                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 13 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PIPING ROCK PARTNERS, INC., a                    No. 13-16110
California corporation; CHRISTOPHER
K. GERMAIN, an individual,                       D.C. No. 3:12-cv-04634-SI

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
 v.

DAVID LERNER ASSOCIATES, INC., a
New York corporation; DAVID LERNER,
an individual; GEORGE DOBBS, an
individual,

              Defendants - Appellants.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                              Submitted July 9, 2015**
                              San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The David Lerner Associates (DLA) defendants appeal the district court’s

denial of their consolidated anti-SLAPP motions to strike Christopher Germain and

Piping Rock’s libel claim, which arose from an online statement posted by former

DLA employee George Dobbs (the “Dobbs Post”). The district court denied the

motions on the ground that Germain and Piping Rock have shown a reasonable

probability of prevailing on the merits of their libel claim. See Makaeff v. Trump

Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). This court has jurisdiction under

28 U.S.C. § 1291. See United States ex rel. Newsham v. Lockheed Missiles &

Space Co., Inc., 190 F.3d 963, 973 (9th Cir. 1999). Reviewing de novo, Makaeff,

715 F.3d at 261, we affirm.

      1. Appellants characterize the Dobbs Post as “an anonymous post on a

disreputable message board that was disbelieved by the readers of the post.” On

this basis, appellants argue the post constitutes nonactionable opinion. See Baker

v. L.A. Herald Examiner, 721 P.2d 87, 90 (Cal. 1986). Notwithstanding hyperbole,

anonymity, or disrepute, the Dobbs Post contained sufficient provably false

statements of fact to reasonably be considered actionable. See Wong v. Tai Jing,

117 Cal. Rptr. 3d 747, 762 (Cal. Ct. App. 2010). For example, the Post falsely

stated that Dobbs had invested in a share of property, that Piping Rock had

performed poorly, and that Germain had subsequently conducted misleading


                                         2
communications about the investment. Therefore, a reasonable jury could find that

the Dobbs Post constitutes actionable libel per se. See Cal. Civ. Code §§ 45, 45a;

Sanders v. Walsh, 162 Cal. Rptr. 3d 188, 196 (Cal. Ct. App. 2013) (finding that

exaggerated, grammatically incorrect statements posted online to

RipoffReport.com constituted actionable libel because the statements described

specific factual instances of fraud and perjury).

      2. Appellants next argue that Germain and Piping Rock’s libel claim is

unlikely to prevail because it is barred by the doctrine of unclean hands.

Appellants refer to Germain’s copying and re-posting of the Dobbs Post, while

replacing his and Piping Rock’s names with DLA’s and certain of its employees’.

However, the current record permits competing inferences with respect to the

nature of Germain’s misconduct and the relationship of Germain’s misconduct to

the alleged libel. See Kendall-Jackson Winery, Ltd. v. Superior Court, 90 Cal.

Rptr. 2d 743, 749 (Cal. Ct. App. 1999) (citing Blain v. Doctor’s Co., 272 Cal. Rptr.

250, 256 (Cal. Ct. App. 1990)). Because the doctrine of unclean hands is a fact-

specific inquiry, Kendall-Jackson, 90 Cal. Rptr. 2d at 749, the district court

properly denied the affirmative defense at the current stage of the proceedings.

      AFFIRMED.




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