglia[,] “[s]ome did not mention the contractors board at all”[,] and “[t]hose that did simply aired Hamilton’s dissatisfaction with Paglia.”


As to Hamilton’s claim that Paglia’s complaint did not allege Hamilton’s statements were unprivileged, the Court of Appeal explained that Paglia’s complaint did not need to allege that Hamilton’s statements were not privileged since “privilege is an affirmative defense which must be pleaded in the answer[,]” not a claim that must be affirmatively alleged in a complaint.


As to Hamilton’s claim that her statements were true, the Court of Appeal explained that when considering anti-SLAPP motions, courts consider a plaintiff’s evidence as true, and here “Paglia’s evidence established that he committed no fraud and that building codes required him to do extensive work on Hamilton’s old house beyond simply fixing the tree damage. Hamilton made no evidentiary reply to Paglia.” “In sum,” held the Court, “the facts showed Paglia did his work, not for a fraudulent reason, but to comply with building codes. For purposes of evaluating Hamilton’s special motion to strike, her posting was untrue.”


Finally, as to Hamilton’s claim that her statements were merely her opinions, which are inactionable, the Court of Appeals explained that “the dispositive question is whether a reasonable fact finder could conclude the statement declares or implies a provably false assertion of fact.” And, here, held the Court, “[a] fact finder could conclude Hamilton’s statement announced a fact. Whether the destruction of structures was needless and fraudulent, or whether modern building codes compelled this work, is a matter that can be proven or disproven.”  


Conclusion


So, there you have it, the litigation privilege applies to communications made “in” judicial or quasi-judicial proceedings not to statements made for the consumption of the general public. Further, when considering an anti-SLAPP motion, courts do not weigh the evidence, and accept as true the allegations contained in a lawsuit against which an anti-SLAPP motion is filed.


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