Gloating Over $5,000 Settlement Costs Parents $234,011.87

Canadian Teacher, eh?
Some callers to my office, wanting to sue for defamation because someone said terrible, false and hurtful things about them, are disappointed to learn that they cannot seek legal action because the speech falls under a privilege. By definition, “privileged” speech can never be defamatory, and therefore cannot support a defamation action.

Examples? Speaking at a City Council meeting, testifying in court, or filing a police report – all privileged speech. (There are of course exceptions to every rule of law, but my New Year’s resolution was to write shorter articles.) So, if someone trashes you from the witness stand in court, there is nothing you can do about it from a defamation standpoint. (Although the person could be criminally liable for perjury. Sorry, couldn’t let that one go.)

“BUT,” I tell the caller, “if the person steps out of court and makes the same statements, you have them.”

I ran across this case out of Canada that so beautifully illustrates the point, eh. A teacher allegedly says terrible things about a student in front of the class. Parents sue. On the day of trial, parents agree to settle for $5,000 with no admission of wrongdoing by the teacher.

But then they felt compelled to gloat. The walked out to waiting media, and said: “She’s a marked lady and before she makes any more unprofessional moves, she’ll have to think twice.”

Wait a second parents, you just agreed that there was no admission of liability, so how is she marked or unprofessional?  Now it was the teacher’s turn to be miffed. The teacher sued, and a court awarded $234,011.87. The parents appealed, but the appeal court not only upheld the verdict, it added insult to injury by spotting an error in the trial court’s math, and added $552. Ouch.

The parents could have said the exact same thing INSIDE the courtroom, and the media could have reported those statements, and the parents would have been fine. But when they left the courtroom, they stepped out of the defamation immunity bubble and got nailed.

4 Responses to “Gloating Over $5,000 Settlement Costs Parents $234,011.87”

  • Guy Chamberlain:

    Great article, I always wondered about this: If Anti-SLAPP laws are supposed to protect your 1st Am rights why is it that you can’t remove a SLAPP case to federal court under federal question jurisdiction due to the “well-pleaded” complaint rule?

    In other words, SLAPP complaints are, by nature, objective-covert, right? So, what SLAPP complaint would state on the face of its “well-pleaded” complaint that it was suing someone to violate their 1st Am rights (i.e., to stop someone from talking about a scam). How can a defendant ever remove their case to federal court on federal question jurisdiction where he might get a better shot?

    Any feedback would be appreciated. Guy

    • Aaron Morris:

      That’s a great example of careful what you wish for because you might get it. A person who files a SLAPP action to silence someone’s speech would love to get the case into Federal Court, because there is no (at the time I am writing this) Federal SLAPP statute. The cases now hold that the Federal Courts will recognize and apply California’s SLAPP statute, but in the context of the Federal procedural rules, so you end up with a kludgy application of the statute that shifts with the wind.

      Also, the biggest distinction between State Court and Federal Court, at least here in California, is that Federal actions are very front loaded (disclosure of evidence, pre-trial orders, etc.) whereas much of the activity on a State action occurs much later. The point of the anti-SLAPP statute is to get the defendant out of the action as quickly as possible, before any discovery. Much of that benefit is lost in Federal Court.

      Finally, the right of free speech is just one aspect of the SLAPP statute, and even then not only in the context of the 1st Amendment, so I don’t see it as a Federal question. Of course, you could still get into Federal Court under diversity jurisdiction if it’s applicable.

  • Brandon coker:

    I am suing an ex employee of my corporation in small claims for a one thousand dollar loan. I expect to win since I have the contract still. He recently took my company to labor and lost. After the win in labor, I decided to sue for my loan. Last week his attorney served my company court documents to reopen the labor issue at the federal level. He sent me a letter threatening a anti slap over the small claims case stating I am suing his client to intimidate him. The loan was a personal loan from my checking account and the company I am part owner of is a corporation that had nothing to do with the loan. Can he successfully serve an anti slap?

    • I’ll answer in broad terms as long as you don’t take it as legal advice, since I have not seen any of the documentation.

      I encounter this concept all the time from attorneys who know just enough about anti-SLAPP law to get themselves into trouble. The purpose of the anti-SLAPP statute is to provide a quick way to dispose of actions that were designed to silence valid free speech or the right of redress. But it does not then always follow that a lawsuit filed for an improper purpose is a SLAPP.

      Let’s use a hypothetical close to your situation. Let’s assume for purposes of our hypothetical that you at some point in time loaned an employee $1,000 that was never repaid, and that for whatever reason you decided not to sue to collect the money that was owed. And assume further that one day that same employee you loaned the money to turns around and sues you for allegedly unpaid overtime. To apply a little settlement pressure, you decide to dig out that old promissory note and enforce it. After all, you were willing to walk away from the $1,000, but if the employee is going to sue you, all bets are off.

      In our hypothetical, the fact that you are using the old loan for leverage does not in any way make the matter a SLAPP. Ironically, the opposite is true. You have a right to sue for the unpaid money, and taking any action against you for exercising your right of redress would be the SLAPP. Also, the threat to bring an anti-SLAPP motion against you for a Small Claims matter is toothless. Although there is some disagreement, in most cases you cannot bring an anti-SLAPP motion even in limited jurisdiction court, and I am unaware of any procedure for doing so in Small Claims Court.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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