California SLAPP Law

You can’t prove slander without a witness.

I recently prevailed on back to back anti-SLAPP motions based on this simple defamation concept that often alludes attorneys and their clients. Plaintiffs bring a defamation action based on the assumption that the defendant is running around slandering them, but they have no witness to the alleged slander. Apparently they assume that having filed the action, they will then be able to use the discovery process to find a witness. But this approach leaves them completely vulnerable on at least two fronts.

A plaintiff is not permitted to conduct any discovery until ten days after a defendant appears in the action. So the plaintiff files and serves the complaint for slander, and waits for the defendant to answer, so they can begin the process of uncovering the slanderous statements and to whom they were made. But if the slander allegations fall under the anti-SLAPP statute, the defendant’s first appearance in the action will be when he files the anti-SLAPP motion, and filing the anti-SLAPP motion stays any discovery. The plaintiff is thus left with having to oppose an anti-SLAPP motion with zero evidence. So long as I can convince the court that the alleged statements fall under the anti-SLAPP statute, the plaintiff is left with no means to satisfy the second prong of the analysis. They can’t prove that they are more likely than not to succeed on the action, since they can’t provide a witness to the statement. How can they prove the statement was defamatory, if they can’t prove that it was ever made?

Even if the alleged statements do not satisfy the anti-SLAPP statute, if discovery never reveals the evidence necessary to establish the claim, then the plaintiff becomes the defendant in a malicious prosecution action, because they filed the action with no probable cause.

I often have to explain all of this to potential clients who want to hire me to pursue the action.  They want to do exactly what the aforesaid plaintiffs did, that left them open to my attack. So the realities of prosecuting a slander action warrants a discussion on this site.

Don’t sue for slander if you don’t have a witness.

Let’s begin with some definitions. As you likely know, if one is defamed in writing, that is libel, and if the defamation is spoken, that is slander.

In the case of libel, you can show the defamation by offering the written document. This can make it easier to prove the case, since the evidence is right there in black and white. However, it is not as simple as some assume.

For example, let’s make you Sue Smith, and you live at 123 Main Street. You wake up one morning and while reading the paper over a cup of coffee (yes, there are some of us who still enjoy reading the paper), you come across an article that says, “Police report that Sue Smith, who resides at 123 Main St., was booked on suspicion of drunk driving. Officer Dave Friendly stated that this was Smith’s third drunk driving arrest, making it a felony.” None of it is true. Probably because of some snafu, the police got it wrong.

Do you have a viable defamation action? Most people who call want to sue the newspaper, but for the reasons set forth in this article, most likely that is a nonstarter.

The person who told the lie is Officer Friendly. So can you sue Officer Friendly, since the paper quoted him? Possibly, but even though the defamatory statement is right there in writing, you don’t yet have an action. How do we know Officer Friendly really said such a thing? It could be that the good officer said something completely different, and your action will be against the newspaper for getting it wrong. News outlets are protected when they accurately quote a public official, even if the official is wrong, but they’ll have to show that Officer Friendly really said what they say he said.

Slander is even tougher.            Read the rest of this entry »