COLOCATION AMERICA, INC. - Plaintiffs and Appellants verses ARCHIE GARGA-RICHARDSON

Criminal activity

8th of Oct, 2013 by TardAlert

COLOCATION AMERICA, INC. - Plaintiffs and Appellants verses ARCHIE GARGA-RICHARDSON. APPEAL from a judgment of the Superior Court of Los Angeles County. Richard Fruin, Judge. Affirmed. Sigelman Law Firm, Paul Sigelman for Plaintiffs and Appellants. Van Susteren Law Group, Adam Van Susteren for Defendant and Respondent.

Appellants sued respondent for posting a comment on the Internet criticizing appellants‟ business. The trial court struck appellants‟ complaint as a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Colocation America, Inc. (Colocation America) and its owner Albert Ahdoot filed suit against Archie Garga Richardson2 in October 2010, claiming that Garga-Richardson committed trade libel by publishing statements that falsely portrayed plaintiffs as deceitful

.3 Plaintiffs‟ complaint was bare-bones. It tersely alleged that “[o]n one or more occasions” Garga-Richardson published statements saying: “„When dealing or conducting business with Mr. Albert Ahdoot dba Colocation America, Inc…and his related businesses or data centers, please exercise CAUTION AND CARE as Mr. Ahdoot
is not a man of his word.‟” Garga-Richardson responded to the complaint by filing a motion to strike under
the anti-SLAPP statute. He argued that he had a constitutional right “to inform the public of Plaintiffs‟ business practices,” and that he had done so by publishing his experience with Colocation America and Ahdoot on his personal website, ScamFraudAlert.com.

Garga-Richardson characterized his website as promoting “consumer protection and awareness.” He contended that the site was a public forum and that the services offered by plaintiffs were a matter of public interest, and therefore plaintiffs‟ complaint, which was premised upon Garga-Richardson‟s protected speech, implicated the anti-SLAPP statute. He further argued that plaintiffs were not reasonably likely to prevail on their mclaims against him.

Plaintiffs opposed the motion by arguing that their complaint did not concern an issue of public interest. They further argued that Garga-Richardson was the party who was “not a man of his word” because he had previously lost a lawsuit brought by plaintiffs. The court in that prior lawsuit found that Garga-Richardson entered into a “colocation contract” with Colocation America, and that he breached the contract‟s “Acceptable Use Policy” by causing a denial-of-service attack that resulted in a breakdown of Colocation America‟s network. Plaintiffs contended that they would prevail on their claim of trade libel by showing that they do keep their word, and that their business was damaged by Garga-Richardson‟s false representations.

The trial court granted Garga-Richardson‟s motion to strike in September 2011. The court determined that Garga-Richardson‟s postings4 were made in connection with a matter of public interest based on evidence that Colocation America operates out of 300 data centers worldwide and it has issued press releases touting its capabilities and “uptime.” The court found that Garga-Richardson‟s postings were addressed to the
community of people looking for server hosting, and that they were published over an Internet site dedicated to exposing consumer frauds. The court further concluded thatplaintiffs presented insufficient evidence to show a likelihood of prevailing on their claims. Plaintiffs timely appealed.

I. Appeal and Review
Appeal lies from the order granting Garga-Richardson‟s motion to strike under the anti-SLAPP statute. (§ 425.16, subd. (i).) The trial court‟s ruling is subject to de novo review. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

II. Overview of the Anti-SLAPP Statute
The anti-SLAPP statute allows the courts to expeditiously dismiss “„a meritless suit filed primarily to chill the defendant‟s exercise of First Amendment rights.‟” (Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th 659, 670; § 425.16, subd. (a); Simpson Strong-Tie, Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) There are two components to a motion to strike brought under section 425.16. First, the defendant must show that the claim arises from his exercise of the right to free speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Second, if the lawsuit affects constitutional rights, the court determines if there is a reasonable probability that the plaintiff will prevail on the merits of his claims. (§ 425.16, subd. (b)(1); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) To protect First Amendment rights, the anti-SLAPP statute must “be construed broadly.” (§ 425.16, subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.)

III. Protected Activity
Garga-Richardson relies on two of the four categories covered by the anti-SLAPP statute. He argues that his Internet posting was protected as a “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,” or was “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(3)-(4).) In their briefs, the parties primarily concentrate on the first of these two categories. Neither side seriously disputes that Garga-Richardson‟s statement met the “public forum” requirement of section 425.16, subdivision (e)(3). His Internet postings were freely available to be viewed by the general public. It is by now well established that statements made on websites readily accessible to the public are considered statements made in a public forum. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896-897; Ampex Corp. v. Cargle (2005) 128 Cal App.4th 1569, 1576; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007.)

The more germane question is whether the statement was made “in connection with an issue of public interest.” An issue of public interest is “any issue in which the public is interested. In other words, the issue need not be „significant‟ to be protected by the anti-SLAPP statute.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.)

In arguing that Garga-Richardson‟s statement did not involve a public interest issue, plaintiffs rely on a holding from World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570: “„The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements‟ of the anti-SLAPP statute.” Plaintiffs contend that they provided evidence supporting their argument that a public interest issue was not implicated by showing that (i) Ahdoot is not a public individual and did not seek public attention; (ii) the activity involved was the damage caused by Garga-Richardson to Colocation‟s network; and (iii) the dispute only involved a private controversy. It appears that, by way of declaration, Garga-Richardson presented evidence showing that Colocation America has quite a large scope of operations and customers, that it operates out of 300 data centers worldwide, and that it has over 8,000 customers. It also appears that the trial court relied on at least some of this evidence in determining that Garga-Richardson‟s statement involved an issue in which the public is interested. But, in designating the record for appeal, plaintiffs omitted Garga-Richardson‟s declaration and the attached evidence. “„[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be freely available to be viewed by the general public. It is by now well established that statements made on websites readily accessible to the public are considered statements made in a public forum. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 896-897; Ampex Corp. v. Cargle (2005) 128 Cal App.4th 1569, 1576; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007.)

The more germane question is whether the statement was made “in connection with an issue of public interest.” An issue of public interest is “any issue in which the public is interested. In other words, the issue need not be „significant‟ to be protected by the anti-SLAPP statute.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.)

In arguing that Garga-Richardson‟s statement did not involve a public interest issue, plaintiffs rely on a holding from World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570: “„The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements‟ of the anti-SLAPP statute.” Plaintiffs contend that they provided evidence supporting their argument that a public interest issue was not implicated by showing that (i) Ahdoot is not a public individual and did not seek public attention; (ii) the activity involved was the damage caused by Garga-Richardson to Colocation‟s network; and (iii) the dispute only involved a private controversy. It appears that, by way of declaration, Garga-Richardson presented evidence showing that Colocation America has quite a large scope of operations and customers, that it operates out of 300 data centers worldwide, and that it has over 8,000 customers. It also appears that the trial court relied on at least some of this evidence in determining that Garga-Richardson‟s statement involved an issue in which the public is interested. But, in designating the record for appeal, plaintiffs omitted Garga-Richardson‟s declaration and the attached evidence. “„[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be viewed as a matter of public interest. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.) The server hosting provided by Colocation America potentially attracted a large number of possible customers, since many if not most businesses now rely on servers for storing data and facilitating Internet connectivity. A comment (whether fair or not) on the business practices and honesty of a server hosting provider is indisputably a form of consumer information, and it therefore concerns a matter of public interest.

IV. Probability of Prevailing on the Merits Once the first prong of an anti-SLAPP motion is satisfied, the burden shifts to the party asserting the cause of action to establish a probability of prevailing. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213.) If the claim stated in the pleading is supported by sufficient prima facie evidence, it is not subject to being stricken as a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93; Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 738; Major v. Silna (2005) 134 Cal.App.4th 1485, 1498.) In ruling on the second prong of an anti-SLAPP motion, the court “considers the
pleadings and the supporting and opposing affidavits stating facts on which the liability or defense is based.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 901.) In their complaint, plaintiffs alleged that Garga-Richardson committed trade libel by publishing his statement that Ahdoot was “not a man of his word.”5 “Trade libel is the publication of matter disparaging the quality of another‟s property, which the publisher should recognize is likely to cause pecuniary loss to the owner. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 572). The tort encompasses „all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so.‟viewed as a matter of public interest. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.) The server hosting provided by Colocation America potentially attracted a large number of possible customers, since many if not most businesses now rely on servers for storing data and facilitating Internet connectivity. A comment (whether fair or not) on the business practices and honesty of a server hosting provider is indisputably a form of consumer information, and it therefore concerns a matter of public interest.

IV. Probability of Prevailing on the Merits
Once the first prong of an anti-SLAPP motion is satisfied, the burden shifts to the party asserting the cause of action to establish a probability of prevailing. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213.) If the claim stated in the pleading is supported by sufficient prima facie evidence, it is not subject to being stricken as a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93; Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 738; Major v. Silna (2005) 134 Cal.App.4th 1485, 1498.) In ruling on the second prong of an anti-SLAPP motion, the court “considers the pleadings and the supporting and opposing affidavits stating facts on which the liability or defense is based.” (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 901.) In their
complaint, plaintiffs alleged that Garga-Richardson committed trade libel by publishing his statement that Ahdoot was “not a man of his word.”5“Trade libel is the publication of matter disparaging the quality of another‟s property, which the publisher should recognize is likely to cause pecuniary loss to the owner. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 572). The tort encompasses „all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so.‟ viewed as a matter of public interest. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.) The server hosting provided by Colocation America potentially attracted a large number of possible customers, since many if not most businesses now rely on servers for storing data and facilitating Internet connectivity. A comment (whether fair or not) on the business practices and honesty of a server hosting provider is indisputably a form of consumer information, and it therefore concerns a matter of public interest.

Archie Richardson Garga - ScamFraudAlert - found guilty of FRAUD!

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