This Changes Everything – You Can Now Be Sued for Calling the Police

Angry Plaintiff in Jail

California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate the terrible consequences of California’s new take on what speech is privileged.

The criminal across the street.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. (This is a real phenomenon, with some people believing they own the street in front of their home.) During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guests’ cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

Far beyond the cost, Bob’s lawsuit against you will give him all kinds of opportunities to harass you. His attorneys can make you spend most of your free time responding to discovery, and he can even make you show up at the time and place he chooses, and sit across a table from him while his attorney asks you personal questions at a deposition. Heck, he might even decide to take the deposition himself just so he can have the personal satisfaction of making you answer whatever questions he decides to ask you over the course of seven hours. But he’s not done. He can bring in every person who was at your house and put them through the same experience.

The standard for what is relevant is very broad in litigation. Since his claim is that you made up the entire story about him vandalizing the car, he is permitted to try and determine what motivated you to do such a horrible thing. Do you have a thing for his wife, and were trying to get him out of the way? Or maybe you have a thing for him, and are mad that it is unrequited. He can take a deep dive into any of his crazy claims.

Since he will be seeking punitive damages, and such damages are based on your income and net worth, he can ask you to turn over all your financial information. There are protections against this, but you will spend thousands to have your attorney fight the discover demand in court, and in the end the court could order you to turn over the information.

Ultimately, you may decide that the cost of justice is just too high. You will go to Bob and offer to drop your criminal charges if he will dismiss his defamation action. Bob gets away with vandalizing your friend’s car, and you are out however much money you spent before you decide to cave.

Relax, it was just a nightmare.

Until this year, this scenario was entirely fictional. You see, for a statement to be defamatory, it must be UNPRIVILEGED. There are types of speech that are deemed to be privileged. One example is statements that are made in court. Imagine a scenario where a witness could be sued for defamation for what they say in court. They are compelled by subpoena to appear and testify, only to then be sued for defamation for what they said. This would be completely untenable, so California law prohibits legal action based on testimony in court.

The same was true of reports to the police. Specifically to avoid the sort of scenario discussed above, California Civil Code section 47, which establishes a number of privileges, prohibited actions based on reports to the police.

That did not mean that one could lie to the police with impunity. First of all, making a false police report is a criminal act, and could land the liar in jail. Further, if someone lied to the police about you, and you were charged and put on trial, but proved you were innocent, you could then sue the person for malicious prosecution.

But you could not sue that person for defamation, or infliction of emotional distress, or negligence, or any other claim. As confirmed by the California Supreme Court in Hagberg v. California Federal Bank, reports to the police are absolutely privileged, and cannot be the basis for any legal action. No one ever needed to worry about being sued because they called the police.

Now you need to worry.

But, insanely in my opinion, the California Legislature just decided to change all that with an amendment to Civil Code section 47.

The protective language is still there:

“A privileged publication or broadcast is one made: . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . .” Case law has determined that part (3) covers reports to the police.

But the Legislature giveth and taketh away. Effective this year, it added subpart (b)(5):

“(5) This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”

To this some will respond (and the Legislature probably so reasoned) that there is nothing to worry about, so long as you don’t make a false report to the police. If that was your reaction, then you did not fully comprehend my long-winded hypothetical.

Even if your report to the police was as pure as the new-driven snow, that will not protect you from all the described harassment. Every criminal can now claim that the report against them was knowingly false, or was made with reckless disregard for the truth. Once the claim is made, it must be litigated.

And lest you think there will be some quick way to extricate yourself from this nightmare, there is not. For example, the motion that can sometimes get rid of a case before trial will be of no use. A motion for summary judgment cannot be granted if there is a material factual dispute. In our hypothetical, you could bring a motion for summary judgment on the grounds that your statement to the police was absolutely true, and therefore not defamatory, because you saw Bob vandalizing the car. But Bob will simply file a declaration saying he did not vandalize the car, and throw in a couple more declarations from friends, claiming they saw him lounging in his pool the entire time. Triable issue; motion denied.

What about an anti-SLAPP motion?

The anti-SLAPP statute, Code of Civil Procedure section 425.16, contains that same protective language as section 47:

“(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law . . .”

I find it strange that the Legislature elected to create the right to sue for reports to the police by taking away the privilege in section 47, but left the protection unchanged in section 425.16. It would appear that the new found freedom to sue remains thwarted by the anti-SLAPP statute.

Or perhaps not.

Even though the wording is the same, case law holds that the protection (previously) afforded by section 47 does not serve the same purpose as that of section 425.16. Pointing to the latter section will determine whether the speech falls under the anti-SLAPP statute, but then that leads to the second prong, to determine if the plaintiff is likely to prevail. That will now be decided under the new section 47.

Plus, we again run smack into the evidentiary standards. For purposes of an anti-SLAPP motion, the evidence of the plaintiff is taken as true. The defendant’s evidence is reviewed only to determine whether it supports a defense that negates the claim. Going back to our hypothetical once again, the result will be the same. The plaintiff will provide a declaration stating that he never vandalized the car, and that must be taken as true. You are going to be in this action until the bitter end.

What was California thinking?

According to the notes of the legislation, the Legislators apparently thought this was a brilliant way to fight discrimination. You may recall the incident in Central Park, caught on video that went viral, where a white woman called 911 to report a black man who was complaining about her dog. I don’t know if the Legislators had that specific incident in mind, but it sure sounds like it, based on the comments:

“(a) It is the intent of the Legislature to end instances of 911 emergency system calls that are aimed at violating the rights of individuals based upon race, religion, sex, gender expression, or any other protected class. Existing law on false police reporting does not address the growing number of cases in which peace officers are summoned to violate the rights of individuals for engaging in everyday activities, such as those individuals essentially living their lives.

“(b) All Californians, including people of color, should have the liberty to live their lives, and to go about their business, without living under the threat or fear of being confronted by police. These prejudicial 911 emergency system calls cause mistrust between communities of color and institutions, and those calls further deteriorate community-police relations. This is especially true when the police are summoned as forces of exclusion. Thus, it is incumbent upon the Legislature to end the use of law enforcement as a personal force by people who harbor discriminatory animus.

“(c) This act is not intended to discourage individuals who are facing real danger, who want to report a crime, or who are experiencing a medical or psychiatric emergency from making a 911 emergency system call for assistance. However, this act will allow those who have been subject to unfair and prejudicial 911 emergency system calls to regain their agency by seeking justice and restitution through the criminal and civil court system.”

This sounds like a laudable goal, but the amendment could have been tailored to better achieve that goal, without opening the floodgates to every criminal who wants to use civil actions as a means to harass genuine victims. How will they “regain their agency?”

Morris & Stone Wins $3.9 Million Defamation Judgment

defamation
First rule of defamation defense: Don’t say anything you can’t prove.

I would think this concept would be so obvious and self-explanatory that it would never arise in my practice, but it comes up over and over.

I see it often in the case of plastic surgeons. Plastic surgeons have a tough go of it in the reputation area, given the nature of their practice. The person coming to them is unhappy with their breasts, eyes, nose, or whatever, and they are disappointed when the cosmetic change fails to change their life. They feel that the surgeon must have done something wrong. It’s not surprising that we get so many calls from plastic surgeons.

But we also get the calls from the patients, being sued by the plastic surgeons for defamation. When I explain that the analysis is simple – so long as they can prove the truth of everything they said in their review of the surgeon, they will be fine – they respond that absolutely they can. But then when I read the review, I find the statement they will likely never be able to prove:

“I’m not the only patient Dr. Jones has disfigured, there are many others.”

When I question them about that statement, the conversation goes something like this:

“Do you know anyone else who has had work done by Dr. Jones?”

“No.”

“Then how can you prove that there ‘many others’ he has ‘disfigured’?”

“I read his Yelp reviews.”

“Do you have personal knowledge of the results those patients received from Dr. Jones?”

“Well, no, not personal knowledge, but I read their reviews on Yelp.”

“How do you know what you read is true? How can you be sure it’s not another doctor, trying to drive business away from the competition?”

“Does that happen?”

“Yes, that happens.”

The person is thus left with a review they will likely never be able to prove was true. If they had limited themselves to their own truthful telling of their experience with Dr. Jones, they would have been able to defeat any defamation action. But like the kid on the school yard who adds “and everyone thinks you’re stupid” to an insult to give it more sting, they felt that adding a reference to other unhappy patients would make the review more damaging. They are now faced with the challenge of somehow proving the truth of their claims, or face the consequences. Unless they can round up some quantity of patients and prove, in each case, that the patient was objectively “disfigured” by Doctor Jones, that statement will be false and defamatory.

And so it was this week’s defamation action.

The defendant thought he had uncovered some juicy information about our client, and posted it online as though he had firsthand, personal knowledge. But all the statements were false, as five minutes of research would have revealed. Apparently unaware that the statement is offered as a meme, the defendant could only say that the statements must be true because he had read them on the internet. When it came time to prove the truth of the statements he had made, he could offer nothing.

Today the Orange County Superior Court awarded our client $3.9 million in damages for what the defendant had posted online.

You must be able to prove what you say. Publishing a statement by another makes you as liable as the person who originally posted it.

[UPDATE — February 1, 2021:]  As I have been explaining for years, most defamation disputes do not need to be resolved with damages. Most of the time the defamation victim just wants the defamatory post taken down. So it was here. Before we were ever involved, the client had advised the defendant that he would not pursue legal action if the defendant would just remove the false information. As is often the case, the defendant not only refused to remove the defamatory comments, he doubled down and taunted the victim.

As a part of the judgment we obtained, the court ordered defendant to remove the defamatory posts. Today the defendant did so. Thus, in the end, the defendant complied with our client’s demand. But whereas he could have done so without cost before we ever became involved, now he did so pursuant to a multi-million dollar judgment.

Know when to walk away. The defendant unquestionably acted with malice when he posted the comments, turning a blind eye to the improbability of what he was claiming. But even if he had believed what he was saying, when it was shown that the statements were untrue, it was folly to refuse to take them down.

J. Niley Dorit v. Noe — Major Anti-SLAPP Victory for Morris & Stone

Another Day at Morris & Stone

J. Niley Dorit v. Noe

Another victory in the Court of Appeal by Morris & Stone. And while this case did not arise from a defamation claim, it did involve an anti-SLAPP motion, and thus will provide precedent for defamation claims in that context.

Here are the simple facts.

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution.

This is where the, “well that can’t be right” part comes in. Jack brought me the complaint, and asked me to defend him. I thought I must be missing something. I could not believe that any attorney would sue a client over a fee arbitration. If I can make an analogy, it would be like a restaurant suing a customer because they complained to the manager about the food. Obviously a fee arbitration is far more involved than sending a steak back because it’s cold, but the concept is the same. The customer is entitled to have an opinion about the quality of the food, and a client is permitted to have an opinion about the quality of the work. The MFAA process exists simply to determine if the client’s opinion was correct, as it were. It’s not something you sue over.

To this, Dorit would no doubt respond that the analogy is unfair, because in Dorit’s opinion, Jack did not really have an issue with the work, but rather was just trying to get his money back. Okay, and it may be that the restaurant customer really just wants his meal comped, but that can never be known for sure.

So I’m looking at Dorit’s complaint dumbfounded, and I quickly determined that Dorit’s lawsuit was a SLAPP, since it sought to challenge Jack’s use of “any other official proceeding authorized by law,” namely, the MFAA process. Dorit’s lawsuit was the quintessential SLAPP, because he was suing Jack for utilizing the very process created for fee disputes. If allowed, then the MFAA process might as well be scrapped. No rational client would arbitrate a fee dispute if they faced a potential malicious prosecution action. I could not let Dorit’s action stand, and I wanted to create a precedent so other attorneys would not follow his example.

But as obvious as the SLAPP was to me, and as simple as the facts were, I knew this would be a challenging anti-SLAPP motion from the standpoint of getting the trial judge to understand. Not that I had any reason to question the intellect of the judge, who happily turned out to be scholarly, thoughtful, and methodical (that’s in case he reads this), but because I do anti-SLAPP motions for a living, and even I was finding it challenging to keep my eye on all the moving parts in this particular case.

Here is why.

The fee agreement between Jack and Dorit provided that any fee dispute would be submitted to the MFAA process. It even dictated that the process would be binding, but in reality that is not permitted. Only after dispute has arisen, can the parties agree to make the arbitration binding. But I digress.

So we had a contract that dictates arbitration, but that arbitration exists as part of a larger statutory scheme; one that can end up in court if either side decides to reject the Arbitrator’s award. And therein lies the rub. Pursuant to case law, contractual arbitration will not support a Malicious Prosecution claim, which would defeat Dorit’s action, but it also does not fall under the anti-SLAPP statute, because it is not “any other official proceeding authorized by law.” Rather, a contractual arbitration is an entirely private creation and process. Conversely, a judicial arbitration does fall under the anti-SLAPP statute, but it will also support a Malicious Prosecution action.

The Challenge

My task, therefore, was to solve this conundrum. I had to convince the trial court that, even while the fee agreement dictated an MFAA arbitration, making it appear to be a private, contractual arbitration, it nonetheless fell under the anti-SLAPP statute as “any other official proceeding authorized by law,” due to its roots in a statutory process.

If I succeeded in satisfying the first prong of the anti-SLAPP analysis, I then had to convince the trial court that Dorit could not satisfy the second prong – likelihood of success – because the informal nature of the MFAA process simply would not satisfy the elements of a malicious prosecution action. Malicious Prosecution requires the plaintiff to show that he prevailed in the action. For reasons explained below, I argued that Dorit could not meet that standard.

So, I filed my anti-SLAPP motion, and . . . drum roll . . . it was denied by the trial court. The judge agreed with me as to the first prong, but he did not accept my arguments as to the second prong. Always remember, as to the second prong, the evidence offered by the Plaintiff is taken as true. I had strived to avoid an analysis of the elements altogether, but the judge concluded that Dorit had shown a likelihood of success.

I will say that on one point the judge really missed the ball. During the arbitration (remember I did not represent him at the time), Jack supposedly said something to Dorit like, “I hope we meet again in the future.” I don’t ascribe any ominous meaning to such a statement. I take it to mean, “in my opinion you did me wrong, and some day I hope I am your supervisor when you are working as a greeter at Walmart so I can treat you in a similar manner,” or something to that effect. But Dorit offered this as proof of malice, and the judge seemed to buy into that theory. But that makes no sense. Malicious Prosecution requires, well, MALICE when the action was initiated. Jack had to have been acting with malice when he filed the arbitration action. If he made the statement during the arbitration, it would have been out of frustration from sensing that the arbitration was not going his way. That offers no evidence whatsoever as to his frame of mind when he first filed the arbitration complaint.

But anyway, my anti-SLAPP motion was denied. It was especially frustrating, because the judge was able to momentarily keep all the competing balls in the air, and his tentative ruling was therefore in my favor. But after oral argument, the judge reversed himself. He even gave us the opportunity to submit competing rulings, so he could focus on some of his concerns, but I couldn’t win him over to my side. I felt like I had snatched defeat from the jaws of victory. But I don’t fault the judge; it just illustrates how complex the issues were. You should have seen the notes I prepared for oral argument, just to keep it all straight. Picture Venn diagrams within Hesse diagrams.

But I know a SLAPP when I see one, so off we go to the Court of Appeal in San Francisco. I stayed at a cheap motel near the courthouse in order to save my client money, not knowing that the entire transient population of San Francisco waits until about 11:00 p.m. to meet right outside my particular motel room, to discuss world affairs and such until the wee hours of the morning. Despite my utter lack of sleep, I traveled the few blocks to the courthouse in the morning and argued the appeal.

One of the three justices was a judge sitting by assignment. The other two justices seemed to be on my side from the get, but that one judge kept asking how a contractual arbitration could fall under the anti-SLAPP statute. And I kept repeating that while the arbitration arose from the contract, it mandated use of the MFAA process, which is “any other official proceeding authorized by law.”

Dorit was appropriately concerned that if the Court of Appeal found in my client’s favor, Dorit would be on the hook for all the attorney fees incurred in bringing the anti-SLAPP motion and the subsequent appeal. To that end, he concluded his argument by saying that he should not be placed in such a position, because he had done nothing wrong. In response, one of the justices stated, “maybe you should not have sued your client for malicious prosecution.” Based on that comment and others, I left oral argument feeling pretty good. But you never know with Appellate Justices. Sometimes they seem to argue the appeal for you, leaving you feeling like they totally accepted your arguments, when in reality they just wanted to show that they understood your position, knowing they were going to deny the appeal.

The Opinion Cometh — J Niley Dorit v. Noe

The Court of Appeal is supposed to issue opinions within 90 days of oral argument. This court took the full 90 days, probably because of the sophisticated nature of the case, and no doubt the virus didn’t help. I checked again for an opinion on the 90th day, and found nothing. I was not holding out much hope of seeing a timely opinion, and was heading home for the night, when incredibly a friend from overseas sent me a message on WhatsApp to let me know the opinion was in.

In a unanimous decision, the Court of Appeal reversed and ordered the trial court to grant the anti-SLAPP motion “and to conduct further proceedings consistent with this opinion,” meaning entering the judgment in favor of Jack, and considering the motion for attorney fees. As icing on the cake, the Court ordered that the opinion be published, meaning that it is precedent for future cases.

Especially gratifying was the Court’s concluding thoughts, which adopted a novel theory we had argued. As I mentioned earlier, by statute nothing from the MFAA arbitration can be used for other purposes. A claim of malicious prosecution requires the plaintiff to allege and prove that he, she or it prevailed in the underlying action. But if nothing from the arbitration can be used, then how would Dorit ever be able to establish that he prevailed?

Simply stated, the Court of Appeal concluded that Dorit would never be able to satisfy the second prong of the anti-SLAPP analysis, because he could not even show that he had prevailed at the arbitration.

In the end, we achieved four important goals. Dorit was stopped, the client was saved from protracted litigation, he will recover his attorney fees for both the motion and the appeal, and a precedent now exists that will prevent attorneys from suing their clients for utilizing the MFAA process.

A more detailed discussion of J. Niley Dorit v. Noe, with the added reasoning of the court, can be found here.

[UPDATE:] On October 1, 2020, the Court (the same judge who initially denied the motion) awarded Jack over $74,000 in costs and attorney fees, for the time and expense of bringing the original motion and subsequent appeal. Dorit had argued that since I am the Sultan of SLAPP, the Pharaoh of Free Speech, and the Master of Motions,  the SLAPP issues “could have been easily addressed with less than 3 hours of work at the trial court and the Court of Appeal.”  However, the Court found that not even I could respond to these sophisticated issues so quickly. And in doing so, it held that I am “notably modest.” Another important precedent created by this case.

Is it Defamatory to Call Someone “Racist”?

In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”

“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.

Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “Oh, and he is a racist too.”

So, the question presented by this article:

Is it defamatory to call someone “racist”?

As always, we must begin with the elements of the claim. The elements of defamation are: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3.

However, the second element, falsity, is subject to further clarification. Continue reading

Morris & Stone Case Creates Important Internet Defamation Authority

Super hero with computer circuit

Internet Defamation Law Clarified

Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.

I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.

The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.

Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.

The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.

Judge Ariadne Symons

Continue reading

Slut or Not a Slut, that is the Question

Is calling someone a “slut” defamatory?

I have said in the past that the answer is no, because it is the sort of word that is so imprecise in its definition, that it is simply impossible to show that it is verifiably false. The speaker might think that anyone who engages in pre-marital sex is a slut, or that a woman who wears a skirt less than two inches above her knee is a slut, or whatever.

So a case out of Australia caught my eye, because they are actually trying to create some litmus test to determine what would make one a slut. The case involves one Emma Husar, who is a Federal MP. She is suing BuzzFeed Australia, because it reported that she’s a “slut who boasts about who she has had sex with.”

Here’s where it gets fun.

BuzzFeed is asserting a truth defense, arguing that it can show that Husar flashed a fellow MP, Sharon Stone style, had a relationship with another MP, and engaged in sexualized conduct toward her physiotherapist. In BuzzFeed’s estimation, that makes Husar a slut.

Counsel for Husar, however, is seeking to strike the truth defense, claiming that even if BuzzFeed can prove the listed activities, that would not make Husar a slut.

This is why I love the law.

Here is How You Sue the News for Lying

Is that false news really false?

This is another article that callers have compelled me to write, so that I have a resource I can send them to that explains this important point of law.

We begin with Civil Code section 45, which defines libel:

Libel is 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.

Thus, as a beginning point, a statement must be verifiably false to be defamatory.

But as the rest of the statute makes clear, falsity is not enough. If I publish an article falsely stating that you own a home in Beverly Hills, I have told a lie about you, but it would not be defamatory or actionable. That is the first point that many people struggle with. They grew up hearing “liar, liar, pants on fire,” and they assume that there must be some remedy against someone who tells a lie. (At a minimum, their pants should combust.)

Such is not the case. Lying about your home in Beverly Hills is not actionable, because that claim does not expose you 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.” There is simply nothing wrong with owning a home in Beverly Hills.

Now as is always the case in analyzing statements to see if they are defamatory, context is everything. If you were known as the person who swore off all material possessions in order to live with and assist the homeless, and I publish a story falsely claiming you own a home in Beverly Hills, in that context the statement could be defamatory because it amounts to calling you a liar. But the first step in the analysis is to determine if the statement is false, and whether, if taken as true, the statement would subject you to hatred, contempt, etc.

Next comes the part that is at the heart of the article; the issue of what is false. Continue reading

Yelp Wins Fight to Post False and Defamatory Reviews

hassell v. bird

In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.

Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting. Continue reading

No, I Wasn’t Kidding About the Wisdom of Walking Away

Internet Defamation - Take the Settlement Fool

Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action.  I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.

You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later.  My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage.  The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.

Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away.  There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction.  But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim.  My client declined.

With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days.  Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client.  In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.”  He suggested the parties and attorneys talk settlement again.  My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding.  Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy.  Ouch.

If you got the tie-in between the photo above and the article, give yourself a prize.  It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline.  I think I may start dressing like that for settlement conferences.

California Supreme Court Puts Counsel for Yelp Through the Grinder in Hassell v. Bird

The tale of Hassell v. Bird.

I previously published a long article on the case of Hassell v. Bird, and I was invited to file a friend of the court brief in the California Supreme Court after it took up the case.

My original article provides much greater detail, but briefly for purposes of this article, Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc.

Here, the trial court felt that it was reasonable to require Yelp to take down the review, even though it was not a party to the action. The review had been deemed to be defamatory, and it was not Yelp’s speech that was being attacked, so certainly Yelp would have no horse in the race. Indeed, presumably Yelp wants the reviews posted on its site to be as truthful as possible, so it should welcome an order that would result in the removal of a false review.

But Yelp’s business model depends on negative reviews, so it cried foul. Even after the Court of Appeal found that the judge’s order was entirely proper, Yelp went to the Supreme Court to fight for the right to publish false and defamatory reviews.

Today, I attended the oral argument held in that case, in front of the seven justices of the California Supreme Court.

It was pretty painful to watch, given the positions counsel for Yelp was forced to defend. Continue reading

Aaron Morris

Morris & Stone, LLP
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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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