The Preliminary Injunction Is Dead

Posted on December 8, 2008 by Adrianos Facchetti

A Deputy Sheriff (Mr. Evans) sued his wife (Mrs. Evans) for defamation, harassment, and invasion of privacy among other claims.  Evans v. Evans (2008) 162 Cal.App.4th 1157.  He moved for a preliminary injunction.  The trial court granted it and entered an order enjoining her and her mother from:  (1) publishing "false and defamatory statements" about Mr. Evans on the Internet; (2) publishing "confidential personal information" about Mr. Evans on the Internet; and (3) contacting Mr. Evans's employer "regarding [Mr. Evans]" except to call "911 to report criminal conduct."  I'm going to focus on the first part of the order.

Mrs. Evans appealed the order.  The preliminary injunction order was reversed and the matter was remanded to the trial court.

The portion of the order prohibiting Mrs. Evans from publishing "false and defamatory statements" about Mr. Evans on the Internet was held invalid as a prior restraint.  The court relied heavily on the Balboa decision, solidifying the concept in California defamation law that an injunction prohibiting a defendant from repeating specific statements before trial is invalid.  Such an injunction may be only granted with respect to specific statements, which are determined at trial to be defamatory.

The court also determined that the order was vague and overbroad since it failed to specify what future statements might constitute a violation of the order.  That the order was limited to speech on the Internet was of no consequence to the court.

"The fact that the court's prohibition on publishing false materials applied only to speech on the Internet does not affect our analysis.  The courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech in other forums."

So what does this mean for defamation law in California?

It means the preliminary injunction is dead.

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What Is An Injunction And Why Should You Care?

Posted on November 30, 2008 by Adrianos Facchetti

An injunction is a court order that requires someone to do something or prevents them from doing something.  There are a few different types of injunctions, but I'm only going to discuss the two that apply to defamation cases.


The first is a preliminary injunction.  In California, in order to establish a preliminary injunction, a plaintiff must show:  (1) a likelihood of prevailing on the merits and, (2) that the harm to the plaintiff from not granting the injunction outweighs the harm to defendant if the injunction is issued before trial.  A preliminary injunction is extremely advantageous to a plaintiff in a defamation case. It allows plaintiff to stop defendant from making certain defamatory comments/statements about plaintiff. Very powerful.  However, they're rarely granted because California courts are extremely protective of speech.  

On the other hand, I find that courts are much more likely to grant a preliminary injunction if internet defamation is involved.  Why do I believe this?  Because of the nature of the internet.  A person's reputation can be destroyed virtually instantly and it never really goes away.  A court may view this as unfair and attempt to right the "wrong."  What is certain is that courts are struggling to apply old legal rules and concepts to the internet.

The second type of injunction is a permanent injunction.  California courts will grant a permanent injunction only after a trial.  Essentially, whatever statement(s) the judge or jury determined to be defamatory, can be permanently enjoined.  That means you can never utter those statement(s) about plaintiff ever again, unless you want to risk being held in contempt.  Which you don't.

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Can A Court Silence You For Life?

Posted on October 21, 2008 by Adrianos Facchetti

You may be under the mistaken impression that the only remedy for a defamation claim is monetary.  Well, that was the case (essentially) until the California Supreme Court had something to say about it last year in Balboa Island Inn v. Lemen (2007) 40 Cal.4th 1441. The owner of a restaurant and bar sued a nearby resident for nuisance, defamation, and interference with business. The case went to trial and the restaurant owner prevailed on all causes of action and the court issued a permanent injunction, preventing defendant (among other things) from making defamatory statements about the restaurant. The defendant appealed the decision and the Court of Appeal affirmed. The California Supreme Court granted review. The Court held that the injunction in question was overly broad, but that the defendant's speech:

"would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory."

This means that a court has the power to stop you from speaking or writing about a given person or business for LIFE with regard to certain specific statements, which a judge or jury deem to be defamatory at a trial. A permanent injunction would not appear to apply to subsequent and different "defamatory" comments, however. The bottom line is that California courts CAN enjoin speech permanently.

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