An Emotional Distress Claim Should Not Be Undertaken Lightly
The case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, while at the same time illustrating an important SLAPP rule of law.
Sometimes I will get a call from a potential client within minutes after they were fired. They want to sue for wrongful termination and they want to sue NOW!
But 15 minutes after an employee has been fired, what are the damages? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”
Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.
If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then? Continue reading
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 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.
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.”
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
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.”
The complaint further alleges that notwithstanding Seidler-Feller’s admissions, “in an effort to vilify and damage [Neuwirth’s] reputation further,” someone named Richard Silverstein published on the Internet a statement which “in effect called [Neuwirth] a liar” and took the position that Neuwirth had, in fact, provoked the attack and that Seidler-Feller’s “original version” was more credible than Neuwirth’s. Later, on May 3, 2007, Silverstein published on the Internet an article in which he referred to Neuwirth as “a ‘Kahanist swine’ thereby accusing [her] of being a member of a terrorist organization” and exposing her to hatred, contempt and ridicule and injuring her in her occupation in violation of Civil Code section 45. “The United States Department of State has issued . . . a list of terrorist organizations which include such organizations as Al-Qaida, the Palestine Liberation Front, and Kahane Chai, among others. To refer to a person as a Kahanist is to brand that person as a terrorist.” Silverstein knew his publication was false, and it constituted libel per se, she said.
On May 13, Neuwirth alleged (in her second cause of action), Joel Beinin joined the fray and published on the Internet a statement falsely accusing her of having made a death threat against him. At the same time, Silverstein issued another statement on the Internet reiterating the allegation Neuwirth had made a death threat against Beinin, although Silverstein knew the statement to be false. Accusing her of committing this crime, she alleged, also constituted libel per se under Civil Code section 45.
In response to Neuwirth’s complaint, both Silverstein and Beinin filed anti-SLAPP motions. (Code Civ. Proc., § 425.16.) In his motion, Silverstein asserted Neuwirth’s complaint arose from speech in a public forum regarding an issue of public interest as both he and Neuwirth write about the “Middle East conflict—a highly controversial matter of great public importance and political interest.” He attached copies of the statements to his declaration. Because he has chosen to advocate tolerance and peaceful reconciliation, he said, his “work has attracted vitriolic criticism from those who, unlike him, believe that Arabs and Jews should not live together.” For his part, Beinin basically argued that the claim of a death threat was true and protected on a number of grounds.
In a 28-page ruling, the trial court granted both special motions to strike and subsequently entered judgment in favor of both Silverstein and Beinin. While the defendants proclaimed their victory, Neuwirth filed her appeal.
Analysis for an anti-SLAPP motion.
A strategic lawsuit against public participation (SLAPP) “seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16, the “anti-SLAPP” statute, was enacted as “a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Id. at pp. 1055-1056.) In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action “arises from protected activity.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
In the Neuwirth case, the trial court properly concluded that the comments alleged to be defamatory were at least arguably protected speech. But “protected speech” does not mean that the speech is immune from prosecution, and that is the distinction that appears to baffle many judges. Defamatory speech is never protected.* “Protected” simply means that it is subject to a higher level of scrutiny. The second part of the analysis still remains.
“[O]nce the defendant establishes the challenged cause of action . . . arise[s] out of the exercise of petition or free expression rights, the burden shifts to the plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. . . . The Supreme Court has defined the probability of prevailing burden as follows: ‘[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’” (Hutton v. Hafif (2007) 150 Cal.App.4th 527, 537.)
“For purposes of this inquiry, ‘the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ . . . In making this assessment it is ‘the court’s responsibility … to accept as true the evidence favorable to the plaintiff … .’ [Citation.] The plaintiff need only establish that his or her claim has ‘minimal merit’ . . . to avoid being stricken as a SLAPP.” (Ibid., citations and footnote omitted; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 ["the anti-SLAPP statute requires only ‘a minimum level of legal sufficiency and triability’ [citation]“], quoting Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.)
“Section 425.16 does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning. It subjects to potential dismissal only those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits (§ 425.16, subd. (b)), a provision we have read as ‘requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim’ (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412 [58 Cal. Rptr. 2d 875, 926 P.2d 1061] (Rosenthal)). So construed, ‘section 425.16 provides an efficient means of dispatching, early on in a lawsuit, [and discouraging, insofar as fees may be shifted,] a plaintiff’s meritless claims.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63.) “The purpose of section 425.16 is not to prevent lawsuits that arise from the exercise of constitutional rights, but it is to deter frivolous and improperly motivated lawsuits arising from those rights.[] Section 425.16 provides a ‘fast and inexpensive unmasking and dismissal’ of frivolous claims that are subject to the statute.” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089, citation and footnote omitted.)
Plaintiff’s claims must be taken as true.
The anti-SLAPP system fails when judges cannot make the distinction between the two parts of the analysis and engage in a weighing process. For example, assuming Neuwirth is a public figure, then she would need to show malice in the comments that were made about her. But in noting the obvious, the Court of Appeal stated that said malice could be inferred from the comment “Kahanist swine.” Some courts appear to believe that malice must be shown by some extrinsic evidence of evil intent, when in fact that proof can be taken from the words themselves.
If, in turn, there was a dispute over the meaning of that term (defendant claimed it was harmless), then the interpretation offered by plaintiff must be taken as true (who said it amounted to calling someone a terrorist). The standard is akin to that of a motion for summary judgment, where the motion must be denied if there is any material issue of fact. In other words, in determining whether the plaintiff is likely to succeed with the defamation claim, the standard is, “can the plaintiff succeed IF her evidence is believed?”, not “can her evidence overcome that being claimed by defendant?”. After all, the filing of an anti-SLAPP motion stops the discovery process, so it is to be expected that a plaintiff may have minimal evidence at that point.
The complete opinion can be found here.
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* Defamatory speech is never protected, but that must be kept in context. For example, if Joe Citizen falsely testifies during a trial that the plaintiff cheats on his taxes, Joe can never be prosecuted for defamation for that speech. In that instance there is no defamatory speech that is being protected because the speech by definition is not defamatory. Defamation requires a false, unprivileged statement. Comments made in court are privileged, and hence the statement cannot constitute defamation.
“Lying” Comment Was Not a Verifiable Fact Given Context
Tom Martino
Context is everything 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.
You Can’t Sue Me, I Have the RIGHT to Defame You!
One of our current defamation suits involves a man that was accused of being a pedophile. He is not a pedophile, and the defendant freely admits that she does not really think he is a pedophile. Indeed, the Defendant says that our client has never done anything that would warrant her making such a claim. But that doesn’t stop her from making the claim anyway, because she doesn’t like him. That’s why we are suing her for defamation.
Here’s where the case gets stranger. Even though Defendant admits our client is not a pedophile, her attorney brought an anti-SLAPP motion claiming that our complaint should be thrown out because Defendant’s false statements are protected speech. Confused? Let me see if I can walk you through opposing counsel’s logic.
A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant abandons the criticism to make the lawsuit go away.
To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint. The court then decides whether the speech in question is protected free speech.
Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
So, the first three types of protected speech arise from the traditional forums – statements made in places like court, during a city council meeting or at some other public forum. The fourth criteria can be outside a public forum, such as on a blog on the Internet, but that section requires that the matter being discussed concern a “public issue.” There are many competing court decisions that have tried to define what constitutes a public issue.
In our case, defense counsel argued that the Defendant’s false claim that Plaintiff is a pedophile is protected speech because stopping that behavior is a matter of public interest. He actually argued with a straight face that even when the accusation is a complete lie, one can accuse another of being a child molester and be protected from suit because the subject matter is so important. So, under defense counsel’s approach, certain topics would automatically enjoy heightened free speech protection, regardless of the circumstances. This obviously would make the job of defamers easier, because we could simply create a list of topics we find are important enough to be matters of “public interest” and the defamer could falsely accuse intended victims of those items, knowing the speech is protected.
The judge didn’t think that was a very good idea either. Motion denied. Defamatory speech is not protected speech under the anti-SLAPP statute.
Facts versus Law on Summary Judgment Motions
When pursuing an action for defamation, on the Internet or off, the first hurdles faced are the dispositive motion to strike under the anti-SLAPP statute and/or a motion for summary judgment. In their desire to clear their dockets, courts sometimes overreach when ruling on these motions. A recent case illustrates the point on a motion for summary judgment, where the court confused the distinction between facts an law.
In a persuasive holding the 9th Circuit Court of Appeals indirectly reiterated to litigators and the courts the importance of distinguishing questions of fact and law on motions for summary judgment.1 At the district court level in Posey v. Lake Pend Oreille School District, plaintiff Posey lost his first amendment retaliation claim on summary judgment because the court concluded that Posey acted as a public servant purely as a matter of law. Taking the issue up on appeal, Posey contested whether his conduct occurred pursuant to his official duties, providing the 9th Circuit with the opportunity to decide precisely what type of question Posey had presented to the district court, and whether the issue was proper for summary adjudication.Initially, the Court noted the elusive and vexing nature of the distinction between questions of law and fact, and chose to rely on guiding language from the U.S. Supreme Court: “Facts that can be ‘found’ by ‘application of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.’ ” Moreover, ‘An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question’ at issue . . . for ” ‘the rule of independent review’ will always require the court [to] independently . . . evaluate the ultimate constitutional significance of the facts found.”
The court went onto conclude that the issue of whether speech is made by a private citizen or public actor is a mixed one of fact and law, further concluding that the parties dispute over the scope of Posey’s precise duties presented a genuine issue of material fact sufficient to defeat the appellee’s motion. Aside from the obvious effect on 1st Amendment pleading, the case also kindly reminds of the importance of isolating each issue in opposing motions for summary judgment. As done by Posey, making a factual issue out of the basis upon which the court will decide a question of law may very well carry a matter to the trier of fact, which is exactly where distressed and sympathetic plaintiffs’ cases truly belong.
1. Posey v. Lake Pend Oreille School District, et al., 2008 DJDAR 15780.
