Internet Defamation Blog

posted by Aaron Morris on Aug 4

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.

posted by Aaron Morris on Sep 20

California Civil Code Section 47 affords certain privileges that protect a person from liability, even if he speaks or writes something that would otherwise be defamatory. Civil Code section 47, subdivision (c), provides that a communication is privileged if it is made “without malice, to a person interested therein, (1) by one who is also interested….” Trial courts, anxious to clear their dockets, sometimes read far too much into this simple statute, and find a privilege in cases the statute was never intended to cover.

In Mamou v. Trendwest Resorts, Inc., an employee brought action against his employer, alleging national origin discrimination, retaliation, and defamation. The Superior Court, Santa Clara County, granted Trendwest’s motion for summary adjudication, and employee appealed.

The defamation claim was based on Mamou’s assertion that Trendwest had told other employees that he was starting his own competing business, and had used Trendwest information for that purpose. This would be both illegal and unethical, and therefore qualifies as defamation. However, the trial court found that the communications were covered by Section 47, and on that basis granted Trendwest’s motion for summary judgment, thereby dismissing Mamou’s case.

Application of the Section 47 privilege, as with any conditional privilege in defamation law, involves a two-step inquiry. The first question is whether the factual predicate for the privilege was present-whether, in traditional terms, the “occasion” was “privileged.” (Taus v. Loftus.)  At trial the defendant bears the burden of proof on this question.  If he succeeds, the burden shifts to the plaintiff to show that the statement was made with malice.

For purposes of a statutory qualified privilege, “[t]he malice referred to … is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.  The factual issue is whether the publication was so motivated.  ‘Thus the privilege is lost if the publication is motivated by hatred or ill will toward plaintiff, or by any cause other than the desire to protect the interest for the protection of which the privilege is given’.” (Agarwal v. Johnson.)

The Court of Appeal found that a jury could easily find that the statements by Trendwest personnel were motivated by ill will towards plaintiff.  Mamou alleged that one was hostile toward him as a member of the “Syrian regime” some members of Trendwest management had, inferentially, undertaken to purge.  A jury would be entitled to find that these feelings would naturally engender spite and ill will toward Mamou, and that this was what motivated Trendwest personnel to make the statements Mamou claimed were defamatory.

This was just one example, but the Court of Appeal concluded that it was enough for Mamou to show evidence of a single triable issue of fact. Since he obviously did, the trial court erred by granting summary judgment on the defamation cause of action.

The analysis is somewhat circular, and sometimes escapes trial courts. Inter-office communications about an employee may well be privileged under Section 47. Say, for example, an employer believes that an employee stole from the company, and fires the employee on that basis.  Thereafter, when asked why the employee was fired, the employer tells other employees that he had stolen from he company. If the employee sues for defamation, and can prove that he never stole from the company, would he prevail?  Probably not, because in this hypothetical the employer genuinely believed that the employee was guilty.  With no showing of malice, the Section 47 privilege applies.

But where the situation gets more complicated is when the employee is claiming that the defamation itself is the evidence of the ill-will constituting malice. If in our hypothetical there was no basis for the employer to believe that plaintiff was responsible for the theft, then telling that story may be sufficient showing of malice. This is a distinction that is sometimes difficult to get through to the trial court.