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Aaron Morris - Internet Defamation BlogInternet Defamation Blog

Aaron Morris

How to Stop Defamation When You Can’t Afford an Attorney

Bankruptcy - Business Person holding an empty wallet

Is there a way to stop Internet defamation when you have limited funds to hire an attorney?

Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.

I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.

Is there a solution for those who can’t afford representation? Continue reading

Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away

Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.

The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:

I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.

Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.

Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”

That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.

In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.

Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”

Court of Appeal Applies SLAPP Law to Zimbabwe Case


The California Court of Appeal has interpreted the term “official proceeding” as used in Code of Civil Procedure section 426.16 (the anti-SLAPP statute) to include even foreign litigation. The fact pattern here is rather involved, but to summarize, the action began in Zimbabwe when a wife allegedly took marital property to various locations in that country and then fled with her children to Northern California. The husband was convinced that his sister-in-law had assisted with the removal of the property, so he obtained a “writ of arrest” against her and she spent the night in jail. After a contested hearing, the Zimbabwe court found that there was insufficient evidence to prove that the sister-in-law had assisted in the removal of the property.

The sister-in-law then filed a civil action against the husband in Los Angeles Superior Court for false arrest. A jury found in favor of the husband, but the Court of Appeal reversed and ordered a new trial for various reasons. Back in Zimbabwe, the husband filed for permission to appeal from the final judgment on the arrest case. That application was supported by several declarations, including one from the husband’s California attorney, Donald C. Randolph of Randolph & Associates. The Zimbabwe court denied the application, and the sister-in-law then sued Randolph for malicious prosecution back here in California.

Quite appropriately, Randolph brought an anti-SLAPP motion seeking to strike the malicious prosecution complaint. Clearly, the declaration provided by Randolph was related to litigation and was in furtherance of a right of redress, even if that right was being pursued in Zimbabwe. Unfortunately for Randolph, Los Angeles Superior Court Judge Mel Red Recana was unwilling to take Section 426.16 that far, and denied the anti-SLAPP motion, concluding that it did not apply to activity in a foreign country.

But the Court of Appeal looked at the controversy from a slightly different angle. Although the declaration was provided to a court in Zimbabwe, it “contained statements about the effect of the Zimbabwe order in the Los Angeles case and the facts supporting probable cause for the writ of arrest,” which “were made in connection with issues under consideration in the Los Angeles case.” On that basis, the justices concluded, the statements were made “to influence the determination of issues pending in the Los Angeles case,” and therefore were a part of the right of petition in the Los Angeles case.

The story was reported by the Metropolitan News-Enterprise and can be found here.

“Stealth” SLAPP Suit Victory

One of our latest anti-SLAPP victories provides a beautiful illustration of a “stealth” SLAPP suit that the plaintiff’s attorney failed to recognize, to the great expense of his client.

In this case our (future) client’s business partner, we’ll call him Freddy Fraudster, opened a credit card account at a local bank using our client’s personal information. When our client discovered what Freddy had done, he contacted the bank and informed the personnel there that Freddy had committed fraud, and based on this report the bank closed the account and reported the matter to the police. Our client also filed a police report, and filed for a restraining order against Freddy.

Freddy was not happy. He had a long term relationship with the bank, and based on the report by our client, the bank closed his accounts and would have nothing further to do with him. Apparently thinking the best defense is a good offense, and hoping that winning the race to the courthouse might give him some leverage, Freddy filed an action against our client. He claimed that our client had authorized him to open the account, and that the report to the bank was therefore defamatory since it accused him of fraud.

Do you see why Freddy’s action in Superior Court was a SLAPP suit? Opposing counsel didn’t, but we recognized that this was a SLAPP suit and successfully brought an anti-SLAPP motion. You see, a SLAPP suit is one that tries to block a person’s right of petition. Freddy’s attorney realized that the report to the police and the application for the restraining order were protected rights of petition, but he mistakenly thought that the report to the bank, requesting that the credit card be cancelled, was not a petition for redress and therefore did not fall under the SLAPP statute because it did not involve any government agency. No doubt, he thought that by suing our client for defamation, he could make all his evil deeds go away and get back in good stead with the bank by offering to dismiss the case if our client would withdraw his remarks to the bank, court and police. Now it sounds like a SLAPP, doesn’t it?

The interpretation of the SLAPP statutes by Freddy’s attorney was far too narrow. Consider. One day you run a credit report on yourself and you find that someone has fraudulently opened a credit card in your name. What is the first thing you are going to do? Call an official government agency? You might do that eventually, but first you are going to call the credit card company and tell them to cancel the card. Thus, contacting the credit card company, or in our case the bank, is a natural part of the entire “right of petition.”

It’s very similar to the litigation privilege. I occasionally see cases where a defendant tries to sue the plaintiff and his attorney, claiming that the demand letter sent by the attorney was defamatory because it falsely claimed the defendant did something illegal. But under Civil Code section 47, anything said in conjunction with litigation is privileged and therefore not defamatory. The demand letter from the attorney takes place before legal action is ever filed, but it is still part of the litigation process.

So it was here. The report to the bank occurred before any “right of petition” was pursued with a government agency, but calling to cancel the credit card was a natural part of that process. If a plaintiff were permitted to SLAPP a defendant by focusing on the activities leading up to the actual right of petition, then the intent of the anti-SLAPP statutes would be subverted. We explained that to the court, and our motion was granted.

Law Student Blogger Fights to Remain Anonymous

Blogger Defamation

As I’ve discussed here before, there is a constitutional right to remain anonymous on the Internet.  The concept harkens back to the days of “pamphleteers” — those who would distribute anonymous pamphlets, usually criticizing the government.  The authors of these pamphlets needed to remain anonymous lest they be harassed by the government officials they were criticizing.  Any requirement that pampleteers sign their work was deemed to be an unconstituional violation of the First Amendment.

Today’s pamphleteers use the Internet, and sometimes have a compelling need to remain anonymous.  Even if their tomes are not directed at the government, they may feel the need to, say, report unsafe working conditions at their place of employment.  We certainly would not want to require someone to disclose their identity under such a circumstance, nor should we permit the subpoena power to be used to determine such a person’s identity.

On the other hand, we cannot allow unfettered defamatory speech.  So, to protect both interests, the courts have determined that a poster has the right to remain anonymous, unless and until the person or entity seeking that person’s identity makes a preliminary showing that the speech is defamatory.

This is a reasonable compromise.  I have never had a court deny my request for the information when I am on the plaintiff’s side.  The reason is simple.  I don’t bring frivolous actions.  If I’m suing for defamation, then it will always be the case that I can make a showing that the speech is defamatory.  Conversely, other attorneys do not have such high standards.  I have successfully quashed subpoenas and thereby blocked the disclosure of client information, by showing that the statements made by my anonymous clients are not defamatory.

Which leads me an article I saw today that involves all of these issues.  It seems that a law student at Thomas M. Cooley Law School was not happy with that institution, and started a blog called Thomas M. Cooley Law School Scam, telling tales of wrongdoing.  The school was not amused, and sued the anonymous author as a DOE defendant, and is now seeking the identity of that student.  The student is fighting to remain anonymous.  Read the article if you want to see how this all plays out.

In an interesting twist, the school did learn the identity of the student through some confusion by the Internet service provider over whether the subpoena was being challenged, and even put his name in some court records that could be accessed on-line.  However, the attorneys representing the student convinced the court to unring the bell and remove his name from court documents.  If the school cannot show the postings were defamatory, the case will have the interesting result of having to be dismissed because the identity of the DOE is unknown, even though in reality it is known.  (Although, if the school can’t make that showing now, there is no reason to assume it would be successful at trial.)

A Case Study in Why Litigation Can Be So Expensive

Internet Defamation Law Firm

In February of last year I wrote about the case of Paul Anka versus Anna Anka.  Paul was suing his estranged wife Anna for defamation, claiming that Anna had defamed him by stating that she had never signed a prenuptual agreement, and that any agreement he could produce would be forged.  I happened to think of that article today, and wondered what had occurred in the litigation.  A Google search revealed no updates on the matter, so I went to the court’s website to look at the docket.

As it turns out, the case was dismissed in July 2010.  Since it was filed in February, the action lasted less than seven months.  But during those seven months, 87 entries were made onto the docket.  As I went through the entries, I could see that nothing ever really happened on the case, except for fights over service, discovery, amendments to the pleadings, etc.  In other words, nothing substantive ever occurred, and ultimately Paul’s complaint and Anna’s cross-complaint were both dismissed with prejudice.

Normally, if a plaintiff loses his desire to continue with a case and dismisses it, the case is dismissed WITHOUT prejudice, meaning that if the plaintiff changes his mind, he can file the case again (assuming the statute of limitations has not passed).  When a case is dismissed WITH prejudice, that means it cannot be refiled, and is almost always an indication that the parties entered into a settlement agreement that required the action to be dismissed with prejudice.  I surmise that the parties agreed to dismiss their actions against one another as part of a divorce settlement.

I am often asked by potential clients what it will cost to prosecute a defamation action.  In response, I always apologize for having to sound like an attorney, but the answer is, “it depends on what the other side does.”  If the other side does nothing but appear in the action, then we can decide how much time we want to devote on the case.  Theoretically, you could file an action, conduct no discovery, and show up on the first day of trial to present your case.  But it seldom works that way.  As the Anka case demonstrates, a great deal of time and energy was expended on this case, just trying to get it past the pleading stage, because everything turned into a fight.

I sometimes hear the question, “how can the other side get away with this?”  The answer is, I don’t let the other side get away with anything, but ultimately it is the court that must make them behave.  For example, in the Anka docket (see link below), there was a fight over taking a deposition.  The way a deposition is supposed to work is the plaintiff sends out a notice of the time and place, and the defendant shows up at that time and place.  But what if the defendant fails to appear, or appears and fails to properly answer the questions?  Only the court can force the defendant to behave, so the plaintiff must bring the wrongdoing to the court’s attention by bringing a motion to compel the defendant to appear and answer the questions.

Thirty days later, the motion is heard, and the court orders the defendant to appear, awarding sanctions to plaintiff which seldom equal the actual cost of bringing the motion.  The deposition is set ten days later, and this time the defendant appears, but refuses to allow the deposition to be videotaped even though the notice stated that the depo would be taped.  So it’s back to court for an order compelling the defendant to go forward with the video taped deposition.  And so it goes.

Some judges finally get fed up, and will order that a discovery referee sit in on the deposition and make any necessary orders, but that is very expensive.  Alternatively, the judge will eventually strike the answer of the defendant and enter her default, but since that is such an extreme result, judges will usually require repeated violations of the court’s orders before proceeding in that manner.

Paul Anka Docket

Paul Anka Complaint

“Who you calling a thief?” said the cannibal.

A story in this month’s California Lawyer magazine caught my eye as an excellent case study on a point I try to explain to clients, sometimes unsuccessfully, about defamation actions.

Travel with me back to 1847 to the ill-fated Donner Party. While crossing the Sierra Nevada Mountains near present day Truckee, the wagon train could go no further and the travelers had to hunker down and try to wait out the extreme winter weather. Of the original 89 pioneers, only 45 were rescued, and it was soon learned that they had survived by eating the others.

One of the survivors was a German immigrant name Lewis Keseberg. Keseberg admitted to cannibalism, but the authorities became convinced that Keseberg had not always waited for someone to die from exposure before using them as a food source, and he was put on trial for six murders. Although he was acquitted for lack of evidence, one of the rescuers told gruesome stories about Keseberg’s cannibalistic ways, and those stories were printed in the newspaper.

Keseberg sued for defamation, which was an amazing feat in and of itself because California was not yet a state, so such a suit must have been a procedural nightmare. He sought $1,000 in damages.

In what may have been the first defamation action on state soil, Keseberg won his lawsuit, but the court awarded only $1, and ordered Keseberg to pay the court costs.

And therein lies the lesson that some potential clients refuse to accept. Winning a defamation action is more than just proving each of the elements of libel or slander. Context is everything. The damages in a defamation action arise from the loss of reputation. A person can have a reputation that is so bad, that defamatory statements simply don’t make it any worse.

In Keseberg v. Coffeemeyer, Keseberg had been falsely accused of stealing from the people he ate. He was very offended by that accusation, and headlines in the paper that read, “Where Did Keseberg Hide the Donner Treasure?” But here’s the thing, Keseberg, YOU ATE DEAD PEOPLE! You are already off most dinner invitation lists. The added claim that you took the money of the DEAD PEOPLE YOU ATE is not a big blow to your reputation.

I’m reminded of the line from Star Wars.

Princess Leia shouts at Han Solo, “Why, you stuck up, half-witted, scruffy-looking, nerf-herder.”

To which Han Solo responds, “Who’s scruffy-looking?”

You will not succeed in a defamation action if, out of five terrible things said about you, only one is false.

Anti-SLAPP Victory — The Case of the Outraged City Council Member

In this case, our (future) client addressed a city council meeting on a matter she felt was important to the city. Specifically, the city had been rocked by some controversy involving city council members, and our client was speaking to the issue of how the newly-elected council members should go about performing their duties. To illustrate the point, she cited the example of a former council member who had taken money from special interests. The city council member in question took umbrage with the accusation that she had acted unethically, and sued our client for defamation for the comments she had made at the city council meeting. We were retained to fight the defamation action.

It is seldom that we are presented with such a clear SLAPP suit. SLAPP stands for Strategic Lawsuit Against Public Participation. What better example of public participation is there than a citizen addressing their city council? Indeed, under Civil Code section 47, any comments made during a “legislative proceeding” are absolutely privileged (meaning they can never be defamatory). Better yet from the standpoint of an anti-SLAPP motion, section 425.16(e)(1) provides that statements made before a legislative proceeding are protected speech.

So let’s run the facts through the two prongs of the anti-SLAPP analysis. First, as counsel for the defendant, it was our burden to show that the speech was protected within the meaning of the anti-SLAPP statute. That was a no-brainer in this instance, since the words were spoken at a city council meeting. And since the conduct falls under a specific anti-SLAPP section of 425.16, there was no need to show that the topic was a matter of public interest. “Any matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights § 425.16 was intended to protect.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118.)

Our having shown that the speech was protected, the second prong of the anti-SLAPP analysis requires plaintiff to show a reasonable likelihood of success on her claim, which in this case would be impossible. Since section 47 makes speech at a city council meeting absolutely privileged, the speech by definition cannot constitute defamation.

So a slam-dunk anti-SLAPP motion, right? Not quite.

A SLAPP motion puts a stay on all discovery, which is one of the primary benefits of an anti-SLAPP motion because it keeps the plaintiff from using the discovery process as a sledgehammer to try to wear down the defendant. In this case, counsel for Plaintiff had served discovery prior to the anti-SLAPP motion, and argued that the court should permit that discovery prior to ruling on the anti-SLAPP. There is authority for the proposition that a plaintiff should be permitted to conduct discovery to determine whether the defendant acted with malice, because that takes away certain privileges under section 47. However, there is no malice exception for words spoken at a city council meeting, so no amount of discovery by the Plaintiff could have revealed information that would have defeated the anti-SLAPP motion.

Nonetheless, the court granted Plaintiff’s request for discovery, and that added two months to the process. It could have been that the court just did not understand the authorities we provided, but more likely the court was bending over backwards to give the plaintiff access to discovery, specifically because the judge knew she was going to grant the motion, and did not want Plaintiff to have any possible basis for appeal. In that sense, the judge might have done us a favor, but it is frustrating to deal with a frivolous action for an additional two months. We were successful, though, in greatly limiting the discovery. The court denied Plaintiff’s request to take our client’s deposition.

As expected, the discovery revealed nothing useful to the Plaintiff. Instead, the Plaintiff attempted to argue that the conduct by Defendant was “illegal” and therefore not protected. This was another instance where there is authority for the proposition being claimed, but that legal theory had no application to the case at hand. In the case of Flatley v. Mauro, an attorney had sent threatening letters to someone, threatening to sue him if he did not pay a large settlement to a client. Normally, a letter from an attorney in anticipation of litigation would be protected speech under the litigation privilege, but the Flatley court ruled that the attorney’s letters had risen to the level of extortion, and were therefore illegal and unprotected.

Plaintiff was trying to say that our client’s speech at the city council meeting was illegal and therefore unprotected according to Flatley. And how could speech at a city council meeting ever be illegal, you ask? According to Plaintiff, it was illegal because the city council’s own guidelines state that comments should be civil, and in Plaintiff’s opinion Defendant’s comments had not been civil.

Predictably, the court understood that even if the words were interpreted to be rude, a city council’s guidelines do not amount to law, and violating them does not amount to criminal conduct. The court granted our anti-SLAPP motion, striking the defamation complaint and entering judgment in our favor. The court also awarded us over $18,000 in attorney fees against the Plaintiff.

[Update — October 14, 2011]  The council member did not write us an $18,000 check.  We had to garnish her wages, and she represented herself in court seeking to reduce the amount being deducted from her paychecks.  To her credit, we were seeking $800 per check but she persuaded the court that given her financial circumstances it should be reduced.  She was asking that nothing be taken, but the Court settled on $500 per check (every two weeks).  I bring this up only for the lesson it offers.  It is outrageous that a politician would try to use legal action to silence a critic based on something said at a city council meeting.  The judgment is not so large that it will have any significant impact on her finances, but it is good to know that each of her next 40 or so paycheck stubs (adding costs and interest) will provide a reminder that a frivolous action has consequences.

Anti-SLAPP Victory — “If You Sue Me, I’ll Sue You!”

This case was especially satisfying because it was not a classic anti-SLAPP case involving defamation, but we persuaded the judge that the matter fell under the anti-SLAPP laws.

SLAPP stands for Strategic Lawsuit Against Public Participation.  A “SLAPP suit” is one designed to silence a defendant, to prevent him from criticizing the plaintiff or, in this case, to keep him from taking a matter to court.  Here, our (future) client had entered into a settlement agreement with the defendant in a prior action. The settlement agreement required the defendant company to pay damages to our client, and contained a confidentiality agreement. Two years after the settlement agreement was signed, the defendant had still not paid the damages to the plaintiff, so he retained our firm to sue to collect the money due under the agreement.

After the defendant company could not be persuaded to pay the money voluntarily, we filed an action for breach of contract, attaching a copy of the settlement agreement. The defendant answered the complaint and also filed a cross-complaint, claiming that it was a breach of the confidentially agreement to attach the settlement agreement to the complaint. Incidentally, counsel for defendant had discussed with me his intention to cross-complain on this basis, and I had warned him that would be a really bad idea. He did so anyway.

The reason the cross-complaint was a bad idea is because it was a SLAPP. Do you see why? Remember again what SLAPP stands for – Strategic Litigation Against Public Participation.  Defendant had breached the settlement agreement, so clearly we were entitled to sue for breach of that contract. That is the public participation – taking a case before a court for redress of a grievance.  By turning around and cross-complaining that our client had breached the agreement by revealing its contents in court, Defendant was in essence suing our client for suing.  Attempting to punish someone for suing should always raise SLAPP concerns, but defense counsel filed the cross-complaint anyway, even after my warnings. We filed our anti-SLAPP motion against Defendant/Cross-Complainant for the cross-complaint.

So let’s run this case through the two-prong, anti-SLAPP analysis. Our burden was to show that the speech was protected under the anti-SLAPP statute. The speech here was the complaint itself, with the settlement agreement attached. Filing a complaint is a specifically protected activity under the anti-SLAPP statute, and comments made in conjunction with litigation are protected under Section 47. There was no issue that our complaint was a protected activity.

That takes us to the second prong, by which the plaintiff, here the cross-complainant, must show a reasonable likelihood of success on the merits of the case, even if the speech is a protected activity.  Our client was required to keep the agreement confidential in exchange for payment of the damages. But the company never paid the money, so our client was excused from performance. Further, to sue for breach of contract, a plaintiff must allege the terms of the agreement. Here, there was no way to allege a breach of contract without specifying the terms of that agreement. The company argued we should have sought to bring the complaint under seal so no one would ever know the terms, but there is not such obligation required under the law.

But the company had an even more fundamental issue with its cross-complaint. The elements of a breach of contract claim are (1) a contract; (2) a breach of that contract; (3) performance by the plaintiff; and (4) damages from the breach. The company was alleging breach of contract, but it had utterly failed to perform. I attached a declaration from our client saying he had never been paid, and the company could say nothing to refute that point. Thus, the company could never prevail on its breach of contract claim because it could not satisfy the performance element.

The court granted our anti-SLAPP motion, threw out the cross-complaint, and the company is on the hook for more than $15,000 in attorney fees.

[UPDATE — October 14, 2011]  This was a strange case.  Despite the anti-SLAPP victory, counsel for the company just refused to acknowledge the findings of the court.  During settlement discussions, he would always bring up the fact that his client was going to sue for breach of contract for our disclosure of the settlement agreement, even though that claim had already been denied by the court.  He maintained this position right up to trial, offering on the courthouse steps to pay our client a fraction of what he was owed in exchange for a promise that the company would not sue on this non-existent claim.  When we refused, defendant responded by agreeing to a stipulated judgment in the full amount we were owed.  I suppose that the strategy was to wait until the last possible moment in the hope that we would blink (many attorneys will do anything to avoid going to trial, but I am not one of those attorneys), but since the agreement contained an attorney fees clause, all this accomplished was a much higher fee award.  To quote John Lennon, “Strange days indeed, most peculiar, Mama.”

Defamation Trial: Paralegal Taught Lesson in Reality

I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done.  Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid.  I then envision the horrible train wreck that is waiting at the end of that track.

Today I happened to come across a news story, reporting one of those train wrecks.

The case involved a scorned woman.  She worked as a paralegal, and ended up dating her attorney boss.  As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her.  In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.

The paralegal would have none of that.  She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him.  He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat.  The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.

The result?  The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements.  As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.

Lesson to learn?  Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney. I never would have taken this case because of the huge holes in the facts. You say you were fired? Can you please produce the termination documents one would normally expect to see in the case of a termination? Had you reported this alleged sexual harassment to anyone prior to the day he sent you home?

[Update]  The jury came back and awarded $100,000 in punitive damages.  Counsel for the paralegal filed a motion for new trial, with a rather novel theory.  Her comments about the attorney being a sexual predator were made to other attorneys.  Therefore, her counsel argued, the comments should be protected by the attorney-client privilege.  Novel, but I doubt it will fly.

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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.

Section 6158.3 Notice

NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

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