Author Archive
Even Nuns Defame; Credibility Key to Any Trial
The report of this defamation caught my eye because of the parties involved. There is a standard joke among attorneys, that if you find yourself suing widows, orphans or nuns, your practice has probably taken a bad turn. In this case, nuns were being sued for defamation.
It started when the nuns decided to sell an old painting they had laying around. The painting was in really bad shape, not even worth hanging, but it turned out to be by a well regarded artist, William-Adolphe Bouguereau. So the nuns had it appraised by an art dealer named Mark LaSalle. Based on his appraisal, the nuns agreed to sell the painting to Mark Zaplin for $450,000. Zaplin had the painting restored to its former glory, a fact that I think is crucial to this case, and turned around and sold it for $2.15 million, netting a tidy little profit.
The nuns sued LaSalle and Zaplin under a number of theories, claiming that Zaplin had been a straw buyer, and that LaSalle was working in concert with Zaplin and had conned the Daughters of Mary by intentionally under-appraising the painting in order to buy it at a bargain price. The two Marks counter-sued for defamation, because the nuns had made these same claims to the media. (In case you’re new here, you can never sue for defamation for things said in conjunction with a lawsuit, since those statements are privileged, but you can sue if the same statements are made to the media.)
Here is the part I find interesting and the main reason for this article. The nuns had a witness. An art dealer by the name of Paul Dumont claimed to know both LaSalle and Zaplin, and testified that LaSalle had told him that they could “make a handsome profit by giving the sisters a low appraisal value of between $350,000 and $450,000 and presenting a buyer who would pay the amount of our deliberate and intentionally inaccurate appraisal.” He claimed that LaSalle had asked him to find a “money man” who would act as a straw buyer.
Wow. Pretty strong stuff. So the nuns must have won, right? Actually, they went down in flames (can I say that about nuns?). A New York jury found against them on all of their claims, and instead awarded LaSalle $250,000 for defamation against Dumont and a church Bishop, and awarded Zaplin $75,000 against Dumont for defamation. LaSalle will also recover punitive damages.
But how can that happen with a witness who is specifically corroborating the story of the fraudulent appraisal and straw buyer? And therein lies the moral of this story. Read the rest of this entry »
Posted in Cases, Defamation, Recent Cases, Trial | Tags: Aaron Morris, Attorney, Defamation, Slander, Trial | No Comments »
Gloating Over $5,000 Settlement Costs Parents $234,011.87
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.
Posted in Defamation, Litigation, Recent Cases | Tags: Aaron Morris, Attorney, Damages, Defamation, Slander | 4 Comments »
An Explanation of the Civil Litigation Process
Every profession has it’s own unique procedures and lexicon. If I went to a plumbers’ convention, I’m sure I wouldn’t know half of what they were talking about.
I have to remind myself of this periodically, because during a conversation with a prospective client I’ll use basic legal terms like “summons.” “complaint” and “answer,” assuming the person knows what I am talking about, only to realize as the conversation progresses that they are not familiar with even those terms. I communicate like crazy with my clients, following the method tell them what you are going to say, tell them, and then tell them what you said. Indeed, I can’t imagine a more communicative lawyer. Yet even well into a case, I occasionally find that a client has a fundamental misunderstanding of the litigation process.
As an example, I once represented a sophisticated businessman from New York on a defamation claim. A newspaper here in California had published a defamatory statement about the client. The action proceeded nicely for the better part of a year, and the judge finally assigned a trial date. I immediately notified the client of the pending trial date, and told him to notify me immediately if the date presented any problem.
The client called and said he had no intention of attending the trial. “That’s why I hired an attorney,” he said.
I was fascinated by the remark, and asked the client just how that would work. He was claiming what the newspaper published about him was false. How, exactly, was I going to prevail on the case if he did not take the stand to explain why the statement was false, and how it had impacted him?
At first blush this appears ludicrous, but consider all that goes on during litigation that does not involve the client. There had been multiple motions during the litigation, and the client had not been required to attend any of those. In the client’s mind, a trial should be handled in the same way. I would simply go to court, establish that the newspaper had made the statement in question, and present the law on why that was defamatory. The client’s version of the facts could be presented by declaration. The client simply did not understand the rules of evidence, and how the opposition must be permitted to cross-examine any witnesses.
Thankfully, the matter settled before I ever had to face the conundrum created by the client. The newspaper caved, and we obtained an amazing settlement. Perhaps the newspaper’s representatives had refused to attend trial as well.
Bottom line: Don’t assume your client knows anything.
The following video is by a San Francisco attorney. He provides a very basic description of the litigation process from beginning to end. The video is simple but very well done, and is a great resource if you are looking for a broad overview of the litigation process.
Posted in Litigation, Trial | Tags: ADR, Answer, Civil Litigation, Complaint, Summons, The Litigation Process, Trial | No Comments »
How to Fight Back Against Online Defamation
Always striving not to reinvent the wheel, I keep my eyes open for articles that do a good job of explaining basic legal concepts. In that regard, I receve many calls from prospective clients who don’t yet know the fundamentals of pursuing an online defamation claim. Many times, the callers want to sue Google since it is Google’s search engine that is revealing the sites that are posting the defamatory comments. That is not possible (although we have had pretty good luck getting Google to cooperate in taking down blogs on their own service and in one instance Google agreed to stop indexing a particular magazine, but that is rare).
The following article [reprinted with permission] provides a brief outline of how to attack online defamation. If you happen to be in New Jersey, contact the author for any action you need to pursue or defend. If you’re hear in California, or the action needs to be brought in California, then call Morris & Stone at (714) 954-0700.
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Individuals now have the freedom to inexpensively and easily share everything from their art to their opinions online. However, the ease and anonymity associated with posting information on the Internet, comes at the cost of providing a perfect avenue for those seeking to abuse the system. So what happens when, for instance, an opinionated Internet rant goes too far? What if a video stream broadcast damages the reputation of someone featured in it? More importantly, do the victims of these scenarios have any rights under the law, or are they at the mercy of the author or poster?
Fortunately for victims, the law of defamation has been evolving in order to accommodate the legal ills associated with online publication. However, many people still fail to avail themselves of these legal protections because they are unclear about to which rights and remedies they are entitled. Therefore, individuals wishing to protect their rights and reputations must understand how the law of defamation applies to online activity. Defamation is defined as the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. The two subcategories of defamation are libel and slander. Libel requires that defamation be committed in a printed forum, while slander requires that the defaming words be spoken aloud.
Online publications are subject to the law of libel; online video posts are subject to the law of slander. If a party believes that defamation may have occurred because of the idea(s) presented in an online writing, he or she can successfully sue the author for libel by showing: that the defamatory statement was published, that it refers to the victim, that it is false, and that the victim’s reputation has been harmed by the writing. A party who feels victimized by video content can sue for slander under the same legal standard as is applied to libel. Victims of defamation can recover both actual damages and punitive damages.
Still, it is important to keep in mind the following caveats with regard to defamation law as it applies to the Internet. If the author of a defamatory statement is anonymous, a victim can request (through court proceedings) that the wrongdoer’s identity be revealed. Also, in the event that the victim of defamation is a public figure, actual malice must be proven (in addition to the aforementioned elements). Finally, although the authors of misinformation can be held liable for defamation, blog owners generally bear no responsibility for the comments posted to their site by third parties. Thus, it is evident that the law of defamation, although limited in its applicability to the Internet can still offer numerous protections and remedies against those wishing to cause undue damage to the reputations of others.
Melody Kulesza is an associate with Pepper Law Group, LLC, a law firm based in Somerville, New Jersey which provides strategic advice and sophisticated legal services to businesses, entrepreneurs, and entertainers in the areas of technology law, intellectual property, Internet law, entertainment law, business formation and general business counsel, and privacy and security law. More information on the firm can be found at http://www.informationlaw.com or by telephone at 908.698.0330.
Article Source: http://EzineArticles.com/4043133
Posted in Defamation, Internet Defamation, SLAPP | Tags: Aaron Morris, Attorney, Defamation, Libel, Morris and Stone, Slander, Youtube | No Comments »
The Good, The Bad, and The SLAPP Lawsuit: Don’t Sue For Speech Without Consulting With Counsel
I came across the following article by Darren Chaker who, according to the article, spent many years litigating a free speech case, apparently as the plaintiff. His article provides a nice summary of SLAPP law as it applies to posting critical comments on-line, and the importance of consulting with counsel before filing any free speech suit. [Reprinted here with permission.]
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While legitimate criticism is protected, postings which constitute defamation are not. Ibid.; see also Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly held that “defamation…[is] ‘not within the area of constitutionally protected speech.'” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker, supra, 428 F.3d 1215, 1223 (9th Cir. 2005)).
Prior to filing a lawsuit for comments posted online, it is important to know what a “SLAPP” lawsuit is and if what you believe is defamation is that, or merely protected speech. The acronym “SLAPP” stands for Strategic Lawsuits Against Public Participation, see California Code of Civil Procedure § 425.16. I cite California law, however most states have similar SLAPP laws as California. The crux of SLAPP law allows someone who is sued for doing activity which is protected by the federal or state constitution. If the Defendant’s activity sued for is protected activity, then an anti-SLAPP motion could be filed. An anti-SLAPP motion usually seeks dismissal of “lawsuits that ‘masquerade as ordinary lawsuit’ but are brought to deter common citizens from exercising their political or legal rights or to punish them from doing so.” Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003).
Keep a couple of things in mind before you go to court:
• Once a Plaintiff files a lawsuit, and Defendant files an anti-SLAPP motion, the complaint is frozen. Thus, Plaintiff cannot amend the lawsuit to avoid the court ruling on the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 CA4th 1068, 1073) Amendments could frustrate the Legislature’s objective of providing a “quick and inexpensive method of unmasking and dismissing such suits.” See, Simmons at p. 400)
• Plaintiff has the option to dismiss the lawsuit. Nonetheless, Code of Civil Procedure § 425.16 gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to Defendant. (Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at 879, 100 CR3d at 777-778)
• A typical California attorney with 10+ years of experience bills from $325-500/hr. If a person files a lawsuit based on defamation, or other protected right, and loses, the court must award attorney fees to “adequately compensate the defendant for the expense of responding to a baseless lawsuit,” Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). As such, if you lose your case, attorney fees of $12,000-25,000 are typical.
• If you are self represented, this doesn’t buy you any credit with the court for suing someone for doing what the law allowed them to do (e.g. free speech). Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985) Thus, you can’t say in opposition, “Opps I didn’t know”.
In short, I strongly recommend do NOT file a lawsuit unless an attorney, who is competent in First Amendment law, agrees to file it for you.
I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case continues to be a leading case on viewpoint discrimination. My case is active, living and breathing-forever helping people who once felt oppressed.
Posted in anti-SLAPP motions, Cases, SLAPP, Statutes | Tags: Aaron Morris, anti-SLAPP motion, Attorney, On-line Reviews, SLAPP | No Comments »
Anti-SLAPP Motions Often Used for Delay Purposes
The rare North-American anti-SLAPP Platypus.
A few months back I won on an anti-SLAPP motion that I brought long after the case was filed. The thing is, I was not representing the Defendant initially, but when I was retained the first thing I saw from my review of the case was that the case was a quintessential SLAPP. No discovery or anything beyond the complaint and answer had occurred, so I persuaded the court to allow me to bring a SLAPP motion well beyond the normal 60-day deadline. I won the motion, the case was over, the client celebrated with champagne, and all was good with the world.
That case got some publicity, and now it seems like every attorney thinks they can file an anti-SLAPP motion at any time during the litigation, even on the eve of trial. It just happened to me today. Our case is nearly two years old, and the trial is about a month away. All of a sudden, defense counsel decided that our action is a SLAPP, and it would be an unforgivable miscarriage of justice to allow this matter to go to trial without first bringing an anti-SLAPP motion. Indeed, this was such an emergency, that defense counsel had to go into court on an ex parte basis to ask the court to shorten the notice period to bring the motion because there is not enough time before the trial. An ex parte application requires a showing of irreparable harm, and defense counsel so argued.
The anti-SLAPP motion, which was attached to the ex parte application, was utterly without merit, which is not surprising given that if the complaint was a SLAPP the defendant’s counsel certainly would have been able to reach that conclusion in the prior 22 months. Not surprisingly, the application DENIED.
Why would an attorney do such a thing? By Code, an anti-SLAPP motion is supposed to be brought within 60 days of service of the complaint. It can be brought later upon a showing of good cause to the court, but any delay is counterproductive. The point of an anti-SLAPP motion is to stop a SLAPP action from going forward, and stay the discovery. The discovery stay is one of its most powerful attributes, since the plaintiff is basically frozen in time and made to show his proof without the benefit of any discovery. If the motion is brought after discovery, the defendant loses the biggest advantage of the anti-SLAPP motion. And nothing changes during an action that somehow makes a complaint a SLAPP when it was not previously. In other words, discovery might reveal that an action is ripe for a motion for summary judgment, but it is very unlikely that discovery will reveal that an action was a SLAPP if that was not apparent from the complaint.
So, what possible justification could there be for this tactic of waiting until the eve of trial to bring a meritless anti-SLAPP motion?
Delay.
The ruling on an anti-SLAPP motion can be appealed. The judge today could have easily said, “Well, Mr. Morris, he is seeking only permission to file the motion on shortened notice; the motion is not yet before me, so I can’t decide its merits now. I’ll go ahead and let him file it, and then we can take a look at the merits.” If the judge had gone down that road, the defendant would have bought himself about a one year delay, since he would then have appealed the denial of the anti-SLAPP motion.
“Isn’t that a costly proposition for the defendant, given that you can recover attorney fees on a SLAPP motion?”, you might ask. Actually, attorney fees are not reciprocal with an anti-SLAPP motion. If the defendant successfully brings an anti-SLAPP, he gets his fees, but if the plaintiff defeats the anti-SLAPP, fees are only awarded if the motion was frivolous, and that is a very high standard. Thus, beyond paying his own attorney, there was very little downside to attempting this delaying tactic.
This precise strategy was successfully employed in Platypus Wear, Inc. v. Goldberg. In that case, the defendant waited about a year to bring an anti-SLAPP motion. The trial judge, probably thinking he was being fair to give defendant a chance to present the motion, granted leave to file the motion, which was then denied. Of course, defendant appealed, and the Court of Appeal took the opportunity to explain that judges must not fall prey to this delaying tactic. The heart of the court’s reasoning is set forth at length below, if you are curious, but here is the essential part of the reasoning:
“The primary reasons that Goldberg offered, and that the trial court cited, for allowing the late filing of his anti-SLAPP motion were that doing so would serve both judicial economy and the public policy behind the anti-SLAPP statute. However, these reasons could apply to any late filing. Implicit in Goldberg’s argument is the premise that a trial court should hear any potentially anti-SLAPP meritorious motion, no matter how late in the case it is filed.
…
In this unusual statutory context, in which a party has the right to an interlocutory appeal of a denial of anti-SLAPP motion, a trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60–day deadline. As reflected in Olsen and Morin, the Legislature’s act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint.
…
Rather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits, the trial court’s ruling had the effect of undermining that statute, as discussed in Olsen.”
We are well award of the anti-SLAPP tricks, and as today’s victory illustrates, know how to stop them.
[Platypus Wear, Inc. v. Goldberg, 166 Cal.App.4th 772 at 783 – 787.]
“There are two potential purposes of the 60–day limitation. One is to require presentation and resolution of the anti-SLAPP claim at the outset of the litigation before the parties have undertaken the expenses of litigation that begin to accrue after the pleading stage of the lawsuit. The other is to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings. The ‘prejudice’ to the opponent pertinent to these purposes is that which attends having to suffer such expenses or be subjected to such a stay. ( Olsen, supra, 134 Cal.App.4th at p. 287, 35 Cal.Rptr.3d 909.)
The 60 day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended to permit the defendant to test the foundation of the plaintiff’s action before having to ‘devote its time, energy and resources to combating’ a ‘meritless’ lawsuit. [Fn. omitted.] ( Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
[B]y the time Goldberg filed his application on October 31, 2006, the parties had already completed a substantial amount of discovery, and the trial was scheduled to commence in less than three months. By the time the trial court held a hearing on Goldberg’s anti-SLAPP motion, on January 19, 2007, the December 15, 2006 discovery cut-off date had already passed, and the trial was scheduled to begin in a week. Thus, one of the basic purposes of the anti-SLAPP statute—to allow for the prompt resolution of disputes before significant pretrial discovery expenses are incurred—could not be met in this case. In fact, allowing the late filing undermined this goal, in that the trial court continued the trial date, at Goldberg’s request, after the hearing on the anti-SLAPP motion.
The primary reasons that Goldberg offered, and that the trial court cited, for allowing the late filing of his anti-SLAPP motion were that doing so would serve both judicial economy and the public policy behind the anti-SLAPP statute. However, these reasons could apply to any late filing. Implicit in Goldberg’s argument is the premise that a trial court should hear any potentially anti-SLAPP meritorious motion, no matter how late in the case it is filed. The Olsen court rejected this argument. ( Olsen, supra, 134 Cal.App.4th at p. 286, 35 Cal.Rptr.3d 909 [“Discretion to permit or deny an untimely motion cannot turn on the final determination of the merits of the motion”].) In addition, because Goldberg could have attempted to narrow the issues in the case by way of a motion for summary judgment or a motion for judgment on the pleadings, these rationales have very little persuasive force. (See Kunysz, supra, 146 Cal.App.4th at p. 1543, 53 Cal.Rptr.3d 779 [“The same issues raised by [defendant’s] renewed anti-SLAPP motion could just as easily have been raised by, for example, a motion for summary judgment or a motion for judgment on the pleadings”].)
The arguments Goldberg made at the hearing on his application are equally unpersuasive. Goldberg’s counsel’s explanation that Goldberg did not file an anti-SLAPP motion earlier because the case had been “focused on other issues,” is little different from the explanation the Morin court rejected, i.e., that the party had been “devot[ing] time, energy and resources,” to litigating the case rather than pursuing an anti-SLAPP motion. (Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
Goldberg’s suggestion at the hearing that the trial court should grant his application to allow the late filing because his current counsel had not been counsel of record during the initial 60–day period is also without merit. Goldberg’s current counsel substituted into the case in March of 2005, far in advance of the October 31, 2006 application to allow a late filing. ( Olsen, supra, 134 Cal.App.4th at p. 285, 35 Cal.Rptr.3d 909 [“A claim of excuse from untimeliness based on late discovery after obtaining new counsel is generally unavailing”].) In addition, Goldberg’s counsel’s suggestion that Goldberg should be allowed to bring the anti-SLAPP motion in order to afford the trial court greater discretion to “parse causes of action,” is misguided, since an anti-SLAPP motion is not to be used for this purpose. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106, 15 Cal.Rptr.3d 215
Goldberg has not demonstrated anything in the procedural history of this case, and specifically, in the litigation involving other parties, that would justify allowing the late filing. The lengthy delay in bringing the matter to trial occasioned by Luce Forward’s interlocutory appeal is, if anything, a factor that weighs against granting Goldberg’s application.
In this unusual statutory context, in which a party has the right to an interlocutory appeal of a denial of anti-SLAPP motion, a trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60–day deadline. As reflected in Olsen and Morin, the Legislature’s act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint. (See Olsen, supra, 134 Cal.App.4th at p. 287, 35 Cal.Rptr.3d 909; Morin, supra, 122 Cal.App.4th at p. 681, 19 Cal.Rptr.3d 149.)
While a trial court enjoys considerable discretion regarding whether to allow the late filing of an anti-SLAPP motion, in this case, the delay was extreme, the reasons Goldberg offered in his application for the delay in filing the motion were weak, the court’s reasons for granting the application were unrelated to the purpose of the SLAPP statute, and the potential prejudice to Platypus, given the lengthy delay occasioned by the appeal, is great. Rather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits, the trial court’s ruling had the effect of undermining that statute, as discussed in Olsen.
In applying the standard of review articulated in Olsen to this case, “[T]he grounds given by the court for finding the anti-SLAPP motion [timely] are inconsistent with the substantive law of section 425.16, [and] the application to the facts of this case is outside the range of discretion conferred upon the trial court under that statute, read in light of its purposes and policy.” (Olsen, supra, 134 Cal.App.4th at p. 285.)
Posted in anti-SLAPP motions, Cases, Recent Cases, SLAPP, Victories | Tags: Appeal, Frivolous, Platypus v. Goldberg, SLAPP | No Comments »
Blogger Hit With $2.5 Million Judgment
I guess she could consider it a victory. A blogger by the name of Crystal Cox was sued for $10 million by Obsidian Finance Group for comments Ms. Cox posted on obsidianfinacesucks.com. Representing herself, she managed to keep the judgment to just $2.5 million.
Seriously though, nothing in the case went Ms. Cox’ way. She brought an anti-SLAPP motion and claimed that she was protected by the New York Times actual malice rule, as well as the reporter’s shield. But the judge was not convinced. Judge Marco Hernandez of the U.S. District Court in Portland held that a blogger is not a journalist. As such, Cox was caught in a catch-22. She would not be required to reveal her source if she fell under the shield law as a journalist, but without such protection she could not reveal her source without subjecting him to liability, and without that background information, could not prove what she was saying was true.
As to the New York Times actual malice rule, which holds that defamation can be found only upon a showing of actual malice where the plaintiff is a public figure, the court concluded that the plaintiffs were not public figures.
Complicating the matter further, Cox was late in bringing her anti-SLAPP motion (although the judge stated the result would have been the same even if it had been filed on time).
The concerning part of the decision arises from the court’s discussion of what makes one “media.” Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), held that a plaintiff should not be able to recover damages from a media organization without proof that the reporter was at least negligent and may not recover presumed damages absent proof of “actual malice.” After rebuking Cox for failing to specify any authority for the proposition that a blogger can be media, the court then proceeds to set forth seven indicators that make one “media” without absolutely no authority for those points.
According to Judge Hernandez, Cox failed to show she was media because there was no evidence of “(1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting ‘the other side’ to get both sides of a story. Without evidence of this nature, defendant is not ‘media.'”
In my never to be humble opinion, those made-up criteria by Judge Hernandez are about 20 years out of date. “Affiliation with a recognized news entity”? The reason that so many “traditional” news outlets are folding is because of the rise of citizen reporters, with no affiliation with any organization and who may or may not have any journalistic background or education.
Nonetheless, the takeaway here is that bloggers are not immune from liability if they stray across the line and engage in defamation. I don’t know what Cox reported about Obsidian Finance Group, so the judgment may have been well deserved. Still, it gives pause to know that a blogger is now straddled with a huge judgment that cannot be discharged in bankruptcy and therefore will likely dog Ms. Cox for at least the next 20 years.
Go here for a more detailed discussion of the judgment, as well as a copy of that judgment.
Posted in anti-SLAPP motions, Cases, Defamation, Recent Cases, SLAPP | Tags: Bloggers, Crystal Cox, Defamtion, Liability, Obsidian Finance Group, SLAPP | No Comments »
Lawyer Demand Letter Found to Step Over the Line
Los Angeles Superior Court Judge Mary Strobel denied an anti-SLAPP motion brought by attorney Martin Singer, finding that a demand letter sent by Singer was not protected speech.
As you can see from the letter, Singer threatened to file a complaint “dealing with your using company resources to arrange [redacted] liaisons with [names redacted] (see enclosed photo) . . . .” The defendant took exception with this threat, and filed his own action against Singer for Civil Extortion.
As would be expected, Singer brought an anti-SLAPP motion since under normal circumstances an attorney’s demand letter would fall under the Litigation Privilege and would be protected speech.
But not so fast. In 2006 the California Supreme Court held in Flatly v. Mauro that the SLAPP statute does not protect extortion, and that case also involved an attorney demand letter. Singer’s letter closely tracked the same points that the Supreme Court in Flatly held stepped over the line. Like the demand letter in Flatly, the Singer letter threatened exposure of sexual conduct (to the point of including a photo) and made reference to taxing authorities (thereby implying that if the defendant does not pay he will be turned over to the IRS). On that basis, the court ruled that “the activities giving rise to the claims in the Complaint are illegal as a matter of law as extortion, and as allegations of illegal wiretapping . . . .”
MOTION DENIED. No doubt Singer will utilize the automatic appeal process written into the anti-SLAPP statute, but if the court follows Flatly, the appeal will be unsuccessful. Unless the case somehow settles, Singer will have the opportunity to explain his actions to a jury.
Paul Alan Levy provides a nice summary of this motion on his blog, as does Jacky Jasper.
Posted in anti-SLAPP motions, Recent Cases, SLAPP | Tags: Civil Extortion, Flatly v. Mauro, Jacky Jasper, Martin Singer, Paul Alan Levy, SLAPP | No Comments »
SLAPP Law Applies to Foreign Litigation
The California Court of Appeal has interpreted the term “official proceeding” as used in Code of Civil Procedure section 426.16 to include even foreign litigation.
The fact pattern here is rather involved, but to summarize, the action began in Zimbabwe when a wife allegedly took marital property to various locations in that country and then fled with her children to Northern California. The husband was convinced that his sister-in-law had assisted with the removal of the property, so he obtained a “writ of arrest” against her and she spent the night in jail. After a contested hearing, the Zimbabwe court found that there was insufficient evidence to prove that the sister-in-law had assisted in the removal of the property.
The sister-in-law then filed a civil action against the husband in Los Angeles Superior Court for false arrest. A jury found in favor of the husband, but the Court of Appeal reversed and ordered a new trial for various reasons. Back in Zimbabwe, the husband filed for permission to appeal from the final judgment on the arrest case. That application was supported by several declarations, including one from the husband’s California attorney, Donald C. Randolph of Randolph & Associates. The Zimbabwe court denied the application, and the sister-in-law then sued Randolph for malicious prosecution back here in California.
Quite appropriately, Randolph brought an anti-SLAPP motion seeking to strike the malicious prosecution complaint. Clearly, the declaration provided by Randolph was related to litigation and was in furtherance of a right of redress, even if that right was being pursued in Zimbabwe. Unfortunately for Randolph, Los Angeles Superior Court Judge Mel Red Recana was unwilling to take Section 426.16 that far, and denied the anti-SLAPP motion, concluding that it did not apply to activity in a foreign country.
But the Court of Appeal looked at the controversy from a slightly different angle. Although the declaration was provided to a court in Zimbabwe, it “contained statements about the effect of the Zimbabwe order in the Los Angeles case and the facts supporting probable cause for the writ of arrest,” which “were made in connection with issues under consideration in the Los Angeles case.” On that basis, the justices concluded, the statements were made “to influence the determination of issues pending in the Los Angeles case,” and therefore were a part of the right of petition in the Los Angeles case.
The story was reported by the Metropolitan News-Enterprise and can be found here.
Posted in anti-SLAPP motions, Cases, Recent Cases, SLAPP | Tags: 426.16, Donald Randolph, foreign litigation, SLAPP, Zimbabwe | No Comments »
Lawyer Misses “Stealth” SLAPP Action
One of our latest anti-SLAPP victories provides a beautiful illustration of a “stealth” SLAPP suit that the plaintiff’s attorney failed to recognize, to the great expense of his client.
In this case our (future) client’s business partner, we’ll call him Freddy Fraudster, opened a credit card account at a local bank using our client’s personal information. When our client discovered what Freddy had done, he contacted the bank and informed the personnel there that Freddy had committed fraud, and based on this report the bank closed the account and reported the matter to the police. Our client also filed a police report, and filed for a restraining order against Freddy.
Freddy was not happy. He had a long term relationship with the bank, and based on the report by our client, the bank closed his accounts and would have nothing further to do with him. Apparently thinking the best defense is a good offense, and hoping that winning the race to the courthouse might give him some leverage, Freddy filed an action against our client. He claimed that our client had authorized him to open the account, and that the report to the bank was therefore defamatory since it accused him of fraud.
Do you see why Freddy’s action in Superior Court was a SLAPP suit? We did, and we successfully brought an anti-SLAPP motion. You see, a SLAPP suit is one that tries to block a person’s right of petition. Freddy’s attorney realized that the report to the police and the application for the restraining order were protected rights of petition, but he mistakenly thought that the report to the bank, requesting that the credit card be cancelled, was not a petition for redress and therefore did not fall under the SLAPP statute because it did not involve any government agency. No doubt, he thought that by suing our client for defamation, he could make all his evil deeds go away and get back in good stead with the bank by offering to dismiss the case if our client would withdraw his remarks to the bank, court and police. Now it sounds like a SLAPP, doesn’t it?
The interpretation of the SLAPP statutes by Freddy’s attorney was far too narrow. Consider. One day you run a credit report on yourself and you find that someone has fraudulently opened a credit card in your name. What is the first thing you are going to do? Call an official government agency? You might do that eventually, but first you are going to call the credit card company and tell them to cancel the card. Thus, contacting the credit card company, or in our case the bank, is a natural part of the entire “right of petition.”
It’s very similar to the litigation privilege. I occasionally see cases where a defendant tries to sue the plaintiff and his attorney, claiming that the demand letter sent by the attorney was defamatory because it falsely claimed the defendant did something illegal. But under Civil Code section 47, anything said in conjunction with litigation is privileged and therefore not defamatory. The demand letter from the attorney takes place before legal action is ever filed, but it is still part of the litigation process.
So it was here. The report to the bank occurred before any “right of petition” was pursued with a government agency, but calling to cancel the credit card was a natural part of that process. If a plaintiff were permitted to SLAPP a defendant by focusing on the activities leading up to the actual right of petition, then the intent of the anti-SLAPP statutes would be subverted. We explained that to the court, and our motion was granted.
Posted in anti-SLAPP motions, Cases, Recent Cases, SLAPP | Tags: anti-SLAPP motion, attorney fees, right of petition, SLAPP | 2 Comments »
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