demurrer to the fifth cause of action
Case No.: 25CV474448
Cross-defendants Milz Development & Construction, Grizzly Demolition & Excavation, Mark Milz and Nathan Thomas Churchill (collectively, “cross-defendants”) demur to the fifth cause of action of cross-complainant Shawn M. Dean dba South Bay Grading’s (“Dean”) crosscomplaint (“XC”) for slander per se. The fifth cause of action identifies the complained of statements in Exhibit G of the XC, which are Instagram posts from a user with the name “southbaydoesntpay.” (See XC, ¶ 43, citing to Exh. G.) The posts are republications of: a claim of a mechanics lien, apparently with DJ Khaled’s “Out Here Grindin’” playing in the background; a Chase bank returned deposit details page with a returned check from South Bay Grading; Contractor’s License Detail information for Dean from the Contractors State License Board website, including the Citation Violation Disclosure for failure to timely pay a subcontractor; a summons and complaint against Dean for breach of contract; arrest records for nonparty Aaron Hosmer; and, a comment from “intelibilt.”
Also attached is an Instagram page of “garbageman_church.”
In opposition, Dean argues that “South Bay has alleged that the Instagram account at issue titled ‘southbaydoesntpay’ is in and of itself a false statement.” (Opposition, p.4:15-17.) “The test is whether a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts.” (Barnes-Hind, Inc. v. Super. Ct. (Allergan Pharmaceuticals, Inc.) (1986) 181 Cal.App.3d 377, 384-385; see also McGarry v. University of
San Diego (2007) 154 Cal.App.4th 97, 112 (stating that “[a] statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter”).) Here, a reader could not understand the charge by implication by the mere name “southbaydoesntpay” without extrinsic explanatory matter; thus, the Instagram handle “southbaydoesntpay” is not in and of itself defamatory per se.
Dean also acknowledges that he does not allege damages. (See Opposition, p.4:26-27 (stating that “[t]he cross-complaint pleads statements that are covered by Civil Code § 46(3) and do not require a pleading of damages”).) “Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.” (
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Cross-defendants’ demurrer to the fifth cause of action of the XC for slander per se is SUSTAINED with 10 days leave to amend.
Cross-defendants shall prepare and submit a proposed final order consistent with this tentative ruling. Calendar Line 10
Case Name: Milz Development & Construction v. Dean, et al. Case No.: 25CV474448
Cross-defendants Milz Development & Construction, Grizzly Demolition & Excavation, Mark Milz and Nathan Thomas Churchill (collectively, “cross-defendants”) demur to the fifth cause of action of cross-complainant Shawn M. Dean dba South Bay Grading’s (“Dean”) crosscomplaint (“XC”) for slander per se. The fifth cause of action identifies the complained of
statements in Exhibit G of the XC, which are Instagram posts from a user with the name “southbaydoesntpay.” (See XC, ¶ 43, citing to Exh. G.) The posts are republications of: a claim of a mechanics lien, apparently with DJ Khaled’s “Out Here Grindin’” playing in the background; a Chase bank returned deposit details page with a returned check from South Bay Grading; Contractor’s License Detail information for Dean from the Contractors State License Board website, including the Citation Violation Disclosure for failure to timely pay a subcontractor; a summons and complaint against Dean for breach of contract; arrest records for nonparty Aaron Hosmer; and, a comment from “intelibilt.” Also attached is an Instagram page of “garbageman_church.”
In opposition, Dean argues that “South Bay has alleged that the Instagram account at issue titled ‘southbaydoesntpay’ is in and of itself a false statement.” (Opposition, p.4:15-17.) “The test is whether a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts.” (Barnes-Hind, Inc. v. Super. Ct. (Allergan Pharmaceuticals, Inc.) (1986) 181 Cal.App.3d 377, 384-385; see also McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 (stating that “[a] statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter”).)
Here, a reader could not understand the charge by implication by the mere name “southbaydoesntpay” without extrinsic explanatory matter; thus, the Instagram handle “southbaydoesntpay” is not in and of itself defamatory per se.
Dean also acknowledges that he does not allege damages. (See Opposition, p.4:26-27 (stating that “[t]he cross-complaint pleads statements that are covered by Civil Code § 46(3) and do not require a pleading of damages”).) “Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.” (Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1226; id. at p.1233 (stating that “a statement alleging a breach of contract is not defamatory per se”).)
Cross-defendants’ demurrer to the fifth cause of action of the XC for slander per se is SUSTAINED with 10 days leave to amend.
Cross-defendants shall prepare and submit a proposed final order consistent with this tentative ruling.
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