DocuSig'n Envelope ID: - Electronically Filed 04/07/2016 01:31 :08 PM ORDR CLERK OF THE COURT Marc J. Randazza (NV Bar No.: 12265) Alex J. Shepard (Nevada Bar No. 13582) RANDAZZA LEGAL GROUP, PLLC 4035 8. El Capitan Way Las Vegas. NV 89147 Telephone: 702-420-2001 Facsimile: 305-437-7662 ecf@randazza.com Attorneys for Defendant Pamela Boling DISTRICT COURT CLARK COUNTY, NEVADA Case No.: A-l Dept. No.: XV IQTAXX, LLC, a Nevada Limited Liability Company Plaintiff. ORDER VS. PAMELA BOLING. an individual; and DOES I through X, inclusive, and ROE BUSINESS ENTITIES XI through XX. inclusive, Defendants. ORDER GRANTING DEFENDANT PAMELA SPECIAL MOTION TO DISMISS UNDER NRS 41.660 This matter. having come before the Court on Defendant Pamela Boling's. Special Motion to Dismiss Under NRS 41.660. and it appearing, upon argument of counsel and for good cause shown, the motion is granted: NRS 41 .635 et seq., Nevada's statute, creates a procedure for early dismissal of cases targeting speech and conduct protected by the First Amendment when they lack merit. As provided for in John v. Douglas Cnty. School Dist., 125 Nev. 746 (Nev. 2009), the statute creates a two-step analysis for courts to follow in deciding whether to dismiss a case under its provisions. First. under NRS 4i the moving defendant has the burden of showing, by 1 Order Granting Defendant's Special Motion to Dismiss . A-15-728426-C APR ll 1 2015 DocuSlgn Envelope ID: preponderance of the evidence, that the plaintiff's suit is ?based upon a goodl faith communication in furtherance of the right to petition or the right to free- speech in direct connection with an issue of public concern.? If the moving defendant meets this burden, the burden of proof then shifts to the plaintiff to- establish ?by prima facie evidence a probability of prevailing on the claim." NRS 4T The plaintiff must introduce evidence establishing his claims to satisfy this burden. motions have traditionally been treated as or motion far summary judgment, and so the plaintiff can survive a special motion' to dismiss by establishing a genuine issue of material fact. It the plaintiff fails to do this. his case must be dismissed. I. FACTUAL BACKGROUND In April 2015, Defendant retained/hired Plaintiff to prepare certain tax documents on her behalf for filing with the IRS, including an economic hardship filing. The parties dispute the amount of work and actual work that Plaintiff completed. The parties dispute whether Plaintiff filed an economic hardship. After hearing from the Las Vegas Taxpayer Advocate Office in August 2015 that an economic hardship had not been filed on her behalf, Defendant attempted- to contact Plaintiff by telephone. On one of these attempts, she was routed to a third-party call center that informed her Plaintiff's phone number was inactive.? Aggravated by this exchange and unsatisfied with Plaintiff's work. Defendant posted a review of Plaintiff on the web site Yelp on September 11. 2015. This review recounted her experience with the third-party call center andl concluded with the statement ?This is 1 Plaintiff admits that. during the time Defendant attempted to call Plaintiff, there was a malfunction in Plaintiff's phone system that caused callers to be directed to a third-party call center. - 2 Order Granting Defendant's Special Motion to Dismiss A-l DocuSign Envelope ID: omwmmeM-a Yelp is a well-known public forum for consumers to discuss the quality of the goods and services of various companies and professionals. The parties, agree that Defendant's September 11, 2015 review contained some opinions. concerning Plaintiff's business and the quality thereof, and the parties agree that Defendant's statement ?This is was not based on any thirdl party determination of the services or lack of services provided by Plaintiff. On October 30, 2015, Plaintiff sent Defendant a cease and desist letter regarding the September 11, 2015 review. In this letter, Plaintiff describedl Defendant's Yelp review as ?an exaggerated emotional rant review on the LLC Yelp page." In response to this letter, Defendant removed her September 11, 2015 Yelp review and replaced it on November 3, 2015 with an: updated review that did not include the statement ?This is Plaintiff alleges to have spoken with Defendant on the phone after sending this, letter, and informed Defendant that it had filed her economic hardship. After this conversation, however, Defendant was allegedly informed by the IRS that the hardship had not been filed. On December 1, 2015, Plaintiff filed its Complaint, asserting causes of action for (I) intentional interference with contract or prospective economic advantage: (2) libel; and (3) libel per se. Plaintiff served Defendant Pamelal Boling with this Complaint on January 18, 2015, and on February 8, 2016. Defendant Pamela Boling filed her Special Motion to Dismiss Plaintiff's Complaint under NRS 41.660 (the Motion"). ll. DISCUSSION A. Nevada?s Statute The purpose of Nevada's statute is to ensure that lawsuits are not brought against defendants for exercising their First Amendment rights. To do this, the statute establishes a two-prong analysis in determining 3 Order Granting Defendant's Special Motion to Dismiss A-1 5-728426-C DocuSign Envelope ID: whether a Special Motion to Dismiss should be granted. Under NRS 4l an movant has the initial burden of establishing, by preponderance of the evidence, that the plaintiff's claims are ?based upon good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern.? This burdeni may be met by showing that the statement at issue is a "[c]communication made in direct connection with an issue of public interest in a place open to the public or in a public forum, which is truthful or is made without knowledge of its falsehood." NRS The 2013 revisions to the statute. particularly the inclusion of NRS 41 .637(4), were meant to broaden the scope of the statute to include statements in furtherance of the right to free speech. instead of focusing solely on the right to petition. Under NRS once the Court finds that the movant has met its burden on the first prong, the burden then shifts to the plaintiff to show, by prima facie evidence as defined by California case law, that it has probability of prevailing on its claims. SB. 444, 2015 Leg., 78th 8955., ?l2.5(2) (Nev. 2015). An motion must be brought within 60 days of a defendant being served with the complaint. See NRS There is no dispute that Defendant's motion was timely filed. Additionally, an order granting a Special Motion to Dismiss acts as an adjudication on the merits. See NRS 41 .660(5). B. Prong One: Good-Faith Communication in Direct Connection with an Issue of Public Concern The Court finds that Defendant has met her burden of proof under the first prong of Nevada's statute. Plaintiff's claims are primarily based on; the statement ?This is which appears only in Defendant's September ll, 2015 Yelp review. Complaints of non-criminal conduct by of .. 4 Order Granting Defendant's Special Motion to Dismiss A-l DocuSign Envelope ID: business constitute matters of public concern. particularly concerning reviews on web sites such as Yelp. See Mt. Hood Polaris. Inc. v. Martino (In re Gardner). 563 F.3d 981, 989 (9th Cir. 2009). Neumont Univ.. LLC v. Little Bizzy, LLC, 2014 U.S. Dist. LEXIS 69168. *33 (D. Nev. The Court agrees with the statement in. May 2014) that "consumers play a vital role" in spreading awareness of companies' products and services, and that ?online fora for the exchange of those ideas play an increasingly large role in informing consumers about the choices that make sense for them.? California courts have also recognized the importance of such statements. finding that: ?The growth of consumerism in the United States is a matter of common knowledge. Members of the public have recognized their roles as consumers and through concerted activities, both private and pUblic, have attempted to improve their . . . positions vis-a?vis the supplies [sic] and manufacturers of consumer goods. They clearly have an interest in matters which affect their roles as consumers, and peaceful activities. such as plaintiffs', which inform them about such matters are protected by the First Amendment." Willbanks v. Walk. 12] Cal. App. 4th 883. 899 (2004) (quoting Paradise Hills Associates v. Procel, 235 Cal. App. 3d 1528, 1544 (1991)). Defendant's statements are statements by a consumer of Plaintiff?s services regarding the quality of Plaintiff's services. The statements contained in( Defendant's November 3, 2015 updated review are also statements regarding the quality of Plaintiff's services. The authorities cited by Defendant, such as Walk, 121 Cal. App. 4th at 899, establish that Defendant's statements in both her September 1 l, 2015 and November 3, 2015 review are statements on matters of public interest. There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not .. 5 - Order Granting Defendant's Special Motion to Dismiss A-l DocuSign Envelope ID: Nom?osm-FOOMmade with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637j4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity. She thus satisfied her burden under prong one of the statute, and the burden shifts to Plaintiff to show an probability of prevailing on the merits of its claims. C. Prong Two: Probability of Prevailing on the Merits Plaintiff has failed to meet its burden under NRS Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that ?there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974). interpret a statement as an assertion of fact, then the statement is protected] See Milkovich v. Lorain Journal Co., 497 US. i If a reasonable person would not under the First Amendment. (1990). To determine whether a statement is actionable, the Court must ask whether a reasonable person would be likely to understand the statement as an expression of the source's opinion or a statement of existing fact. See Pegasusr v. Reno Newspapers, 118 Nev. 706 (Nev. 2002). A Nevada federal court, applying Nevada law, established a three-factor test in determining whether anf allegedly defamatory statement includes a factual assertion: (1) whether the general tenor of the entire work negates the impression that the defendant wast asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression: and (3) whether the 6 Order Granting Defendant's Special Motion to Dismiss A-i i DocuSign Envelope ID: 51722DFF-EF88-41 BT-QD4F-BB79E960DF36 for the Ethical Treatment of Animals v. Bobby Berosini. 11 Nev. 615. 624-25 statement in question is susceptible to being proved true or false. Flowers v. 112 F. Supp. 2d 1202. 1211 (D. Nev. 2000). Additionally. an ?evaluative opinion" cannot be defamatory. See People (Nev. 1995) (finding that claiming depictions of violence towards animals shown in video amounted to "abuse" was protected as opinion) (modified an: unrelated grounds in City of Las Vegas Downtown Redevelopment Agency v. Hecht. 113 Nev. 644. 650 (Nev. 1997)). Such an opinion is one that ?involves or value judgment based on true information disclosed to or known by the public. Evaluative opinions convey the publisher's judgment as to the quality of another's behavior. and as such, it is not a statement of fact." Id. at 624 (citingl Prosser and Keeton on Torts 814 (W. Page Keeton. ed.: 5th ed 1984)). Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp. a well~ known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment. The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact. See Summit Bank v. Rogers, 206 Cal. App. 4th 669. 696-97 (2012) (finding that readers of statements posed in ?Rants and Raves" section of Craigslist ?should be predisposed to view them with a certain amount of skepticism, and with an. understanding that they will likely present one-sided vieWpoints rather than) assertions of provable facts"): see also Global Telemedla lnfernaf.. Inc. v. John: Doe l. 132 F. Supp. 2d 1261, 1267 (CD. Cal. 2001) (finding that Internet postings, .. 7 Order Granting Defendant's Special Motion to Dismiss A-1 5-728426-C a DocuSign Envelope lD: IO MM [0 IO "are full of hyperbole, invective. short-hand phrases and language not generally found in fact-based documents. such as corporate press releases or SEC filings?); Krinsky v. Doe o. 159 Cal. App. 4th 1154. 1163 (2008) (stating that "online discussions may look more like a vehicle for emotional catharsis than a forum for the rapid exchange of information and ideas"). Plaintiff only asserts that the statement ?This is isr defamatory. meaning that only Defendant?s September 11. 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement ?This is with the term "malpractice" in all capital letters and with an exclamation mark. in the context of a Yelp review. is