California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

One of the strangest things to me is how much we worship celebrities in our culture. Turn on any channel or read any newspaper and you'll eventually see a story about a celebrity. This is perplexing and amusing at the same; especially for people like me, who were born and raised in Los Angeles. It's not uncommon to see an actor or director walking around or dining at a restaurant. But really, so what? They're just people, except that they're typically (not always, I know I'm generalizing) self-centered, uninteresting, and the most famous ones have people following them around all the time. These are plenty of reasons not to want to know, let alone hang out with a celebrity.

But there's yet another reason not to associate with celebrities: because the mere association with a celebrity may make you a limited purpose public figure!

In Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, the appellate court held that a housekeeper of Marlon Brando who was mentioned in his will "became involved in an issue of public interest by virtue of being named in Brando's will." This ruling is significant because the mere association with a celebrity may make a person a limited purpose public figure. This means that such a person would potentially be subject to different and higher evidentiary burdens should they decide to file a lawsuit.

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which will insulate you from liability for defamation. This usually comes into play because people mistakenly believe that only facts are actionable defamation. Wrong. An opinion can form the basis of a cause of action for defamation (slander, libel, and trade libel too) if it implies undisclosed defamatory facts.

So just because you say "in my opinion, Joe Shmoe is a fraud," doesn't mean you're automatically protected by the First Amendment. The court would look at the statement in its context to determine whether it implies a provably false assertion of fact. "The use of interrogative language alone does not entitle statements to constitutional protection where . . . they otherwise can be understood as implying defamatory fact." Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1004.

Nor can you get away (necessarily) by putting "I think" in front of an otherwise defamatory remark. Jackson v. Paramount Pictures Corp. 68 Cal.App.4th 10, 30 (citations omitted) ("It would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think."')

The lesson here is that there are no magic words. What matters is the substance/tenor/context of each statement.

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Comparing defamation and trade libel is like comparing apples and oranges. While both are similar (apples and oranges are fruit), they are fundamentally different in other ways.

One key difference between the two is with respect to the harm each is designed to address or protect. Defamation is meant to protect the reputation of the person, whereas trade libel is designed to compensate the plaintiff for pecuniary damage. The reason this distinction is critical is because " . . . trade libel requires pleading and proof of special damages in the form of pecuniary damages." Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3 547, 572. However, proof of special damages solely in the form of pecuniary damages is not required to plead and prove a cause of action for damages.

A second difference is that plaintiff is required to plead and prove that a disparaging statement is false in regard to trade libel, whereas in a cause of action the plaintiff is NOT required to plead that the statements are false in most cases. Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

Third, plaintiff may not recover damages for mental distress upon prevailing on a cause of action for trade libel. He or she is limited to the loss of pecuniary damages caused by the libelous statement or statements.

Understanding the differences between these torts will help you plan your strategy, whether you are the plaintiff or the defendant in a case.

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"Trade libel is defined as an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff." Erlich v. Etner (1964) 224 Cal.App.2d 69, 73, 36.

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In reviewing some of the topics that we've covered on the California Defamation Blog, I noticed that the topic of Trade Libel is conspicuously absent so I'm going to fix this over the next few posts.

Today's post is short and simple. Here are the basic elements of a cause of action for Trade Libe to get us started:

1. Defendant's false statement;
2. Publication;
3. Of matter disparaging the quality of another person's property or services;
4. which the publisher intended to cause harm to the owner, or should have recognized as being likely to cause it; and
5. Causation of pecuniary harm or loss.

Computerexpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.

In the next post we'll discuss the nature of the tort of Trade Libel.

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Some people have complained lately that I've been way too focused on anti-SLAPP law here. Well, there's a reason for that. 

It's because SLAPP law plays an important part in just about every defamation case involving matters of public interest. It would be like talking about the Lakers without talking about Lamar Odom or Pau Gasol. Sure Kobe is the star of the team, but the other players invariably play a key role in each game (can you tell that I'm a Lakers fan?).

But I digress.

What I'd like to talk about today is a type of evidence that is routinely introduced by one party in support or opposition to an anti-SLAPP motion, and yet, the receiving party RARELY objects to this type of evidence!

What am I talking about?

I'm talking about judicially noticed court documents and/or declarations.

“ ‘Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.’ [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid.Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records." '

Kilroy v. State (2004) 119 Cal.App.4th 140, 145.

Therefore, while courts make take judicial notice of any "orders, findings of facts and conclusions of law," they may not consider hearsay statements in court records "for their truth unless an independent hearsay exception exists." North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777.

As my Civil Procedure professor used to say, let's take an example and "flesh this out a bit." Suppose you are a plaintiff who is suing a defendant for defamation based on allegations that you had embezzled money from a publicly traded company. Defendant made the alleged defamatory comments on a forum dedicated to discussion about the publicly traded company.

Defendant files an anti-SLAPP motion and accompanying request for judicial notice of a shoplifting conviction on your record from over 30 years ago (during your misguided/misspent youth). There is a police report and several witness statements included in the court records.

Can the court consider the conviction for its truth? YES, according to the evidence code.

Can the court consider the statements in the police report and witness statements for their truth? NO because they are hearsay and require an independent hearsay exception in order to come in.

See the difference?

This is vitally important because whether you win or lose on an anti-SLAPP motion may depend on evidentiary rulings made by the judge.

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This has been an exciting year here at the California Defamation Law Blog, so I thought it'd be a good idea to highlight our top 10 favorite posts, considering page views, comments, and other forms of reader feedback. I hope you revisit and enjoy these posts. Here's to an even better 2010!

Here they are:

1. Do You Have A Case For Defamation?
2. The Three Types Of Damages In Defamation Cases
3. Small Businesses Strike Back
4. Los Angeles Superior Court Reduces Operations In Wake Of Financial Crisis
5. Twitterers Beware! Courtney Love Sues For Tweets
6. Defamation's Greatest Hits
7. The Tale Of A Model, A Blogger, And Internet Anonymity
8. Defamation Defenses Series
9. What Is The California Shield Law?
10. Perez Hilton Threatens To Sue Kirstie Alley For Twitter Defamation

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Enough!

Enough of the vague allegations that leave defamation defense counsel (like myself) wondering what you mean when you plead, for example, that "defendant made statements indicating that plaintiff is dishonest and is a liar." That is not enough to properly state a cause of action for libel or defamation!

“The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint. [Citations.]” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5, 284 Cal.Rptr. 244.)

Failing to specifically identify each and every alleged libelous statement may lead to serious consequences.

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Once a defendant makes its threshold showing that a complaint arises under protected activity, the plaintiff must demonstrate a probability of prevailing on the merits. This means a plaintiff must state and substantiate a legally sufficient claim. Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass'n (2006) 136 Cal.App.4th 464. Stated another way, plaintiff "'must demonstrate the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26, citing, Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.

"If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018-1019, 26 Cal.Rptr.3d 350 (Vogel ); FN7 Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018-1019, 132 Cal.Rptr.2d 602 [“[S]pecial motions to strike pursuant to section 425.16 ‘operate “like a demurrer or motion for summary judgment in ‘reverse.’ ” ' (Briggs, supra, 19 Cal.4th at p. 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 718-719, 34 Cal.Rptr.2d 898, 882 P.2d 894." (Emphasis added).

Just like a demurrer, if a plaintiff fails to state a cause of action it will be stricken. Therefore, it is critically important for a plaintiff to carefully draft its complaint.  Plaintiff must plead sufficient facts in its complaint in order to state each cause of action. It may not be enough for plaintiff to state certain facts for the first time in its opposition to an anti-SLAPP motion.

Plaintiff beware.

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