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. Most likely the story goes something like this:
“Joe is such an asshole. I told Dave about how I had heard that Joe 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 starting a backfire to stop a fire. 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.
[Update] I had recommended to another caller that her case was perfect for my Small Claims approach. She said the defamer would not stop defaming her, so I suggested that each time she learned of another defamation, she should drag him to court again. She took my suggestion to heart, and has sued him numerous times, and has prevailed every time, with total damages approaching $50,000. As you can see, a Small Claims action is not only a very streamlined and cost effective way to proceed, it can also be very lucrative.
Is there a way to stop Internet defamation when you have limited funds to hire an attorney?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation?
The Small Claims Court Approach
In Superior Court, the judge can craft an equitable remedy along with awarding any damages. In other words, if you sue someone for Internet defamation, the judge can not only award money damages, he or she can order that the defendant remove all defamatory postings from the Internet. Small Claims Court, on the other hand, can only award money damages – the judge is not permitted to fashion any sort of equitable relief.
For this reason, most attorneys never think to recommend Small Claims Court for a defamation action since the court has no power to remove the offending posts. However, for a personal grudge match on the Internet, Small Claims Court can be very effective. In California, you can recover up to $10,000 in Small Claims Court – certainly enough to sting a defendant and make him think about the “value” he is receiving in return for his false statements. And while I’ve never tested the point (attorneys are not allowed in Small Claims Court), an argument could be made that an Internet defamation is an ongoing harm. Thus, after successfully suing, if the remark still remains, you could theoretically bring another action (subject to the One Publication Rule). And certainly every new defamatory post would support a new action.
Most of the time, after you obtain a judgment, unless the defendant has a mental disorder, he or she will be very willing to remove the offending material to avoid paying the damages if that option is offered. And therein lies the strength of suing in Small Claims Court when you can’t afford to sue in a higher court. Even though the court can’t order the defendant to act in a certain way, the judgment you obtain will put you in a strong bargaining position.
Don’t underestimate the power of a court judgment, even one that comes from Small Claims Court. A defendant may have no ability to pay today, but a judgment is good for ten years, and can be renewed for another ten, all the while earning interest, and all the while damaging the defendant’s credit. And defamation is an intentional tort, meaning it can’t be discharged in bankruptcy.
Finally, even if you never collect a dime, a judgment from any court can go a long way to clearing your name.
“Joe, I heard that Bill was saying you cheated him on a business deal. Is that true?”
“Bill was saying that, and I took him to court for defamation and won. The judge ruled that everything Bill was saying was a lie. I didn’t want to have to sue him, but I’m not going to let someone get away with calling me a crook.”
A famous example of this approach involved Teddy Roosevelt. During the Presidential campaign, he was accused of frequently being intoxicated. He sued and won, and all the papers reported how he had proven that he was not a drinking man. The amount he sued for and won? Six cents.
Many years ago I worked as a volunteer Small Claims Judge in Arizona, and it was sad to see cases where I knew the person was probably entitled to the damages they were seeking, but they were not able to present sufficient evidence to prove the case because they came unprepared. You are going to be suing for as much as $10,000, so take the time to do it right. Here is an excellent guide to prepare for Small Claims Court: