I get many calls from victims of Internet defamation who want me to go to court and get an order to stop the defamation. In other words, they want a court order that stops someone from speaking or publishing statements that the victims deems to be defamatory. Is that possible?
Like most legal questions, the answer is, “it depends.”
California law is very clear that after a trial has determined that the statements being made are defamatory, the court can order the defendant to stop making those statements. The reason is that defamatory speech is not protected, so once it has been found to be defamatory, the court can order the defendant not to repeat the defamatory statements. Once the court has issued such an order, it can be enforced just like any other court order, with the court assessing sanctions and even jail time if the defendant refuses to comply.
The much tougher challenge is getting a court to order a defendant to stop defaming the victim before there has been a trial. Typically, it takes at least a year to take a matter to trial, and that may be far too long for the victim. A temporary injunction can be obtained in a matter of days, so that affords a much faster remedy if it is available.
But there is a problem. An injunction is usually issued with little or no time for the defendant to oppose it. The procedure is that the plaintiff files an ex parte application with just 24 hours notice to the other side. The plaintiff’s attorney may have taken weeks to prepare a carefully crafted application supported by any number of declarations from witnesses, but the defendant gets just 24 hours to put together an opposition. Indeed, it’s far worse, because notice must be given 24 hours in advance, but the application may not be served until just four hours before the hearing, depending on the procedure followed by a particular court. If good cause can be shown, the ex parte application can be sought with no notice to the other side. A defendant could be ordered to stop speaking before the judge has ever heard his side of the story. Is that fair?
To make the system a little more fair, the first order that is issued by the court is only temporary, hence the name Temporary Restraining Order (“TRO”). As a part of issuing the TRO, the court must also set a hearing about ten days later, to determine if a Preliminary Injunction will be issued. In other words, the court issues a TRO pretty much based only on the plaintiff’s version of the facts, but that order is only good for about ten days, at which time the defendant gets to file his papers opposing the Preliminary Injunction. Why is it called a “Preliminary Injunction”? Because, as the name implies, it is a “preliminary” injunction that is in effect only until the matter can be decided at trial. If the plaintiff proves his case at trial, the injunction then becomes a “Permanent Injunction”. (That name is a little misleading, because by its terms the Permanent Injunction may only be limited to a given length of time.) If the plaintiff does not prove his case at trial, then the injunction is extinguished.
The point of this long-winded explanation is that, as you can see, a TRO and Preliminary Injunction are both issued without the benefit of trial. They are usually supported only by signed declarations, and the defendant has no opportunity to cross-examine those witnesses. We cherish the right of free speech in this Country, and a judge should not be ordering someone not to speak before he or she has seen all the evidence, and the defendant has had the right to face his accusers (more of a criminal concept, but the reasoning still applies). For this reason, the courts have long held that any order that prevents someone from speaking, before trial, is a prior restraint and is unconstitutional. Therefore, most attorneys will tell you that it is impossible to get a restraining order to stop a defamer before trial.
But it isn’t necessarily so. The recent unpublished opinion in Burrett v. Rogers illustrates a narrow exception, arising from the tension between the right of free speech and the right not to be harassed.
California Code of Civil Procedure Section 527.6, subdivision (a)(1) states:
“A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.” Section 527.6, subdivision (b)(3) states: “‘Harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Emphasis added.)
In Burrett, the plaintiff alleged that Rogers was harassing her in a number of ways, and when she requested a TRO, asked the trial court to enjoin Rogers from “using any social media forums or other form of harassing . . . written, video, quaro (sic) forum to harass and defame any members of our family. This would include removing the current postings and no longer stalking our parish, schools, and workplaces to try to find out information.”
The trial court denied that part of the TRO request, finding it was unconstitutional prior restraint, and set the matter for a hearing on the Preliminary Injunction. (The court also refused to order Rogers not to attend plaintiff’s church.) Rogers filed an extensive opposition to the requested injunction.
After the hearing on the Preliminary Injunction, at which Burrett and Rogers both testified, the trial court issued the injunction, and ordered Rogers have “no social media harassment with family names”. Rogers appealed, claiming this amounted to unconstitutional prior restraint.
The Court of Appeal disagreed, reasoning as follows:
While, generally speaking, an injunction may prohibit the repetition of statements found at trial to be defamatory without violating the First Amendment to the United States Constitution (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1144, 1157), Rogers asserts the civil harassment restraining order is unconstitutional because “there has been no trial and no determination on the merits that any statement made by Rogers was defamatory as to Burrett and her family.”
The civil harassment restraining order does not enjoin defamatory speech. Rather, the order provides that Rogers have “no social media harassment with family names” (capitalization omitted). This distinction is critical. Not all speech is constitutionally protected. (Flatley v. Mauro (2006) 39 Cal.4th 299, 313.) “In California, speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) “‘Section 527.6 is intended “to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.”’” (Ibid.) The right to free speech “does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.” (People v. Borrelli (2000) 77 Cal.App.4th 703, 716.)
Rogers cites Evans v. Evans (2008) 162 Cal.App.4th 1157 as support for his argument the civil harassment restraining order is unconstitutional. In that case, the Court of Appeal struck down as unconstitutional a portion of a preliminary injunction enjoining the defendant from publishing “‘false and defamatory’” statements about the plaintiff on the Internet. (Id. at p. 1169.) The court held that part of the injunction constituted an invalid prior restraint because there had been no trial and no determination on the merits that any statements made by the defendant were defamatory. (Ibid.)
The civil harassment restraining order in this case, unlike the injunction in Evans v. Evans, does not enjoin publication of false and defamatory statements. The civil harassment restraining order is constitutional because it enjoins harassment on social media Web sites. Harassment, which is not protected speech, is defined in section 527.6, subdivision (b)(3).
As you can see, the holding is very narrow and will only apply where a plaintiff is seeking a very specific type of injunction, but it is possible.
Every week I get callers complaining about the anti-SLAPP statutes and/or the litigation privilege. The scenario is almost always the same. The caller sued someone for defamation for something they said in conjunction with litigation or an investigation by some government agency, and the caller was hit with an anti-SLAPP motion. The caller is outraged that the anti-SLAPP motion is keeping him from getting damages for the allegedly false statements made in court or court documents.
Anything said in conjunction with litigation is privileged, and cannot form the basis for a defamation action. And since the speech is privileged, a plaintiff can’t make an end run around the statute by just asserting different causes of action. I have written on this topic before, and the prior article shows what the justice system would be like without the litigation privilege. Today I argued an anti-SLAPP motion in Los Angeles Superior Court, and the facts provide a real life example of why the litigation privilege is so essential.
Let’s call the plaintiff in this case John. John decided one day that his employer was discriminating against him, and filed a complaint with the EEOC on that basis. There was then a dispute with his employer, with the employer saying John had violated a company policy and John denying that claim. The employer fired John for the alleged violation. John argued to the EEOC that the termination for the alleged violation was just more evidence of discrimination.
The EEOC investigated John’s claims of discrimination, and during that investigation interviewed our client, who also worked for the company. We’ll call him Dave.
During the interview by the EEOC investigatory, Dave confirmed John’s violation of company policy, and the EEOC concluded that John’s claims of discrimination were unfounded. John was still free to pursue litigation against the company, but he chose another path. He sued Dave, claiming that Dave had lied to the EEOC, and it was because of that lie that John’s EEOC claim was thrown out. According to John, all of his travails — loss of his job, home and family — had been caused by Dave’s statements to EEOC. He sued Dave for slander, libel, negligent infliction of emotional distress and intentional infliction of emotional distress.
Dave had the good sense to come to us, and we responded to the complaint with an anti-SLAPP motion. Although Dave was not a party to the EEOC action, the law is very clear that witnesses are protected as well. As set forth in Code of Civil Procedure § 425.16(e):
As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (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. (Emphasis added.)
John opposed the motion, making the arguments that this was not a “public issue” and that the law did not apply to his claims that were not based on defamation. We had no problem refuting these arguments. The issue of whether a matter is of “public interest” comes up only in the context of free speech claims. The law is settled that when the speech arose out of a right of redress, then the speech is per se a matter of public interest.
As to the assertion that the claims for intentional and negligent infliction of emotional distress could survive the anti-SLAPP motion, the simple answer it that that can’t be the law because the statute would be meaningless. How can speaking to the EEOC be privileged if the witness could be sued because that speech hurt someone’s feelings?
The judge ruled in our favor on all causes of action, striking the entire complaint.
Our neighbors to the North are very American-like, until you get to issues of free speech. Most view Canada as the “least protective of free speech in the English-speaking world.” Reasonable minds can differ on some of Canada’s laws, such as prohibiting the media from identifying criminals until they have been convicted, but most of the law is still based on policies designed to prevent any criticism of the government. Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.
A recent parody video posted on You Tube illustrates just how lacking the concept of free speech is in Canada. The video is a fake cable company ad posted by Extremely Decent Films. It does not mention any cable company by name, and indeed it is specifically directed at American cable companies. Nonetheless, someone lodged a complaint in Canada, and that was sufficient to scare You Tube into removing the video, given the vagaries of Canada’s libel laws (although the video has since been reposted in response to articles such as this one).
It is never defamation to report a fact, even if that fact is that a person was charged with a crime they did not commit. I understand why callers sometimes don’t understand this distinction. The completely innocent caller was falsely arrested, so it seems like a newspaper that reports the arrest is somehow making a false statement that the caller committed a crime. But look closer, caller. The paper did not report that you committed the crime, the paper reported that you were ARRESTED for the crime. Truth is an absolute defense to any defamation claim, and it is true that you were arrested.
I also see this come up often in the context of an expunged criminal conviction. The caller was arrested and convicted for some youthful indiscretion, and later had the conviction expunged. Years later, the caller was either fired from or denied a job because a background investigation revealed the conviction. “But I had that expunged, so they shouldn’t be able to report it to my employer!”, the caller exclaims. The caller wants to sue for defamation, because in his mind the offense was expunged, and therefore it never happened. Since it never happened, it must be defamatory to claim that it did, right?
Not so much. Expungement does not change reality. The caller was arrested and convicted, so it is not a false statement to report that fact, and therefore there is no basis for a defamation claim. Note, however, that I am only talking about defamation claims. There are Labor Codes that make it illegal to discriminate on the basis of expunged criminal convictions. Go here for a discussion of those Labor Code sections.
What I don’t understand is how so many attorneys miss this point and pursue doomed defamation claims for their clients.
A recent example of this that caught my eye is a case out of Nevada. As reported by the Las Vegas Sun, the accounting firm of Deloitte & Touche was hired to perform an audit of a company called Global Cash Access Holdings, Inc., which is a publicly traded company that provided cash access services to the Nevada gaming industry.
The accounting firm uncovered information from an FBI bulletin which claimed that the two men who founded the company – Robert Cucinotta and Karim Maskatiya – were involved in criminal activity. As they were required to do by law, Deloitte & Touche disclosed this information to the audit committee. Cucinotta and Maskatiya were not happy with this disclosure, and felt it amounted to defamation because they were never convicted of any crimes and there was no evidence that they did anything criminal. They sued Deloitte & Touche, claiming that the disclosure cost the company $400 million in market capitalization and cost them $100 million personally.
But can you see why the comments by Deloitte & Touche were not actionable defamation? The accounting firm simply reported information that was contained in the FBI bulletin, as it was required by law to do. Certainly if those allegations against two principals of the company proved to be true it would greatly impact the value of the company, so that information was quite properly reported.
The Nevada Supreme Court, in a decision written by Justice Michael Cherry, said, “We agree with our sister jurisdictions that those who are required by law to publish defamatory statements should be privileged in making such statements.” In this case the court said Deloitte’s communication to the audit committee of the cash access company was required by the federal securities law.
The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.
But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:
Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,’” she says.
Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)
The article then goes on to tell Sadeghi’s side of the story:
Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”
“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”
The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.
Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.” Snell responded with an anti-SLAPP motion.
A quick aside to discuss the “Wall of Wrong”.
A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. In their mind, they have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. (I considered calling it the Shelves of Wrong, but that didn’t seem as catchy.) I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.
The reason this exercise is so important is because the client groups all the perceived wrongdoing together, and views it as a single act that certainly must support an action. But when all the conduct that does not support the action is stripped away, the client will often see that there is no action or that what is left remaining is pretty petty.
One more point to keep in mind in the defamation context is that just because something is false does not mean it is defamatory.
So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a case. Here, there are only two items to examine: (1) the claim that he was going to copy Snell’s business, and (2) that he pressured Snell to lease space in his center with the aforesaid threat. Let’s take those items off the shelf one at a time and decide if they will support a suit.
“I will copy your business.”
Sadeghi alleged that he never said he was going to copy Snell’s business. So, is it defamatory to falsely claim that someone said he was going to copy your business? Of course not. That statement, whether true or false, does not accuse Sadeghi of any wrongdoing. Imitation is the sincerest form of flattery. As the court put it in granting the anti-SLAPP motion, “Pepsi copies Coke. Gimbel’s Copies Macy’s. This is the nature of business.” Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.
Pressuring Snell to lease space.
Is it wrong to pressure someone to lease space in a mall? Of course not. But let’s refine that a little. Is it wrong to say you will copy someone’s business if they don’t lease space from you? Sometimes creating an analogous fact pattern makes it easier to analyze. Let’s say you have a chain of pizza restaurants, and a landlord comes to you and says, “we really want a pizza place like yours in our center, so we just want you to know that if you don’t lease the space, we’re going to create a pizza place just like yours for our center.”
Anything wrong with that? Sure, he’s pressuring you to rent the space with the threat of opening a competitor if you don’t, but that’s fair. When a landlord is looking for an anchor store in their mall, don’t you think they play Macy’s and Neiman Marcus off one another? Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.
So we are left with nothing on the Wall of Wrong, meaning that there is no case to pursue. This case should never have been filed, and the court properly granted the anti-SLAPP motion.
A SLAPP is not saved by numerous legal theories.
The other essential takeaway from this case is that nine causes of action do not a case make if the basis for the action is defective. In other words, if it was not defamatory for Snell to claim that Sadeghi said “If you don’t move into my center, I will copy your business,” then those words will not support any other legal theories like intentional infliction of emotional distress or unfair competition.
Always remember when reviewing a complaint to see if it is a potential SLAPP that the anti-SLAPP statute is not only about speech, it includes the right of redress. Then, whenever you see that the defendant has complained to someone — anyone — consider whether that is a natural step one would pursue in seeking redress.
We were the first firm (that we know of anyway) to successfully pursue an anti-SLAPP motion based on a report to a bank. Our client’s partner had opened a credit card in the name of the company, and when our client found out, he went to the bank and closed the account, informing the bank personnel that his partner had committed fraud. The partner sued for defamation, and we successfully brought an anti-SLAPP motion on the grounds that reporting the fraud to the bank was the first logical step dealing with the fraud. Stated another way, all would recognize that if our client had gone to the police and reported the fraud, that would be protected, but who would go directly to the police without first running to the bank to get the card cancelled in order to stop any false charges? The court agreed with my argument that the report to the bank is part of the same right of redress.
And so it was found in the just reported case of Aber v. Comstock. There, and employee brought a claim against her employer and two of its employees for sexual assault. Comstock, one of the employees who Aber was suing, filed a cross-complaint against Aber for defamation and intentional infliction of emotional distress.
Comstock’s case was likely doomed from the start, because as I have already explained here, suing someone for suing will almost always be a SLAPP, and he even alleged that part of the defamation was the report to the police, which is clearly protected. Specifically, Comstock alleged that Aber “orally published false statements about COMSTOCK to third parties, including but not limited to, friends, employees of Wolters Kluwer, health care practitioners, and the police.” The court reviewed the law that applied to each of these statements, and the most interesting was the analysis of the statement Aber made to her employer’s HR representative.
Were Ader’s statements to the HR department protected under the SLAPP statute?
An earlier case (Olaes v. National Mutual Ins. Co.) had found that statements to a company’s HR department were not part of “an official preceding authorized by law” and therefore did not fall under the SLAPP statute. Here, however, the court noted that a U.S. Supreme Court case (Faragher v. City of Boca Raton) had found that the failure of an employee to take advantage of corrective opportunities afforded by the employer could be used as an affirmative defense against a claim by the employee. So, put them together. Aber did not have to report the alleged assault to HR, but had she failed to do so, then her subsequent action for the assault could have been defeated. Bingo. That makes the report to HR a necessary part of the right of redress, and pulls it into the anti-SLAPP statute.
The case was properly decided, but is a little concerning given the course the court followed. The justices shoe-horned the report to HR into the SLAPP statute by finding it was necessary in order to preserve the ultimate legal action. As we demonstrated with our credit card case, the standard need not be so stringent, and instead the determining factor should be whether the conduct was a natural part of the process.
The question from potential clients almost always comes up in the context of wanting to start a collateral action* for defamation in response to something that is being said in some other court action. Here are the most common examples:
– A husband is going through a divorce, and his wife or a witness or the wife’s attorney filed a declaration with the court stating that he was physically abusive to the children. He wants to file an action against his wife (or the witness or the attorney) for defamation for the false claims made in the declaration.
– Someone is seeking or has obtained a restraining order against the caller, and in support of the request for a restraining order the person filed false declarations and gave false testimony in court. The caller has absolute proof, including emails and recordings, showing that the statements were false. The caller wants to sue for defamation because of all the false statements, which are now a matter of public record.
– An attorney sent a letter to an employee’s employer, claiming that the employee stole property and trade secrets from his former employer, and threatening to sue if the property is not returned or if the employer makes use of any of the trade secrets. Based on the letter, the company fires the employee rather than to run the risk of a lawsuit. The employee did not take any property from the former employer and is not using any trade secrets, and wants to sue the former employer and its attorney for defamation.
– An employee is suing for wrongful termination, and the deposition of one of his former co-workers is taken. At that deposition, the co-worker falsely claims that she was sexually harassed by the employee suing for wrongful termination. As a result of this claim, the court grants a motion for summary judgment and throws out the action, and the employee’s marriage is severely strained because of the claim of infidelity. The employee wants to sue the co-worker for defamation for what she said at her deposition.
– A person is sued for fraud, and in the complaint there are dozens of false allegations, stating that the defendant engaged in illegal conduct and made misrepresentations to the plaintiff in order to cheat her out of money. After the complaint is served, the plaintiff dismisses the action, but the complaint is now a matter of public record, and anyone doing a search on the Internet can find this complaint with all its lies. The defendant wants to sue for defamation.
Statements Made in Conjunction with Litigation are Privileged
None of the above circumstances would permit an action for defamation. A quick definition is necessary to explain why. Defamation requires an UNPRIVILEGED false statement. Therefore, if a statement is privileged, it cannot be defamatory.
The statements that are privileged are set forth in Civil Code section 47, which states in part:
47. A privileged publication or broadcast is one made . . . (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . . .
Thus, any statement made in conjunction with a “judicial proceeding” is privileged, and cannot form the basis of a defamation action. It’s that simple.
When I explain this to potential clients, I typically get a response that goes something like this:
“So you’re telling me, they can falsely accuse me of rape, and there’s NOTHING I can do about it?!”
“Well, your question was whether you could sue them for defamation, and no, you cannot sue them for defamation.”
“But I can prove that they knew what they said was false.”
“It’s not a question of being able to prove it’s false, you can’t sue them for defamation if the statement is made in conjunction with litigation.”
“So you’re telling me, they could falsely claim I murdered 50 people, and there’s NOTHING I can do about it?!”
And so it goes, with the caller coming up with greater and greater examples of outrageously false statements, apparently thinking that I will ultimately see the foolishness of what I am claiming, and respond, “Oh, well, if he falsely accuses you of killing 20,000 people, then THAT would be enough to sue for defamation.”
It doesn’t work that way. The litigation privilege is absolute, and once you understand the public policy behind this rule, you will probably agree that it is essential. I will also show you why it really doesn’t make any difference in the grand scheme of things.
A World Without the Litigation Privilege
Imagine a legal system without the litigation privilege. Let’s put you into a garden variety personal injury action as an example. You went to a bar and had a couple of beers, but you were there for many hours, so you were stone cold sober on your drive home. When you stopped for a red light, someone rear-ended you, and you are now suffering serious back problems as a result. You are suing the person who rear-ended you for your medical expenses and pain and suffering.
During discovery before the trial, the attorney representing the defendant who rear-ended you contacts your family members and employer, and asks them about your “drinking problem.” Following the conversation with the attorney, your boss calls you in and says you will no longer be permitted to use the company car, because he has concerns about your drinking.
The bartender is deposed and testifies that he saw you drinking before the accident, and recalls that you had ten beers, when in fact you only had two.
At trial, the defendant testifies that you stopped abruptly in the middle of the road for no reason, and that is what caused the accident. He claims that when you got out of the car, you apologized for the accident, stating that you were too drunk to be driving. Both statements are false.
As a result of the testimony of the bartender and the defendant, the jury finds in favor of the defendant. In the hallway following the verdict, the jurors all tell you that you should seek help for your drinking problem. You have to pay thousands in court costs to the defendant.
In this world without a litigation privilege, what do you do? Well, you can’t let stand all those false claims, so you file two more actions, suing the bartender and the defendant for defamation. For good measure, you file a third action against the attorney for talking to people about your alleged drinking problem.
Thus, your one action has now spawned three more. Now, when you testify in those three actions that the bartender, defendant and attorney were all lying, how should they respond? They can’t allow those accusations to go unchallenged, so they each file lawsuits back against you for calling them liars. Our original personal injury action has now spawned six new actions. In fact, since you claimed that the person who rear-ended you was negligent, and he proved that he wasn’t, he probably already sued you for lying about him in the first action.
And there is a collateral effect. The bartender testified to what he thought was the truth. He remembered you as having ten beers, but he had confused you with someone else and was just wrong. For coming to court and telling what he thought was the truth, he bought himself a lawsuit. He now must pay an attorney thousands of dollars to defend him against your defamation action. Would anyone ever agree to testify in court if they could be sued for what they say? They could be compelled to attend with a subpoena, but you can bet they are going to testify that they don’t remember anything in order to avoid being sued.
Thus the reason for the ABSOLUTE litigation privilege. If you allow anyone to be sued for what they say in conjunction with a lawsuit, the system would fall apart. Every action would spawn many more, and the courts would be unable to keep up. No one would be willing to testify, so cases would often be impossible to prove.
The frustration of the callers is understandable, especially when they have proof that the statements were false. They understand generally the reasons for the litigation privilege, but feel that there must be an exception when there is irrefutable proof that the other side knowingly make false statements. But consider that for a moment. If there was an “I have absolute proof that the witness knew he was lying” exception, how would that work? That exception would defeat the rule, because then anyone could file an action claiming to be in possession of such proof. The action would still have to be litigated in order to look at the proof.
The only “exception” is that the statements have to made in furtherance of litigation. Anything said in court or in a court document is obviously privileged, but so too are the statements by the attorney when he contacted potential witnesses.
Collateral Actions Accomplish Nothing.
Before you rail against this necessary public policy, claiming that there should be a consequence for lying, understand also that it really doesn’t make much difference. Here is why.
A caller will tell me that during divorce proceedings, his wife lied about him abusing the children, and as a result he got limited visitation. He wants to sue for defamation for all the lies about the abuse.
But wait a minute. “Didn’t you explain during the divorce proceedings that you did not abuse the children?”, I ask.
“Yes, and all my family members testified that I was a wonderful father who never hit my children, the children testified that I never hit them, and we had an expert witness, a social worker who testified that there was no indication that I ever abused the children.” But my wife testified that I did beat the children, some of her friends testified that long before the divorce she had told them about me beating the children, and her expert witness testified that the behavior of the children was indicative of abuse by the father. For whatever reason, the judge believed her witnesses and not my witnesses.”
“OK, so with every opportunity to tell your side of the case, the judge did not believe you and you lost. Why would the result be different in a new case?”
“Well I have more witnesses, and she introduced hospital records of one of my children being taken to the hospital for a broken finger, and claimed that I broke that finger, but I can prove that I was away on business on that day.”
“Did something prevent you from introducing those travel records to the judge in the divorce action?”, I ask.
“Well, no, but it was so obvious that I did not abuse the children I didn’t think I needed to.”
So you see why a collateral action, even if permitted, would not accomplish anything. If the party could not prove their position in one court, there is no reason to believe they will have a different result in another. And if there was more evidence that could have been presented, it should have been presented in the first action. The strong public policy supporting the litigation privilege does not need to bend to give you a second bite at the apple – just put on all your evidence in the first action. If despite all your evidence the judge gets it wrong, then you should appeal from that case, not file a new one.
Be honest with yourself, and you will have to admit the real reason you want to bring a collateral action.
If the following does not apply to you, then don’t be offended. In the vast majority of case, when someone calls wanting to sue for defamation for something said in a court document, their real motive has nothing to do with wanting to clear their name. Conceptually, it makes no sense to bring a separate action to prove the falsity of a statement made in pending litigation, for all the reasons already stated. If you didn’t abuse the children, prove it in the divorce proceeding.
The real reason the person is calling wanting to file a separate action — one that they will often deny — is they are seeking leverage. They reason that if they can file a separate action and expose the witness or party to civil liability, or just the cost and annoyance of having to deal with the second action, that will pressure the person to alter or withdraw the testimony. That is not a proper purpose for legal action.
Does that mean you are completely without remedy?
Lying on the stand or in a declaration is perjury, which is a criminal offense. If you can prove that the person knew what they were saying was false, then by all means file a police report. The police cannot become a back-door court of appeal, deciding who was lying, so the standard remains the same. If you could not prove your point in the first action, then the lie that you claim was perjury will probably not be black and white enough for the police to pursue it.
Also, the statement is only privileged if it is made in conjunction with the litigation. That is a very broad definition. The statement does not need to be in a court document, but it must advance the litigation. That is why the attorney talking to the family members about your drinking problem was privileged. But if that same attorney calls a press conference and discusses your alleged drinking problem, you could then sue for defamation since that does nothing to advance the litigation.
* Collateral Action or Attack — A legal action to challenge a ruling in another case. For example, Joe Parent has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A “direct attack” would have been to raise the issue of parenthood in the divorce action.
The California Court of Appeal just ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.
OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.
Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.
I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to fire the doctor was a protected activity.
Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. Read the rest of this entry »
Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.
In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.
With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:
“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “
But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.
The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:
I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.
This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.
Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.
I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law like the Communications Decency Act. Now comes a case out of India.
India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.
In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her. “These things are serious in nature and need to be investigated,” said Bedi in her complaint.
However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.