Using a Defamation Action to Gather Evidence of the Defamation is a Risky Proposition

anti-SLAPP Trap

Watch for the anti-SLAPP trap.

People love to gossip, and they love to tell you that you are being gossiped about. But gossip is not evidence. It is a risky proposition to rely on gossip for a defamation action.

I receive calls from prospective clients who are absolutely confident that someone is defaming them. But do they have a witness to testify to what is being said? Can they offer an email as evidence? Perhaps a posting on social media? Well, no, but all I need to do is to file a complaint for them, and then we can start taking depositions to get to the heart of it.

That is a very dangerous course to chart.

In some rare circumstances, that might be viable, but watch for the ever present specter of an anti-SLAPP motion. A call today demonstrated the risks once again. The call was from an attorney, who thought he had been snared by the anti-SLAPP trap, and was seeking my guidance on how he might extricate himself.

(Changing the facts sufficiently to protect privacy), the attorney represents an employee in a wrongful termination action. The client was of course upset about being terminated, claiming that it resulted from him reporting illegal conduct, but he was equally upset about the lies the employer had supposedly told to the EDD and others, about the supposed malfeasance that had led to his termination. The client assumes that the lies were not confined to the EDD, based on some comments by a third party after his termination. The attorney knew enough about anti-SLAPP law that he steered clear of suing for the statements made to the EDD, but the defamation cause of action basically mirrored what the employer had said to the EDD.

For example, let’s say that the employer informed the EDD that the employee was fired after being seen double dipping his chips in the onion dip at a company luncheon; an act we would all agree is proper grounds for termination. Later, he goes into a bar, and when he tries to take the stool next to some other patron, that person says, “get away from me you disgusting double-dipper!” So the employee knows that the employer must be spreading the lie beyond the EDD, since why else would the person have made that statement? Based on this set of circumstances, the attorney alleged that the employer is defaming the terminated employee to third parties.

But now the employer has filed an anti-SLAPP motion, claiming that the employer made that statement only to the EDD, so the employee must be suing for statements made to the EDD, which is protected speech under the anti-SLAPP statute. Now, faced with the anti-SLAPP motion, what evidence can the attorney offer to prove the statement was made to a third party? All he has is a random statement from some unidentified person at a bar. You just can’t bet your client’s money on the assumption that you will be able to uncover a witness to support your defamation claim, especially since an anti-SLAPP motion freezes discovery (subject to leave by the court).

There might still be hope.

The case presents an interesting issue. The employer will clearly prevail on the second prong of the anti-SLAPP analysis, since the employer will simply provide a declaration stating no one within the company made the statement to any third party other than the EDD, and the plaintiff will have no evidence to counter it. But I told the attorney there is hope.

The complaint does not say that Plaintiff is suing for the statements to the EDD. Defendant is attempting to rewrite the allegations to match its recitation of the facts. Plaintiff’s action will not carry the day absent any evidence of the statements to third parties, but he might survive the anti-SLAPP motion by explaining that the allegations as stated – not as defendant chooses to interpret them – do not bring the complaint under the anti-SLAPP statute.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

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