7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

1/6

1

2aJ456789

1011t213t415T6t7l8t9202t22232425262728

owens tarabichi 1lp

categories ofspeech are unprotected because they consist of"utterances [that] are no essentialpart of any exposition of ideas, and are of such slight social value as a step to truth that anybenefit that may be derived from them is clearly outweighed by the social interest in order andmorality." Id. at 572. These categories include, among others, defamation. United States v.Stevens,559 U.S. 460, 460 (2010). When the speaker is not a public figure, states maypermissibly "define for themselves the appropriate standard of [defamation] liability." Gertz y.Welch,4l8 U.S. 323,347 (l97q.tl

In California, defamation is statutorily defined as consisting of either libel or slander. CCiv. Code $ 44. Libel is "a false and unprivileged publication by writing . . . which exposes anperson to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoidedor which has a tendency to injure him in his occupation." Id. at $ 45.12 See olso Nygard, Inc. vUusi-Kerttula, 159 Cal. App. 4th 1027,1047 (2008). The key requirement of a defamation claiis "the existence of a falsehood." Letter Carriers v. Austin,4l8 U.S. 264 (1974). In other wordthe plaintiff must present evidence of a factual statement that is "provably false." Nygard,159Cal. App. 4that 1048; see also Seeligv. Infinity Broadcasting Corp.,97 Cal. App. 4th 798, 809(2002).

To make a determination whether a statement is "provably false," courts consider thetotality of the circumstances. Id. at 809. First, a court will consider the language of the statemeitself. "[R]hetorical hyperbole," "vigorous epithet[s]," and figurative language are not considerdefamatory. Ferlauto v. Homsher,T4 CaL App. 4th 1394,l40l (1999). Next, a court examines11 Petitioner's position is contradictory in that it concludes that the law of the jurisdiction wherethe claim is brought controls whether a prima facie case has been made, which is the U.K. in thcase, but yet demands compliance with U.S. law for the same. For example, Petitioner's attempto argue that the "actual malice" standard in the U.S., which governs when a defamation plaintis a public figure, is relevant here. (See Mot. to Quash at 5 (citing New York Times v. Sullivan,376 U.S. 254 (1964).) Petitioner has provided no evidence or authority suggesting thatRespondent, or any similarly situated businessman, is a public figure. There is no evidence thatRespondent has either achieved "pervasive fame or notoriety" in this country or is a limitedpublic figure due to his participation in "a particular public controversy." Gertz,4l8 U.S. at35see also id. at35l-52 (holding that petitioner attorney was a private individual even though hewas active in community and public afflairs). Even if Respondent is a prominent businessman iSt. Lucia, it does not follow that he is in the public eye in the United States. Petitioner's entireargument in this regard is simply another red herring." California's definition of defamation is extremely similar to the U.K.'s definition. CompareHalsbury's Laws of England at $$ 510, 555 with Cal. Civ. Code gg 44-45.

ll Opp. to Mot. to Quas

7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

2/6

I2^456789

1011t213L415l61718r9202T22232425262728

owens tarabichi llp

the context in which the statement was made, including "the knowledge and understanding of taudience to whom the publication was directed." Seelig,97 Cal. App. 4th at 809-10.

Here Petitioner made "provably false" assertions in the offending article given his use odefinite language in the article. Specifically, Petitioner suggested that Respondent caused thebankruptcy of the resort, that he improperly lined his own pocket by buying resort condominiuat an artificially low price and selling them at an artificially high price, and that he had a confliof interest by being both a sales agent and a resort manager. (Gobat Decl. flfl 20,21.)

The language of these statements is neither rhetorical hyperbole nor figurative languageThe statements set forth definite allegations about Respondent's business dealings and clearlyreflect negatively on his business reputation. A reasonable reader of the article at issue wouldunderstand Petitioner to be making actual, "provably false," assertions regarding Respondent'sconduct. A reasonable reader would not understand Petitioner to be merely asserting an opinioThe article is not'ocautiously phrased in terms of apparency." Baker v. Los Angeles HeraldExam'r,42 CaL.3d254,260 (L986). Rather, the article is phrased in terms of definite knowled(Gobat Decl. !f l6,Tab 3 (stating that the resort was "flnancial[1y] defunct" and o'almostbankrupt," and that Respondent was responsible for inflated sales prices of resortcondominiums).)

Additionally, Petitioner made the offending statements in the context of an article thatattempts to expose underhanded business dealings in St. Lucia. Those who read the article wouhave the impression that Petitioner was serious in his accusations. Indeed, the tone of the articfurther supports that the statements are factual contentions. See, e.g., Krinsky, 159 Cal. App. 4at ll76-77 (holding that potentially factual assertions that a person had filed for bankruptcy anhad a fake medical degree would not be taken seriously in light of additional accusations that thperson "roughed up some patients, shares a rolls royce and a bently [sic] with the President and$l5mm [sic] mansion" and was a "pathetic loser[]"). The Petitioner outlandish personalaccusations. Rather, Petitioner focuses on Respondent's conduct. In other words, Petitioner isnot ridiculing Respondent, see id. at ll47,but is making serious and substantive charges about

t2 Opp. to Mot. to Quas

7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

3/6

I2aJ456789

1011t2l3t415t6t71819202t22232425262728

owens tarabichi llp

his St. Lucian business dealings.13Based on the above analysis, Petitioner has clearly made "provably false" assertions in

article that damaged Respondent and accordingly should be held liable for defamation. This isnot a case in which a person with "extra sensitive perception" derives a defamatory meaning frthe statements at issue. Forsher v. Bugliosi,26 CaL.3d792,806 (1980). Rather, it is a casewhere the statements clearly implicate a defamatory meaning. Id. The article's accusations arenot simply rhetorical hyperbole or "an irrational, vituperative expression of contempt." Krinslq159 Cal. App. 4th at 1176. As a result, the statements more than clearly support a prima faciedefamation claim.la

D. Petitioner's meritless arguments are so lacking in credibilityand goodfaith that sanctions against Petitioner and its counselare appropriate.When a court makes an order pursuant to a motion to quash, it "may in its discretion

award the amount of the reasonable expenses incurred in making or opposing the motion,including reasonable attorney's fees, if the court finds the motion was made or opposed in badfaith or without substantial justification." Cal. Civ. Proc. Code $ 1987.2(a). Petitioner's Motioto Quash is so lacking in credible arguments and is so calculated to simply obstruct Respondenfrom obtaining Petitioner's true identity that the Court should conclude that the Motion to Quashas been made without substantial justification.

Petitioner asserts that the U.K. Order is invalid because there is no signature-such is neven a rule. Petitioner asserts that the U.K. Order is invalid based upon an inadmissible allegedphone conversation with a court clerk. Petitioner asserts, based on pure speculation and withouany reasonable amount of investigation, that the U.K. court does not have jurisdiction. Petitionasserts that Respondent has not made a prima facie case for defamation, which he clearly has.13 Indeed, even the contemptuous assertion that Respondent is a "pirate" stems from provablyfalse accusations that Respondent caused a bankruptcy and used his position as a sales agent toenrich himself. (Gobat Decl., fl 16, Tab 3.)la Petitioner's asiertion that {elponaent has caused the article to be available for a short time athat any harm has been limited and mitigated, (Mot to Quash at 7), is no defense or basis onwhich to quash this subpoena. And, Petitioner provides no legal support, just bare argument, fothis position, once again simply grasping at straws in an attempt to avoid accountability.

l3 Opp. to Mot. to Quas

7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

4/6

1

2aJ456789

1011t213t4l5t6t718t9202t22A'z52425262728

owens tarabichi llp

What is telling in this regard, however, is that Petitioner elected to avoid putting forth thedefamatory statements in its moving papers to illustrate that Respondent would be unable to ma prima facie case. This is because Petitioner knows that Respondent has a prima facie case fodefamation. Petitioner also failed to present any analysis of English defamation law, anunderstanding of which is necessary for a California court to determine whether a motion toquash should be granted. Rather, Petitioner just nakedly asserted that the offending content is'Journalistic commentary . . . on matters of public interest." Petitioner knows he is liable for thdefamatory statements, and as a result, Petitioner has no option but to make whatever argumenare possible, regardless of merit, to avoid being identified. The submission of these groundlessarguments evidences the extent to which Petitioner and its counsel will go to avoididentification.ls Such tactics should not be tolerated.

Accordingly, Respondent requests that Petitioner's request for attorneys' fees be deniedand that Respondent be awarded sanctions in the amount of its attorneys' fees, which totaled$16,119. (Owens Decl.'1f 6.) Respondent also requests that he be allowed to add to this amounadditional attomeys' fees and costs associated with his counsel's review of any reply briefsubmitted by Petitioner and preparation and attendance at any hearing.IV. CONCLUSION

Respondent Oliver Gobat obtained a valid order from a U.K. court permitting discoveryidentiffing information about the person who published defamatory statements about him via awebsite blog and emails. A California subpoena based upon this order from the U.K. was serveon Automattic, Inc., the company in possession of this identiffing information.

Petitioner, without evidence and without legal merit, moves to quash this subpoena.Petitioner argues based upon a fabricated ruIe and heresay that the U.K. Order is invalid-it isnot. Petitioner argues that the U.K. court did not have jurisdiction to issue the U.K. Order

ls Since Petitioner has seen fit to boldly request sanctions in this matter, the Court should beaware that Petitioner's counsel failed to confer with Respondent's counsel regarding the date othe hearing on this matter as required by LRSF 10.0(c)(1). Further, it does not appear thatPetitioner has filed a proper certificate of service evidencing proper service of iti motion onRespondent.t4 Opp. to Mot. to Quas

7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

5/6

1

2aJ

456789

1011t213T4l516

t71819202l22232425262728

owens tarabichi llp

without any basis. The U.K. court specifically found that it had jurisdiction. Petitioner iuguethat Respondent did not make a prima facie case for defamation, not be arguing that thestatements are not defamatory, but by simply making bald conclusory statements. In fact,Petitioner did not even present the statements to the Court in its moving papers for the obvioureasons that their defamatory nature would be obvious and it would be patently useless to argotherwise. Petitioner is simply misusing the U.S. legal system by submitting any argumentpossible, regardless of merit, with his only objective of avoiding identification and liability fodefamation. Petitioner's Motion should be denied and he and his counsel should be sanctione

Dated: October 2,2013 Respectfully submitted,o

Bruno W. TarabichiBy

Attorneys for RespondentOliver Gobat

15 opp. to Mot. to Qu

7/27/2019 Gobat Opposition To Motion To Quash, Part 2 of 2

6/6

1

2J456789

1011121314l516t71819202t22

232425262728

owens tarabichi llpCounselors At Law

CERTIFICATE OF SERVICEI am employed in the City of San Jose, County of Santa Clara, State of California, I am over tlage of 18 years and not aparty to the within action. My business address is 111 N. Market St.Suite 730, San Jose, California 951 13. On October 2,2013,I caused copies of the attacheddocument(s) described as follows:

RESPONDENT OLIVER GOBAT'S OPPOSITION TO MOTION TOQUASH SUBPOENA AND REQUEST FOR SANCTIONSDECLARATION OF DAVID R. OWENS IN SUPPORT OF RESPONDENToLMR GOBAT'S OPPOSITION TO MOTION TO QUASH SUBPOENAAND REQUEST FOR SANCTIONSDECLARATION OF OLIYER GOBAT IN SUPPORT OF RESPONDENToLMR GOBAT'S OPPOSITION TO MOTION TO QUASH SUBPOENAAND REQUEST FOR SATICTTONSDECLARATION OF ASHLEY HURST IN SUPPORT OF RESPONDENToLMR GOBAT'S OPPOSITTON TO MOTION TO QUASH SUBPOENAAND REQUEST FOR SANCTIONS

to be served on:Catherine R. GellisP.O.Box2477Sausalito, CA94966M (BY OVERNIGHT DELIVERY) I caused each such envelope to the addressee(s) notedabove, with charges fully prepaid, to be sent by overnight delivery from San Jose, California.am readily familiar with the practice of Owens Tarabichi LLP for collection and processing olcorrespondence for overnight delivery, said practice being that in the ordinary course of businmail is placed with the ovemight delivery service on the same day as it is placed for collectionn (BY FIRST CLASS MAIL) I caused each such envelope to the addressee(s) noted above,with postage thereon fuIly prepaid, to be placed in the United States mail in San Jose, CalifonI am readily familiar with the practice of Owens Tarabichi LLP for collection and processingcorrespondence for mailing, said practice being that in the ordinary coluse of business mail isdeposited in the United States Postal Service the same date as it is placed for collection.tr (BY PERSONAL SERVICE) The person whose name is noted below caused to be deliverby hand each such envelope to the addressee(s) noted above.tr (BY FACSIMILE) The person whose rurme is noted below caused to be transmitted byfacsimile each such document to the addressee(s) noted above.tr (BY ELECTRONIC MAIL) The person whose name is noted below caused to be transmitby elecffonic mail to the addressee(s) noted above.I declare under penalty of perjury undertrue and correct.Date: October 2,2013 By:

Cert. Ser. Opp. to Mto Qur

State of California that the foregoing