Court of Appeals of Ohio,

Twelfth District, Clermont County.

ARTISAN AND TRUCKERS CASUALTY COMPANY, Plaintiff–Appellee,

v.

JMK TRANSPORTATION, LLC, et al., Defendants–Appellants.

 

No. CA2013–01–004.

Decided Aug. 19, 2013.

 

Civil Appeal from Clermont County Court of Common Pleas, Case No.2011 CVH 1096.

J. Timothy Riker, Cincinnati, OH, for plaintiff-appellee, Artisan and Truckers Casualty Company.

 

JMK Transportation, Cincinnati, OH, appellee, pro se.

 

A & K Barkley Cab Co., Cincinnati, OH, appellee, pro se.

 

Adrienne Missy Barkley, Cincinnati, OH, appellee, pro se.

 

Marion Tidwell, Cincinnati, OH, appellee, pro se.

 

Elizabeth Mason, Batavia, OH, for appellees, Michael McKibben, Brent Anstaett and Clermont County Commissioners.

 

Kevin C. Connell, Dayton, OH, for appellee, Erie Insurance Company.

 

Howard D. Cade III, Loveland, OH, for defendant-appellant, Betty Barger.

 

HENDRICKSON, P.J.

*1 {¶ 1} Defendant-appellant, Betty Barger, appeals a decision of the Clermont County Court of Common Pleas granting declaratory judgment in favor of plaintiff-appellee, Artisan & Truckers Casualty Company (Artisan). For the reasons stated below, we affirm the decision of the trial court.

 

{¶ 2} On May 28, 2010, Barger was involved in an automobile accident that involved her car, another vehicle, and a 2001 Ford Crown Victoria, Vin # 151221 (Crown Victoria). The Crown Victoria was operated by Marion Tidwell, who worked for JMK Transportation (JMK). On the day of the accident, Tidwell was picking up the Crown Victoria from a garage where it was getting repaired so that the vehicle could be used in JMK’s business. Minutes after picking up the vehicle, a collision occurred where Barger suffered serious injuries.

 

{¶ 3} At the time of the collision, JMK had an automobile insurance policy with Artisan. The Crown Victoria was not listed in the declarations page of the policy. Subsequently, Artisan filed a complaint for declaratory judgment to determine its obligations under the insurance policy. On September 20, 2012, a trial was held which established the following facts.

 

{¶ 4} JMK is a Medicaid transportation company owned by Adrienne Barkley. In November 2008, Barkley incorporated JMK. Prior to the establishment of JMK, Barkley was the sole shareholder of A & K Barkley Cab Co., Inc. (A & K). A & K was a general purpose cab company which had operated for several years. In 2007 and 2008, Barkley was looking to sell the assets of A & K and start a smaller transportation company. During this time, A & K purchased the Crown Victoria. The Crown Victoria’s title and registration listed A & K as the owner.

 

{¶ 5} A & K ceased operations and sold most of its assets to another party in July 2008. The asset sale included A & K’s goodwill and 30 of A & K’s vehicles. A 2001 Crown Victoria was not included in the sale. After the asset sale, Barkley transferred A & K’s leftover vehicles, including the Crown Victoria, from its lot in Queen City to a new lot located in Miamitown. Some of the transferred vehicles were driven for JMK’s business while others were used for spare parts. Through most of the time JMK was operating its business, the Crown Victoria suffered from mechanical failure and was left at the Miamitown car lot. The titles of the leftover vehicles, including the Crown Victoria, remained in A & K’s name even though many of the vehicles were being used in JMK’s business.

 

{¶ 6} In 2008, JMK purchased automobile insurance through National Indemnity. The Crown Victoria was listed as a covered vehicle under this policy. However, in 2009 JMK bought insurance through Artisan and the Crown Victoria was not included under this new policy. Additionally in 2009, Barkley as proprietor of JMK, filed a tax return claiming several vehicles for tax deduction purposes. The vehicles were not listed by their VIN numbers but a “2001 Crown Vick (sic) Auto” was claimed as a tax deduction.

 

*2 {¶ 7} Approximately five weeks before the collision, Barkley’s brother towed the Crown Victoria to a garage to have its engine repaired and to be painted. The vehicle was to be in JMK’s colors, a gray body with white JMK lettering on the side. On the day of the accident, Tidwell drove a JMK vehicle to the garage, with the intent of dropping it off for potential repair and picking up the Crown Victoria, which was to be placed in service. Barkley testified that on the day of the accident, the vehicle was just being converted to use by JMK and that it was basically a new vehicle to JMK that day. Fifteen minutes after Tidwell picked up the Crown Victoria, the collision occurred.

 

{¶ 8} On December 21, 2012, the trial court found the Crown Victoria was not an insured vehicle under the Artisan policy. The court reasoned that the Crown Victoria was excluded from the policy because it was not listed on the declarations page, JMK acquired the vehicle prior to policy period, and JMK was the owner of the vehicle for more than 30 days prior to the accident. In finding that JMK was the owner of the Crown Victoria, the court applied the Ohio Uniform Commercial Code (UCC) rather than the Ohio Certificate of Title Act. Consequently, Artisan owed no coverage under the policy. Barger appealed, raising a sole assignment of error:

 

{¶ 9} THE TRIAL COURT ERRED IN GRANTING PLAINTIFF–APPELLEE’S COMPLAINT FOR DECLARATORY JUDGMENT.

 

{¶ 10} Barger argues the trial court erred in finding that the vehicle was not insured under the Artisan policy. Specifically, Barger argues the court erred in its application of law in determining that the Ohio UCC rather than the Ohio Certificate of Title Act identifies the owner of the vehicle for purposes of determining insurance coverage in the case of an accident. Barger also asserts that three of the court’s factual decisions were not supported by the evidence. These decisions were that (1) JMK acquired the vehicle in 2008, (2) JMK had possession of the vehicle when it was towed to the garage, and (3) the vehicle was used for spare parts by JMK.

 

Insurance Policy

{¶ 11} JMK’s commercial automobile insurance policy with Artisan provides coverage for damages an insured becomes legally responsible for because of an accident arising out of the use of an “insured auto.” The sole issue in this case is whether the Crown Victoria qualified as an “insured auto” under the policy.

 

{¶ 12} The Artisan policy provides several definitions for an “insured auto.” One definition includes any auto that is specifically described on the Declarations Page of the policy. In this case, it is undisputed that the Crown Victoria was not on the Declarations Page. Therefore, our inquiry turns to the other definitions of “insured auto.”

 

{¶ 13} An “insured auto” also covers an “additional auto” on the date the insured becomes the owner. The policy specifies that coverage will extend to the “additional auto” if,

 

*3 i. You acquire the auto during the policy period shown on the Declarations Page;

 

ii. We insure all autos owned by you that are used in your business; and

 

iii. No other insurance policy provides coverage for that auto.

 

The policy goes on to state that it will cover an “additional auto” for a period of 30 days after the insured becomes the owner of the auto. The coverage will not extend after the 30–day period unless the insured requests the “additional auto” to be included in the policy.

 

{¶ 14} Another type of “insured auto” under the policy is a “temporary substitute auto.” A “temporary substitute auto” is defined as “any auto used, with the permission of its owner, as a substitute for an insured auto that has been withdrawn from normal use due to breakdown, repair, servicing, loss or destruction.” A “temporary substitute auto” also is “not owned by or registered to you* * *,” not owned by your employee or leased for a period of six months or more by your employee, and “not borrowed from your employees or members of their households.” FN1

 

FN1. The policy also provides coverage for a “replacement auto.” However, both parties concede that the Crown Victoria did not qualify as a “replacement auto” and therefore we will not address this issue.

 

Legal Argument

{¶ 15} We begin with Barger’s first argument, that the court used the incorrect law to determine whether JMK or A & K owned the vehicle. The issue of ownership is important because if JMK owned the Crown Victoria for less than 30 days, the “additional auto” provision that excludes coverage for vehicles owned longer than 30 days would not apply. Additionally, the determination of ownership is important for coverage under the “temporary substitute auto” provision because this coverage hinges on finding that JMK never owned the Crown Victoria.

 

{¶ 16} The Supreme Court recently clarified that once a trial court determines that a matter is appropriate for declaratory judgment, its holdings regarding questions of law are reviewed de novo. South v. Browning, 12th Dist. Warren No. CA2012–09–088, 2013–Ohio1491, ¶ 10, citing Arnott v. Arnott, 132 Ohio St.3d 401, 2012–Ohio–3208, ¶ 13, 17. Accordingly, we review the trial court’s decision de novo.

 

{¶ 17} The Ohio UCC Section 2–401, codified in R.C. 1302.42(B), provides,

 

Unless otherwise explicitly agreed, title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place * * *.

 

{¶ 18} On the other hand, the Ohio Certificate of Motor Vehicle Title Act provides “no court shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered” unless evidenced by a certificate of title, by admission in the pleadings, by stipulation of the parties, or by an instrument showing a valid security interest. R.C. 4505.04(B).

 

{¶ 19} The Supreme Court has held that “[t]he criteria found in R.C. 1302.42(B), and not the Certificate of Title Act, identify the owner of a motor vehicle for purposes of determining insurance coverage in an accident.”   Smith v. Nationwide Mut. Ins. Co., 37 Ohio St.3d 150 (1988), syllabus. In Smith, the Court was determining the owner of an automobile when the purchaser of the vehicle received imperfect title from the vehicle’s previous owner and was involved in an accident. Id. at 152. The purchaser had not insured the vehicle while the previous owner retained coverage on the automobile. Id.

 

*4 {¶ 20} In finding that the Ohio UCC should apply to identify the owner for purposes of determining insurance coverage in an accident, the Court reasoned that “[t]he purpose of the Certificate of Title Act is to prevent the importation of stolen motor vehicles, to protect Ohio bona-fide purchasers against thieves and wrongdoers, and to create an instrument evidencing title to, and ownership of, motor vehicles.” Id., citing Hughes v. Al Green, Inc., 65 Ohio St.2d 110 (1981). Thus, the Certificate of Title Act “is irrelevant to all issues of ownership except those regarding the importation of vehicles, rights as between lienholders, rights of bona-fide purchasers, and instruments evidencing title and ownership.” Smith at 153.

 

{¶ 21} We find that the trial court did not err in looking to R.C. 1302.42(B) to determine the owner of the Crown Victoria. The issue in this case was whether JMK or A & K was the owner of the Crown Victoria for purposes of determining insurance coverage in an automobile accident. The Supreme Court has stated that in this circumstance, courts must look to the Ohio UCC to determine the ownership of the automobile. As noted in Smith, application of the Ohio Certificate of Title Act is proper in cases in which there is an issue as to the rights between lienholders, the rights of bona-fide purchasers, and the instruments evidencing title and ownership. Further, the court did not err in applying subsection (B) in determining the ownership of the Crown Victoria because the evidence demonstrated that the ownership of the Crown Victoria was transferred when it was delivered to the Miamitown lot.

 

{¶ 22} Additionally, we disagree with Barger that Smith is limited to cases where there has been a sale of the vehicle. As this court has previously noted, the distinction between gifts and sales is an “illusory distinction when the reasoning behind Smith is considered.” Abney v. Western Res. Mut. Cas. Co., 76 Ohio App.3d 424, 428 (12th Dist.1991). Instead, “the Supreme Court has made it clear that, given the purpose of the Certificate of Title Act, unless an action involves issues of ownership relating to importation of vehicles, rights between lienholders, rights of bona-fide purchaser, or instruments evidencing title and ownership, the Certificate of Title Act is not the exclusive method to prove ownership of a vehicle.” Id. See Howard v. Himmelrick, 10th Dist. Franklin No. 03AP–1034, 2004–Ohio–3309, ¶ 8 (noting that Smith has been applied in non-sale situations.)

 

{¶ 23} Consequently, the trial court correctly applied R.C. 1302.42(B) to determine the ownership of the Crown Victoria.

 

Factual Arguments

{¶ 24} Barger also challenges the trial court’s factual determinations in finding that the Crown Victoria was not an “additional auto” or a “temporary substitute auto” under the policy. Specifically, Barger argues the court’s finding that JMK “acquired” the Crown Victoria no later than October 2008 was against the manifest weight of the evidence. Barger also contends the court erred in finding that (1) the Crown Victoria was in JMK’s possession and control the day it was towed to the garage, and (2) the Crown Victoria was used for spare parts by JMK and thus was in JMK’s possession.

 

*5 {¶ 25} When evaluating whether a judgment is against the manifest weight of the evidence in a civil case, the standard of review is the same as in the criminal context. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 17. We weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact “clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” Marinich v. Lumpkin, 12th Dist. Warren No. CA2011–11–124, 2012–Ohio–4526, ¶ 20, quoting Eastley at ¶ 20. In weighing the evidence, we are mindful of the presumption in favor of the finder of fact. Eastley at ¶ 21. “A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81 (1984).

 

{¶ 26} We begin by discussing the trial court’s determination that JMK “acquired” the Crown Victoria no later than October 2008. On appeal and during the trial, the court and the parties use “acquire” and “own” interchangeably in determining whether insurance coverage exists. For coverage under the “additional auto” provision in the policy, the Crown Victoria must have been “acquired” during the policy period, which was from January 30, 2010 through January 30, 2011. Additionally, for coverage under the “additional auto” and “temporary substitute auto” provisions, JMK must not have owned the Crown Victoria for more than 30 days prior to the accident.

 

{¶ 27} While “acquire” is not defined in the policy, the ordinary meaning of “acquire” is “to gain possession or control of; to get or obtain.” Black’s Law Dictionary, (9th ed.2009). See Morner v. Giuliano, 167 Ohio App.3d 785, 2006–Ohio–2943 (12th Dist.). As described above, ownership for insurance purposes in an automobile accident hinges on physical possession of the automobile. Therefore, as these terms both focus on the possession of the vehicle, they have substantially the same meaning.

 

{¶ 28} The trial court’s finding that JMK acquired or owned the Crown Victoria no later than October 2008 is not against the manifest weight of the evidence as the evidence shows the Crown Victoria was transferred from A & K to JMK after the asset sale. In July 2008, A & K sold most of its assets and ceased doing business. For a number of years Barkley had been looking to sell A & K and start a smaller transportation company. The vehicles that were not sold in the A & K asset sale were moved from A & K’s car lot to a Miamitown car lot and were to be used in the JMK business. The Crown Victoria was not included in the asset sale. A few months after the asset sale, in October 2008, JMK officially began business operations.

 

*6 {¶ 29} After the asset sale, JMK took several actions that evidenced its ownership and control of the Crown Victoria. JMK’s 2008 automobile insurance policy with National Indemnity listed the Crown Victoria as a covered automobile. Additionally, a 2009 tax return shows that JMK took deductions for the vehicles not sold in the asset sale. The return lists a “2001 Crown Vick (sic) Auto.” The individual who prepared JMK’s taxes testified that a business cannot take a deduction for a vehicle unless the business owns the vehicle. While this return did not list the VIN numbers of t2he automobile and therefore is not definitive evidence of JMK’s ownership of the Crown Victoria, it is of some evidentiary value to our determination.

 

{¶ 30} Barger contends that Barkley’s testimony that the Crown Victoria was being converted to use by JMK the day of the accident and the Crown Victoria’s title and registration show that JMK did not acquire the vehicle in 2008. We disagree. While the title and registration of the Crown Victoria lists A & K as the owner of the vehicle, three of the four vehicles operated by JMK were still titled and registered to A & K. Barkley explained that she did not transfer the title of these vehicles to JMK because she did not think it was necessary. A & K was no longer operating as it had reported zero income since 2009. Therefore, A & K’s name on the title and registration is not definitive evidence of possession in this case. Additionally, we note that for purposes of determining ownership, this court looks to physical possession in cases of insurance coverage in an automobile accident and in this case, JMK had physical possession of the vehicle. Lastly, Barkley’s testimony about JMK’s ownership of the Crown Victoria is outweighed by other evidence which shows that JMK owned the Crown Victoria since 2008.

 

{¶ 31} Therefore, the trial court’s finding that JMK acquired and owned the Crown Victoria no later than October 2008 is not against the manifest of the evidence. Consequently, because we find that JMK owned the Crown Victoria by October 2008, we necessarily find that the JMK had possession of the Crown Victoria when it was towed to the garage and that JMK had possession of the Crown Victoria while it was in the car lot, possibly being used for spare parts. Thus, the Crown Victoria is excluded from coverage under the “additional auto” and “temporary substitute auto” provisions.

 

Conclusion

{¶ 32} The trial court did not err in granting declaratory judgment in favor of Artisan. The court correctly applied the Ohio UCC provision codified in R.C. 1302.42(B) to determine the ownership of the Crown Victoria and the court’s determination that JMK acquired and owned the Crown Victoria no later than October 2008 is not against the manifest weight of the evidence. Therefore, the Crown Victoria is not a covered automobile under the “additional auto” or “temporary substitute auto” provision in the policy.

 

*7 {¶ 33} Barger’s sole assignment of error is overruled.

 

{¶ 34} Judgment affirmed.

 

PIPER and M. POWELL, JJ., concur.

 

BUDGET VAN LINES, INC., Plaintiff and Respondent,

v.

BETTER BUSINESS BUREAU OF THE SOUTHLAND, INC., Defendant and Appellant.

 

B235338

 

Court of Appeal,

Second District, Division 7, California.

Filed August 20, 2013

 

APPEAL from an order of the Superior Court of Los Angeles County, Michael Solner, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC452006)

Leopold, Petrich & Smith and Walter R. Sadler for Defendant and Appellant.

 

Law Office of Adrianos Facchetti, Adrianos Facchetti; Tedford & Associates and James R. Tedford II for Plaintiff and Respondent.

 

SEGAL, J.FN*

 

FN* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

 

INTRODUCTION

Defendant Better Business Bureau of the Southland, Inc. appeals from an order denying its special motion to strike the complaint of plaintiff Budget Van Lines, Inc. pursuant to Code of Civil Procedure section 425.16.FN1 We affirm.

 

FN1. Code of Civil Procedure section 425.16 authorizes a special motion to strike, also known as an anti-SLAPP motion. ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, 66.) All further statutory references are to the Code of Civil Procedure, unless otherwise stated.

 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

Budget Van Lines, Inc. (Budget) is a relocation services broker that has been in business since 2005 and maintains its principal place of business in New York. According to Budget’s president, Sheri Katz, “[m]oving companies move Household Goods whereas Brokers arrange for moving companies to do the actual moves,” and Budget “is a ‘Household Goods Broker.’ ”

 

Better Business Bureau of the Southland, Inc. doing business as The Better Business Bureau (the BBB) is a nonprofit voluntary membership organization. According to the BBB’s president, William Mitchell, the “goals of the BBB are to advocate truth in advertising as well as to promote integrity in the performance of business services” and “to enhance public trust and confidence in business through voluntary self-regulation and monitoring activities.” The BBB provides free information to consumers by telephone, mail, and the Internet about a particular company in what the BBB calls a Reliability Report. The Reliability Report includes a record of consumer complaints made to the company and the company’s responses, any governmental action against the company, any licensing or advertising issues that the BBB has learned about the company, and a BBB Rating, generally “A+” to “F,” reflecting the extent to which the company is in compliance with the BBB’s standards for operating in a trustworthy manner and making good faith efforts to resolve consumer complaints or concerns filed with the BBB.

 

B. The Complaint

On December 27, 2010 Budget filed a complaint against the BBB based on the BBB’s disparaging statements about Budget and the “F” grade that the BBB gave Budget on the BBB’s website. Budget alleged causes of action for (1) trade libel, (2) libel per se, (3) unfair competition in violation of Business and Professions Code section 17200 (the UCL), (4) permanent injunction, and (5) declaratory relief. Budget alleged that the BBB “published a number of damaging statements about” Budget, including that Budget was “not in compliance with the law’s licensing or registration requirements,” Budget’s advertising was “grossly misleading,” and Budget deserved a grade of “F.” Budget alleged that “[t]hese statements are all false and defamatory” because Budget is a moving broker not a moving company, Budget “is in compliance with all Department of Transportation and Federal Motor Carrier Safety Administration laws and regulations,” and Budget’s “advertising is not misleading in any way.” Budget alleged that the statement that Budget was “not in compliance with the law’s licensing or registration requirements” is libelous because it charged Budget with violating the law, and the statement that Budget’s advertising is “grossly misleading” is libelous because it charged Budget with dishonesty. Finally, Budget alleged that the BBB knew the statements were false or acted with reckless disregard of their truth when the BBB published the statements on its website, knew that existing or potential Budget customers would view the statements, and published the false statements with malice and the intent to destroy Budget’s business.

 

In its unfair competition cause of action, Budget alleged that the BBB’s publication of false statements about Budget, as well as the BBB’s repeated attempts to compel Better Business Bureaus in other locations to give Budget an “F” or to direct consumers to the BBB’s website constituted an unlawful, unfair, or fraudulent business practice in violation of the UCL. Budget claimed that the BBB caused and will continue to cause Budget monetary damages and irreparable injury. In its fourth and fifth causes of action, Budget sought injunctive and declaratory relief.

 

C. The BBB’s Special Motion To Strike

The BBB filed a special motion to strike pursuant to section 425.16. Budget conceded that the BBB’s acts were in furtherance of its right of petition or free speech, but argued that it had a reasonable probability of prevailing on the merits of its claims. In support of its opposition to the motion, Budget presented two computer printouts from the BBB’s website entitled “BBB Reliability Report for Budget Van Lines, Inc.” Katz attached to her declaration a Reliability Report about Budget that she had printed from the BBB’s website on September 10, 2010. Adrianos Facchetti, head of Budget’s legal division, attached to his declaration a slightly different undated version of a Reliability Report about Budget.FN2

 

FN2. The trial court overruled the BBB’s objections to these exhibits. The BBB does not challenge the trial court’s evidentiary rulings on appeal.

 

Both Reliability Reports prominently displayed “BBB Rating F” next to the title “Rating Explanation.” The “Rating Explanation” stated: “Company Rating F [¶] Our opinion of what this rating means: [¶] We strongly question the company’s reliability for reasons such as that they have failed to respond to complaints, their advertising is grossly misleading, they are not in compliance with the law’s licensing or registration requirements, their complaints contain especially serious allegations, or the company’s industry is known for its fraudulent business practices.” Near the lower right corner of the undated Reliability Report attached to Facchetti’s declaration, under the title “Rating Reasons,” the Reliability Report states: “Factors that lowered this business’s rating include: [¶] Failure to have a required competency license.” FN3

 

FN3. The Reliability Report printed by Facchetti contains the complete version of the statement as follows: “Rating Reasons [¶] BBB rating is based on 16 factors. Click here for details about the factors considered. [¶] Factors that lowered this business’s rating include: [¶] Failure to have a required competency license [¶] Length of time business has been operating [¶] 128 complaint(s) filed against business [¶] Failure to respond to 2 complaint(s) filed against business [¶] 7 complaints(s) filed against business that were not resolved [¶] 11 serious complaint(s) filed against business [¶] Overall complaint history with BBB[.]” The Reliability Report printed by Katz also had a section entitled “Rating Reasons,” but it did not list all of the reasons. The section in Katz’s version stated, “Significant reasons for this rating: Unanswered Complaints,” and provided what appeared to be a computer link to other information.

 

The Reliability Report also stated, “This company’s business is providing moving and storage services.” Under the heading “Licensing,” the entries labeled “Agency,” “License Number” and “Status” were blank. The next paragraph advised the consumer that for the most up-to-date information regarding license status, the consumer should contact two governmental agencies that license or register moving companies: the California Public Utilities Commission (PUC) and the Federal Motor Carrier Safety Administration (FMCSA). In the “Complaint Experience” section, the Reliability Report stated: “Bureau Summary and Analysis of customer complaints and company responses: [¶] Complaints allege failure to honor moving quotes, failure to notify customers that their move will be subcontracted out to another carrier, damage and loss claims, delivery issues and failure to assist in resolving disputes. The company generally responds to complaints by referring customers to …,” followed by an option to read “More.” Under “Complaint Closing Statistics” appeared a list of the number of complaints by type of response “over the last 36 months,” for a total of 128 complaints.

 

Budget argued that the three allegedly defamatory statements—that it “was not in compliance with the law or licensing requirements,” that Budget’s advertising was “grossly misleading,” and the “F” rating—were provably false assertions of fact and therefore were defamatory. Budget argued that the BBB’s statements did not constitute “privileged statements of opinions” but rather were declarations or conveyed implications that “ ‘a reasonable fact finder could conclude [were] provably false assertion[s] of fact.’ ( Overstock [.com ], Inc. v. Gradient [Analytics, Inc. (2007) 151 Cal.App.4th 688,] 701.” Budget also argued that it had shown a probability of success on the merits of its unfair competition cause of action with the evidence that “under the guise of providing consumer information” the BBB “defames certain companies and then endorses others, misleading the public, damaging otherwise reputable businesses, and diverting money to itself.” FN4 (Italics and bold omitted.)

 

FN4. Budget dismissed its first cause of action for trade libel before the BBB filed its special motion to strike.

 

D. The Trial Court’s Ruling

The trial court denied the special motion to strike. The court first acknowledged that Budget conceded the first prong of section 425.16; namely, the BBB’s acts were in furtherance of its right of petition or free speech. The trial court ruled, however, that Budget met its burden on the second prong of showing a probability of prevailing on each cause of action. The court determined that the BBB’s statement that Budget was not in compliance with licensing laws implied a provably false factual statement, and that Budget had presented admissible evidence showing the implied fact was false. The court ruled, however, that the BBB’s statements about “grossly misleading” advertising and the “F” rating were opinions that were not actionable as defamatory statements. The trial court then relied on the court’s statement in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 that, under section 425.16, “once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.” (Mann, supra, at p. 106, italics omitted.) The court also ruled that Budget had shown a probability of prevailing on its unfair competition cause of action because Budget had shown that the BBB committed an act forbidden by law: libel per se. In response to arguments made by the BBB, the court also found that Budget was not a public figure and that the Reliability Reports on the BBB’s website were commercial speech.

 

DISCUSSION

The BBB contends that the trial court erred in denying its special motion to strike under section 425.16 because Budget did not carry its burden of proving a probability of prevailing on any of its causes of action. The BBB also argues that its constitutional defenses bar Budget’s causes of action. We conclude that the trial court properly denied the BBB’s special motion to strike.

 

A. Special Motion To Strike Burdens of Proof and Standard of Review

“Section 425.16, subdivision (b)(1), provides: ‘A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ The analysis of an anti-SLAPP motion thus involves two steps. ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.]” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820; see Scalzo v. Baker (2010) 185 Cal.App.4th 91, 97–98.) The defendant has the burden of proof on the first issue; the plaintiff has the burden on the second issue. ( Chodos v. Cole (2012) 210 Cal.App.4th 692, 701.)

 

As noted above, Budget conceded that the BBB had satisfied the first prong. FN5 (See § 425.16, subd. (b)(1); Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 819.) “To satisfy the second prong, ‘a plaintiff responding to an anti-SLAPP motion must “ ‘state[ ] and substantiate [ ] a legally sufficient claim.’ ” [Citation.] Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ‘ [Citation.] ‘We consider “the pleadings, and supporting and opposing affidavits … upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” ’ [Citation.] If the plaintiff ‘can show a probability of prevailing on any part of its claim, the cause of action is not meritless’ and will not be stricken; ‘once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.’ [Citation.]” ( Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820; see Scalzo v. Baker, supra, 185 Cal.App.4th at p. 98, fn. 10.)

 

FN5. Budget does not argue that the commercial speech exception in section 425.17 applies in this case. (See Simpson Strong–Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12.)

 

A plaintiff’s burden of showing a probability of prevailing “is not high.” ( Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) A plaintiff can meet its burden and defeat a special motion to strike by showing the cause of action has “even minimal merit.” ( Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at pp. 819–820; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) “A plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” ( Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 105, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) We review a trial court’s order granting or denying a special motion to strike under section 425.16 de novo. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326; Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1539; Kajima Engineering & Construction, Inc., supra, at p. 929.)

 

B. Libel Per Se

Libel is a form of defamation. ( Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 700.) “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” ( Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369; see Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Civil Code section 45 defines libel as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” “In general, … a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” ( Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) Budget’s claim is for libel per se, which Civil Code section 45a defines as a “libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact….”

 

Because a defamatory statement “ ‘ “must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability.” ’ ” ( Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695.) The First Amendment protections of freedom of speech and press create a constitutional privilege that limits liability for defamation under state law for some, but not all, types of opinions. (See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 14, 20 [110 S.Ct. 2695, 111 L.Ed.2d 1] [full constitutional protection for statements of opinion on matters of public concern that do not contain or imply a provably false factual assertion]; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600–601 [“courts apply the Constitution by carefully distinguishing between statements of opinion and fact, treating the one as constitutionally protected and imposing on the other civil liability for its abuse”].) “Though mere opinions are generally not actionable [citation], a statement of opinion that implies a false assertion of fact is….” ( Hawran v. Hixson (2012) 209 Cal.App.4th 256, 289.) The “inquiry is not merely whether the statements are fact or opinion, but ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” ’ [Citation.]” (Ibid.; see Summit Bank, supra, at p. 696 [“where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation”]; Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 [“the question is not strictly whether the published statement is fact or opinion,” but “[r]ather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact”].)

 

The court looks at the totality of the circumstances “to determine both whether (a) a statement is fact or opinion, and (b) a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” ( Hawran v. Hixson, supra, 209 Cal.App.4th at p. 289.) “ ‘This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.’ [Citation.]” ( Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 389; see Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1147.)

 

“Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide [citations], unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.” ( Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 385; see Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260; Chaker v. Mateo, supra, 209 Cal.App.4th p. 1147 [“ ‘critical determination of whether the allegedly defamatory statement constitutes fact or opinion is a question of law ’ ”]; Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 696 [“ ‘crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court’ ”].) The principle that the “distinction between fact and opinion is a question of law … remains the rule if the statement unambiguously constitutes either fact or opinion. Where, … however, the allegedly libelous remarks could have been understood by the average reader [in the target audience] in either sense, the issue must be left to the jury’s determination.” ( Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682; Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [if a statement is ambiguous, the question of law for the court is “whether [the] statement is reasonably susceptible to a defamatory interpretation”].) “The question is ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact….” [Citation.]’ [Citation.]” (Summit Bank, supra, at p. 696.)

 

1. Legally Sufficient Complaint

The BBB first argues that Budget cannot prevail on its cause of action for libel per se because Budget did not properly plead libel. “ ‘The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. [Citations.]’ [Citation.]” ( Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017, fn. 3; see Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.) The BBB argues Budget alleged in its complaint that it received an “F” rating but failed to identify any other specific words or statements by the BBB as defamatory.

 

The BBB misreads Budget’s complaint. It is true that Budget alleges that there are defamatory statements on the BBB’s website in addition to the three allegedly defamatory statements in the complaint. But Budget identifies the specific words in those three statements that it alleges are libelous. In addition to the “F” rating, Budget alleged that the “BBB published a number of damaging statements about [Budget] including but not limited to” the statements that Budget’s “advertising is ‘grossly misleading’ ” and that Budget “is ‘not in compliance with the law’s licensing or registration requirement.’ ” Budget properly pleaded libel. ( Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 31.)

 

The BBB also argues that Budget failed to allege “any special damages as required by Civil Code [section] 45a.” Section 45a, however, requires a plaintiff to plead and prove special damages only if the challenged statement is not libelous per se. (See Civ.Code, § 45a [“[d]efamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof”]; Burrill v. Nair (2013) 217 Cal.App.4th 357, 382[“[w]here a libelous statement ‘is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage’ ”]; Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1135 [plaintiff is “relieved of the [Civil Code] section 45a requirement of pleading special damages in order to state a cause of action for libel” where the “publication … is reasonably susceptible of a defamatory meaning on its face”].) The defamatory language on which Budget bases its claims is libelous on its face. (See Bates v. Campbell (1931) 213 Cal. 438, 441 [statutory definition of libel per see “is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person’s reputation, either generally, or with respect to his occupation”]; Burrill, supra, at pp. 382–383 [statements charging the commission of a crime or tending to injure the plaintiff’s profession, trade or business are libel per se]; Barnes–Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 386 [accusations of dishonesty or questionable business methods are libel per se].)

 

2. “Not in Compliance with the Law’s Licensing … Requirement”

The BBB’s first argument is that it did not make the statements about Budget. The BBB asserts that it “never reported that [Budget] was ‘not in compliance with licensing or registration requirements.’ ” FN6 The BBB claims that the statement about Budget’s licensing status is not defamatory because it is part of the explanation for an “F rating” and is not necessarily a statement about Budget. According to the BBB, the explanation indicates that the statement is part of a list of illustrative hypothetical examples of conduct, prefaces the list of examples with the words “such as,” and concludes the list with the disjunctive “or” before the last example.

 

FN6. The BBB submitted an undated document that Mitchell said was a January 12, 2011 report for Budget. This report was entitled “Company Report” but contained virtually the same information as the Reliability Reports printed out by Katz and Facchetti, except that the Company Report did not include the “Rating Explanation.” In its opening brief, the BBB asserts that the January 12, 2011 Company Report printout “said ‘we know of no licensing or registration requirement for companies engaged in the company’s stated type of business.’ ” This statement, however, does not appear on the document.

 

The BBB asks us to limit our review to the precise language of the words in the “Company Rating F” section of the report. To determine whether a statement is susceptible of a defamatory meaning, however, we must consider “ ‘ “not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.” ’ ” ( Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 261; see Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1354.) “ ‘ “That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.” ’ [Citation.]” (Baker, supra, at p. 260; see Carver v. Bond (2005) 135 Cal.App.4th 328, 346; Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 67.) We must consider the context in which the alleged defamatory statement appears, “construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.” (Baker, supra, at p. 261; Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1338.) “This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.” (Baker, supra, at p. 261; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608.)

 

Considering the context of the Reliability Report on the BBB’s website, and the “ ‘natural and probable effect upon the mind of the average reader’ ” ( MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547), we agree with the trial court that the average consumer could easily overlook the words “such as” and “or” and focus instead on the statements about noncompliance with licensing laws and grossly misleading advertising, with the understanding that each statement applied to Budget and supported Budget’s “F” rating. (See Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260; MacLeod, supra, at p. 547 [a “ ‘defendant is liable for what is insinuated, as well as for what is stated explicitly’ ”]; Bentley Reserve L.P. v. Papaliolios (July 30, 2013, A136191) ___ Cal.App.4th ___ [2013 WL 3949029 at p. 5] [“[h]edging his statements with the word ‘likely’ does not insulate them from examination”]; Carver v. Bonds, supra, 135 Cal.App.4th at p. 346; Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181[“[i]f a statement of opinion implies a knowledge of facts which may lead to a defamatory conclusion, the implied facts must themselves be true”].)

 

In addition to the statements by the BBB explaining its “Company Rating F” for Budget, the Reliability Report stated or strongly implied that Budget was not licensed. The Reliability Report printed by Facchetti, under the heading “Rating Reasons,” stated that the “[f]actors that lowered this business’s rating include: [¶] Failure to have a required competency license….” Another provision on both Reliability Reports, under the heading “Licensing,” implied Budget was not licensed by leaving blank spaces under the “Licensing” heading and providing no information in the spaces marked “Agency,” “License Number,” and “Status.” The Reports then directed the consumer to telephone numbers and Internet addresses for the PUC and FMCSA from which, according to the BBB, “[c]ompanies offering to move household goods” are required to obtain a license or registration. Because Budget is a moving broker, however, neither of the agencies could reasonably have been expected to report that Budget had the license or registration required lawfully to operate a moving company.

 

Budget also provided evidence that the alleged statements were provably false, in part because the statements are based on the BBB’s inaccurate assessment that Budget is a moving company rather than a moving broker and the misleading statement in the Reliability Report that Budget’s “business is providing moving and storage services.” FN7 Theodore Clapp, one of Budget’s in-house attorneys, explained that Budget is a moving broker not a moving company and therefore is subject to different laws and regulations than a moving company. Budget submitted pages from its website prominently identifying Budget as a “Household Goods Transportation Broker for Interstate Moves” and explaining how Budget coordinates with trucking companies to place a customer with a moving company. Budget also presented evidence that it was in compliance with licensing and other laws applicable to a moving broker. Katz stated in her declaration that “Moving Brokers, like [Budget], are regulated by the Surface Transportation Board and [FMCSA],” and, because Budget has no trucks and is not a motor carrier, it is not required to “have a Department of Transportation number.” Katz further stated that during its annual review by the Department of Transportation [DOT], Budget “has been found to be in compliance and exemplary in each instance,” and that Budget “is in compliance with the DOT/FMCSA regulations for relocation services brokers.” Katz explained that as a moving broker, Budget is required to “utilize only DOT licensed and insured Household [Goods] carriers … [and] runs a daily license check to insure each of its carriers is licensed.” Jasmine Medina, a Budget employee, stated in her declaration that each morning she “verifies that each and every carrier in the Budget Van Lines network has an active [DOT/FMCSA]” license.

 

FN7. On appeal, the BBB does not differentiate between requirements applicable to a household goods moving broker like Budget and those applicable to a household goods moving company. For example, when arguing that Budget did not conduct business in accordance with law, BBB refers to statutes and regulations that govern “household goods carriers.”

 

Finally, the BBB argues that because it “was able to prove that [Budget] is a limited public figure” Budget was required to but did not “prove actual malice in order to recover in a defamation action.” (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253.) The BBB does not cite to anything in the record reflecting any finding by the trial court that Budget is a limited public figure. Nor did the BBB cite the trial court to any evidence that Budget is a limited public figure. The BBB, not Budget, had the burden on this issue. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 [under § 425.16 “a defendant that advances an affirmative defense … properly bears the burden of proof on the defense”].) The BBB cites to excerpts of cases, but does not relate them to any specific facts concerning Budget. The BBB cites to the entire 153–page declaration of its attorney, Nicholas Morgan, but does not identify any specific portion that contains facts purportedly proving that Budget is a limited public figure. We therefore deem this argument waived. (See Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384 [“ ‘reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment,’ ” and it “ ‘is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal’ ”]; Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301[“[s]ince this argument is made without [adequate] citation to the record, it is deemed waived”].) In any event, contrary to the BBB’s contention, the fact that Budget has an extensive advertising campaign does not make Budget a limited public figure. A “person in the business world advertising his wares does not necessarily become part of an existing public controversy.” ( Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, 770; see Carver v. Bonds, supra, 135 Cal.App.4th at p. 354 [plaintiff not a public figure for purposes of statements accusing him of false advertising]; Melaleuca, Inc. v. Clark, supra, 66 Cal.App.4th at p. 1363 [plaintiff’s “marketing activities did not make it a public figure or create a public controversy such that [the plaintiff] was required to show that defamatory statements about it were made with actual malice”].)

 

Considering the totality of the circumstances ( Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471), we conclude that Budget met its burden of presenting evidence that the statement that the company is “not in compliance with the law’s licensing or registration requirement” is provably false, and showing that the statement is reasonably susceptible to the defamatory interpretation that Budget operates its business in violation of the law. Therefore, Budget made a sufficient showing of a probability of prevailing on its claim that the BBB’s statements that Budget is “not in compliance with the law’s licensing or registration requirement” constitutes libel per se. The trial court properly denied the BBB’s special motion to strike on this ground. (See Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820 [under § 425.16, “ ‘once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands’ ”]; accord, Burrill v. Nair, supra, 217 Cal.App.4th at p. 379; Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 106.)

 

3. Grossly Misleading Advertising

The BBB’s argument that its statement Budget’s advertising was “grossly misleading” is not defamatory parallels its argument that its statement Budget was not in compliance with licensing requirements is not defamatory. The BBB argues that it never stated that Budget’s advertising was “grossly misleading.” The BBB again asserts that this statement appears in the “Rating Explanation” for a “Company Rating F,” and that the statement applied not to Budget but only to a hypothetical company that might receive an “F” rating. The BBB maintains that the only statement it made about Budget’s advertising was, “Advertising Review: No questions about the truth of this company’s advertising [have] come to our attention,” and that this additional statement or qualification demonstrates that the “grossly misleading” advertising hypothetical did not apply to Budget.

 

We reject the BBB’s argument that the “grossly misleading” advertising statement was only a hypothetical example for the same reasons that we reject the same argument with respect to the licensing noncompliance statement. As with the licensing noncompliance statement, in the context of the Reliability Report, the average reader could reasonably be expected to focus on the words “BBB Rating F” for Budget and “Company Rating F, Our opinion of what this rating means,” which appear prominently near the top of the website page. The average member of the BBB’s website reading audience would naturally and probably understand that the statement about “grossly misleading” advertising applied to the company that had received an “F” rating, and that company was Budget.

 

It is true, as the BBB suggests, that the phrase “grossly misleading” may in some contexts connote a privileged opinion rather than an actionable provably false statement of fact. (See Summit Bank v. Rogers, supra, 206 Cal.App.4th at pp. 695–696.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” ( Id. at p. 696; see Wong v. Jing, supra, 189 Cal.App.4th at p. 1370; Overstock, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 701.) The actual or imputed expertise of the defendant regarding the subject matter of a statement may reasonably lead the target audience to understand or believe that the statement is a factual one. Although some accusations “when made by laymen might indeed constitute mere opinion, similar accusations by” certain professionals “carry a ring of authenticity and reasonably might be understood as being based on fact.” ( Slaughter v. Friedman (1982) 32 Cal.3d 149, 154.)

 

For example, in Slaughter the court held that statements by a dental insurance company and its director to patients that a dentist was performing “ ‘unnecessary’ ” work and “ ‘overcharging’ ” were defamatory statements about the dentist and not protected opinions because the defendants were professional dental plan administrators, which gave their statements “a ring of authenticity.” ( Slaughter v. Friedman, supra, 32 Cal.3d at pp. 153, 154.) Similarly, in Gill v. Hughes (1991) 227 Cal.App.3d 1299, the court concluded that the statement by a committee of medical professionals “that plaintiff ‘is an incompetent surgeon …’ implies a knowledge of facts which lead to this conclusion and further is susceptible of being proved true or false. The fact that an evidentiary hearing was held regarding plaintiff’s surgical technique and judgment supports this conclusion. Since the statement implies that plaintiff is generally disqualified for his profession, it is defamatory if it is false.” ( Id. at p. 1309.) And in Kahn v. Bower, supra, 232 Cal.App.3d 1599, the court concluded that the statement by the director of a private psychological testing and counseling facility that referred to the plaintiff as an incompetent social worker was not a privileged opinion but was actionable as a provably false factual assertion. ( Id. at pp. 1604, 1608–1609.) The court stated that, because of the defendant’s “professional status and that of the person to whom she wrote, [the] plaintiff’s supervisor, the letter is susceptible of the interpretation that [the] plaintiff’s incompetence is asserted as an ‘actual’ condition, a matter of fact.” ( Id. at p. 1609.)

 

The BBB holds itself out as an expert on the professionalism and trustworthiness of businesses. The BBB states that it evaluates companies and their advertising, advocates for “truth in advertising,” and promotes business integrity. As described by Mitchell, the “BBB monitors advertising and works to correct abuses of truth in advertising,” “keeps track of the people and companies who perpetrate … scams,” and “issues public warnings” to consumers through BBB publications. The BBB also investigates and acts on complaints of deceptive or unethical business practices about a company and governmental action against the company and then assigns “letter grade ratings to the company’s business record based upon a proprietary formula” that analyzes data about the company. The “Mission and Values” section of the BBB’s website states: The “BBB is the resource to turn to for objective, unbiased information on businesses. Our network of national and local BBB operations allows us to monitor and take action on thousands of business issues affecting consumers at any given time. [¶] BBB is your key advisor, most reliable evaluator and most objective expert on the topic of trust in the marketplace.” Because of the BBB’s self-proclaimed expertise in evaluating companies and the claims in their advertising, a consumer reading a statement by the BBB that Budget’s advertising was “grossly misleading” can reasonably be expected to interpret the statement as factual. (See Chaker v. Mateo, supra, 209 Cal.App.4th at p. 1147; Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 389; see also Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau (Ariz.1981) 637 P.2d 733, 738 [“ ‘[u]sers of reports of mercantile agencies usually have utmost confidence in the accuracy of such reports and act accordingly’ ”].) As the court recently stated in Bentley Reserve L.P. v. Papaliolios : “Internet posts where the ‘tone and content is serious,’ where the poster represents himself as ‘unbiased’ and ‘having specialized knowledge,’ or where the poster claims his posts are ‘Research Reports’ or ‘bulletins’ or ‘alerts,’ may indeed be reasonably perceived as containing actionable assertions of fact.” ( Bentley Reserve L.P. v. Papaliolios, supra, ___ Cal.App.4th at p. ___ [2013 WL 3949029 at p. 8].) FN8

 

FN8. Budget does not dispute that such a statement would be injurious to Budget’s reputation. (See Shively v. Bozanich,supra, 31 Cal.4th at p. 1242.)

 

Contrary to the BBB’s assertion, the appearance of the statement, “Advertising Review: No questions about the truth of this company’s advertising [have] come to our attention” in a less conspicuous place in the Reliability Report does not necessarily neutralize the defamatory nature of the “grossly misleading” advertising statement. To the extent the “Advertising Review” may create an ambiguity regarding whether the “grossly misleading” advertising statement is actionable, as noted above, the legal question for us is “whether [the] statement is reasonably susceptible to a defamatory interpretation.” ( Smith v. Maldonado, supra, 72 Cal.App.4th at p. 647; see Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 696.) We conclude that the “grossly misleading” advertising statement is reasonably susceptible to a defamatory interpretation, and therefore whether the statement is defamatory is a question for the trier of fact.

 

4. “F” Rating

Whether the BBB’s grade of “F” for Budget is defamatory is a closer question. Those cases that have considered whether grading and rating systems are opinions or provably false statements of fact have generally concluded that they are nonactionable opinions. (See, e.g., Aviation Charter, Inc. v. Aviation Research Group/US (8th Cir.2005) 416 F.3d 864, 870 [system that rated air charter service providers “on a scale of 1[to] 10” based on safety and other data was “ultimately a subjective assessment not an objectively verifiable fact” and therefore not actionable as defamation]; ZL Technologies, Inc. v. Gartner, Inc. (N.D.Cal.2010) 709 F.Supp.2d 789, 796–801 [rating the plaintiff in the defendant’s lowest ranking, “Niche Player,” was subjective opinion not objective fact]; Browne v. Avvo Inc. (W.D.Wash.2007) 525 F.Supp.2d 1249, 1252 [comparative numerical ratings for attorneys were opinions and not actionable because “a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important”]; Castle Rock Remodeling, LLC v. Better Business Bureau of Greater St. Louis, Inc. (Mo.App.2011) 354 S.W.3d 234, 243 [the “BBB’s ‘C’ rating of [the plaintiff] is not sufficiently factual to be susceptible of being proved true or false,” and “[a]lthough one may disagree with BBB’s evaluation of the underlying objective facts, the rating itself cannot be proved true or false”]; Better Business Bureau of Metropolitan Houston, Inc. v. John Moore Services, Inc. (Tex.Ct.App. July 16, 2013) ___ S.W.3d ___, ___ [2013 WL 3716693 at p. 8] [“the ‘F’ rating itself cannot be defamatory because it is the Bureau’s self-described ‘opinion’ of the quality of [the plaintiff’s] services, which lacks a high degree of verifiability”].)

 

We need not resolve this issue to decide this appeal. Budget made the required showing of a probability of prevailing on part of its cause of action for libel per se (actually, two parts: the licensing noncompliance statement and the grossly misleading advertising statement). Therefore, the trial court properly denied the BBB’s special motion to strike that cause of action. (See Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820; Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 106.)

 

C. Unfair Competition

The BBB argues that Budget “did not produce any evidence, let alone admissible evidence, to support its allegation that the BBB had done anything ‘unlawful, unfair, or fraudulent,’ ” and that Budget “submitted no evidence that the BBB committed any unlawful act or practice, committed pursuant to a business activity that is forbidden by law.” The BBB argues that Budget “utterly failed to even plead, let alone prove that the BBB engaged in any ‘unethical, oppressive, unscrupulous or injurious acts to consumers.’ ” FN9

 

FN9. The BBB does not argue that Budget failed to show a reasonable probability of prevailing by not making a sufficient showing that it had suffered injury in fact or lost money or property as a result of the unfair competition. (See Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 690.) Budget submitted a declaration from an individual who had cancelled her contract with Budget because of the statements about Budget on the BBB’s website, after reading that “the website said that the ‘F’ [rating] was due to the fact that Budget Van Lines’ advertising was ‘grossly misleading’ and that it was not [in] compliance with certain laws and regulations.” Budget also submitted evidence that it had lost “tens of thousands of dollars in revenue weekly as a result of the BBB’s actions.”

 

The UCL “ ‘ “establishes three varieties of unfair competition—[business] acts or practices which are unlawful, or unfair, or fraudulent.” [Citation.]’ [Citation.]” ( Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) The UCL also prohibits false or misleading advertising. (Bus. & Prof.Code, § 17200.) The scope of the UCL is “ ‘sweeping, embracing “ ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ” ‘ [Citations.]” ( Cel–Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180; Bernardo, supra, at p. 351.)

 

Budget alleged in its UCL cause of action that the “BBB’s actions in publishing false statements about [Budget and] its [other] competitors … constitute an unlawful, unfair, or fraudulent business practice and amount to unfair competition under the UCL.” FN10 Budget’s UCL claim is derivative of its cause of action for libel per se. (See Hawran v. Hixson, supra, 209 Cal.App.4th 256.) The UCL “ ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. [Citation.]” ( Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 486; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1335.) Because Budget made a sufficient showing of a probability of prevailing on its libel per se claim, Budget made a sufficient showing on its UCL claim. Therefore, the trial court properly denied the BBB’s special motion to strike the UCL cause of action.FN11

 

FN10. On appeal, Budget also argues that the BBB’s business scheme constitutes unfair competition. The trial court, however, sustained objections to portions of the record cited by Budget as supporting evidence, and Budget does not challenge these evidentiary rulings on appeal.

 

FN11. Citing Bernardo v. Planned Parenthood,supra, 115 Cal.App.4th 322, the BBB argues that, because its rating system is not commercial speech, it is absolutely protected by the First Amendment and cannot be the basis for a cause of action for unfair competition. The BBB, however, does not attempt to define what commercial speech is or explain why its rating system and its website were not commercial speech. The BBB quotes an excerpt from the hearing on Budget’s special motion to strike where, in response to counsel for the BBB’s question whether the trial court had concluded that the Reliability Report is commercial speech, the court replied, “Yes,” but the BBB does not explain the significance of this exchange. Because the BBB has not presented a cogent legal argument on this issue, we treat the contention as forfeited. ( In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘ “[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived” ’ ”]; see also Cal. Rules of Court, rule 8.204(a)(1).)

 

D. Injunction and Declaratory Relief

The BBB contends that issuing the injunction requested by Budget would violate the First Amendment’s prohibition against prior restraints. Budget, however, seeks a post-trial permanent injunction, and such an injunction is constitutional. “An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint…. [¶] The California Supreme Court recently recognized this fundamental principle, but held the rule does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory.” ( Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167–1168, italics omitted.) In Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, the case cited by Evans, the Supreme Court held that “following a trial at which it is determined that the defendant defamed the plaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory. [Citation.] Such an injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression.” ( Id. at pp. 1155–1156.) Budget’s request for a permanent injunction does not violate the Constitutional ban on prior restraints.

 

In addition, Budget may seek injunctive relief under its UCL cause of action. (See In re Tobacco II Cases (2009) 46 Cal.4th 298, 312.) Because Budget made a sufficient showing of a probability of prevailing on its UCL cause of action to defeat the BBB’s special motion to strike, Budget made a sufficient showing on its claim for an injunction against the BBB’s alleged unfair business practices.FN12

 

FN12. Although Budget conceded the first prong, we note that “[a]n injunction is a remedy, not a cause of action,” and section 425.16 “does not apply where it is the prayer for an injunction which arises from an act in furtherance of a person’s right of petition or free speech.” ( Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162, fn. omitted; see Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1392 [“the remedy sought does not affect whether the claim is based on protected activity”].)

 

Finally, the BBB contends that Budget’s cause of action for declaratory relief fails because Budget failed to allege or prove “a judicial case or controversy.” Again, the BBB has not provided any legal argument or authority in support of this contention, which we therefore treat as forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793; In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

 

DISPOSITION

The trial court’s order denying defendant’s special motion to strike under section 425.16 is affirmed. Budget is to recover its costs on appeal.

 

We concur:

PERLUSS, P.J.

WOODS, J.