From Auto Junction Inc v. Kaluzhin, 2024 WL 7050639, decided Oct. 8, 2024 by Arizona Superior Court (Maricopa County) Judge Melissa Iyer Julian, but just posted on Westlaw several days ago—I'm skeptical about the aiding and abetting analysis, but wanted to flag the case in any event:
In this case, the only alleged defamatory statements Defendant made were included in his YouTube video where he stated that Auto Junction "don't give me my money," "they don't give me my bucks." As Defendant's reply brief points out, these statements are not defamatory because they are not substantially false. Indeed, Plaintiff's First Amended Complaint admits that the contract between Plaintiff and Defendant provided for a delivery price of $1,150.00. Because the vehicle was delivered late and with only one set of keys, Auto Junction paid what it considered to be the "reasonable value" of the delivery, but did not pay the full contract amount. Accordingly, Plaintiff's defamation claim fails as a matter of law.
The crux of Plaintiff's Complaint, however, is not that Defendant made defamatory statements himself. Instead, the Complaint asserts that Plaintiff encouraged his many followers to post false, negative reviews about Plaintiff's business. The damage to Plaintiff's business was accomplished by those false negative reviews posted by Defendant's Youtube followers. As a result, Plaintiff also asserts a claim against Defendant for "aiding and abetting" defamation.
In order for a plaintiff to prevail on an aiding and abetting claim, proof of the following elements is required: "(1) the primary tortfeasor must commit a tort causing injury to the plaintiff; (2) the defendant must know the primary tortfeasor's conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tortfeasor in achieving the breach." "Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance." Restatement (Second) of Torts § 876, cmt. d (1979). An illustration to section 876 of the Restatement (which Arizona follows) elucidates the kind of encouragement necessary to create aiding and abetting liability under Illustration 4: "A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C."
The Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion establishes that Defendant's conduct was intended to encourage his followers to attack Plaintiff's business publicly. Plaintiff presented evidence that these third-party reviews were false and defamatory and are therefore unprotected speech.
While Defendant's encouragement in the video does not reflect a direct request that his followers post negative reviews of Plaintiff's business, the Court finds that Plaintiff's Complaint and the evidence submitted in response to the pending Motion are sufficient to infer that Defendant intended that result and knew it would be achieved by the statements made in his video. See Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund (Ariz. 2002) (knowledge for purposes of aiding and abetting "may be inferred from the circumstances."). Accordingly, the claim that Defendant aided and abetted the defamation of Plaintiff's business is not subject to dismissal as a matter of law, either under the anti-SLAPP statute or for its failure to allege the elements of an aiding and abetting claim….
