Of Law Offices of Mark B. Plummer, PC. against Nabilidecided yesterday by the California Court of Appeals (Judge Thomas Goethals, joined by Judges William Bedsworth and Maurice Sanchez):
After a lawyer and two former clients had a dispute over non-payment of attorney’s fees, the clients allegedly created a website containing derogatory statements about the lawyer. The attorney and his law firm sued both clients for defamation, obstruction of potential business advantage, false identity, and declaratory judgment.
The court allowed part of the defamation and declaratory relief claims to proceed, but not the interference claim (which I won’t discuss further here) or the false identity claim:
Plaintiffs’ third cause of action is false identity in violation of Criminal Code Section 528.5. This provision authorizes a civil action against “any person who knowingly and without consent impersonates another real person through or on an Internet website or other electronic means for the purpose of harming, intimidating , threaten or defraud another person…”. He adds that “a spoofing is credible if another person could reasonably believe, or reasonably believed, that the defendant was or is the person whose identity was impersonated.” Thus, to prevail in their third cause of action, the plaintiffs had to establish a prima facie case that Dr. Nabili credibly impersonated Plummer through markplummerattorney.com for the purpose of harming him, and that another person would reasonably believe, or believed, that Plummer created the Website.
The plaintiffs made no such demonstration. On the contrary, the contents of the excerpts from the website support the conclusion that the plaintiffs did not create or endorse the site. The excerpts claim that “Plummer routinely sues his own clients” and “loses” business. The information on the site seems to be almost entirely negative regarding the applicants. Additionally, the Website never refers to Plummer or its affiliates in the first person.
Plummer nevertheless claims that other lawyers believed he created the website, saying in his statement that he had to “explain to other lawyers, both adverse and non-adverse, that markplummerattorney.com is not [his] However, he does not provide any details regarding these communications and the selected emails attached as exhibits to Plummer’s statement belie this claim. For example, the email attached as Exhibit 1 to his statement is an email from Plummer’s opposing counsel to his co-counsel which states: “Speaking of [Plummer]We stumbled upon this site today by accident: https://www.markplummerattorney.com/. We have no idea who created the sitebut it does give some telling insight into who you paired up in this dispute.” (Emphasis added.)
Plummer’s statement claims that his opposing counsel in another case believed the statements on the website to be true and believed that markplummerattorney.com was Plummer’s website; Plummer supported this claim by attaching the attorney’s email as Exhibit 16. Reviewing Exhibit 16, however, the attorney’s email does not refer to markplummerattorney.com, let alone suggest that he believed that Plummer had created this website.
We conclude that no reasonable person would believe that Plummer created a website portraying itself as vexatious, incompetent or dishonest. The plaintiffs failed to establish that anyone else actually believed that Plummer created this website. Accordingly, the cause of action for false identity must be struck with respect to Dr. Nabili.