Slander Requires a Witness
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 »
SLAPP033 – How to Defeat an anti-SLAPP Motion with Inadmissible Evidence
In Episode 33 of the California SLAPP Law Podcast, we revisit the California Supreme Court decision of Sweetwater Union High School District v. Gilbane Building Co. Our client was sued by an attorney, and we had the action dismissed by way of an anti-SLAPP motion. The attorney appealed, and in his briefs, he never mentioned the Sweetwater holding, and we sure were not going to bring it up. The Court of Appeal brought it up anyway. Would the attorney be able to reverse the ruling, based on evidence that might be admissible at trial?
We also discuss how sometimes the best thing to do is nothing. We were brought in to oppose an anti-SLAPP motion, but when the trial court kept continuing the hearing, I told the client, “wait for it, wait for it . . .”
And I tell the tale of nice woman who ran afoul of the anti-SLAPP statute with her cross-complaint, and was faced with a massive attorney fee application. She could not afford to hire us, but a little guidance from the wings saved her from disaster.
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A Curious Anti-SLAPP Victory Tale
The Saga of a Curious anti-SLAPP Victory Begins
A prospective client sent me a complaint he had received, thinking it might be a SLAPP. When I began handling anti-SLAPP matters almost 20 years ago, most attorneys were unaware of the law, let alone clients. I now get a surprising number of clients who are already aware of the law when they call, either from other attorneys who have referred them to me, or from their own research.
I reviewed the complaint, and after discussing the details with the client, I decided it was indeed a SLAPP.
Here are the facts.
The defendant, my client, grew concerned when he saw some bruises on his young grandchild. The child’s father had divorced, and after some questioning, the child reluctantly revealed that his mother’s new boyfriend was responsible for the bruises. My client immediately notified his son (the child’s father), who contacted the police and took the child to the hospital. The doctor, as a mandated reporter, contacted Child Protective Services.
The alleged abuser sued my client for defamation, and a myriad of other claims, alleging he had falsely reported child abuse to both the police and the doctor at the hospital.
Defamation is vastly different than personal injury.
I checked the website of the firm representing the Plaintiff. On the website, the attorneys refer to themselves as “The Talent.” I saw that their primary practice areas appear to be criminal law and personal injury. That explained a lot. I have encountered this phenomenon on a number of occasions. Personal injury attorneys bring defamation actions, assuming they will flesh out the facts through discovery as the action proceeds. Read the rest of this entry »
Many are Still Confused About How to Handle Mixed Causes of Action
I was recently served with an anti-SLAPP motion, attacking a complaint I filed on behalf of a client. I just filed our opposition, and felt compelled to write about the case, because it illustrates the continued confusion over how to handle mixed causes of action.
Filing an anti-SLAPP motion against the Sultan of SLAPP is a gutsy move. Let’s see if the attorney knew what he was doing.
Changing the facts as necessary to protect my client, the complaint is for defamation, and lists eight things the defendant said that are false and defamatory. The same eight statements were published two different ways. First, they were all published on Facebook, in a group that discusses the sort of business in which my client is engaged. Then they were published to an individual via a text message. I alleged two separate libel claims – one for the Facebook posting and the other for the text message.
Defendant should not prevail.
For a number of reasons, if the court follows the law, defendant cannot prevail on the motion. The first hurdle comes from the way evidence is viewed in conjunction with an anti-SLAPP motion. My client truthfully attested by declaration that all eight of the statements are false. Even without my client’s declaration, the falsity is apparent in some instances just based on the absurdity of the assertions. Read the rest of this entry »
How I Defeated an anti-SLAPP Motion by Doing Almost Nothing
Sometimes delay can be a good thing. Here is the tale of an anti-SLAPP motion defeated by time.
Because of certain changed circumstances, a massive company, we’ll call it Optimus, found itself in a bad situation. The facts are very complicated, but here is a simplified, made-up analogy that will set the scene.
Picture that Optimus is in the cold-remedy business, and a number of its formulations contain acetaminophen. But one day it is discovered that when acetaminophen is aerosolized, it cures baldness, and can be sold at a much higher price for that purpose. All of the suppliers want to bail on providing acetaminophen to Optimus, so Optimus comes up with a complaint it intends to use across the country against its suppliers, to force them to honor their agreements. Optimus knows that the suppliers will claim that the new use is a better use for the acetaminophen, because curing baldness is obviously the best conceivable use of any drug, especially as compared to a little pain and fever relief during a cold. The complaint by Optimus will challenge that legal theory and, if successful, will get all its other providers back into line. Read the rest of this entry »
Understanding Anti-SLAPP Evidence
Another great victory by Morris & Stone, and an important lesson on anti-SLAPP evidence.
Our tale begins with a father who loved his daughter. We’ll call him Dad, and his daughter will be Rose.
Dad thought married life was good, and he and his wife begat their wonderful daughter Rose. But his wife (we’ll call her Mom) apparently saw greener grass, and divorced Dad to marry New Guy, meaning that Rose would now be spending time with New Guy.
Reports from Rose about her time with New Guy were disturbing. She claimed that New Guy had spanked her, and one time she returned home with a badly bruised arm she blamed on New Guy. During the ongoing custody battle, Dad reported his concerns about New Guy to the court in various court documents, stating that based on what Rose was reporting, he was being too forceful with Rose. Dad freely admitted he had no personal knowledge of any of this; he was only reporting what Rose was telling him. What else was he supposed to do?
You Can Now Be Sued for Calling the Police
California recently turned defamation law on its ear, as regards calling the police. Let me set the scene with a hypothetical that will demonstrate what California has done.
You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guest’s cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.
Bob is quite a jerk, and is already on probation for a prior criminal offense. If he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.
He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”
The Litigation Privilege and Collateral Defamation 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. They are concerned that if they don’t “clear their name” the lies will prevent them from working in their profession.
— 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.
Posted in Case Results, Defamation, Defamation Solutions, Evidence, Libel, Litigation, Slander, Trial, Wrongful Termination | Tags: Aaron Morris, Collateral Actions, Defamation, Litigation Privilege | 8 Comments »
SLAPP032 – The 3 Most-Often Miscited Anti-SLAPP Cases
We begin Episode 32 with the discussion of how Morris & Stone just defeated an anti-SLAPP motion. I reveal the common (and fatal) mistake made by defense counsel when they pursue anti-SLAPP motions.
And on the topic of mistakes, based on my prior article, we turn to the three cases that counsel almost always cite improperly when defending against an anti-SLAPP motion. Listen and find out what these three cases really stand for:
Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858.
Weinberg v. Feisel (2003) 110 Cal.App.4th 1122.
Flatley v. Mauro (2006) 39 Cal.4th 299.
Finally, in the after-show, I reveal a successful strategy to obtain a trial continuance, even when the judge has already said no.
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Three Common Mistakes by Defense Counsel on Anti-SLAPP Motions
Like shooting fish in a barrel (although I have never understood why, if the fish are already in a barrel, there would be any need to shoot them).
I (telephonically) attended oral argument on an anti-SLAPP hearing this morning, and it again demonstrated that attorneys are just not thinking through their motions. I was brought in to defend against the motion. In reviewing the motion, I immediately recognized that the attorney for the defendant had made three major mistakes, any one of which would likely guarantee denial of the motion.
Just the facts, ma’am.
This case involves one of those horrible situations where someone stops taking care of their home, and it eventually falls into such disrepair that the government has to step in and mandate repairs, with the threat of selling the home.
The homeowner (the defendant in our case) went along with the process. The homeowner’s insurer actually stepped up and paid for the repairs, and Defendant agreed to all of the planned construction. But in the end, he did not feel that the home had retained its original character, and took to the internet to vent against our client, the contractor who had performed the repairs.
As is so often the case, Defendant was not satisfied to merely tell the true story, explaining why he was unhappy. In these situations, Defendants want to hurt the business they blame for their travails, so they embellish. He made up more and more lies, to the point that he was saying the contractor was never authorized to make repairs, and had “stolen” the insurance proceeds.
Before I was involved, the contractor had sued Defendant for defamation. I was brought in to oppose the anti-SLAPP motion.
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