Filed 7/7/14 Judge v. Randall CA1/5



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


GREGORY A. JUDGE,
         Plaintiff and Respondent,
                                                                     A138481
v.
LORI RANDELL,                                                        (Marin County
                                                                     Super. Ct. No. CIV1204833)
         Defendant and Appellant.


         Lori Randell (Randell) appeals from an order denying her motion to strike a
defamation cause of action from the complaint of respondent, Gregory Judge (Judge),
pursuant to the “anti-SLAPP” statute. (Code Civ. Proc., § 425.16 (section 425.16).)
Randell contends the trial court erred in ruling that Judge had shown a probability of
prevailing on the merits. Judge cross-appeals. We will affirm the order.

                               I. FACTS AND PROCEDURAL HISTORY
         Judge, proceeding in propria persona, filed a verified complaint in the Marin
County Superior Court on October 29, 2012, asserting causes of action for breach of
contract and defamation against Randell and Jeffrey M. Glassman (Glassman).

         A. Allegations of the Complaint
         Judge alleged that he entered into an oral contract with Randell in July 2012, by
which Judge (doing business as Greg Judge Tile) would install approximately 800 square


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feet of flagstone onto an existing concrete slab in Randell’s backyard for $7,975. Judge
gave Randell a written contract to sign, but despite his repeated requests and
commencement of the work, Randell declined to sign the contract, told Judge that her
attorney would contact him, and expelled Judge from the job site without payment.
        On August 1, 2012, Judge allegedly received an email from Glassman, whom
Judge assumed at the time was Randell’s attorney. In the email, Glassman offered
partial payment if Judge would sign a “lien release.” Judge declined, and the next day
served Randell with a mechanics lien on her property.
        For his breach of contract claim, Judge alleged that Randell breached their oral
contract and sought the $7,975 contract price plus his costs pertaining to the mechanics
lien.
        Judge further alleged that Randell and Glassman, whom Judge had since come to
believe are “one in the same person,” thereafter barraged him with emails containing
threats, disparaging remarks, profanity, and defamatory allegations intended to
intimidate him into abandoning the mechanics lien. Judge asserted that Randell in fact
had a practice of scamming laborers by having them render services, demanding they
leave the job site for false reasons, and then negotiating a small fraction of the amount
due. Paragraph 13 of his verified complaint represented that a copy of the emails he
received from Randell/Glassman was contained in Exhibit C to the complaint. The last
page of Exhibit C included a declaration under penalty of perjury, signed by Judge, that
Exhibit C was a “true and accurate account.” 1


1
       As the months passed and litigation threats were exchanged, the emails
purportedly authored by Randell and Glassman became more abusive. In October 2012,
Glassman wrote Judge: “I will bring the wrath of hell into your life if I have to drag your
sorry ass into court. [¶] That, my friend, is a THREAT. You are fucking with the wrong
guy.” Randell emailed Glassman, with a copy to Judge: “Let’s drown him [Judge] in
legal bills and have his licensed [sic] revoked”; she also threatened Judge that he could
“lose visitation rights if we show the court how dangerously you behave.” Glassman
wrote: “If this moron [referring to Judge] acts as his own attorney, can I sell tickets??
It’s gonna be the best comedy since The Three Stooges! [¶] Here’s a good one for ya’
Greg—if you can’t find me to subpoena me to court, what judge is going to approve

                                             2
       As to his defamation claim, Judge alleged that Randell/Glassman did not stop at
sending emails, but proceeded to publish disparaging reviews of Greg Judge Tile on
multiple Internet sites. These reviews allegedly contained false and defamatory
statements and were intended to interfere with Judge’s prospective economic advantage
and intimidate him into abandoning the mechanics lien. Specifically, beginning around
September 26, 2012, “Glassman” posted reviews on Merchantcircle.com, Manta.com,
and PrimeBuyersReport.com that included the following assertions about Judge:
“Inethical, Untrustrworthy [sic], Files Spurious Liens, Damages Property”; “This tile
contractor lied about his license credentials”; “None of these idiots had ever seen him, or
touched flagstone before”; “In a drunken rage, he maliciously damaged $1000.00 of
flagstone material, which had to be entirely replaced”; “Then, the drunken moron filed a
spurious lien to retaliate for not getting the job”; “This proves that he knew that his lien
was spurious”; “We had to sue him to get the lien removed”; “We reported him to the
CSLB and have requested that his license be permanently revoked”; “Greg Judge
misrepresented himselfv [sic] as a General Contractor, showed up DRUNK on the
second day of our job, with an undocumented crew from the Home Depot line, damaged
$1000.00 worth of our flagstone and filed a SPURIOUS mechanics lien when we refused
to sign his contract after all that. This guy is inethical [sic] and a real loose cannon. We
are suing him in Small Claims for the flagstone and in civil court for slandering our title
and harassing us with a spurious lien. He has also been reported to the CSLB for abuse.”
Judge attached purported copies of the reviews to his verified complaint as Exhibit D.
According to Judge, “These statements are libel per se.”


Discovery in a non-existent trial? LOL—or didn’t you get that far in your legal
education yet?? Here’s a hint: I live in Florida. Have fun. [¶] Oh, and your provable
qualitative damages from my ‘libeling’ you would be . . . . ?? Gotcha again, Dip Shit.
LOL [¶] Did you know that you can be fined for filing a frivolous lawsuit in Marin
County? Didn’t get that far yet either, huh? [¶] Take your fucking lien off of my friend’s
property and crawl back into the sewer with your tail between your legs asshole. You’re
so far out of your league here, it ain’t funny. You’re a pathetic excuse for a man.
Looking forward to chatting with Angela [Judge’s ex-wife] . . . I’m planning a special
trip in for the occasion. [¶] IDIOT!”

                                              3
       B. Randell’s Anti-SLAPP Motion to Strike
       Randell filed a demurrer to the breach of contract cause of action and an anti-
SLAPP motion to strike the defamation cause of action.2

              1. Randell’s Motion
       Randell argued that the anti-SLAPP statute applied to the allegedly defamatory
statements posted on the contractor review Web sites, because they were made in a
public forum in connection with a public issue; further, she urged, Judge could not
show a probability of prevailing on the merits against her because Glassman, not
Randell, allegedly posted those reviews. In addition, she contended, her emails about
Judge could not form the basis of a defamation claim because they were privileged or
not published to a third party.
       In support of her motion, Randell submitted a declaration averring that she did
not write any of the allegedly defamatory reviews, she was not Glassman, and
Glassman was actually a longtime acquaintance who helped her find contractors to do
the work, reviewed their work, and loaned her money to pay for it. Attached to her
declaration was a printout of a Facebook page for a “Jeff Glassman.” In addition,
Randell asserted that she was blind and permanently disabled and had “great difficulty
reading and using a computer, and employ[ed] various adaptive aids in order to do so.”

              2. Judge’s Opposition
       Judge acknowledged that his defamation claim was based on the reviews posted
on the consumer Web sites, not Randell’s emails. He opposed the motion to strike,
however, contending the defamation cause of action did not arise from protected activity
because the reviews did not concern a matter of “public interest.” In addition, Judge
disputed Randell’s assertion that she and Glassman were not the same person: he argued


2
       Only the anti-SLAPP motion is at issue in Randell’s appeal. As to the breach of
contract cause of action, the court sustained the demurrer with leave to amend on the
ground that Judge had not adequately alleged that he held the appropriate license to do
the work. Judge asserts in his respondent’s brief that he filed an amended complaint, an
ensuing demurrer was overruled, and Randell filed an answer.

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that, within 10 minutes after leaving the job site, he received an email from Glassman
originating from Randell’s IP address, asking for a reply via fax to a number that turned
out to be Randell’s home phone number; he further argued there was no indication that
the Jeff Glassman depicted on the Facebook page was in fact the Jeffrey M. Glassman
who submitted the reviews; and he asked the court for discovery to ascertain Glassman’s
existence and whereabouts.
       Judge did not submit a declaration, but relied on the documentation attached to his
verified complaint. In addition, he attached documents to his opposition memorandum,
including his response, signed under penalty of perjury, to a consumer complaint Randell
had made to the district attorney. In this sworn response, Judge refuted Randell’s
allegations, including her allegation that he was drunk at work.

              3. Randell’s Reply
       In her reply, Randell contended that Judge had not offered competent evidence
that Glassman was her alter ego, but she nevertheless presented additional evidence that
he was not: declarations from four individuals attesting that Glassman existed; her own
declaration that the Glassman referred to in the Facebook page was indeed the Glassman
who assisted her with her patio; and printouts of Facebook pages indicating that
Glassman had made comments on Randell’s Facebook page. As to the fact that
Glassman’s email originated from her IP address, Randell explained that Glassman was
at her house when he wrote the email to Judge. In addition, Randell contended that Judge
failed to prove the falsity of the consumer reviews, his attachments to his opposition
memorandum suggested that some of her statements were true, and he failed to submit
evidence that she knew the statements were false or made them with malice.

              4. Trial Court’s Ruling
       The court ruled that the anti-SLAPP statute applied under section 425.16,
subdivision (e)(3), because the consumer Web sites on which the reviews were posted
constituted public forums, and the reviews were made in connection with an issue of
public interest as consumer protection information. The court denied the motion to


                                             5
strike, however, on the ground that the evidence disclosed a probability that Judge would
prevail on his claim. Although the court found that Randell’s evidence “defeat[ed]”
Judge’s assertion that Randell and Glassman are the same person, it further found that
“the evidence in this record could support a finding that Glassman was acting as
Rand[e]ll’s agent for this purpose, and Rand[e]ll is liable as the principal who approved
these defamatory comments.” (Underscoring and italics in original.) In this regard, the
court noted that an email from Glassman, sent from Randell’s computer, stated that
Randell was Glassman’s partner, and many of the allegedly defamatory reviews referred
to “our job” or similarly indicated that Glassman was representing Randell’s interests
when he published the comments. As to the falsity of the comments, the court found that
Judge’s sworn denial to the district attorney that he had been drunk at work demonstrated
that he could testify to the falsity of the assertion that he was drunk, and Randell’s own
letter to the district attorney contradicted the statement in the reviews that Randell had to
sue Judge for damage to the flagstone. Lastly, the court concluded, the record showed
that Judge could prove actual malice, because if the trier of fact believed Randell falsely
stated that Judge was drunk, it could also conclude that she knew her statement was false.
       This appeal, and Judge’s cross-appeal, followed.

                                     II. DISCUSSION

       “Section 425.16 authorizes a defendant to file a special motion to strike when a
cause of action arises from an act in furtherance of the defendant’s constitutional right of
petition or free speech in connection with a public issue. It establishes a procedure by
which the trial court evaluates the merits of the plaintiff’s claim using a summary-
judgment-like procedure at an early stage of the litigation. [Fn. omitted.] (Flatley v.
Mauro (2006) 39 Cal.4th 299, 312 . . . (Flatley); Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 192 . . . .) The purpose is to curb the chilling effect that certain
litigation may have on the valid exercise of free speech and petition rights, and the statute
is to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)” (Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, 1180-1181 (Wallace).)



                                              6
       “ ‘In its motion, the defendant must make a threshold showing that the plaintiff’s
cause of action arises from the defendant’s free speech or petition activity, as specified in
the statute. (§ 425.16, subds. (b), (e).) The burden then shifts to the plaintiff to establish
a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67 . . . .) If the plaintiff fails to do so, the motion to strike is
granted and the prevailing defendant is entitled to recover his or her attorney fees and
costs. (§ 425.16, subd. (c).) We review an order granting or denying a motion to strike
under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at p. 325.)’ (Haight Ashbury
Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547 . . . ;
see Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 998
. . . .)” (Wallace, supra, 196 Cal.App.4th at p. 1181.)

       A. First Prong: Protected Activity
       The first prong of the anti-SLAPP analysis required Randell to make a threshold
showing that Judge’s defamation cause of action arose from acts “in furtherance of [her]
right[s] of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) By statutory
definition, an “act in furtherance of a person’s right of petition or free speech . . . in
connection with a public issue” includes “any written or oral statement or writing made in
. . . a public forum in connection with an issue of public interest.” (§ 425.16, subd.
(e)(3).)
       As the trial court determined, the allegedly defamatory online reviews were
made in a public forum in connection with an issue of public interest. (§ 425.16, subd.
(e)(3).) Public Web sites, such as the sites on which the reviews about Judge were
posted, are public forums for purposes of the anti-SLAPP statute. (Chaker v. Mateo
(2012) 209 Cal.App.4th 1138, 1146 (Chaker) [“[t]he Internet is a classic public
forum”]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366 (Wong) [Web sites
accessible to the public are public forums]; Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 900 (Wilbanks) [consumer advocate’s personal Web site was a public forum].)



                                                7
And reviews that warn other consumers not to use a party’s services constitute
consumer protection information in connection with an issue of public interest.
(Chaker, supra, 209 Cal.App.4th at p. 1146 [allegations about plaintiff’s character and
business practices on a Web site review of his “counterforensics” business]; Gilbert v.
Sykes (2007) 147 Cal.App.4th 13, 23 (Gilbert) [statements about a plastic surgeon that
might be material to people contemplating plastic surgery]; Wilbanks, supra, 121
Cal.App.4th at p. 900 [statements about an insurance broker that constituted a
consumer warning not to use the services]; see also Carver v. Bonds (2005) 135
Cal.App.4th 328, 344 [statements published in a newspaper article warning consumers
not to use the services of a medical practitioner “were in the nature of consumer
protection information”].)
       Here, the consumer reviews about Judge stated that he had “lied about his license
credentials,” “damaged [over] $1000.00 of flagstone material,” was “inethical [sic],” and
was reported to the state licensing board for abuse. This information transcends a
parochial dispute between the parties and warns other potential consumers against using
Judge’s services, thereby falling within the ambit of consumer protection information.
       Judge’s arguments to the contrary are unpersuasive. First, he attempts to
distinguish his case on the ground that the reviews about him were not written with the
intent of protecting consumers, but to intimidate, threaten, and compel him not to seek
payment, and to inflict pain, suffering, and revenge. Furthermore, he argues, more
people had an interest in the subject matter at issue in Wilbanks and Wong than they do in
his qualifications to install flagstone. However, regardless of the author’s intent or the
relative number of interested consumers, the reviews about Judge contained consumer
information of interest to untold numbers of consumers contemplating the type of
services Judge purported to provide. Viewing the anti-SLAPP statute broadly, as we
must, the reviews fall within the scope of the statute.
       Judge also argues that the anti-SLAPP statute does not apply because defamation
is not protected by the constitutional right of free speech. The question, however, is not
whether the reviews fall within the protections of free speech rights, but whether they fall


                                              8
within the scope of subdivision (e)(3) of section 425.16. (Schaffer v. City and County of
San Francisco (2008) 168 Cal.App.4th 992, 1001-1004.) They do.

       B. Second Prong: Probability of Prevailing
       Because Randell satisfied her burden of establishing that the defamation cause of
action arose from protected activity, the burden shifted to Judge to establish a
probability of prevailing on his defamation claim. This burden can be met only by
competent admissible evidence. (See, e.g., Gilbert, supra, 147 Cal.App.4th at p. 26.)
However, the court does not evaluate the credibility of the evidence or weigh competing
evidence; rather, it accepts as true all the evidence favorable to Judge and assesses
Randell’s evidence only to determine if it defeats Judge’s submission as a matter of law.
(Chaker, supra, 209 Cal.App.4th at p. 1147.) Moreover, the requisite showing is not
high: Judge needed to show only a “minimum level of legal sufficiency and triability,”
articulated by some courts as “minimal merit.” (Ibid.; see Castleman v. Sagaser (2013)
216 Cal.App.4th 481, 490.)
       Randell contends there was no admissible evidence to support (1) the court’s
conclusion that Glassman was Randell’s agent, (2) the element of defamation that
statements in the reviews were false, or (3) the element of actual malice required for
presumed or exemplary damages. We disagree on all counts.

              1. Glassman as Pseudonym or Agent
       “The general rule for defamation is that only one ‘who takes a responsible part in
the publication is liable for the defamation.’ ” (Matson v. Dvorak (1995) 40 Cal.App.4th
539, 549.) Thus, a person who is not involved in the “preparation, review or publication”
of allegedly defamatory statements cannot be subject to liability in a defamation action.
(Ibid.) Accordingly, Judge had to provide evidence that Randell either authored the
reviews or was otherwise sufficiently involved in their preparation, review or publication.
       On their face, the reviews were posted by Glassman. Judge contended, however,
that Glassman was really Randell; the trial court, on the other hand, concluded that
Glassman and Randell were not the same person, but there was sufficient evidence that


                                             9
Glassman was acting on Randell’s behalf. We find the evidence adequate to support
either theory.

                     a. Pseudonym Theory
       Randell argues that Judge failed to offer admissible evidence that Randell
authored or posted the reviews, but merely alleged, on information and belief, that she
was using Glassman as a pseudonym. Randell urges this was insufficient, because in
opposing an anti-SLAPP motion to strike, “[t]he plaintiff may not rely on the allegations
in the complaint or assertions in a declaration based on information and belief.” (Wong,
supra, 189 Cal.App.4th at p. 1368.) In addition, Randell points out, she submitted
admissible evidence that she and Glassman were not the same person.
       Contrary to Randell’s argument, the record contains evidence from which a trier of
fact could reasonably conclude that Randell authored the reviews using Glassman’s name
as a pseudonym.3 In his opposition to the motion to strike, Judge argued that emails
ascribed to Glassman emanated from Randell’s IP address and contained a fax number
that was Randell’s telephone number; in addition, Judge asserted that AOL.com allows
subscribers up to 10 email accounts, which can bear any name the account owner desires,
such that Randell could have created an email account using Glassman’s name. The
emails, attached to Judge’s verified complaint and authenticated under penalty of perjury,
confirmed that Randell’s and Glassman’s email addresses were both on AOL.com. And
although Judge did not provide admissible evidence that the Glassman emails came from
Randell’s IP address and referred to her fax number, Randell did: in her declaration, she
acknowledged that at least one email purportedly from Glassman to Judge emanated from
Randell’s IP address, and the fax number was indeed hers. While Randell provides an
explanation for these facts, one reasonable explanation is that Randell wrote the emails

3
        Randell contends the trial court determined that Judge failed to establish that
Randell published the online reviews at issue. Not so. The court merely determined that
Randell’s evidence showed Randell and Glassman are not the same person. In any event,
we may affirm the trial court’s ruling on any proper ground asserted by a party, even if
the trial court did not rely on that ground in making its decision. (D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 18-19.)

                                            10
using Glassman’s name, thus suggesting a practice of using Glassman’s name as a
pseudonym.
       Indeed, the language of the emails ostensibly authored by Glassman was similar to
the language of writings attributed to Randell. For example, an email purportedly from
Glassman to Judge on October 24, 2012, included the phrase, “Trust me on this one.”
The “Declaration of Lori Randell” submitted in support of her consumer complaint to the
district attorney in November 2012 included the phrase, “Trust me on that one.” The
substance of the Glassman and Randell writings was similar as well. One reasonable
explanation is that Randell authored both.
       Turning to the allegedly defamatory reviews themselves, the reviews bore
Glassman’s name and, on multiple occasions, Glassman’s email address on AOL.com.
The content of the reviews was similar to the content of Randell’s writings. Although by
no means dispositive, the evidence is susceptible to the interpretation that Randell not
only used Glassman’s name to write emails, she used his name to write the allegedly
defamatory reviews too.
       Randell refers us to her two declarations averring she is not “one and the same
person” as Glassman, Glassman is actually a longtime acquaintance who assisted her
with her patio project, and she did not fabricate Glassman in order to defame Judge. She
also points to the declarations from other individuals who asserted that Glassman is a real
person, as well as the prelitigation communications she purportedly received from
Glassman on Facebook. Randell argues that the “inescapable inference” is that Glassman
acted independently in writing the reviews. Not so.
       In the first place, Judge debates the veracity of the declarations and the Facebook
pages. But even accepting Randell’s contention that the evidence showed Glassman and
Randell are not the same person, it does not show dispositively who actually wrote the
reviews, let alone whether Randell participated in their preparation, review, and
publication. In short, a finding that Randell and Glassman are not the same person would
not necessarily prove that Randell did not author the reviews using Glassman’s name.
And while Randell averred that she was not aware of and did not participate in or


                                             11
authorize Glassman’s posting of the reviews, her assertions merely create a dispute in the
evidence.

                     b. Agency Theory
       “An agent is one who represents another, called the principal, in dealings with
third persons.” (Civ. Code, § 2295.) Agency may be actual or ostensible. (Civ. Code,
§ 2298.) An actual agency may arise by express agreement, be implied from the
conduct of the parties, or arise by ratification. (van’t Rood v. County of Santa Clara
(2003) 113 Cal.App.4th 549, 571.) It is not enough that two individuals had a
preexisting relationship; an agency is proved by evidence that the person for whom the
work was performed had the right to control the activities of the alleged agent. (Id. at
p. 572.)
       Admissible evidence supported an inference that Glassman acted as Randell’s
agent. Randell herself presented evidence that she was blind and disabled and had
difficulty using a computer. She stated in her declaration that Glassman was helping her
with the patio project. According to Randell, Glassman was the author of the emails to
Judge—composed on and sent from her home computer—that attempted to negotiate a
resolution of Randell’s dispute with Judge and later threatened to sue him. A reasonable
inference is that Glassman wrote these communications on her behalf, at her direction, or
at least with her knowledge. Many of Glassman’s other emails to Judge were also sent to
Randell, giving her notice of this correspondence as well. Further, Randell explicitly
exhorted Glassman to action on her behalf, telling Glassman (in an email copied to
Judge): “Let’s drown [Judge] in legal bills and have his licensed [sic] revoked.”
       Moreover, further evidence—in the reviews themselves—indicated that Glassman
posted the reviews for Randell, within the scope of his authority as her agent. Even
though the flagstone contract was between Judge and Randell only, the reviews
ostensibly authored by Glassman were written in the first person plural (“we”): as the
trial court noted, many of the allegedly defamatory comments referred to “our” job; “we”
had to sue him; “we” found out the truth; “we” reported him to the CSLB; and “we



                                            12
refused to sign his contract.” The reviews also contained matters that Glassman would
not have known about, unless Randell had told him. From this evidence, a trier of fact
could reasonably conclude that Randell had authorized Glassman to write the defamatory
reviews on her behalf, just as she had authorized him to write emails on her behalf, or at
least that Randell was involved in the preparation, review or publication of the reviews.
       Randell contends the trial court ignored evidence of the lack of an agency
relationship, including Glassman’s posting of the reviews under his name and email
address only, his loan to Randell for the project, and his separate communications with
Judge and a Web site publisher. But none of this evidence dispositively precludes the
conclusion that Glassman wrote the reviews as Randell’s agent; at most, it creates a
triable issue.
       Randell also refers us to Wong, supra, 189 Cal.App.4th 1354. In Wong, a dentist
brought a defamation action against a husband and wife, claiming they posted a
slanderous complaint about her on Yelp. (Id. at p. 1361.) The posting did not identify
the name of the person who wrote it, but included initials that matched those of the
husband. (Id. at p. 1368.) In a declaration, the husband stated that he wrote and posted
the review without his wife’s knowledge; the wife averred that she did not write or even
know about the review until after it was posted. (Id. at p. 1363.) The appellate court
ruled that an anti-SLAPP motion to strike should have been granted with respect to the
wife, because there was no evidence that she had anything to do with the review and its
posting, and the posting itself—bearing the husband’s initials only—supported an
inference that the wife was not involved. (Id. at p. 1368.) The court explained, “Indeed,
the review is written in the first person, which implies that the review was written and
posted by one person and reflects only that person’s sentiments.” (Ibid.)
       Wong does not help Randell. In Wong, there was no evidence that the wife was
aware of the review; here, there was evidence that Randell did know about the reviews:
she was intimately involved in the dispute and the communications with Judge
concerning the project—indeed, it was her project—and Judge sent an email to Randell
complaining about “ ‘libelous’ reviews.” Moreover, in Wong, the husband presented a


                                            13
declaration asserting that the wife was not involved in the review; here, the record does
not contain any declaration from Glassman disavowing Randell’s involvement. Lastly, in
Wong, the review was “written in the first person, which implies that the review was
written and posted by one person and reflects only that person’s sentiments.” (Wong,
supra, 189 Cal.App.4th at p. 1368.) Here, the reviews were written in the first person
plural, which arguably implies that the review was written and posted by more than one
person and reflects the sentiments of both.
       We acknowledge that Judge did not allege an agency theory in the trial court.
(See Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 236 [“ ‘As in a
motion for summary judgment, the pleadings frame the issues to be decided’ ”].) But
we find no prejudice to Randell in this regard. First, the agency theory was a natural
fallback to the pseudonym theory: if the reviews were not penned by Randell but by
Glassman, the next foreseeable question would be why he wrote them, and agency
would be one reasonable answer. Indeed, the pseudonym theory and the agency theory
are two sides of the same coin: they provide alternative ways of proving the single
issue of whether Randell was involved in the preparation, review or publication of the
defamatory comments. Second, Randell does not suggest any evidence she could have
presented to rebut the agency theory, if it had been raised explicitly by Judge in the trial
court, beyond what she raised or could have raised to rebut the pseudonym theory. At
bottom, the evidence disclosed a probability that Judge could prove Randell’s
participation in the creation and posting of the reviews so as to subject her to liability
for defamation.

              2. Falsity
       A defamation claim requires proof of a publication that is false, defamatory, and
unprivileged, and that has a natural tendency to injure or causes special damage.
(Wong, supra, 189 Cal.App.4th at p. 1369.) Of these elements, the “ ‘ “sine qua non of
recovery for defamation . . . is the existence of falsehood.” ’ ” (Id. at p. 1370.) Where
“the speech involves a matter of public concern, a private-figure plaintiff has the burden



                                              14
of proving the falsity of the defamation.” (Brown v. Kelly Broadcasting Co. (1989) 48
Cal.3d 711, 747 (Brown).)
       As the trial court noted, admissible evidence in the record indicated the falsity of
at least two of the statements in the reviews: (1) that Judge was drunk on the job, and
(2) that Randell had to sue Judge for reimbursement of damaged flagstone.4
       In Judge’s sworn response to the district attorney concerning Randell’s consumer
complaint, Judge expressly denied ever being drunk on the job. We find this statement,
made under penalty of perjury, to be the functional equivalent of a declaration; indeed,
Randell herself relied on Judge’s response to the district attorney as evidence. We further
conclude that Judge’s denial is evidence from which a trier of fact might reasonably
decide that Randell’s assertion was false. Although Randell points out that Judge also
stated in the response that on his drive back to the job site he “stopped for lunch,” ordered
a burrito and “a bottle of Bud,” and “arrived at the site mid afternoon,” that is not an
admission he was drunk: the totality of Judge’s statement is that, although he purchased
and presumably consumed a bottle of beer, he was not drunk. If believed by the trier of
fact, Judge’s denial would establish the falsity of Randell’s aspersion.
       In regard to the statement that Judge had to be sued to recover the cost of replacing
the damaged flagstone, Randell’s own declaration to the district attorney suggested the
assertion was untrue. Randell stated: “I was so distraught about having to replace
$1000.00 worth of flagstone and wait another week for the next delivery date in Marin,
that I burst into tears [while on the phone with the vendor] . . . . The VP of Operations
felt so terrible that he later replaced the entire order free of charge and delivered it to me
at no charge 2 days later.” As the trial court found, a trier of fact could therefore
reasonably conclude that her assertion, “We had to sue [Judge] . . . to get the money
back” for the damaged flagstone, was false. Randell argues that there was evidence in


4
        Randell argues that only the first statement is material to this appeal because it is
the only statement that the trial court concluded was made with the requisite knowledge
of falsity. We disagree. The evidence is sufficient to show a probability of establishing
the known falsity of multiple statements, and the trial court did not rule otherwise.

                                              15
the form of an August 10 receipt from Lyngso Garden Materials, Inc. attached to Judge’s
opposition indicating that two tons of flagstone had been ordered as a “Replacement for
Pick Up on 7/31/12.” But this evidence says nothing about having to sue Judge to
recover any expense.
       Lastly, although not mentioned by the trial court, Randell points out that in regard
to the alleged falsity of the statement, “We had to sue him to get the lien removed,”
papers attached to Judge’s opposition showed that Randell had filed a complaint with the
district attorney regarding the parties’ dispute. But a trier of fact could reasonably
conclude that this statement in the review was also false: filing a consumer complaint
about Judge with the district attorney is not “su[ing] him.”

              3. Actual Malice
       Actual malice may be shown by evidence that Randell knew the statements were
false or entertained serious doubts about their veracity. (See Wilbanks, supra, 121
Cal.App.4th at p. 906.) Because the alleged defamatory statements are matters of public
interest, Randell contends, Judge would ultimately have to make this showing by “clear
and convincing proof.” (Ibid.; see Brown, supra, 48 Cal.3d at p. 747 [when speech
involves a matter of public concern, a private figure must prove malice].)
       Judge demonstrated a probability of establishing actual malice. If the trier of fact
concluded that Judge was not drunk on the job, it could just as well conclude that
Randell knew he was not drunk, based on her personal observations. While Randell
urges this inference is improper because she is blind, her argument is unavailing:
Randell’s ability to discern Judge’s lack of sobriety is a matter for the trier of fact;
besides, if Randell was indeed unable to determine whether Judge was drunk, the fact
that she nonetheless represented he was drunk could suggest she made the statement
without any basis for believing it to be true.
       Similarly, if the trier of fact concluded that Randell did not have to sue Judge to
get the money back for replacing the flagstone, the jury might reasonably conclude that
Randell knew this statement was false, especially in light of her representation to the



                                                 16
district attorney that it was replaced at no charge to her. And the jury could also
conclude that, when Randell said she had to sue Judge to get the lien removed, she knew
the distinction between suing Judge and filing a consumer complaint with the district
attorney. In light of this evidence—as well as Randell’s vitriol toward Judge in her
emails—there was sufficient evidence to conclude that Judge had a probability of
establishing that the false statements in the reviews were made with actual malice.
       The trial court did not err in concluding that Judge established a probability of
prevailing on his cause of action for defamation. Accordingly, Randell fails to establish
that the court erred in denying her anti-SLAPP motion to strike.5

       D. Judge’s Cross-Appeal
       Judge’s “Respondent’s Brief/Cross Appellant’s Opening Brief” does not
distinguish the arguments he makes in response to Randell’s appeal from the arguments
he makes in favor of his cross-appeal. And Randell’s reply brief is of no help.
       In our estimation, besides the arguments we have already addressed ante, Judge
makes two contentions. First, he contends the trial court erred in sustaining Randell’s
demurrer to his breach of contract cause of action; he also asserts, however, that he filed
an amended complaint, the court denied Randell’s demurrer and motion to strike, and
Randell answered the complaint. Although these documents are not in the record, his
representations indicate that any challenge to the court’s order sustaining the original
demurrer is moot. Second, Judge contends the court erred by denying his repeated
requests for discovery. In light of our affirmance of the trial court’s denial of the motion
to strike, however, this contention is moot as well.

                                     III. DISPOSITION
       The order is affirmed.



5
        By this ruling, we do not decide whether Judge will be able to prove his
allegations at trial; we decide only that there was sufficient evidence for the trial court to
conclude that Judge showed a probability of prevailing for purposes of the anti-SLAPP
statute.

                                              17
                   NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.




              18
