Civil Code 48a

Act Natural When Contemplating Litigation

I often get calls regarding wrongful termination where the terminated employee – terminated months earlier – has done nothing to find a new job, concluding that a new job would minimize his damages and hurt his case.  That’s a crazy case of the tail wagging the dog.

Lately I am receiving defamation calls where the victim of the defamation is following a similar counterintuitive strategy. The call usually goes something like this:

Caller: “The Orange County Register published an article saying I cheat on my taxes and am a bad dancer.”

Me: “Is that a false statement?”

Caller: “Entirely false. I’m an excellent dancer!”

Me: “When did they publish this article?”

Caller: “About three months ago.”

Me: “Did you ever demand a correction?”

Caller: “No, I want to sue for damages, not a retraction. If they printed a correction, that might minimize my damages.”

That mentality is problematic on several levels. First, it shows that the caller is not as interested in preserving his reputation as he is in getting money. Second, if an attorney ever did take the case, the failure to ask for a correction would be a problem for the jury. He was so upset by the defamation (the tax part, not the dancing) that he is asking us to give him millions, but he never tried to minimize the loss of reputation by asking for a correction?

Finally, California Civil Code § 48a requires someone who has been libeled by a newspaper or slandered by a radio station to demand a correction “within 20 days after knowledge of the publication or broadcast or the statements claimed to be libelous.” If a plaintiff fails to make the demand in the allotted time, he or she is limited to special damages – the actual, quantifiable damages caused by the defamation, such as loss of business. Fail to make the demand within 20 days, and you give up all general damages, which are 95% of the damages in most defamation cases.

Litigation is a solution to a problem, but it should never drive your life. Don’t act in some artificial manner to “preserve” an action. By all means, save some screen shots as evidence for your action, but if you act to keep the defamatory comments in place, that will hurt your case far more than it helps.

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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