Evidence

The Litigation Privilege and Collateral Defamation Actions

Spawning Litigation Actions
I get the same question a couple of times a week, so I decided that a article on the litigation privilege is in order, so I will have a place to send potential clients for a detailed discussion. (I also briefly discuss the police report privilege.)

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.

Read the rest of this entry »

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Why It Is a Really Bad Idea to Use Litigation as a Means to Discover Defamation

Defamation - Shot in Foot

I get this type of call perhaps twice a week, so I decided to post this article, in order to provide detailed information to prospective clients who bring up these issues.

Here is the scenario. The caller is convinced that he is being slandered, but does not know exactly what is being said. He may know who is making the statements, but has heard only rumors about what is being said, or has witnessed only the consequences of the statements. Often the issue will arise in the workplace, where because of the statements of a co-worker, the caller is being passed over for promotions, or perhaps was terminated because of those statements. Other times it might be a neighborhood situation, where the caller feels he is being shunned by neighbors and has reason to believe it is because of something said at an HOA meeting.

The problem with this sort of case is that you can’t determine if you are being defamed until you know what is being said. The consequence of a false statement can be severe, but that does not mean the statement is defamatory. For example, you might be entirely correct that you are being passed over for promotions because of something being said by a co-worker, but that co-worker might simply be saying that you are lazy and should not be promoted. That statement is not defamatory, because it is an opinion. Defamation can be very nuanced, and whether a statement is defamatory can come down to a single word or even the voice inflection used.

Before I can take a case, I have to know what was said. In cases where the prospective client does not have direct evidence of what is being said, I have a simple screening process. Read the rest of this entry »

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An Employee’s Report to Human Resources is Protected by SLAPP Statute

Human Resources Internet DefamationAlways 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.

Go here to see the complete decision in Lisa Aber v. Michael Comstock.

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Show Some Love for California’s Anti-SLAPP Statute

A real Jones for the Basketball coach

Not the coach in question.

I get frequent calls from people who have run afoul of the anti-SLAPP statute, basically asking, “what can we do about this terrible law?”

Here’s the deal. Every law eventually gets subverted. The Americans With Disabilities Act sounded like a great idea, but then you ended up with attorneys who use it as an extortion racket, forcing fast food restaurants to pay thousands because a counter was 17 ½ inches high instead of 18.

So it is with California’s anti-SLAPP statute. It is a great statute, and for the most part attorneys have not found an effective way to misuse it, except for right to appeal an adverse decision, which many now use as a delaying tactic. Opposing counsel in one of my cases recently brought a motion for permission to file a very late (by two years) anti-SLAPP motion on the eve of trial, and when the motion was quite properly denied, then filed an appeal from that denial. Of course I had no difficulty getting the Court of Appeal to dismiss the frivolous appeal, but it delayed the trial a month. Except for this type of abuse, in most other regards California’s anti-SLAPP law provides a very useful tool to get rid of lawsuits designed to silence free speech or frustrate the right of redress.

However, in case you still have it out for California’s anti-SLAPP law, I bring you an example out of Illinois that should make you feel a little better. California pioneered the anti-SLAPP concept, and most states have used that law as a template, but that hasn’t prevented some from coming up with their own strange hybrids.

Enter the case of Steve Sandholm, a high school basketball coach/athletic director in Illinois. In the case of Sandholm v. Kuecker, some parents decided they didn’t like Sandholm’s coaching style, so they really went after him, hoping to get him replaced. They posted useful, positive comments such as “[he is] a psycho nut who talks in circles and is only coaching for his glory.” The efforts were to no avail, because the school board decided to keep him. However that decision only fanned the flames, and the parents kept up their campaign. Sandholm found some of the statements to be defamatory, so he brought a defamation action.

But wait. Illinois has an anti-SLAPP statute that states that speech and petition activities are “immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” Wow that’s a broad standard. A school district is a government entity, and the parents were trying to get that government entity to do something (removing the coach), so did that fall under Illinois’ anti-SLAPP statute? If I read the statute correctly, that means that even if the parents got together and decided to fabricate lies about the coach, they are immune from a defamation action so long as those lies were “genuinely aimed at procuring a favorable government . . . outcome.” (I’m not saying that happened, I’m only using the case to present a hypothetical.) And how in the world is a court going to determine if the actions were “genuine”?

Incredibly, that’s exactly how the Court of Appeal interpreted the statute. Read this excellent summary of the case by John Sharkey to see just how convoluted the anti-SLAPP process can become.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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Lake Forest, CA 92630

(714) 954-0700

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

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

Factual summaries are entirely accurate in the sense of establishing the legal scenario, but are changed as necessary to protect the privacy of the clients.