Morris & Stone Case Creates Important Internet Defamation Authority

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Internet Defamation Law Clarified

Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.

I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.

The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.

Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.

The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.

Judge Ariadne Symons

Esquire sued Painter for breach of the covenant of quiet enjoyment as to her lease, and for defamation for the fraudulent Yelp reviews. Painter cross-complained for breach of lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.

At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint against Painter. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. Judge Symons simply did not understand some basic evidentiary principles, dealing with the authentication of web postings and indirect evidence.

How to Authenticate Yelp Reviews

For example, to authenticate a review posted on Yelp, all that is required is a witness (usually the client) who can testify that the copy of the review being offered as evidence is an accurate depiction of what the witness saw when he or she visited the Yelp site. This does not mean that you can introduce anything you find on the Internet as proof of whatever it says, it means only that pursuant to Evidence Code section 1552, a witness can testify that “this is the review I saw posted on Yelp,” and that review becomes admissible as to its existence. Although we provided very clear authority, Judge Symons erroneously ruled that a representative of Yelp must be present to authenticate the existence of the reviews.

The Law of Indirect Evidence

Then there was the issue of the indirect evidence. We had the defendant dead to rights as the party who had posted the fraudulent reviews, because the IP information showed that the reviews had been posted from defendant’s home and office internet accounts. In an internet defamation case, unless the defendant confesses to posting the reviews, you can never prove unequivocally that the defendant’s fingers typed the reviews, but the jury is permitted to make the reasonable inference that defendant posted the reviews if they were posted from his account (on the very day that plaintiff has successfully sued defendant in court on another matter). But despite all the authority we provided to the contrary, Judge Symons erroneously held that indirect evidence was not admissible. An appeal was necessary to reverse all of the evidentiary errors by Judge Symons.

As anticipated, the Court of Appeal for the Sixth District found in favor of Esquire on the evidentiary rulings, and reversed the trial court. It took Judge Symons to task, referring to her conclusions as “perplexing”. More important for the legal community at large, the Court of Appeal used the opportunity to provide a very detailed explanation to all trial courts as to the admissibility of information posted on the internet, as well as the proper determination of the admissibility of indirect evidence.

In a perfect world, Judge Symons would have followed the authority we provided, and our case would have proceeded directly to verdict. But we take solace in the fact that even though the case was delayed and will now have to go back for a new trial (in front of a different judge), that detour served to create a precedential blueprint for all judges and attorneys to follow in future internet defamation cases.

Judge Symons has been moved to Family Court.

For a detailed discussion of this important opinion, click on the play button beneath the image, for the California SLAPP Law Podcast.

[UPDATE — June 16, 2019] 

Judge Ariadne Symons Disciplined for Serious Misconduct

This article was first published three years ago, and amazingly I managed to keep a controlled tone, but as now confirmed by the California Commission on Judicial Performance, Judge Symons acted very inappropriately during this trial; far beyond simply failing to follow the law. Judges always instruct jurors that they are not to form any opinions until they have heard all of the evidence, but occasionally you encounter a judge who, contrary to ethics and the law, immediately decides the merits of the case before hearing any of the evidence, and then tries to move the case to that conclusion. Such was the case with Judge Symons.

In addition to completely eliminating our defamation evidence with no legal basis to do so, each time Judge Symons heard evidence that supported our client’s other claims, she would chime in and make statements to diminish the evidence in the eyes of the jurors. In one particular instance, our client testified to a temporary restraining order she had obtained against defendant, which was strong evidence of defendant’s misconduct. Judge Symons could not let that stand, so she interrupted the testimony to ask our client whether it was true that a plaintiff can put anything in a TRO request and that judges will just sign off on them. When our client responded that she had no reason to believe that is the case (it is not the case, and would be quite an indictment on judges if it were true), Judge Symons was incredulous and gave the impression to the jury that the client was not being truthful.

Judge Symons was recently investigated by the Commission on Judicial Performance, which found multiple examples of misconduct, including the way she had behaved in our client’s case. As reported by The Mercury News:

Symons, who has previous violations with the commission, also is accused of creating court documents falsifying allegations that her husband had run a red light. In fact, Symons herself had made the traffic violation, according to a release from the commission.

As a result, the commission issued “severe public censure” of Symons.

The punishment also referred to a 2013 civil case between a couple operating a rug-cleaning business and their landlord. One of the people involved was an attorney who had not worked on a civil case, such as the proceedings disputed.

Symons challenged the attorney, who was testifying as a witness, and became unsatisfied about the witness’ lack of knowledge regarding evidence often required in a civil case.

Prior discipline stemmed from Symons serving as auctioneer at a fundraiser for CASA — Court Appointed Special Advocates for abused children. She was admonished in 2015 for publicly discussing an unresolved case from her courtroom. The same year, she made comments “creating the appearance of bias against transients, and creating the appearance of embroilment in connection with an order to show cause against an attorney,” the commission ruled.

The commission administered “this severe public censure, which is the strongest sanction that may be imposed on a judge short of removal from the bench.”

The red light ticket punishment reflected “egregious disregard for the dignity of the very court where Judge Symons serves,” according to the commission.

Judge Symons responded to the discipline imposed by the Judicial Commission with the following statement:

“Ultimately, I recognize that as an elected public servant I am always held to held to a higher standard of conduct. I have always tried to conduct myself in a highly ethical manner and treat the people that appear in my courtroom with the utmost respect and dignity, no matter the circumstances.”

From what I witnessed during my time in front of her, there is no truth to her words. I did not witness any attempt by Judge Symons to act with respect and dignity.

[UPDATE — November 6, 2019]  

Ariadne Symons Leaves the Bench

Facing stiff competition, and seeing the writing on the wall, Judge Ariadne Symons announced that she was calling off her reelection bid. After her egregious misconduct was revealed, and the public censure, she told the Santa Cruz Sentinel that “the prospect of another six-year term as a judge does not actually bring me joy.”

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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