“Computer Crime,” Batman and Nude Photographs

This post examines an opinion from the Colorado Court of Appeals:  People v. Galang, 2016 WL 2605652 (2016). The court begins the opinion by explaining that

[d]efendant, Ronino Reyes Galang, appeals the judgment of conviction entered on jury verdicts finding him guilty of extortion, criminal impersonation, stalking, and harassment. The People cross-appeal the trial court's judgment acquitting him of computer crime.

People v. Galang, supra.

The Court of Appeals begins the opinion, as courts usually do, by explaining how, and why, the prosecution arose:

In 2004, the female victim came to the United States from the Philippines. That same year, she and defendant met at work in California and developed a `very close’ friendship. In 2007, the victim moved to Colorado and got married while defendant stayed in California with his wife. Despite the distance, the victim visited defendant approximately every three months when she was in California to see family, and the two communicated via phone and e-mail about twice per week.

In June 2011, the victim began receiving e-mails from an unknown person using a Yahoo e-mail address identifying himself or herself as `Holycrap Imbatman’ (Batman). In the first e-mail, Batman (1) demanded the victim send photographs and videos of herself doing various sexual acts, including acts alone and with her then-boyfriend; (2) threatened to tell immigration officials that she had `married for papers’; and (3) threatened to tell her then-boyfriend that she was having sex with other men.

Suspecting that defendant's wife had sent this as well as other e-mails from Batman, the victim reported the e-mails to the Douglas County Sheriff's Office. A detective then assumed control of the victim's e-mail account, corresponded with Batman as if the detective were the victim, and concocted a sting operation to discover Batman's true identity. In his role as the victim, the detective forwarded defective CDs to the address supplied by Batman—defendant's address.

After informing the `victim’ that the CDs were broken or blank, Batman agreed, in lieu of the photos and videos, to meet her at a hotel in California and to bring (per the victim's request) champagne and Diet Mountain Dew. Defendant appeared at the designated time and hotel room, carrying an orange backpack and asking for the victim. Subsequently, the local police arrested defendant and recovered champagne and Diet Mountain Dew from the backpack.

People v. Galang, supra.

The opinion then explains that

[d]efendant was charged in the case. At trial, the People presented evidence of these facts, as well as evidence that (1) in 2010, the victim had refused defendant's requests to send him naked pictures of herself; and (2) according to a digital forensics and networking expert, the `Batman’ Yahoo e-mail account was created at the business where defendant worked.

People v. Galang, supra.

Next, the court goes on to explain what the outcome of the trial was:

Following the close of the People's evidence, the trial court granted defendant's request for a judgment of acquittal on the computer crime charge. With regard to the remaining charges, defendant neither testified nor presented any witnesses on his behalf. During closing argument, however, defense counsel denied the charges, asserting that, rather than defendant, it was defendant's wife who `ha[d] a motive to get revenge against her husband’ and `to humiliate [the victim]’ because defendant's wife `couldn't tolerate the fact that [defendant] was friends with [the victim].’

The jury found defendant guilty on four charges, and the trial court sentenced him to four years' probation, conditioned, in part, on his serving ninety days in jail.

People v. Galang, supra.

The Court of Appeals then took up the argument Galang made on appeal as to why his conviction should be reversed, i.e., that the trial court judge “erred in admitting evidence that the victim had refused his previous requests for pictures depicting her naked.” People v. Galang, supra. As a preface to its analysis of his argument, the court noted that it disagreed with it. People v. Galang, supra.

The Court of Appeals began its analysis of Galang’s argument by explaining that the

trial court denied defendant's motion in limine to exclude `statements from the alleged victim  . . . that [defendant] previously asked her to send him naked photos of herself.’ In doing so, the court found the evidence was admissible under a theory of res gestae because it `forms an integral and natural part of the crime and is relevant . . . for a number of different purposes including identification, motivation to allegedly contact the victim here in an unidentified manner given her refusal to send him nude photographs in the past,’ and defendant's `interest in the victim sexually or emotionally. . . .’

On appeal, defendant contends that the trial court erred in admitting evidence of the requests because they (1) `w[ere] obviously not “contemporaneous” with the “offense charged’ because [they] occurred approximately one year before the charged offense[s]” and (2) `did not provide a background for the offense charged because [they] occurred under different circumstances and the prosecutor did not establish specific dates for the uncharged incident.’

Significantly, defendant did not contest the admissibility of the evidence on these grounds in the trial court. Consequently, reversal would not be warranted in the absence of plain error. See People v. Honeysette, 53 P.3d 714, 717 (Colorado Court of Appeals 2002) (applying the plain error standard of review where the claim of error on appeal was different from the objection at trial); cf. Udemba v. Nicoli, 237 F.3d 8, 14–15 (U.S. Court of Appeals for the 1^st Circuit 2001) (`It is a bedrock rule that a party who unsuccessfully objects to the introduction of evidence on one ground cannot switch horses in midstream and raise an entirely new ground of objection on appeal without forfeiting the usual standard of review’).

Plain error is error that is obvious, substantial, and ‘so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.’

People v. Osorio–Bahena, 2013 COA 55, ¶ 69, 312 P.3d 247 (Colorado Court of Appeals 2013).

People v. Galang, supra. The Court of Appeals also noted that, “[h]ere, we perceive no error, much less plain error.” People v. Galang, supra.

The opinion went on to explain that the

`Colorado Rules of Evidence strongly favor the admission of relevant evidence.’ People v. Brown, 2014 COA 155M-2, ¶ 22, 360 P.3d 167. `Res gestae is a theory of relevance which recognizes that certain evidence is relevant because of its unique relationship to the charged crime.’ People v. Greenlee, 200 P.3d 363, 368 (Colorado Supreme Court 2009).

The res gestae theory of relevance is based on the idea that `[c]riminal occurrences do not always take place on a sterile stage,’ and that where the events leading up to the crimes charged are part of the scenario that explains the setting in which the crimes occurred, “no error is committed by permitting the jury to view the criminal episode in the context in which it happened.’ People v. Lobato, 187 Colo. 285, 289–90, 530 P.2d 493, 496 (Colorado Supreme Court 1975); see People v. Quintana, 882 P.2d 1366, 1373 (Colorado Supreme Court 1994) (Res gestae evidence encompasses `[e]vidence of other offenses or acts that is not extrinsic to the offense charged, but rather, is part of the criminal episode or transaction with which the defendant is charged . . . to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred.’ Such evidence is generally ‘linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.’) (citations omitted).

Although several cases address res gestae evidence in terms of its contemporaneity to the charged events, see People v. Lehnert, 131 P.3d 1104 (Colorado Court of Appeals 2005), rev'd, 163 P.3d 1111 (Colo.2007); People v. Rollins,892 P.2d 866 (Colorado Supreme Court 1995), res gestae evidence `includes not just evidence of other acts that were substantially simultaneous in time and circumstance with the crime charged.’ People v. Gee, 2015 COA 151, ¶ 32, ––– P.3d ––––(quoting People v. Agado, 964 P.2d 565, 569 (Colorado Court of Appeals 1998) (Briggs, J., specially concurring), and citing several other cases). `[A]n act “somewhat remote in time’ from the charged crime nevertheless is res gestae if the two are ‘inextricably intertwined’ such that the former ‘forms an integral and natural part of an account of the crime.’” People v. Agado, supra (quoting People v. Fears, 962 P.2d 272, 280 (Colorado Court of Appeals 1997)).

People v. Galang, supra.

The court went on to outline its ruling on the res gestae issue:

[a]s a preliminary matter, we note that nothing in the record supports defendant's assertion that his requests occurred approximately one year before the charged crimes. The victim testified that defendant asked her for `naked pictures’ in 2010, not specifically July 2010. Additionally, despite defendant's claim that there was only one request in 2010, the victim's testimony suggests that defendant made more than one request for naked pictures:

`In the beginning he will joke around, like “Hey, maybe you can send me a naked picture.[”] ... And then after his wife gave birth to their first kid, it just changed everything. . . . He's in a dry spell because his wife won't sleep with him. . . . [T]hat's when he will ask me for naked pictures.’

Thus, the victim testified that defendant asked her for naked pictures at least twice in 2010—before and after defendant's wife gave birth to their child.’

Regardless of how many times defendant made such requests, incidents occurring some months or even a year before the charged crimes are not, in our view, necessarily too remote to qualify as res gestae evidence. See, e.g., People v. Miranda, 2014 COA 102, ¶¶ 52-54, ––– P.3d –––– (acts of grooming that occurred over the course of two years were not too remote, but rather showed the charged offenses did not occur `out of the blue’); People v. Thomeczek, 284 P.3d 110, 115 (Colorado Court of Appeals 2011) (evidence of an incident occurring three months before the charged crime was properly admitted as res gestae evidence despite the `temporal separation of the two events’); People v. Gladney, 250 P.3d 762, 768 (Colorado Court of Appeals 2010) (`[W]e have held that conduct occurring months ... before a charged crime may be admissible as res gestae evidence’); People v. Fears, supra (the defendant's participation in a robbery, which occurred approximately nine months before the charged crimes, was `somewhat remote in time’ but still `inextricably intertwined in such a way that’ it `was admissible as res gestae evidence” and “part of the criminal episode’).

People v. Galang, supra.

The Court of Appeals then took up Galang’s second argument on appeal, explaining that

[w]e also disagree with defendant's second argument that the requests fail the second part of our analysis because they occurred `under different circumstances.’ Our case law does not require that res gestae evidence be similar to the charged offenses in order to be admissible; rather, the evidence only must be `inextricably intertwined’ to `complete the description of the criminal episode for the jury.’ People v. Coney, 98 P.3d 930, 933 (Colorado Court of Appeals 2004) (admitting res gestae evidence of the defendant's drug arrests because they provided necessary background for the jury to consider in the defendant's murder trial); see also, e.g., People v. Fears, supra (evidence of robbery committed at a time and place different from the charged murders was admissible as res gestae to give the murders context).

Here, as the trial court noted, the requests show defendant's `interest in the victim sexually or emotionally’ and describe the relationship between defendant and the victim. Moreover, the evidence `forms an integral and natural part of the crime’ because it shows why defendant would `allegedly contact the victim here in an unidentified manner given her refusal to send him nude photographs in the past.’

Together, these considerations aided the jury in determining who would want nude photographs of the victim and why defendant would resort to hiding his identity behind a fictitious e-mail name to achieve his goal. Without this information, the jury would have been misled into believing the victim had received the e-mails out of the blue rather than after defendant had asked for such photographs from—and been refused by—her on at least two prior occasions.

For these reasons, defendant's prior requests for nude photographs of the victim fit the classic definition of res gestae: they were part of a scenario that explained the setting in which the crimes occurred and were necessary to provide the fact finder with a full and complete understanding of a possible motive on defendant's part for committing them. See People v. Agado, supra (evidence of a recent argument between the defendant and the victim was admissible as res gestae because it gave `a fuller understanding of the events surrounding the crime’); People v. Fears, supra (finding evidence was admissible as res gestae to show the charged crimes were not `simply random’).

People v. Galang, supra.

The Court of Appeals concluded its analysis of the res gestae evidence issue by explaining that

[t]o be sure, res gestae evidence is subject to exclusion under [Colorado Rule of Evidence] 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See People v. Quintana, supra. `However, in assessing the admissibility of [res gestae] evidence on appeal, we must assume the maximum probative value of the evidence [at issue], and the minimum prejudice reasonably to be expected, and we must accord substantial deference to the trial court's decision on this issue.’ People v. Gladney, supra.

Viewed from this perspective, we cannot conclude that the risk of unfair prejudice substantially outweighed the probative value of the evidence. While evidence that defendant asked the victim for `naked photos’ may have had some prospect for unfair prejudice, it was also highly probative for explaining who would have created the e-mail account and gone to such great lengths to obtain the photos (and videos) by deception.

Accordingly, we perceive no error in the trial court's admission of the evidence challenged on appeal.

People v. Galang, supra. 

The Escort Service, the Text Messages and First-Degree Murder

This post examines an opinion from the District Court of Appeals of Florida -- Fourth District:  Ho v. State, 2016 WL 4916840 (2016).  

[a]ppellant Jimmy Ho was convicted of kidnapping and first degree murder with a firearm and sentenced to consecutive life terms. We affirm without further discussion the lower court's sentencing of Appellant, as well as its rulings denying Appellant's motions for judgment of acquittal. We write solely to address Appellant's challenge as to whether the trial court properly denied his motion to suppress statements made to the police during a `knock and talk.’. . .

Ho v. State, supra.

The Court of Appeal went on to explain how, and why, the prosecution arose:

The victim in this case was a young woman who ran an escort service from her home. One afternoon, while with a client, the victim sent a text message to her boyfriend saying the client was acting strangely and she was scared. Later that night, the victim failed to call her boyfriend as usual. Subsequently, the victim was found in her bedroom barely alive (she later died), shot twice with severe wounds on her neck and torso.

Responding detectives interviewed the victim's boyfriend. They looked at the text messages on his phone regarding the encounter the victim had with a client, and obtained the victim's cell phone number. Then, they subpoenaed the telephone company for the victim's telephone records, at which point they learned that the victim exchanged several calls the afternoon of the shooting with another number. Using the police department's computer records, detectives learned that the other number was Appellant's. From the records, they also learned his address.

At about 3:00 a.m. the day after the homicide, a team of about ten armed police officers and a canine unit surrounded Appellant's home. According to the testimony of one of the arresting detectives, he and another detective knocked on the door. One detective did not have a gun drawn, but the other did at the low ready position—pointed towards the ground.

After the detectives knocked, Appellant answered the door. His girlfriend was behind him. The detectives informed Appellant that they were investigating a shooting, and that they had some questions. Appellant immediately began volunteering statements like `it was self-defense’ and `my life is ruined.’ Based on these statements, officers arrested Appellant and commenced a pat down search for weapons.

Ho v. State, supra.

You can, if you are interested, read more about the facts in this case in the news stories you can find here, here and here.  This story explains that Ho was, at the time, a police officer with the Florida Atlantic University police force.

The court went on to point out that

[a]ppellant's version of the story is much different—that when Appellant answered the door, officers had their guns drawn pointing at him. He was immediately ordered out of the house with his hands raised and then frisked for weapons. Then, he was questioned. At that point, he made his incriminating statements.

The trial court weighed the evidence and found the officers' testimony more credible than Appellant's. The court accordingly denied Appellant's motion to suppress, finding that he had voluntarily consented to the search and seizure (by making the incriminating statements) during the knock and talk.

Ho v. State, supra.

The Court of Appeals then articulated the standard it used in analyzing an appeal, noting that

[i]n reviewing a trial court's determination as to a motion to suppress, this Court defers to the trial court's factual findings and reviews any legal conclusions de novo. Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). The trial court's findings of fact must be supported by competent and substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Florida Supreme Court 2002). They are `clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.’ Terry v. State, 668 So.2d 954, 958 (Florida Supreme Court 1996).

A knock and talk is a `purely consensual encounter’ that an officer may initiate without any objective level of suspicion. Hardin v. State, 18 So.3d 1246, 1247 (Fla. 2d DCA 2009) (citing State v. Triana, 979 So.2d 1039, 1043 (Fla. 3d DCA 2008)). Defendants have no constitutional safeguards during such encounters. Popple v. State, 626 So.2d 185, 186 (Florida Supreme Court1993). `The key to the legitimacy of the knock-and-talk technique . . . is the absence of coercive police conduct. . . . [T]he police should not “deploy overbearing tactics that essentially force the individual out of the home.”’ Luna–Martinez v. State, 984 So.2d 592, 598–99 (Fla. 2d DCA 2008) (quoting United States v. Thomas, 430 F.3d 274, 277 (U.S. Court of Appeals for the 6^th Circuit 2005)).

Ho v. State, supra.

It went on to explain that the

trial court conducted a `totality of the circumstances’ review and properly considered the fact that the victim had been shot; that Appellant was possibly tied to the victim, if not the shooting; and that the officers reasonably believed Appellant was a police officer (he was actually a security guard/former police officer) who would thus possess a weapon. These factors supported the presence of a number of armed officers at the scene. By virtue of his law enforcement experience, Appellant would have been well aware that any police visit to his home would likely have extra security given the possibility that he was armed and trained himself.

The trial court found the testimony of the law enforcement officers more credible than Appellant's with respect to the 3:00 a.m. encounter. The trial court noted that Appellant's girlfriend witnessed the confrontation and disagreed with Appellant's claim that the officers had their weapons drawn and raised at Appellant when he opened his apartment door. Under the facts as found by the trial court, Appellant came to the door and saw multiple officers, but did not see weapons drawn and pointed at him.

Accordingly, the trial court's conclusion that Appellant made his incriminating statements prior to his actual seizure is supported by the record. See G.M. v. State, 19 So.3d 973, 978 (Fla.2009) (holding that a totality of the circumstances review applies to determining whether police conduct constitutes a seizure); State v. Ojeda, 147 So.3d 53, 57 (Fla. 3d DCA 2014) (noting the factors to be considered in a `totality of the circumstances’ determination as to whether consent to a search was `freely and voluntarily given’); Triana, 979 So.2d at 1044–45.

Appellant's incriminating statements (made before he was actually asked any questions) were uncoerced and voluntary. The evidence considered by the trial court, including the testimony of the detectives that the trial court determined to be more credible than that of Appellant's, supports the trial court's decision to deny the motion to suppress.

Ho v. State, supra.

The court then ended the opinion with the following:

[w]e affirm the trial court's ruling denying Appellant's motion to suppress. The trial court properly found that the initial knock and talk was not an arrest and that Appellant was not coerced by police action to speak with the officers, and thus Appellant's incriminating statements were freely given.

Because the record further supports the trial court's decision to deny Appellant's motions for judgment of acquittal with respect to both the first degree murder and the kidnapping charges, as well as the sentence imposed, we affirm.

Ho v. State, supra.

“Moose,” Defamation and the Statute of Limitations

This post examines a recent opinion from the Superior Courtof New Jersey – Appellate Division: Roberts v. Mintz, 2016 WL 3981128 (2016) (per curiam). The court begins the opinion by explaining that

[p]laintiffs Donna Roberts and Dawn Abrams appeal from the summary judgment dismissal of their defamation complaint, the award of sanctions against them and their attorney, and the denial of their cross-motion for summary judgment and injunctive relief. Defendant Clifford S. Mintz cross-appeals from the sanctions award.

Roberts v. Mintz, supra.

The Superior Court went on to explain how, and why, the litigation arose:

We discern the following facts from the record, viewed in the light most favorable to plaintiffs as the non-movants.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (Supreme Court of New Jersey 1995). In August 2008, defendant bought what he believed was a purebred Havanese dog from plaintiffs. One of the plaintiffs had represented to defendant that the dog was a healthy, nine-month-old, purebred Havanese. After taking the dog home, defendant allegedly learned from veterinarians that the dog was actually two years old, was not a purebred Havanese, and suffered from various health problems. He named the dog `Moose.’

Later in August, defendant confronted plaintiffs with these findings, which they denied. Plaintiffs offered to refund his money in exchange for Moose, but defendant insisted on keeping Moose in addition to a refund. He claimed he had spent $800 in veterinary fees and had become fond of Moose. Plaintiffs refused.

Beginning in September 2008, defendant aired his dissatisfaction with plaintiffs in a series of posts on his personal blog titled `Rants and Raves,’ which appears on his personal website, www.biojobblog.com. His posts, in addition to relating his personal experience with plaintiffs, disclosed what he claimed to have learned about plaintiffs from other pet owners, pet activists, and public records. He also frequently referred to plaintiffs as `dog grifters,’ `scammers,’ `nefarious,’ and `amoral and unethical scumbags.’

Roberts v. Mintz, supra.

The court goes on to explain that

[w]e need not review at length defendant's posts, as plaintiffs' complaint is limited to six statements. The first two were made in a September 1, 2008 post, which described defendant's purchase and asserted that plaintiffs misrepresented Moose's age, breed, and health. Plaintiffs challenged the statement that `Dawn Abrams fraudulently sold [defendant] a dog named ‘Moose.’ The second alleged defamatory remark in this post was the statement, `we learned that Grace Abrams is a member of a notorious ring of South Jersey dog grifters run by her mother Donna Roberts who in 2007 was found guilty under [New Jersey] Statute 4:22–26L on three of five counts of animal cruelty.’ At the conclusion of this post, defendant wrote that his goal was to `shut down the operations run by’ plaintiffs.

In the `comments’ section at the bottom of this post, two people who identified themselves as `grace’ and `Donna Roberts”’ left comments denying the allegations about Moose and calling defendant a `liar’ and a `jerk.’ `Donna Roberts’ told defendant to `can your bullshit’ and claimed that defendant was `shoved up the ass’ of another of plaintiffs' critics, whom she called `the Hitler of the dog world’ who used `Nazi tactics.’ `Donna Roberts’ also stated that defendant suffered from “rage syndrome,” a behavioral condition that afflicts canines.

On February 27, 2009, in a post titled, `The Dark Underside of New Jersey Dog Breeders: Revisited,’ defendant wrote, `For the past year or so, I have been dealing with Donna Roberts, a so-called dog breeder who recently was convicted in New Jersey on three counts of animal cruelty.’ The next allegedly defamatory remark appeared in an April 7, 2010 post, in which defendant stated, `The Vincentown address is where Dawn Roberts lives in a run down farmhouse with 6 children.’ This is a reference to the house where defendant bought Moose.

Defendant ratcheted up the rhetoric in his next two posts. In an April 27, 2010 post titled, `The Dog Grifters: Donna Roberts and Dawn Abrams Strike Again,’ defendant wondered how `these despicable human beings’ `think that they can continue to get away with ripping people off . . .’ Plaintiffs challenge a section of the following sentence where defendant declares,`eventually we will be able to shut down their fraudulent puppy mill ring! To that end, please pass the information along that nobody ought to buy dogs from these grifters!’ The final post in this series was a May 3, 2010 entry titled, `Donna Roberts Responds: I am Innocent of All Charges—The Rest of the World is Guilty.’ Here he writes, `I frequently get messages from others, who, like me, were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’

Roberts v. Mintz, supra.

The Superior Court went on to explain that

[p]laintiffs filed their complaint on May 18, 2010.  On July 16, 2010, defendant filed a motion for summary judgment in lieu of an answer. The same day, defendant's counsel served on plaintiff's counsel a `safe harbor letter’ pursuant to Rule 1:4–8 demanding that plaintiffs withdraw their complaint.

Plaintiffs filed a cross-motion for summary judgment, although none of the papers filed in support of their cross-motion were provided to us. Plaintiffs also sought an order restraining defendant from defaming plaintiffs.

The court issued a written decision granting defendant's motion and denying plaintiff's cross-motion. The court found that the statements published before May 18, 2009 were time-barred, and rejected plaintiffs' argument that the statute of limitations was tolled because defendant committed a continuing wrong. The court found that defendant's remaining statements were opinions, epithets, and hyperbole, and were not sufficiently factual to be actionable.

The court also held that defendant's statements involved a matter of public concern, such that plaintiffs were required to prove actual malice. The court found plaintiffs had not met this burden, as there was enough evident truth to defendant's statements to preclude a finding of actual malice. To this end, the court largely credited the assertions in defendant's certification that Moose was in poor health, was two years old when defendant bought him, and was not a purebred Havanese.

Roberts v. Mintz, supra.

The opinion goes on to explain that on October 27, 2010, Mintz

filed a notice of motion for sanctions against plaintiffs' counsel pursuant to Rule1:4–8, and against plaintiffs pursuant to N.J.S.A. 2A:15–59.1. Although the notice of motion referenced a certification of counsel, the record does not include one. The appendix includes what appears to be a copy of defense counsel's bills, totaling $49,732.50 in fees for work performed between June 24, 2010 and October 25, 2010, at an hourly rate of $285. At oral argument on the sanctions motion, plaintiffs contended that the motion was not supported by a proper certification, the amount sought was excessive, and defendant was not entitled to fees incurred before he sent the July 16, 2010 safe harbor letter.

In a written opinion issued October 16, 2014, the court awarded defendant $25,000 in fees and costs. The court found plaintiffs' claims were frivolous under Rule 1:4–8 and N.J.S.A. 2A:15–59 .1 because the complaint `was filed without sufficient evidentiary support, several of the claims were beyond the statute of limitations, and it was not a good faith effort to reverse existing law.’ To find that the claims were frivolous, the court reiterated its reasons for granting summary judgment.

With respect to the amount of fees, the court found that defense counsel's hourly rate and billing entries were reasonable, but concluded it was “not fair or reasonable” to require plaintiffs to be responsible for that amount. The court reduced the fee award to $25,000, finding that that amount was `fair and reasonable’ based on `the time and labor required, the novel issue of the application of the statute of limitations to internet postings and the question of whether each posting is a separate event, and the results obtained. . . .’ The court's order made the plaintiffs and their counsel jointly liable.

Roberts v. Mintz, supra.

The Superior Court then explains what is at issue in the case, noting that the

plaintiffs argue that the case was not ripe for summary judgment, none of their claims were barred by the statute of limitations, and that defendant's statements were actionable, and were made with actual malice. Plaintiffs also contend they raised novel issues of law, and therefore defendant was not entitled to an award of fees. Plaintiffs also appeal from the denial of their request for a preliminary injunction and cross-motion for summary judgment. Defendant urges us to affirm summary judgment, but contends that the court abused its discretion in reducing the award of fees.

Roberts v. Mintz, supra.

The court then began its analysis of the arguments, and the issues, in the appeal, explaining initially that

[w]e first consider the summary judgment dismissal of plaintiffs' complaint. We review the grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (New Jersey Supreme Court 2010). We must determine whether the competent evidence presented, `when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.’ Brill, supra, 142 N.J. at 540, 666 A.2d 146. We also review the trial court's legal conclusions de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995); including whether the statute of limitations applies, Churchill v. State, 378 N.J.Super. 471, 478, 876 A.2d 311 (App. Div. 516, 529, 643 A.2d 972 (1994).

Roberts v. Mintz, supra.

The Superior Court went on to explain that

[a]t the outset, we reject plaintiffs' argument that summary judgment was premature. Our courts favor early consideration of summary judgment motions in defamation cases:

`On the one hand, in deciding whether to grant summary judgment, a court should proceed cautiously when presented with an incomplete record. On the other hand, a timely grant of summary judgment in a defamation action has the salutary effect of discouraging frivolous lawsuits that might chill the exercise of free speech on matters of public concern.’

[G.D. v. Kenny, 205 N.J. 275, 304–05, 15 A.3d 300 (2011) (internal citations omitted).]

A party claiming summary judgment is premature must ‘demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.’ Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555, 107 A.3d 1281 (New Jersey Supreme Court 2015) (internal quotation marks and citation omitted); see also Trinity Church v. Lawson–Bell, 394 N.J.Super. 159, 166, 925 A.2d 720 (App.Div.2007) (party `must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete’). Plaintiffs have failed to do so.

Furthermore, by cross-moving for summary judgment, plaintiffs waived the incomplete-discovery argument. `The filing of a cross-motion for summary judgment generally limits the ability of the losing party to argue that an issue raises questions of fact, because the act of filing the cross-motion represents to the court the ripeness of the party's right to prevail as a matter of law.’ Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J.Super. 158, 177, 943 A.2d 881 (App.Div.), certif. denied, 196 N.J. 85, 951 A.2d 1038 (2008).

Roberts v. Mintz, supra.

The Superior Court then took up the issue of the statute of limitations, noting that

we agree with the trial court that plaintiffs' claims based on statements made before May 18, 2009 were time-barred. Actions for libel or slander must be commenced within one year of publication. N.J.S.A. 2A:14–3. We reject plaintiffs' argument that defendant engaged in a continuing pattern of defamation that tolled the statute until the last publication.

Plaintiffs rely on the `continuing violation’ doctrine, which provides that when a plaintiff `is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.’ Wilson v. Wal–Mart Stores, 158 N.J. 263, 272, 729 A.2d 1006 (1999). Our courts have never applied the continuing violation doctrine to defamation claims, and have only applied it to hostile work environment claims under the Law Against Discrimination, and continuing nuisance claims. See Shepherd v. Hunterdon Developmental Ctr.,174 N.J. 1, 18–22, 803 A.2d 611 (2002) (hostile work environment); Wreden v. Twp. of Lafayette, 436 N.J.Super.117, 125, 92 A.3d 681 (App. Div. 2014) (continuing nuisance). Courts in other jurisdictions have uniformly declined to apply the continuing violation doctrine to defamation. See Amobi v. D.C. Dep't of Corr., 755 F.3d 980, 994 (D.C. Cir. 2014) (applying D.C. law); McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 710 (10th Cir.2012) (applying Wyoming law); Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.2002); Smith v. IMG Worldwide, Inc., 437 F.Supp.2d 297, 304–05 (E.D.Pa.2006); Card v. Pipes, 398 F.Supp.2d 1126, 1133 (D. Or. 2004); Lewis v. Gupta, 54 F.Supp.2d 611, 616 (E.D.Va.1999); Scott v. Zaheri, 157 So.3d 779, 786–87 (La.Ct.App.2014); Selkirk v. State, 249 A.D.2d 818, 671 N.Y.S.2d 824, 825 (App.Div.1998); Rosenbaum v. Chronicle Telegram, 2002 Ohio App. LEXIS 7189, at *13, 2002 WL 31890101 (Ohio Ct.App.2002).

We decline to extend the doctrine to defamation. A continuing tort by its nature `involves repeated conduct’ and occurs over a period of time; it cannot be distilled to one discrete act giving rise to the cause of action. Shepherd, supra, 174 N.J. at 19, 803 A.2d 611. A claim for defamation, by contrast, is based on a single act: the publication of a defamatory statement. The claim accrues `immediately upon the occurrence of the tortious act.’ Flowers, supra, 310 F.3d at 1126.

Roberts v. Mintz, supra.

The court went on to explain that,

[a]pplying the continuing tort doctrine in this case would also be at odds with the single publication rule, which provides that a statement posted on the internet is deemed to only be published once for purposes of the statute of limitations; the limitations period does not restart every time the post is viewed. Churchill, supra, 378 N.J.Super. at 479–83, 876 A.2d 311.

Furthermore, our Supreme Court is generally reluctant to relax the statute of limitations governing defamation. See NuWave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 500, 114 A.3d 738 (2015) (declining to apply discovery rule to defamation claim, holding the statute's `clear and unqualified language’ requires all libel claims to be made within one year of publication).

In sum, the court correctly dismissed as time-barred plaintiffs' defamation claims based on the three statements made in the September 1, 2008 and February 27, 2009 blog posts.

Roberts v. Mintz, supra.

The Superior Court then took up the “statements that are not time-barred,” explaining that

we conclude they were non-actionable opinion.⁴ There are three elements of a cause for defamation: `”(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.”’ Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585, 969 A.2d 1097 (2009) (quoting DeAngelis v. Hill,180 N.J. 1, 13, 847 A.2d 1261 (2004)). `”To determine if a statement has a defamatory meaning, a court must consider three factors: ‘(1) the content, (2) the verifiability, and (3) the context of the challenged statement.”’ Ibid. (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261).

In considering verifiability, our courts have drawn a line between opinions, which are not actionable, and statements of fact, which are. `A statement's verifiability refers to whether it can be proved true or false.’ Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167, 735 A.2d 1129 (1999). A statement is actionable if it `”suggested specific factual assertions that could be proven true or false.”’  Leang, supra, 198 N.J. at 585, 969 A.2d 1097 (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261). Statements of opinion are usually not actionable, as opinions “ ‘are generally not capable of proof of truth or falsity because they reflect a person's state of mind[.]’ “ NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J.Super. 539, 553, 75 A.3d 1241 (App. Div. 2013) (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972) aff’d, 221 N.J. 495, 114 A.3d 738 (2015). But an opinion is actionable if `it implies ‘reasonably specific assertions' of “underlying objective facts that are false.”’ Ibid. (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972).

`Loose, figurative or hyperbolic language is not likely to imply specific facts’ and thus is generally not actionable. Lynch, supra, 161 N.J. at 167–68, 735 A.2d 1129. Similarly, `epithets, insults, name-calling, profanity and hyperbole’ are not actionable. DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261. `The higher the fact content of a statement,”the more likely it is actionable.”’ Lynch, supra, 161 N.J. at 168, 735 A.2d 1129. . . . 

Statements `falsely attributing criminality to an individual [are] defamatory as a matter of law.’ G.D., supra, 205 N.J.at 293, 15 A.3d 300 (internal citation omitted) (flyers referring to G.D. as a convicted drug dealer were defamatory); see also Lawrence v. Bauer Publ'g & Printing, 89 N.J. 451, 456, 459–60, 446 A.2d 469 (statement that two men might be charged with forgery was defamatory), cert. denied, 459 U.S. 999 (1982). Yet, this does not mean that using a word that is also the name of a crime necessarily accuses the person of committing that crime. Rather, the word must be considered in context, focusing on `the listener's reasonable interpretation’ of the statement. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. Context includes `the identity of the speaker and the targeted audience[,]’ Senna v. Florimont, 196 N.J. 469, 492–93, 958 A.2d 427 (2008), or `the section of a newspaper in which an article appears,’ Lynch, supra, 161 N.J . at 168, 735 A.2d 1129 (internal citation omitted).

Roberts v. Mintz, supra.

The Court then began the process of outlining its “holding,” i.e., its decision, in the case:

Applying these principles, we consider first defendant's comment that Roberts lived in “a run down farm house” with six children. This merely conveys defendant's opinion of Roberts's home, and is therefore not actionable.

The two remaining statements present a closer issue. As noted, in the April 27, 2010 post, defendant called plaintiffs `grifters’ and their business a `fraudulent puppy mill ring.’ The May 3, 2010 post alleged that defendant “frequently” received messages from “others” who also `were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’

We recognize that words like `grifters,’ `scammed,’ and `fraudulent’ can be used to describe unscrupulous or deceptive business practices, and a `puppy mill’ is a facility where puppies are bred, usually in inhumane conditions. However, our concern is not the meaning of these words in isolation, but rather their meaning in the context in which defendant said them. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. And three elements of context lead us to conclude that a reasonable reader would not take defendant's use of these words literally.

Roberts v. Mintz, supra.

The opinion goes on to explain that,

[f]irst, the words immediately surrounding these terms include sarcastic quips like `Despite a down economy, it appears that business for the dog grifting team of [Roberts and Abrams] is booming,’ and derisive insults such as `nefarious individuals,’ `despicable human beings,’ and `cronies.’ Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion—not fact.

Perhaps most importantly, defendant made these statements under the heading, `Rants and Raves,”’signaling to any reader that what followed were the author's personal viewpoints. See Summit Bank v. Rogers, 206 Cal.App.4th 669, 142 Cal.Rptr.3d 40, 60 (Court of Appeals 2012) (fact that statements appeared in section of website entitled `Rants and Raves”’ indicated a reader would `view them with a certain amount of skepticism’ and understand that `they will likely present one-sided viewpoints rather than assertions of provable facts’). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used `grifters,’ `scammed,’ and `fraudulent puppy mill,’ a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole. See Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (stating that `even the most careless reader’ would have interpreted an accusation of `blackmail' in the context of public negotiations as `rhetorical hyperbole’).

Additionally, defendant did not assert specific, verifiable facts to support claims that plaintiffs operated a `fraudulent puppy mill’ or `scammed’ their customers. See Dice v. Johnson, 711 F.Supp.2d 340, 360–61 (M.D.Pa.2010) (accusation that someone was a `notorious puppy broker’ was not defamatory); NBC Subsidiary (KCNC–TV) v. Living Will Ctr., 879 P.2d 6, 12 (Colo.1994) (statement that company that sells living will forms is a `scam” was not defamatory because it did not imply `a verifiable fact’ nor could `it reasonably be understood as an assertion of actual fact’). In the absence of “underlying objective facts” that could be proven true or false, defendant's accusations are more accurately classified as opinoiins. See Ward, supra, 136 N.J. at 531, 643 A.2d 972.

In conclusion, the court properly dismissed plaintiffs' claims, as defendant's statements were non-actionable opinion, hyperbole, and epithets. Having concluded that plaintiffs' claims were properly dismissed on this ground, we need not address whether defendant's statements involved matters of public concern, imposing on plaintiffs the heightened burden to prove actual malice. Plaintiffs' arguments with respect to the denial of their request for a preliminary injunction and their cross-motion for summary judgment lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

Roberts v. Mintz, supra.