Medical Marijuana Inc. v. ProjectCBD.com

MEDICAL MARIJUANA, INC., et al.,

Plaintiffs and Respondents,

v.

PROJECTCBD.COM et al.,

Defendants and Appellants.

No. D068523

(Super. Ct. No. 37-2014-00036039-CU-DF-CTL)

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

California Court of Appeals

Fourth Appellate District

Division One

Filed December 19, 2016

THE COURT:

It is ordered that the opinion filed herein on November 21, 2016, be modified as follows:

On page 21, the paragraph beginning "Thus, the operative pleading" is deleted in its entirety and the following two paragraphs are inserted in its place.

Thus, the specific factual allegations identifying the conduct that the Project CBD defendants are alleged to have engaged in are inconsistent with the conduct that is alleged to form the basis of the libel and false light counts.  "Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the more general allegation and the specific allegations."  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235, italics added.)¹³  "To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation."  (Id. at pp. 1235-1236.)  "Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient."  (Id. at p. 1236.)  Here, the specific allegation about the Project CBD defendants' conduct---i.e., that the Project CBD defendants published the Hemp Oil Hustlers article on the Project CBD website on October 14, 2014 and then further published it on other websites (but not Facebook)---controls over the inconsistent, more general allegation that all of the defendants published negative statements on Facebook over a series of dates prior to October 14, 2014.

Giving the operative pleading its most reasonable interpretation in light of these significant inconsistencies between the more general allegations of conduct asserted in the libel and false light counts and the specific allegations about these defendants' conduct in the pleading document, it becomes clear that the operative pleading, as it stands, cannot be read as alleging any conduct on the part of the Project CBD defendants that supports the plaintiffs' claims for relief for libel or false light.  In fact, the Project CBD defendants conceded that this is so in their supplemental briefing:  "Plaintiffs fail to connect Project CBD's purportedly defamatory statements in the October 2014 Report to their specific causes of action for libel and false light.  Instead, as this Court notes, those specific claims only allege false statements made 'between May 1, 2014 and June 1, 2013' and published 'on Facebook.'  [Citation.]  The Project CBD Defendants clearly have no connection to allegedly defamatory Facebook posts published several months before Project CBD's Report was even authored, and Plaintiffs' have not argued otherwise."  More importantly, the plaintiffs have not alleged otherwise.  Rather, all of the conduct identified in the first amended complaint to support the claims for libel and false light is conduct specifically alleged to have been engaged in by other defendants, not the Project CBD defendants, and is conduct that is inconsistent with the specific detailed allegations regarding the Project CBD defendants' conduct.¹⁴

On page 22, the footnote beginning "This case presents," is renumbered as footnote 15.  This will require renumbering of all subsequent footnotes.

There is no change in the judgment.

Appellants' petition for rehearing is denied.

BENKE, Acting P. J.

^13. The reference to "a general allegation" here is not a reference to the factual allegations set forth in a pleading under the heading "General Allegations" as opposed to the allegations alleged to support a specific count in the pleading.  Rather, the phrase refers to the nature of the information provided by a particular allegation in a complaint, and whether the information provided in an allegation is more general, conclusory, or states an ultimate fact or a legal conclusion (a more general allegation) or instead, is an allegation that provides more specific details about the conduct or condition being alleged (a more specific allegation).

^14. In contrast to the allegations made to support the claims asserted in counts 1 and 3, which reference solely actions by defendants other than the Project CBD defendants, the claim for trade libel asserted in count 2, for example, includes the following allegations that can be read to allege specific conduct on the part of the Project CBD defendants:  "Plaintiffs are informed and believe, and based thereon allege, that [all of the defendants], inclusive, and/or each of them, jointly or separately, intentionally, wrongfully, without justification, and without privilege made statements that Plaintiffs' product (RSHO) was dangerous to consume, contained heavy metals, fluorides, chlorides, bromine, and bleach at high concentration[s], that it was not even hemp oil, that it caused the death of a child [known as 'Jaqi Angel' on Facebook]" and "Plaintiffs are informed and believe, and based thereon allege, that Murray's Post and/or DOES 1 through 20's statements were quoted and publicized in a paper by Project CBD, an online information website calling for the legalization of medical marijuana, and Aaron Miguel Cantu, an employee of Project CBD. The 'Hemp Oil Hustlers' article has been reprinted and updated as of November 4, 2014."  (Brackets in original.)  Thus, it is clear that the plaintiffs knew how to reference and rely on the specific factual allegations of the Project CBD defendants' activities to support a particular claim for relief.  As we have explained, they made no similar allegations regarding the conduct of the Project CBD defendants, with respect to the two pleaded causes of action at issue on appeal.