Obvious Gripe Site Isn’t “False Personation”

Starting at Mark B. Plummer Law Office, PC. Nabili, decided yesterday by the California Court of Appeal (Justice Thomas Goethals, joined by Justices William Bedsworth & Maurice Sanchez):

Following a dispute between a lawyer, and his former clients over the nonpayment attorney fees, the client allegedly set up a website which contained disparaging comments about the lawyer. Clients were sued by their lawyer for defamation.

A portion of the declaration and defamation claims was allowed by the court. However, the interference claim (which is not covered here), or the false personation case were denied.

False personation under Penal Code Section 528.5 is the third cause of action for plaintiffs. That provision authorizes a civil action against “any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person ….” Another provision states, “an impersonation of another person is credible” if the other person believes or could believe that the defendant was/is the impersonator. Thus, to prevail on their third cause of action, Plaintiffs had to make a prima facie showing that Dr. Nabili credibly impersonated Plummer through for the purposes of harming him, and that another person would reasonably believe, or did believe, that Plummer created the website.

The Plaintiffs did not make such a showing. The website content supports that Plaintiffs wouldn’t have created the site or approved of it. According to the excerpts, Plummer regularly sues his own clients and loses cases. It seems that the information about Plaintiffs is almost exclusively negative. The website does not mention Plummer and his associates.

Plummer claims that other lawyers believed that he had created the site, but he also stated in his declaration that he “had to explain to other attorneys (both adverse and not-adverse) that it was so.” markplummerattorney.comIt isn’t [his] website.” Plummer doesn’t provide details on these communications. The emaileds attached as exhibits in Plummer’s declaration however belie that claim. The email that Plummer attached to his declaration as exhibit 1 is, for example, an email from Plummer’s opposition counsel to his cocounsel. It states: “Speaking Of…” [Plummer]We happened upon this site by accident today: It is not known who made the site.This is not a complete list, but it gives a glimpse into who you have teamed up with during this dispute. (Italics added.)

Plummer’s declaration claims that his opposing counsel in another case thought the statements on the website were true and believed was Plummer’s website; Plummer supported that claim by attaching the e-mail from counsel as exhibit 16. In reviewing exhibit 16, however, counsel’s e-mail does not reference, much less suggest he believed Plummer created that website.

Our conclusion is that no reasonable person could believe Plummer would have created a website in which he described himself as being vexatious or unincompetent. Plaintiffs have failed to prove that Plummer actually created the website. Therefore, Dr. Nabili must also be considered as a false person.