You Can Sue for Defamation in Small Claims Court
Wow. I may actually know what I’m talking about.
In one of my earliest postings on this blog, I recommended Small Claims Court to those who have been defamed, but can’t afford an attorney. In 2012 California raised the damages limit in Small Claims Court to $10,000! Obviously this is not the way to go if you have a case with significant damages, but often the damages are minor, or damages are simply not the victim’s purpose in bringing suit. I suggested that an action in Small Claims Court can be an effective way to stop someone from continuing to defame you, and permits you to respond to anyone who asks you about the rumor, that you sued the defamer in court and won.
I had some secondhand knowledge of defamation actions being brought in Small Claims Court, but since attorneys are not allowed to represent clients there, I will never be able to test my theory directly. I’ve also been slightly concerned because I have received a couple of emails from readers who say that they were informed by a court clerk that defamation actions cannot be pursued in Small Claims Court.
Thankfully, a reader of my original posting was kind enough to call and spend some time on the phone with me, talking about his experiences. A vicious rumor got started about him some time ago, and like the urban legends that reappear periodically on the web, every few months the rumor about this person grows legs and starts getting spread again. Fortunately, because his professional circle is somewhat small, eventually the rumor reaches people that report back to the victim. He then brings a Small Claims action against the defamer, and has a witness to the statements.
This caller has brought four such actions, and has won every time. The judgments are small, but for the caller, damages were not the goal. He has found that the suits tend to eradicate the rumor in the community pockets surrounding the person who was spreading the lie. In other words, having lost in court, that person then goes back and tells the same people about the lawsuit. No doubt, the story is not told in flattering terms. More likely the story goes something like this:
“Joe is such an asshole. I told Dave about how he was stealing from clients, Dave told him what I said, and Joe sued me in court. The judge awarded him $2,500, so now I have to write him a check for $250 every month until it is paid off.”
But despite how the story is being told, the fact is that the people hearing the story are walking away knowing that it was a lie to accuse Joe of stealing, and Joe won’t put up with the lie being told.
This caller’s successes illustrate a couple of points. First, a “republisher” of a defamatory statement – one who simply repeats what he was told – is as guilty as the person who started the false rumor. Our hypothetical Joe may never learn who started the original rumor, but going after those who are repeating the lie is like a firefighter setting a backfire. It can help to stop the spread of the rumor, and may get back to the person who started it and cause him to shut up.
Secondly, and more to the point of this article, you can sue for defamation in Small Claims Court, regardless of what the court clerks may be saying. As I explained in the original article, a judge in Small Claims Court cannot give any equitable relief. In other words, he or she can’t order the defendant to stop spreading the rumor, or to provide a letter of apology, for example. That is why attorneys often don’t think to suggest Small Claims Court, and may be why the clerks think defamation actions cannot even be brought there. (Actually, a Small Claims judge can grant certain limited equitable relief, mostly having to do with contracts, and can condition an award on an act. He could, for example, award $2,500 in damages, reduced to $1,500 if the defamatory statement is removed from the Internet.)
And there are other big advantages to Small Claims Court. In many defamation actions, the specter of an anti-SLAPP motion looms large. If you sue for defamation and the defendant successfully brings an anti-SLAPP motion – convincing the court that the speech was protected – you get to pay the other side’s attorney fees. You are safe from an anti-SLAPP suit in Small Claims Court, and in any event there likely would be no attorney fees. Further, you cannot be sued for malicious prosecution if you lose on a Small Claims action.
With all this said, you’ll be wasting your time in Small Claims Court if you think you can go in and wing it. You’ll be suing for thousands of dollars, so it will time and money well spent if you buy and review Everybody’s Guide to Small Claims Court in California
Single Publication Rule Found to Apply to Internet
I get calls every week from people wanting to sue for defamation for something that was said in a declaration. The declaration may have been filed in support of a restraining order, or in family court where parents are fighting over custody of their children. The declaration includes terrible lies about the caller, so he or she wants to sue for defamation.
No can do.
For a statement to be defamatory, it must be unprivileged. Public policy and statutes create a number of privileges that keep a statement from constituting defamation. For example, in California, and likely every other State, a statement made in conjunction with a legal action is privileged, and therefore immune from any claim of defamation. It may be hard to swallow that people can lie about you in a declaration and yet be immune from a claim for defamation, but it has to be that way. Imagine the backlogs that would occur in the courts if every declaration filed yielded another lawsuit for the lies allegedly told in the declaration. Indeed, if suing for something said in a declaration was permitted, then you would be compelled to sue every time the other side filed one. After all, if you didn’t, the Court would have to view that as an admission. Of course, the newly filed lawsuit would generate declarations, so that person would now file another lawsuit, and so it would go, ad infinitum.
When I explain this reality to callers, I generally get a response that goes something like this:
“So you’re telling me, she can say ANYTHING she wants to, and there’s NOTHING I can do about it?! She can claim I’m a murderer, and I just have to take it. She can claim that I rob banks and molest my children, and I just have to smile. Is THAT what you’re telling me?”
No, that’s not even close to what I am telling you. You can’t sue for defamation, but that doesn’t mean you have to take it. You don’t need to file a separate lawsuit for something said in a declaration, because you are already IN a lawsuit. That’s why litigation is called an adversarial system. Your ex-wife files a declaration saying you beat the children, you respond by filing your own declaration saying you don’t, supported by additional declarations from friends and family saying they have never seen you mistreat your children. Every trial involves witnesses testifying to very different versions fo the facts, and the judge has to decide whom to believe. Conflicting declarations are no different.
Plus, lying in a declaration is called perjury. That’s a crime. So, your spouse doesn’t get to say ANYTHING she wants, because she can go to jail. Admittedly, declarants are seldom prosecuted for perjury, but if they tell lies, they lose credibility with the judge and lose the case because your skilled attorney will show them to be the liars they are.
So, back to the Wisconsin case.
The case involved a defamation action against the Milwaukee Brewers and its longtime radio commentator, Bob Uecker. In 2006, Uecker sought an injunction against someone named Ann Ladd, claiming Ladd was harassing him. Ladd was charged with felony stalking around the same time. That criminal charge was dismissed, but the civil court issued the injunction requested by Uecker against Ladd.
Ladd then filed a defamation lawsuit against Uecker, claiming the declaration he provided in support of the injunction was defamatory. But we know a declaration filed in court can’t be defamatory because it is privileged. The judge knew that too, and held that the allegations failed to state a claim because they were privileged. (See, I don’t make this stuff up.)
But as judges often do, he continued to analyze the case under other considerations. The declaration by Uecker, which is a public document, had been published on the Internet at thesmokinggun.com. Ladd was suing for that publication, but it had occurred more than two years prior to the time she brought her action, and would therefore be barred under Wisconsin’s statute of limitations. Ladd argued that the statute had not run, because the declaration was still available on the site, and that every time someone saw the continuing publication, that started a new limitation period.
The court did not agree. It chose to follow the “single publication rule” which holds that, like something published in a newspaper, an article published on the Internet starts the statute of limitations clock running, and that clock is not reset every time someone sees the article, or even when it is republished by another site. If such were the case, the statute of limitations would go on forever on the Internet.
Morris & Stone Victory — Another Blow Against Internet Defamation
A hard-fought victory for free speech.
The defendant in this case was Elvia Orrillo-Blas, an emergency room doctor at a hospital in the Inland Empire. When it was decided that her annual contract to provide services to the hospital would not be renewed, she took to the Internet, posting multiple defamatory messages on Craigslist.com about the director she felt was responsible for the decision not to renew her contract. In the anonymous postings, she would sometimes pretend to be a nurse or patient at the hospital when making her false claims about the director. The director retained us to sue for Internet defamation.
One problem we had to overcome in order to prevail in this action was the fact that the director was so well regarded that witness after witness talked glowingly about him during the trial. That was great to show the falsity of the statements published by the defendant doctor, but it also showed that the Plaintiff had not suffered a significant loss of reputation since the witnesses still loved him. The jurors later explained that this love-fest was the reason they awarded a relatively moderate amount of compensatory damages, but during the trial this left me to wonder if they were fully appreciating the malice behind what defendant had done.
Not to worry; the jury came roaring back in the punitive damages phase and made very clear with the amount of punitive damages that the defendant doctor needed to be punished for her conduct. In closing argument I had explained that cases like this actually promote freedom of speech and the marketplace of ideas that we hold so dear in America, because those ideals are not served by knowing falsity. The jury apparently agreed.
As the icing on the cake, the judge then granted our request for injunctive relief, prohibiting the doctor from defaming our client in the future. Although each instance of defamation is actionable, repeatedly suing a serial defamer is not the best solution because of the expense and delay in getting to trial. With an injunction from the court, the doctor can actually be jailed if she repeats her false claims about our client and is found to be in contempt of court for defying the court’s order.
More Judges Catching Up to the Times
Trials are decided by humans with all their human experiences. Whether a judge or jury is deciding a case, your relative success will depend on the nature of those experiences, and your ability to persuade the trier of fact to set them aside when appropriate. Internet defamation cases necessarily require some understanding of the Internet by the trier of fact, or at least the willingness to absorb new concepts. Thankfully it has not happened to me in any of the cases I have handled, but I still hear horror stories about judges who make comments like, “no one really believes anything they read on this . . . In-ter-net,” or “what is this google you keep talking about?”
At least a Small Claims Judge in Canada appears to understand a thing or two about Internet defamation. In the case, the defendant took a disliking to a local dog kennel for whatever reason. She visited some animal discussion boards, and posted comments about the kennel, referring to it as a “puppy mill.” The kennel took exception to this characterization, and sued for defamation in Small Claims Court. (In one of my earliest postings, I sing the praises of suing for defamation in Small Claims Court. Take note how effective that can be.)
The court found in favor of the Plaintiff dog kennel, and awarded $14,000 in damages. The court correctly determined that calling a dog kennel a “puppy mill” is a bad thing. But what caught my eye was the simple logic of the judge, the sort of logic that sometimes eludes other judges. First he was upset that these postings were made on the Internet, recognizing that “the use of the Internet worsens the defamation.” That may seem extremely self-evident to most of us, but remember those aforesaid judges that still view that Internet as a fad among kids that will soon pass. The judge also stated that the defamation was “particularly malicious” because the purpose of the defendant was to put out of business a kennel that supported a family of 11.
Wow. A judge that recognizes that Internet defamation can be more egregious than verbal defamation, and who views the conduct from a real world perspective of how it impacts the people behind the business. Thank you Canada.
No, I Wasn’t Kidding About the Wisdom of Walking Away
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.
Tony La Russa Drops Action Against Twitter
Even when a lawsuit is weak on merit it sometimes achieves its purpose. I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.
Take the case of Tony La Russa, famous baseball manager. Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal. La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.
La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit. But, obviously, this is not a typical CDA situation. Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material. But there are some interesting side issues. For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books. In that case, the Digital Millennium Copyright Act would trump the CDA. Like a copyright, people have a pecuniary interest in there own identities. Should Twitter be permitted to assist in those that would steal that identity?
The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account. Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?
For more on this story, go here.
Another Blogger Bites the Dust
Another blogger learned this week that you are judged by what you say.
Tara Richerson is a teacher in Washington. She had been blogging since 2004 and many of her postings were about her job. According to court records, when she was demoted from her position as a coach at the school, she wrote the following missive:
“Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. … But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him. … And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community. … Mighty White Boy looks like he’s going to crash and burn.”
The 9th U.S. Circuit Court of Appeals concluded that Richerson’s blog contained “several highly personal and vituperative comments” that justified the Central Kitsap School District’s decision to transfer her from her job as a curriculum specialist and instructional coach to a classroom teaching position. The court found that Richerson’s speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers.
“Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog,” the court wrote in its Tuesday opinion. “Accordingly, the district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson’s First Amendment interests.”
The court ruled that Richerson’s blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it.
According to court records, Richerson was transferred out of her coaching job in July 2007 after school officials discovered her blog months earlier. Another of the blog entries that Richerson came under fire for was one entry in which she allegedly attacked a teacher and union negotiator, who complained to school officials about it. It read: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”
The lesson to learn is that you can and will be held accountable for the things you say. Even if your comments do not cross the line into defamation, they may still be considered inappropriate for other reasons. It is disingenuous for people like Richerson to cry foul and cite the First Amendment when they are held responsible for their own comments. The First Amendment does not state that you can say whatever you want with no fear of repercussion. If someone feels strongly enough about an alleged wrong to blog about it, then they should be willing to stand by those convictions.
The oral argument in front of the Ninth Circuit Court of Appeal is fascinating, and can be heard in its entirety here. I explain to clients that judges and justices tend to paint with a broad brush, and if you find yourself arguing technicalities and minutia, you are probably not going to prevail. Richerson’s attorney did an outstanding job, but he was forced to argue that the adverse job action was based on benign blog posts, not the post set forth above. That was a tough argument to sell.
Communications Decency Act Shields Craigslist from Liability
I’ve explained here several times that the Communications Decency Act is a necessary evil because you could never have open forums for discussion on the Internet if the operators of the websites were required to read and approve every message posted. Perhaps the Amazons of the world would have the resources to hire a huge staff to monitor all postings, but any popular discussion site that started to attract thousands of visitors would likely be required to stop offering a public forum if it became responsible for the things posted by visitors.
Some attorneys still don’t understand this reality. Take the case of Richard M. Berman. Poor Richard was shot by someone using a handgun purchased from a for sale ad posted on Craigslist. He hired attorney Paul B. Dalnocky, who sued Craigslist for more than $10 million, claiming it was responsible for the handgun ending up in the bad guy’s hands. The civil complaint alleged Craigslist “is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the goods and services” sold on its site. When interviewed for an article on Law.com, attorney Dalnocky said, “We weren’t seeing Craigslist as a publisher — we were seeing it as a regular business that should have monitored its business better. I mean, how can you run a business with millions of ads and have only 25 employees monitoring it?”
No, Mr. Dalnocky, the question is, how would a service like Craigslist be possible if attorneys could sue for things posted in those millions of ads? The answer is it wouldn’t be possible. You allege “millions” of ads are posted on Craigslist. Let’s assume a person could review 1000 ads during a work day. That’s probably not realistic, because that means the person would need to review more than two ads per minute (assuming an eight-hour work day with two 15 minute breaks). Some ads go on for pages so I don’t think one could really review more than two ads per minute, but let’s go with 1000 just to keep the numbers simple. Thus, Craigslist would need to hire 1000 employees for every one million ads posted. It’s going to be very difficult for old Craig to maintain his business model that permits me to post free ads for my 8-track tapes if he is required to hire thousands of employees.
And, Mr. Dalnocky, what would those thousands of employees be looking for, exactly? Guns can be legally sold, and I did not see anything in the court’s decision about any alleged illegality of the gun sale in question. Rather, your complaint alleged that Craigslist was liable because it breached its “duty of care to ensure that inherently hazardous objects, such as handguns, did not come into the hands of . . . individuals, such as Mr. Ortiz.” (Ortiz was alleged to have shot Richard Berman.) What, in that ad, would have put the reviewer on notice that this gun sale was going to end badly?
The attorney representing Craigslist is no doubt a subscriber to the Internet Defamation Blog, and therefore knew that the Communications Decency Act (CDA) is not limited only to claims for defamation. Craigslist moved for dismissal under §230, which states that no “provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that no “cause of action may be brought and liability imposed under any State law that is inconsistent with this section.”
The court properly dismissed the case under the CDA because, let’s say it all together, a website operator cannot be held liable for comments (or ads) posted by third parties, and is not liable for failing to somehow monitor those comments (or ads). One of the earliest cases involving the CDA was an action against Ebay. Someone sued, claiming that Ebay should be held liable for the counterfeit items that were being posted and sold, trying to impose on it an obligation to review and investigate every ad. Ebay prevailed in that action, and Craigslist properly prevailed in this one.
The full court decision can be found here.
Trial Judges Still Struggling With Application of Anti-SLAPP
A recent decision by the California Court of Appeal, which reverses a trial court’s decision to dismiss the underlying defamation case, beautifully illustrates how trial courts still do not understand the anti-SLAPP statute. It’s unfortunate the plaintiff had to go through an appeal in order to educate this particular judge. The following summary of facts and quotes are taken from the Court of Appeal’s opinion. I apologize for the long post and multiple citations, but I want to have a place where people can be directed for the proper anti-SLAPP considerations and standards.
The action appears to have roots going back to 2003, when there was an altercation between Rabbi Chaim Seidler-Feller, Director of Hillel at UCLA, and Rachel Neuwirth, a journalist working in the Los Angeles area. Neuwirth alleged that Seidler-Feller had attacked her without provocation in October 2003. Shortly after this attack, she alleges in her complaint, “disciples of Seidler-Feller maintained in public print that [she] had provoked the attack by making inc[e]ndiary statements” to him. Neuwirth denied these allegations. As a result of her injuries, she said, she sought legal redress and reached an “amicable settlement” with Seidler-Feller and Hillel accompanied by a letter of apology from Seidler-Feller, “published in various tribunals,” in which he “acknowledged that the attack upon [Neuwirth] was unprovoked, that he took full responsibility for said attack and apologized for his actions.” Continue reading
“Lying” Comment Was Not a Verifiable Fact Given Context
Tom Martino
Context is everything in a defamation action.
In the recent Ninth Circuit case of Gardner v. Martino, plaintiffs sold a new boat from their showroom. The buyer of the boat claimed the boat was defective, and went onto a radio show to talk about the failure of the plaintiffs to address the problems. During the show, the host, Tom Martino, listened to the complaints of the buyers and commented that the sellers were “lying” when they claimed that they had tested the boat after performing certain repairs.
The plaintiffs/sellers took umbrage with that remark, and sued Martino, the radio station and the production company 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.
I have commented here before that far too many attorneys think they can take on a defamation action, treating it like any other tort claim. This case illustrates what can happen when the attorney does not fully understand all the nuances of free speech and defamation. No doubt when the attorney was told the radio host called the plaintiffs “liars” that was viewed as an automatic case of defamation. And, in fact, in most cases calling someone a liar would constitute defamation. But here, the attorney apparently failed to consider the context of the statement.
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.
The two corporate defendants in this case were Westwood One and Clear Channel Communications, both huge companies. No doubt these communication giants hired big firms that billed hundreds of hours at $650 per hour. Now the plaintiffs, who felt hurt by being attacked on the radio and just wanted to clear their reputations, are on the hook for perhaps $100,000 in legal fees.
I am all in favor of taking steps to defend your reputation – it’s what I do – but proceed with caution with an attorney that really knows this area of the law.
