Anti-SLAPP

What is the difference between “defamation” and “false light”?

What is the difference between “defamation” and “false light”?

I am sometimes retained to take over from other attorneys when a defamation case has gone sideways. Through this experience, I am afforded the opportunity to see how other attorneys approach defamation cases, and where they went wrong.

In these instances, I have seen that other attorneys routinely allege claims for both defamation and false light. Is that a good approach? With this article I will address the difference between the two claims, and whether it makes sense to allege both in the same complaint. I’ll use the case of Shantel Jackson v. Floyd Mayweather, Jr. as an example. The summary provided below is taken from the complaint and subsequent Court of Appeal opinion, and is not offered as a statement of facts.

The sad tale of the actress and the boxer (not to be confused with Robin Givens and Mike Tyson).

Shantel Jackson filed an action against Floyd Mayweather, Jr. in September 2014. Jackson’s complaint recounted a detailed story of the on-again, off-again abusive relationship between a young aspiring model and actress and a highly successful, well-known professional boxer.

Jackson, then 21 years old, met Mayweather while working as a hostess at an event in Atlanta in 2006. The two dated and developed a romantic, intimate relationship. Jackson soon moved to Las Vegas to live with Mayweather.

Jackson and Mayweather were a highly publicized celebrity couple for a number of years and were at one point engaged to be married. However, the relationship frayed. Jackson alleged that in August 2012, shortly after Mayweather’s release from jail following his conviction on a domestic violence charge involving another woman, she and Mayweather had an argument during which he twisted her arm, choked her and forcibly took away her cell phone so he could look through it. The couple reconciled after Mayweather apologized and promised he would never again assault Jackson.

In early April 2013, after continued difficulties between them, Jackson decided to end her relationship with Mayweather and moved to Los Angeles. Mayweather persuaded her to try again to make the relationship work, and Jackson returned to Las Vegas two weeks later. However, within a few days the couple resumed arguing, and Jackson again told Mayweather she was going to leave him. At one point during this period Mayweather grabbed Jackson, restrained her and pointed a gun at her foot while asking, “Which toe do you want me to shoot?” Jackson alleged that while forcibly restraining her and with the gun still pointing at her, Mayweather said he would not allow her to leave. During this period, according to Jackson, Mayweather kept her a virtual prisoner in his Las Vegas home, monitoring her activities and only allowing her to leave if accompanied by one of his employees.

Jackson moved back to Los Angeles in June 2013. The following month she discovered someone had broken into a storage unit she rented in Southern California and stolen personal property she valued at more than $1 million. Mayweather subsequently confessed he had arranged for the removal of the items and told Jackson he would return them if she came back to him. In late July 2013 Mayweather told Jackson he would “put things out about” her unless she agreed to return to Las Vegas. When she refused to return, Mayweather posted her Los Angeles address on his social media pages and falsely suggested he lived there. Jackson alleged she became concerned for her safety when Mayweather’s fans came to the address and then were disappointed to learn he was not there.

Mayweather continued to importune Jackson to return to him and to attempt to make their relationship work. Jackson agreed but said she would maintain her own home in California. In November 2013 Jackson became pregnant by Mayweather. Jackson alleged she told Mayweather and one friend of her pregnancy, but no one else. A December 2013 sonogram revealed Jackson was carrying twins. At Mayweather’s request Jackson gave him a copy of the sonogram. According to the complaint, “In January of 2014, Ms. Jackson’s pregnancy terminated and Mr. Mayweather was so informed.”

When Jackson refused to move back to Las Vegas during this period, Mayweather became verbally abusive and threatening. During an argument in February 2014 in Los Angeles, Mayweather once again physically restrained Jackson, blocking the door to his condominium and preventing her from leaving for more than one hour.

On April 12, 2014 Jackson attended a basketball game with the rapper Nelly and posted a photograph of the two of them on her social media pages. Mayweather threatened to post photographs he had taken of Jackson sleeping naked if she did not take down the Nelly photograph. Jackson rejected the demand and also refused to reconcile with Mayweather. In response, on May 1, 2014 Mayweather posted on his Facebook and Instagram accounts, “the real reason me and Shantel Jackson broke up was because she got an abortion, and I’m totally against killing babies. She killed our twin babies.” Mayweather also posted a copy of the sonogram of the twin fetuses and a summary medical report regarding the pregnancy. Media outlets, including TMZ, republished the sonogram and medical report. The following day Mayweather again discussed Jackson’s abortion during a radio interview and also stated she had undergone extensive cosmetic surgery procedures.

Based on the allegations regarding Mayweather’s posting of information about Jackson’s pregnancy and its termination, including the sonogram and medical report, and the broadcast of the statement she had cosmetic surgery on her face and body, Jackson’s complaint asserted causes of action for invasion of privacy (public disclosure of private facts), invasion of privacy (false light) and defamation. There were a number of other claims as well. Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1245–47.

With our summary completed, let’s look at the elements of the two claims – defamation and false light.

Elements of Defamation

Defamation “involves (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 (2011) 195 Cal. App. 4th 962, 970.

So to win on a defamation claim, the Plaintiff must prove that a false, unprivileged, defamatory statement was communicated to at least one other person. The “defamatory” element just means that it is not enough simply that it is a false statement, it must have “a natural tendency to injure.”

Elements of False Light

False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. Price, supra

So to prevail on a false light claim, the Plaintiff must prove (1) that the statement was made to the “public”, (2) that the statement was highly offensive, and (3) that the Defendant knew or acted in reckless disregard as to the falsity of the statement and the false light in which the Plaintiff would be placed.

“Public” means that the publication must go to enough people to amount to the public, as opposed to only one other person in a defamation claim. A false light claim further requires the additional elements of “highly offensive” and “reckless disregard.”

For this reason, suing for both defamation and false light is a pointless act, because false light requires far more of a showing. If you can show defamation, you don’t need false light, since the damages would be the same. And if you can’t satisfy the elements of defamation, you can’t prevail on false light.

As the Court put it in Jackson v. Mayweather:

“‘A “false light” cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice [where malice is required for the libel claim].’ ” See generally Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234 [holding statutory limitations on defamation actions apply when a false light action is based on publication that is defamatory].) Indeed, “[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.”

In the Jackson case, Mayweather responded to the complaint with an anti-SLAPP motion, claiming that Jackson could not satisfy the elements for defamation and false light. The alleged false statements – that Jackson alleged were both defamatory and put her in a false light – were that (1) Mayweather ended their relationship because Jackson had aborted the twins, and (2) that she had undergone extensive cosmetic surgery. Jackson claimed these statements were false because (1) she, not Mayweather, had ended the relationship, and (2) she did not have cosmetic surgery on some of the body parts identified by Mayweather.

The trial court denied Mayweather’s anti-SLAPP motion, but the Court of Appeal reversed and granted as to the defamation and false light claims.

Given that Jackson has not contested the truth of Mayweather’s declaration that she had an abortion, the statement that Mayweather ended his relationship with Jackson for that reason does not appear to be defamatory. On its face, the allegedly false part of the posts (the cause of the breakup) did not expose Jackson to contempt, ridicule or other reputational injury.

[As to the statement about her surgeries,] Jackson fails to address how Mayweather’s exaggeration of the extent of cosmetic surgery she tacitly concedes she had (on her breasts and buttocks) created a different and negative effect on the radio audience from that which the truth would have produced. As Mayweather argues, falsity cannot be shown if the challenged statements appear substantially true. To bar liability, it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. Put another way, the statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.

It is certainly conceivable that surgical enhancement of the face is different for the reputation of an actress or model from the augmentation or sculpting of other parts of her body. But Jackson presented no evidence in opposition to Mayweather’s motion, expert or otherwise, that would permit a finder of fact to draw that distinction. It was her burden to do so. Thus, the radio comments concerning cosmetic surgery do not support a defamation cause of action.

Jackson thus lost on both her defamation and false light claims.

I won’t go so far as to state that there would never be a place for a false light claim in a complaint, but I cannot even come up with a hypothetical situation where it would be a good strategy to allege both defamation and false light in the same complaint.

Anti-SLAPP Motion Does Not Dispose of Action as to Unprotected Claims

Anti-SLAPP Court of Appeal

How to Handle Mixed Causes of Action?

In a ruling that makes perfect sense, the Fourth District Court of Appeal held that an anti-SLAPP motion can be used to excise some allegations in a cause of action that involve protected activities, while leaving intact those allegations that do not fall under the statute.

In Cho v. Chang (LASC case number B239719), Jessica Chang sued a former co-worker, Howard Cho, for sexual assault and harassment. Chang filed a cross-complaint that was a clear SLAPP, because the two causes of action alleged defamation and infliction of emotional distress based on the things Chang had said about Cho to her employer, EEOC and DFEH. As I have said here many time, statements to government entities are protected, and the statements to the employer are a natural part of the redress process, and therefore are also protected.

But wait a second. The cross-complaint also alleged that the statements by Chang to her co-workers were defamatory. In some circumstances statements to co-workers can be protected, and indeed that was the argument made by Chang, but here the connection was too attenuated. As the court stated,

“Chang argues that her comments to co-workers related to matters of ‘public interest,’ but that is without merit. A public interest involves more than mere curiosity or private information communicated to a small number of people; it concerns communications to a substantial number of people and some connection with the public interest rather than a private controversy.”

So, if the allegations about the statements to co-workers state a valid action for defamation and infliction of emotional distress, must that baby be thrown out with the bath water just because it is contained in the same cause of action that include protected speech? Los Angeles Superior Court Judge Michael Johnson, and the Court of Appeal, answered “no” to that question. They both determined that an anti-SLAPP motion could be used surgically to remove just the allegations of protected activities and speech, while leaving any cognizable claims.

Nonetheless, the anti-SLAPP motion was successful, at least in part, so did Chang recover her attorney fees? In that regard, Judge Johnson was not very charitable. The judge noted that a party prevailing on an anti-SLAPP motion is normally entitled to an award of attorney fees, but said:

“While Chang’s motion has been granted in part, the ruling has produced nothing of consequence. Cho is still entitled to pursue his causes of action for defamation and [intentional infliction of emotional distress], and the evidence to be presented at trial is largely the same. Chang should have been aware that Cho’s allegations about private comments were viable, and she should have addressed the other allegations in a more focused and less burdensome manner (such as a traditional motion to strike or a motion in limine). Chang’s request for an award of fees and costs is denied.”

Show Some Love for California’s Anti-SLAPP Statute

A real Jones for the Basketball coach

Not the coach in question.

I get frequent calls from people who have run afoul of the anti-SLAPP statute, basically asking, “what can we do about this terrible law?”

Here’s the deal. Every law eventually gets subverted. The Americans With Disabilities Act sounded like a great idea, but then you ended up with attorneys who use it as an extortion racket, forcing fast food restaurants to pay thousands because a counter was 17 ½ inches high instead of 18.

So it is with California’s anti-SLAPP statute. It is a great statute, and for the most part attorneys have not found an effective way to misuse it, except for right to appeal an adverse decision, which many now use as a delaying tactic. Opposing counsel in one of my cases recently brought a motion for permission to file a very late (by two years) anti-SLAPP motion on the eve of trial, and when the motion was quite properly denied, then filed an appeal from that denial. Of course I had no difficulty getting the Court of Appeal to dismiss the frivolous appeal, but it delayed the trial a month. Except for this type of abuse, in most other regards California’s anti-SLAPP law provides a very useful tool to get rid of lawsuits designed to silence free speech or frustrate the right of redress. The point is, if you are complaining about California’s SLAPP statute, and your complaint has nothing to do with an attorney using it for delay purposes, then you probably filed a SLAPP action and the system worked by getting rid of it.

However, in case you still have it out for California’s anti-SLAPP law, I bring you an example out of Illinois that should make you feel a little better. California pioneered the anti-SLAPP concept, and most states have used that law as a template, but that hasn’t prevented some from coming up with their own strange hybrids.

Enter the case of Steve Sandholm, a high school basketball coach/athletic director in Illinois. In the case of Sandholm v. Kuecker, some parents decided they didn’t like Sandholm’s coaching style, so they really went after him, hoping to get him replaced. They posted useful, positive comments such as “[he is] a psycho nut who talks in circles and is only coaching for his glory.” The efforts were to no avail, because the school board decided to keep him. However that decision only fanned the flames, and the parents kept up their campaign. Sandholm found some of the statements to be defamatory, so he brought a defamation action.

But wait. Illinois has an anti-SLAPP statute that states that speech and petition activities are “immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” Wow that’s a broad standard. A school district is a government entity, and the parents were trying to get that government entity to do something (removing the coach), so did that fall under Illinois’ anti-SLAPP statute? If I read the statute correctly, that means that even if the parents got together and decided to fabricate lies about the coach, they are immune from a defamation action so long as those lies were “genuinely aimed at procuring a favorable government . . . outcome.” (I’m not saying that happened, I’m only using the case to present a hypothetical.) And how in the world is a court going to determine if the actions were “genuine”?

Incredibly, that’s exactly how the Court of Appeal interpreted the statute. Read this excellent summary of the case by John Sharkey to see just how convoluted the anti-SLAPP process can become.

Peer Review Process for Doctors is a Protected Activity Under SLAPP Statute

Anti-SLAPP Motion against doctor
The California Court of Appeal recently ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.

OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.

Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.

I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to “fire” the doctor was a protected activity.

Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. For reasons not important to the story, Dr. Nesson lost his privileges at a hospital. Dr. Nesson sought reappointment by the hospital and, after it was denied, filed a civil complaint. He retained counsel who either did not recognize the SLAPP aspects of the case or decided to take a run at it anyway, thinking they could successfully plead around them. (Which does not mean they did anything wrong, as set forth below.)

In the complaint, they alleged causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of Health and Safety Code section 1278.5; (4) violation of the Unruh Civil Rights Act; and (5) violation of the Fair Employment and Housing Act (FEHA). In summary, the grounds for Dr. Nesson’s claims were that the hospital had breached the Agreement by not giving him 30 days’ notice of termination, had retaliated against him for his complaints about patient safety, and had discriminated against him for a perceived mental disability or medical condition.

A very good try. Do you see that none of the causes of action mention defamation or any of the other causes of action that one normally associates with a SLAPP suit? Many defense attorneys would not have even spotted the SLAPP issues, and the matter would have proceeded. But here is today’s lesson. A SLAPP is a SLAPP is a SLAPP, and it doesn’t matter what you call the causes of action if the conduct arises from a protected activity.

I previously wrote about my successful anti-SLAPP motion against Freddie Fraudster, who fraudulently obtained a credit card under my client’s name. When my client reported the fraud to the bank, Freddie sued claiming that damaged his reputation with that institution. In response to my anti-SLAPP motion, he argued that my client’s communications to the bank were not protected because they were not part of any formal review process. Motion GRANTED, even though the report in question was not to any official agency.

So too, the attorneys defending against Dr. Nesson’s action did spot the SLAPP issues, and brought an anti-SLAPP motion. Dr. Nesson argued in response that his summary suspension and the subsequent termination of the Agreement did not constitute protected activity because the hospital was not involved in the peer review process or his summary suspension. Motion GRANTED, because it’s all part of the same protected activity.

The decision to suspend privileges triggers a statutory scheme for review of the decision under Business and Professions Code section 805, so the actions of the hospital and the medical examination committee were a normal part of that process. As I have repeatedly explained would happen, the trial court granted the hospital’s special motion to strike, finding that the contract termination was “inextricably intertwined with the . . . summary suspension, arose from, and was in furtherance of the protected activity.”

But what about the claim that he was terminated because of a perceived mental disability or medical condition? If he was discriminated against, how can that be protected by the anti-SLAPP statute? How can that “arise from” the protected activity? As the Court of Appeal explained:

“[T]he anti-SLAPP statute applies to claims made in connection with the protected activity, regardless of defendant’s motive, or the motive the plaintiff may be ascribing to the defendant’s conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90.) The only alleged evidence or argument in support of his claim that the Hospital perceived Nesson as disabled are the facts that the Hospital received the written special notice of summary action and the notice of medical executive committee action suspension. Nesson contends “[b]ased on the above letters and a report from the MEC, the Hospital decided to terminate Nesson’s Service Agreement.” These letters and any alleged “report” are part of the peer review process.”

In defense of the attorneys, there were complicating factors here, and sometimes you have to push the envelope. That is how statutes are interpreted under the law. The discrimination claim might have survived if the evidence had taken the alleged discrimination outside the review process. Further complicating the matter, Dr. Nesson did not exhaust his administrative remedies, and that gave pause to the court since that made it impossible for him to show a likelihood of success on the action.

Is Rush Limbaugh Facing a Claim for Defamation?

Rush Limbaugh Liable for SlanderI’m getting calls from media outlets about some comments made by Rush Limbaugh, and whether they constitute defamation. I’m always happy to talk to you reporters and provide comments, but thought I’d put this post up to provide some background for your articles.

Apparently Rush Limbaugh weighed in on the controversy over religious organizations being forced to pay for birth control for their employees. Following an appearance by Sandra Fluke, a Georgetown University student, at an informal House Democratic hearing last month. Ms. Fluke testified in favor of Mr. Obama’s mandate, which Georgetown and other Catholic institutions have roundly condemned as an infringement on their religious rights.

At the hearing, Ms. Fluke said fellow students at her Jesuit university pay as much as $1,000 a year for contraceptives that are not covered by student health plans.

On Wednesday, during his radio show, Limbaugh allegedly said:

“What does that make her? It makes her a slut, right? It makes her a prostitute . . . she wants to be paid to have sex … She’s having so much sex she can’t afford contraception.”

Accusing a woman of being unchaste is the classic, old-school form of slander. Here is the definition of slander under California’s Civil Code § 46:

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

I’ll bet you never knew it was slander to accuse a man of being impotent, but I digress. There it is in black and white – it is slander to impute to a woman a “want of chastity”. (For those of you who carefully read the section and see that it said “imputes to HIM . . . a want of chastity”, you get bonus points. However, there is a catchall statute that provides statements of gender in statutes don’t exclude the other gender, so you can’t accuse men or women of being loose.)

So is Rush Limbaugh toast?

Not at all, because defamation law makes clear that context is everything. Back in 2009 I wrote about the case of radio commentator Tom Martino who stated on his consumer show that the sellers of a boat were “lying”. The plaintiffs/sellers took umbrage with that remark, and sued Martino for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.

A true opinion cannot constitute defamation unless it is offered as an assertion of fact. While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.

So it is with Rush Limbaugh. He knows nothing about this woman who believes others should pay for her birth control, and he was engaging in a little hyperbole about what that makes her. He was creating a false syllogism to make a point, claiming that based on her testimony she wants to have sex, she can’t have sex without birth control, she wants someone else to pay for her birth control, so she is being paid to have sex.

As the old saying goes, you can sue for anything, but a defamation action by Ms. Fluke would not survive the first motion.

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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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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