      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CARALYN VALDEMAN d/b/a         )
INTEGRATED NW CONSTRUCTION, )                  No. 75849-7-1
                               )
               Appellant,      )               DIVISION ONE
                               )
     v.                        )
                               )               UNPUBLISHED OPINION
ANDREA MARTIN, a single woman, )
                               )
               Respondent.     )               FILED: December 11,2017
                               )

      LEACH, J. — Caralyn Valdeman appeals a summary judgment dismissing

her claims against Andrea Martin for defamation, defamation per se, defamation

by implication, and tortious interference with a business expectancy. Valdeman

does not create a genuine issue of material fact about her defamation claims

because Martin's statements were either substantially true or privileged opinion.

In addition, Valdeman does not provide evidence of a business expectancy with

which Martin interfered. We affirm.

                                      FACTS

      Andrea Martin entered into a contract to remodel her home with Caralyn

Valdeman's business, Integrated NW Construction. Integrated completed the

remodel in August 2015. Martin e-mailed Integrated expressing her satisfaction

with the remodel. She said, "I love my remodeled place!! You and your team did
No. 75849-7-1/ 2



a fantastic job! BRAVO." Valdeman claims that Martin also stated she found

Integrated's employees to be "polite, respectful, professional and easy-going

[sic]."

          After completing Martin's remodel, Integrated learned that one of its

employees, Timothy Manos, had misused its credit card. In December 2015,

Integrated fired Manos. Valdeman later learned that Martin had developed a

friendship with Manos and helped him establish his own contracting business.

          Shortly after Integrated fired Manos, Martin called Valdeman about an

Integrated employee named Richard Ohl.           Martin claimed that Ohl had

introduced himself as Richard Kennedy when they met at her home to initially

discuss the project. She said that Ohl had signed her contract with Integrated

using his alias. She told Valdeman that she had learned Ohl's true name and

now knew that he was a convicted rapist and level ll sex offender. Martin

expressed concern that Integrated allowed a registered sex offender using an

alias to enter its customers' homes,"including homes where women and children

would be unattended, without notice to them of [his] registered sex offender

identity." Martin claims Valdeman told her that she would not disclose Ohl's sex

offender status to homeowners and that he was in the process of changing his

name.



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No. 75849-7-1/3



      Valdeman characterizes Martin's phone call as "threatening" and

acknowledges, "I am aware of Rich's past." Valdeman disputes, however, that

Ohl signed his name as Richard Kennedy on Integrated's contract with Martin.

      In February and March of 2016, Martin published a number of online

reviews of Integrated. Martin published one review on Angie's List, two on online

blog forums, and four on Yelp!. Yelp! removed three of Martin's reviews for

violation of their online posting guidelines. Valdeman identifies these alleged

defamatory statements from Martin's online posts:

      [1]    I will say that my experience with this company was awful.
      [2]    If I could give a zero rating, I would.
      [3]    The company is lacking in the areas of customer service,
             honesty and integrity.
      [4]    Nothing happened to me thank goodness.
      [5]    Reprehensible that a female business owner would
             knowingly give a convicted sex offender a position where he
             would be entering peoples' homes—homes that could have
             children in them.
      [6]    Upset me that a woman owner of a company was knowingly
             employing a convicted sex offender.
      [7]    My experience with Integrated NW Construction and Rich
             was very negative: dishonest, manipulative and deceitful.
      [8]    He signed my contract using Kennedy.
      [9]    He signed my contract with that signature.
      [10]    I had a negative experience with this company.

      Valdeman sued Martin for defamation, defamation per se, defamation by

implication, and tortious interference with a business expectancy. The trial court

granted summary judgment in favor of Martin. Valdeman appeals.



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                             STANDARD OF REVIEW

      This court reviews summary judgment orders de novo and performs the

same inquiry as does the trial court) Summary judgment is appropriate when

the evidence, viewed in a light most favorable to the nonmoving party, shows no

genuine issue of material fact remains and the moving party is entitled to

judgment as a matter of law.2 This means that a defamation plaintiff must show a

genuine issue of material fact about each disputed element of her defamation

claim.3 Our Supreme Court has recognized that in defamation actions,"summary

judgment plays a particularly important role." 'Serious problems regarding the

exercise of free speech and free press guaranteed by the First Amendment are

raised if unwarranted lawsuits are allowed to proceed to trial. The chilling effect

of the pendency of such litigation can itself be sufficient to curtail the exercise of

these freedoms."5




       1 Life Designs Ranch, Inc. v. Sommer, 191 Wn. App. 320, 327, 364 P.3d
129 (2015), review denied, 185 Wn.2d 1022(2016).
       2 Life Designs, 191 Wn. App. at 327; CR 56(c).
       3 Haueter v. Cowles Pubrg Co., 61 Wn. App. 572, 584, 811 P.2d 231
(1991).
       4 Mohr v. Grant, 153 Wn.2d 812, 821, 108 P.3d 768 (2005) (plurality
opinion).
       5 Mohr, 153 Wn.2d at 821 (internal quotation marks omitted)(quoting Mark
v. Seattle Times, 96 Wn.2d 473,485,635 P.2d 1081 (1981)).
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No. 75849-7-1/5



                                     ANALYSIS

                                I.     Defamation

      Valdeman claims that Martin's statements constitute defamation and

defamation per se. Generally, statements must be statements of fact, not

opinion, to be defamatory.6 The four elements of defamation are falsity, an

unprivileged communication, fault, and damages.7 To avoid summary judgment,

the plaintiff must provide specific, material facts that would allow a jury to find

that each element exists.8     But if the plaintiff shows the statements were

sufficiently injurious to constitute defamation per se,6 the court assumes

damages and the plaintiff need not prove actual damages.16 We need only to

address the falsity and privilege elements.




      6  Life Designs, 191 Wn. App. at 330.
       7 Life Designs, 191 Wn. App. at 330.
       8 Life Designs, 191 Wn. App. at 330.
       9 "A publication is defamatory per se (actionable without proof of special
damages) if it '(1) exposes a living person to hatred, contempt, ridicule or
obloquy, or to deprive him of the benefit of public confidence or social
intercourse, or (2) injures him in his business, trade, profession or office." Life
Designs, 191 Wn. App. at 328 (quoting Caruso v. Local Union No. 690 of Int'l
Bhd. of Teamsters, 100 Wn.2d 343, 353, 670 P.2d 240 (1983)).
       10 Maison de France, Ltd. v. Mais Oui!, Inc., 126 Wn. App. 34, 44-45, 108
P.3d 787(2005).
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No. 75849-7-1 /6



       A.      Whether the Statements Were False

       The party claiming defamation has the burden of proving the statement is

false.11 If "the statement is substantially true' or 'the gist of the story, the portion

that carries the 'sting' is true," the statement is not false.12

       Here, the "sting" of Martin's factual statements is true. Martin makes five

factual statements that Valdeman contends are defamatory:

       [4]    Nothing happened to me thank goodness.13
       [5]    Reprehensible14 that a female business owner would
              knowingly give a convicted sex offender a position where he
              would be entering peoples' homes—homes that could have
              children in them.
       [6]    Upset me15 that a woman owner of a company was
              knowingly employing a convicted sex offender.
       [8]    [Ohl] signed my contract using Kennedy.
       [9]    [Ohl] signed my contract with that signature.


       Statement [4] is true; nothing happened to Martin. Statements [5] and [6]

are also true. Ohl registered as a sex offender with the Pierce County Sheriffs

Department. Valdeman acknowledges that she was aware of Ohl's status. In

her declaration she says, "I am aware of Rich's past; those accusations are from

years ago and certainly do not define who he is today." Valdeman states that



      11 Sisley v. Seattle Sch. Dist. No. 1, 171 Wn. App. 227, 234-35, 286 P.3d
974 (2012).
      12 Sisley, 171 Wn. App. at 234-35 (quoting Mark, 96 Wn.2d at 494).
      13 "Thank goodness" is opinion but is included for clarity.
      14 "Reprehensible" is opinion but is included for clarity.
      15 "Upset me" is opinion but is included for clarity.
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No. 75849-7-1 /7



Ohl's conviction involved nonviolent, consensual sex with a 15-year-old female,

he served his time in prison, completed treatment, and is a valuable addition to

Integrated.

       Also substantially true is Martin's claim that Ohl is in a position to enter

people's "homes that could have children in them." Although Valdeman contends

that Integrated "take[s] precautions not to put ourselves or Rich in a situation that

could be construed as threatening or harmful to anyone," Ohl entered Martin's

home initially to discuss the project. This suggests that he also enters other

customers' homes, possibly homes with children.

       Valdeman asserts that statements [8] and [9] are false. While Martin

claims that Ohl signed her contract with Integrated using the alias Richard

Kennedy, Valdeman contends that the contract does not contain his signature.

Although Valdeman disputes that Ohl signed the contract using his alias, she

does not dispute that Ohl used a different name to try to conceal his identity. In

addition, Martin claims Valdeman informed her that Ohl was "working on

changing his name." The "sting" of the statements is whether Ohl concealed his

identity, not whether he signed the contract using an alias. Because the portion

of Martin's statements carrying the "sting" is true, the statements are not false.

Thus, Valdeman does not create a genuine issue of material fact about the
                                         '
substantial truth of Martin's factual statements. Next, we determine whether

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No. 75849-7-1/ 8



Martin's statements of opinion were unprivileged to decide if they may be subject

to Valdeman's defamation action.

      B.      Whether the Statements Were Unprivileged

      Statements of "pure" opinion are nonactionable.16             Because some

opinions imply undisclosed defamatory facts, the Washington Supreme Court

has adopted a three-part test to determine when a statement of opinion is

actionable.17 A trial court should consider "(1) the medium and context in which

the statement was published,(2)the audience to whom it was published, and (3)

whether the statement implies undisclosed facts."18

       When evaluating the first factor, a court should consider that people

expect to find statements of opinion more often in certain contexts, like editorial

pages or political debates.16 In addition, the trial court should evaluate the entire

communication and determine if "the speaker qualified the defamatory statement

with cautionary 'terms of apparency.'"26 In Life Desiqns Ranch, Inc. v. Sommer,21

Michael Sommer created a website and uploaded allegedly defamatory content



       16 Dunlap v. Wayne, 105 Wn.2d 529, 538, 716 P.2d 842(1986).
       17 Dunlap, 105 Wn.2d at 539.
       18 Dunlap, 105 Wn.2d at 539.
       19 Dunlap, 105 Wn.2d at 539.

       20 Dunlap, 105 Wn.2d at 539 (internal quotation marks omitted) (quoting
Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir.
1980)).
       21 191 Wn. App. 320, 325-26, 364 P.3d 129 (2015), review denied, 185
Wn.2d 1022(2016).
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No. 75849-7-1/ 9



about Life Designs, a substance abuse aftercare program for young adults. In

evaluating the first factor, Division Three of this court explained,"The Internet is a

medium where statements expressing opinions in the context of reviewing

businesses and services are often found."22 Thus, people reading Sommer's

reviews would expect to find opinion, not fact. In addition, Division Three noted

that Sommer used "seems' as a word of apparency" in the "About Us" section of

his website to indicate that he was not attempting to represent his website as

factually accurate or portray it as Life Designs' website.23 The medium and

context in which Sommer published the allegedly defamatory comments

therefore suggested that his statements were nonactionable opinion about the

quality of Life Designs' services.24

       Here, Martin's statements of opinion are as follows:

       [1]    I will say that my experience with this company was awful.
       [2]    If I could give a zero rating, I would.
       [3]    The company is lacking in the areas of customer service,
              honesty and integrity.
       [7]    My experience with Integrated NW Construction and Rich
              was very negative: dishonest, manipulative and deceitful.
      [10]    I had a negative experience with this company.

Valdeman apparently claims that the medium and context in which Martin

published these statements support that they are actionable opinion.             She



       22 Life Designs, 191 Wn. App. at 331.
       23 Life Designs, 191 Wn. App. at 331.
       24 Life Designs, 191 Wn. App. at 331.
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No. 75849-7-1/ 10



asserts that Martin published her reviews on "website[s] for finding contractors for

remodeling work directly related to Integrated's business relationship." Indeed,

Martin posted one review on Angie's List, an online source for finding and

reviewing contractors among other home services providers; three reviews on

Yelp!, another online source for reviewing businesses; and two reviews on online

blog forums. But contrary to Valdeman's assertion, solely because individuals

seeking to hire contractors may read Martin's reviews does not make the

statements unprivileged. In fact, according to Life Designs, posting reviews on

the Internet where individuals often find reviews of businesses and services

means people are more likely to interpret statements like Martin's as opinion. In

addition, Martin qualifies her statements with "I" or "my," which are terms of

apparency that signal the statements are her personal opinion. Thus, both the

medium and context support that Martin's statements are nonactionable opinion.

      "Second, the nature of the audience is important."25 The court should

consider if "the audience expected the speaker to use exaggeration, rhetoric, or

hyperbole" to determine if the audience should be aware of the "subjective biases

of the speaker."26    In Life Designs, the audience consisted of the people

researching Life Designs.27 Sommer's website read, "Thinking about going to or


       25 Dunlap, 105 Wn.2d at 539.
       26 Dunlap, 105 Wn.2d at 539.
       27 Life Designs, 191 Wn. App. at 332.
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No. 75849-7-1 / 11



sending someone you love to Life Designs Ranch?? Read this first."29 Thus,

the audience should have expected a review as opposed to an official website.29

      Similar to the audience in Life Designs, Martin's audience here is the

individuals researching Integrated. Valdeman asserts that Integrated's existing

and prospective customers "are not surely expecting or prepared to hear bad

things or complaints against Integrated." On the contrary, negative and positive

reviews subject to reviewers' biases are exactly what an audience researching

reviews on Angie's List and Yelp! expects to find. Current and future customers'

understanding that Martin's posts represent one person's subjective evaluation of

Integrated supports that her statements are nonactionable opinion.

      "The third and perhaps most crucial factor to consider is whether the

statement of opinion implies that undisclosed facts support it."3° Opinion is

actionable only if it "implies the allegation of undisclosed defamatory facts as the

basis for the opinion."31 "A simple expression of opinion based on disclosed or

assumed nondefamatory facts is not itself sufficient for an action of defamation,

no matter how unjustified and unreasonable the opinion may be or how




      28Life Designs, 191 Wn. App. at 332.
      29Life Designs, 191 Wn. App. at 332.
     39 Dunlap, 105 Wn.2d at 539-40.
     31 Dunlap, 105 Wn.2d at 538 (quoting RESTATEMENT (SECOND) OF TORTS §
566(Am. LAW INST. 1977)).
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No. 75849-7-1 / 12



derogatory it is."32      For this reason, our Supreme Court has held that

layguments for actionability disappear when the audience members know the

facts underlying an assertion and can judge the truthfulness of the allegedly

defamatory statement themselves."33

      In Life Designs, Division Three held that Sommer based his statements on

disclosed facts or made subjective statements of opinion that were

nonactionable.34     For example, Sommer characterized Life Designs' "visual

experience" as being rife with pine trees.35      The court concluded that Life

Designs' online description of itself as an undiscovered recreational area and

online pictures of its clients in its natural setting provided a basis for Sommer's

criticism of the scenery.36      Sommer also criticized the staff for lacking

compassion.37 In response, the court held that while Life Designs' vvebsite did

not address the staff's compassion, "compassion is a subjective determination

and is thus opinion."35

       Here, Valdeman claims that Martin should have included the nature of her

relationship with Timothy Manos in her reviews. Valdeman learned that Martin

       32Dunlap, 105 Wn.2d at 540 (quoting RESTATEMENT (SECOND) OF TORTS §
566 cmt. c).
   ' 33 Dunlap, 105 Wn.2d at 540.
      34 Life Designs, 191 Wn. App. at 332-33.
      35 Life Designs, 191 Wn. App. at 332-33.
      36 Life Designs, 191 Wn. App. at 332-33.
      37 Life Designs, 191 Wn. App. at 333.
      38 Life Designs, 191 Wn. App. at 333.
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I   No. 75849-7-1 / 13



    had helped Manos establish his own contracting business after Integrated fired

    him. She contends that Martin posted negative reviews of Integrated because of

    her ulterior motive to help Manos compete with Integrated. An ulterior motive,

    however, does not mean Martin's negative reviews implied that undisclosed

    defamatory facts formed the bases of her opinions. Martin's statements that her

    experience with Integrated was "awful," "negative," and worth a "zero rating," that

    Integrated lacks in "customer service, honesty, and integrity," and that Ohl was

    "dishonest, manipulative and deceitful," are subjective determinations that do not
                                                                                    ,
    imply undisclosed facts.

           All three factors thus indicate that Martin's statements of opinion were

    nonactionable. Because Martin's factual statements were substantially true and

    Martin's statements of opinion were nonactionable, no genuine issues of material

    fact exist about whether Martin's statements were false or unprivileged. These

    issues are dispositive. This means we need not address fault, damages, or

    defamation per se. The trial court properly dismissed Valdeman's defamation

    and defamation per se claims.

                            II.     Defamation by Implication

           Valdeman contends that Martin's statements resulted in defamation by

    implication because Martin both juxtaposed a series of facts so as to imply a

    defamatory connection between them and created a defamatory implication by

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No. 75849-7-1 / 14



omitting facts. Washington, however, recognizes only one cause of action for

defamation by implication, defamation by implication as a result of omitted facts

but not as a result of juxtaposition of truthful statements alone.39 Consistent with

Division Two, we hold that "a plaintiff may not base a defamation claim on the

negative implication of true statements."4°       We therefore do not consider

Valdeman's claim for defamation by implication due to juxtaposition of truthful

statements and consider only her claim for defamation by implication as a result

of omitted facts.

       To establish defamation by implication, the plaintiff must prove all

elements of defamation.41 For the element of falsity, the plaintiff must show that

"the communication left a false impression that would be contradicted by the

inclusion of omitted facts."42 The portion of the statement that carries the "sting"



       39 In Mohr, a plurality opinion by the Washington Supreme Court, the
three justices in the plurality, 153 Wn.2d at 815-30 (lead opinion of Fairhurst, J.),
and the three justices who concurred in part and dissented in result, 153 Wn.2d
at 831-34 (opinion concurring in part and dissenting in result of Chambers, J.),
recognized a cause of action for defamation by implication due to omitted facts.
The remaining three justices concurred but disagreed that Washington should
recognize defamation by implication, 153 Wn. 2d at 830-31 (concurring opinion of
Alexander, C.J.). Thus, six justices held that Washington law recognizes
defamation by implication due to omitted facts. See also Yeakev v. Hearst
Commc'ns, Inc., 156 Wn. App. 787, 792, 234 P.3d 332(2010)(interpreting Mohr
as recognizing only defamation by implication due to omitted facts).
       40 Yeakev, 156 Wn. App. at 792.
       41 Corey v. Pierce County, 154 Wn. App. 752, 761-62, 225 P.3d. 367
(2010).
       42 Mohr, 153 Wn.2d at 827.
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No. 75849-7-1/15



must be contradicted by the omitted facts; "[m]erely omitting facts favorable to

the plaintiff or facts that the plaintiff thinks should have been included does not

make a publication false and subject to defamation liability."43 "Arbitrariness and

insensitivity are not the test."44

       Valdeman asserts that because Martin criticized Integrated for its lack of

customer service, honesty, and integrity, Martin also should have included her

review reflecting positively on Integrated's workmanship. Valdeman suggests

that Martin should have included the substance of the e-mail Martin sent

Integrated stating, "I love my remodeled place!! You and your team did a

fantastic job! BRAVO." First, Martin's negative reviews about the quality of

workmanship are privileged because they are pure opinion and therefore cannot

provide the basis of a defamation action.        Second, the "sting" of Martin's

statements does not relate to Integrated's workmanship but, rather, to Ohl's sex

offender status. The "sting" is that Integrated knowingly sent a registered sex

offender to a customer's home without disclosing his status. Martin's positive

reviews of Integrated's workmanship would not contradict this. Thus, no issue of

material fact exists about Valdeman's defamation by implication claim. The trial

court properly granted summary judgment.



       43 Mohr, 153 Wn.2d at 825, 827.
       44 Mohr, 153 Wn.2d at 827.
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No. 75849-7-1/ 16



             III.   Tortious Interference with a Business Expectancy

       Last, Valdeman makes a tortious interference with a business expectancy

claim. Tortious interference has five elements: (1) the existence of a valid

business expectancy, (2) that defendant had knowledge of that expectancy, (3)

an intentional interference inducing or causing a breach or termination of the

expectancy, (4) that defendant interfered for an improper purpose or used

improper means, and (5) resultant damage.45

       Valdeman claims that because Martin published allegedly defamatory

statements and attacked Integrated's professional integrity for the purpose of

helping Manos's business, Martin damaged Integrated's reputation and

improperly interfered with Integrated's business expectancy.       But Valdeman

offers no evidence that Martin's statements interfered with any Integrated

business expectancy or damaged Integrated. Thus, no genuine issue of material

fact exists, and the trial court properly dismissed the claim.

                               IV.    Appellate Costs

       Valdeman asks this court to deny Martin an award of appellate costs

should Martin prevail on review. This court generally awards appellate costs to

the substantially prevailing party on review.46 Because Martin is the substantially

prevailing party, we decline Valdeman's request.

       45 Life Designs, 191 Wn. App. at 337.
       46 RAP 14.2.
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No. 75849-7-1/ 17



                                 CONCLUSION

      Valdeman does not create a genuine issue of material fact about her

claims for defamation, defamation per se, defamation by implication, and tortious

interference with a business expectancy. We affirm the trial court.




WE CONCUR:



                                                    i r i J.,<0ij




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