Hello everybody.  In my article last month for AOA readers, I concluded with certain “Breaking News,” namely that on July 30, 2013, the California Court of Appeal allowed an apartment building’s owner to sue a former tenant for defamation after the tenant posted a negative review on “Yelp.”  My discussion below will brief AOA members on this latest ruling and make some concrete recommendations.

Brief Factual Background

Bently Reserve vs. Papaliolios involved a limited partnership landlord which had owned an apartment building in theSan Francisco area since March 2005.  For all intents and purposes, the partnership was owned by a husband and wife who took up residence in penthousesuite 1001 at the complex.

The tenant (“Papaliolios”) moved into the building in 2004.  After three years of contentious and litigious relations between him and the landlord from 2005 to 2008, Papaliolios moved out.

Four years later, the former tenant using the pseudonym “Sal R.” (his real name was Andreas G. Papaliolios), posted a scathing review of the apartment building on Yelp.  Yelp is a social media website that collects consumer reviews of businesses.

Portions of the tenant’s postings are set forth in the left column below, and the actual evidence, i.e., the true facts as alleged in the landlord’s declaration, are set forth in the right column:

 

Tenant’s   Statement

                                                                   

“The building is newly owned

and occupied by a sociopathic narcissist.”

_________________________________

“The new owners’ noise, intrusions, and   other abhorrent behaviors likely contributed to the death of three tenants,   Pat, Mary & John.”

_________________________________

“The new owners’ noise, intrusions, and   other abhorrent behaviors likely contributed to the departure of eight more   of the 16 mostly-long-term tenants who lived in the building when the new   owners moved in units 1001, 902, 802, 801, 702, 701, 602, 502 in very short   order.”

 

 

 

_________________________________

“They have sought evictions of 6 of those   long-term tenants, even though rent was paid-in-full, and those tenants   bothered nobody.”

_________________________________

“They evicted the occupants of unit #902.”

________________________________

“They cleared-out all the upper-floor   units, so they could charge higher rents.”

_________________________________

 

Landlord’s   Declaration Evidence

                                                                    

There is no such medical diagnosis for the husband or his wife.

_________________________________

Mary and John are alive, while Pat died

in 2008 of pneumonia and cancer.

 

_______________________________

Exit interviews did not reveal tenants   leaving for these reasons: The tenants in 801 and 802 continue to reside in   their apartments; the tenants in 1001 agreed to move to unit 702 in 2005 when   husband and wife expressed interest in residing in unit 1001. Then those   tenants vacated 702 in 2006 to move to the East Coast; the tenants in 902   stayed until 2009; the tenants in 602 and 502 stayed until 2007; and   Papaliolios rented 701 and stayed until 2008.

_________________________________

Plaintiffs did not seek to evict any tenant   except Papaliolios, and that proceeding did not result in his eviction (he   left on his own).

_________________________________

There was no eviction of the occupants of   unit 902.

_________________________________

Of the tenants on floors 8, 9, and 10, only   the tenants of 902 vacated after an attempt to raise rent.

 

The landlord filed a lawsuit for defamation against his former tenant.  Papaliolios then filed a Motion to Dismiss the case arguing that his posting contained mere expressions of opinion, rather than actionable statements of false facts. 

The Decision of the Court

Generally speaking, opinions do not support a cause of action for defamation, whereas false statements of fact may give rise to Causes of Action for Slander (false verbal statements) or Libel (false written statements).

In denying Papaliolios’ Motion to Dismiss, the Court held that false opinions which are expressly or impliedly asserted as facts may constitute actionable defamation.  For example, if a speaker states, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth.  In such cases, a false “opinion” may be actionable defamation.

That was the situation with Papaliolios.  In the concluding portion of his publication on Yelp, he asserts, “This is my own first-hand experience with this building, and its owners.  I know this situation well and have personally witnessed the abhorrent behavior of the owners of the building.”

The Appellate Court found that such assurances suggested that facts were being communicated, not opinions in the former tenant’s Yelp commentary.  The Court also determined that postings by “anonymous” commentators or under pseudonyms do not protect the speaker or make it non-actionable opinion and immune from defamation law.

The former tenant further defended on the grounds that even if some of his statements were false, the gist of his review was true, and that truth is a complete defense to a libel claim.  (Truth is, indeed, a complete defense to an action for defamation.)

The Court of Appeal observed that the law does not require a party to justify the literal truth of every word he allegedly said.  It is sufficient if the speaker proves the truth of the substance of the charge, irrespective of slight inaccuracy in details, just so long as the statements are substantially true.

Nevertheless, the Court found that Papaliolios’ claims, for example, that three “deaths” were connected to the landlord’s conduct was more than a mere slight inaccuracy.  The “gist” of the remarks was false and therefore gave rise to actionable defamation if ultimately proved at trial.

There was a good amount of additional discussion by the Court of Appeal, largely on technical legal grounds.  While those are matters that would interest attorneys, they are not of general interest to landlords, so I will not review them here.  

Concluding Remarks and Recommendations

What is important for AOA members to know is that the right of free speech is not absolute in this country, not even for tenants complaining about their landlords.  Vindictive statements of false fact posted by a tenant on a social media network site may subject the tenant to damages for libel.  Verbal false assertions expose the tenant to damages for slander.  Libel and slander are the two principal types of defamation.

Damages for defamation may include any lost rent that the landlord would have received in the absence of such defamatory posting, as well as punitive damages which are assessed as punishment against the tenant for his defamatory statements.

On the other hand, defamation by a landlord against a tenant may expose the landlord to damages.  For example, a landlord needs to be cautious when he responds to an inquiry for a reference of a former or existing tenant who is applying for residency at a new location.  That is to say, a landlord who communicates negative information about his former or soon-to-be former tenant had better be sure that what he says is truthful.  If there is any doubt, and better still, it would be advisable for the landlord just to say “no comment.”

In real life, some owners have confided in me that once their tenant gives notice that he is vacating, those landlords typically offer positive references so as to enhance the likelihood that the new landlord will accept the tenant, thereby purging the problem tenant from the existing landlord’s building.  My advice: Don’t say what is not true.

Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 36 years.  He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.  He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.

Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell.  An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity. You may Google “Dale S. Alberstone” for further background.

The foregoing article was authored on September 3, 2013.  It is intended as a general overview of the law and may not apply to the reader’s particular case.  Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.

Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1801 Avenue of the Stars, Suite 600, Los Angeles, California 90067.  Phone:  (310) 277-7300.

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