California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

Plaintiffs commonly assume that courts will interpret alleged defamatory words in a strict or literal sense. But such is not the case. For example, in one case, a political candidate in Orange County filed a defamation suit against his opponent for discussing the investigation and reprimand of plaintiff for sexual harassment by the state Assembly.

The defendant made a number of alleged slanderous and libelous statements during the campaign, e.g., "[t]he bi-partisan Assembly Rules Committee conducted a thorough investigation and found that [plaintiff] was guilty of sexual harassment of one of his employees." 

Plaintiff argued that using the term "guilty" meant that he had been found guilty of a crime. The court disagreed and wrote the following:

Even by the late 20th century not everyone has attended law school-yet-and thus the ordinary person still does not equate the colloquial use of “guilty” with criminal guilt. We agree with the trial court that “there is no merit to the argument that the term 'guilty' would connote, in the minds of an average reader, a finding of guilt by a court of law.” Webster's dictionary recognizes this distinction and defines guilty, inter alia, as “justly chargeable with or responsible for a usu[ally] grave breach of conduct or a crime.” (Webster's Collegiate Dict. (10th ed. 1996) p. 517, italics added.)

Obviously the term "guilty" may connote conduct other than a crime. Accordingly, the court's analysis was correct. More importantly, however, this case illustrates that courts do not give technical meaning to words, recognizing that people tend to use words loosely in everyday speech. This is an important concept in understanding the bounds of free speech protection.

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As I sit here and enjoy another sunny day in Los Angeles, California, I think to myself, "man, I'm lucky." I get to litigate cases which intrigue me, and get to help people resolve their disputes without resorting to self-help (in most instances).

But you're not here to listen to my idle musings.

You're reading this because you want to know what's the single biggest weapon to knock out a defamation lawsuit post-anti-SLAPP motion.

Now, my guess is that you've probably already tried filing an anti-SLAPP motion and you lost . . .

And . . .

You don't want to go trial because you know it's a big risk and it could end up costing you a lot of money (aside from the attorney's fees).

So what is this weapon of choice in defamation cases?

It's the almighty Motion for Summary Judgment.

What you might know is that it has the potential to knock out each of your opponent's claims.

However, what you might not know is that it is particularly potent in the defamation and/or invasion of privacy context.

Specifically, courts have held that:

"Summary judgment is a favored remedy in defamation and invasion-of-privacy cases due to the chilling effect of protracted litigation on First Amendment rights."

and . . .

“[T]he courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing, the courts are inclined to grant the motion and do not permit the case to proceed past the summary judgment stage.”

The message is clear to defendants:

All things being equal, the court is likely to rule in your favor.

I just shared an extremely important piece information with you that most attorneys don't even know about. If you enjoyed it, and you want to get more great information, click here to get the "Ultimate Beginner's Guide To Defamation Law."

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I remember sitting in a church pew many years ago hearing the pastor speak about two different kinds of sin:  Sins of "commission" and sins of "omission." I understood very well as a teenager that you weren't supposed to do bad things (commission), but it was always a bit more abstract and difficult to understand that failing to do something could get you into trouble. And, if defamation can be analogized to sin (which, on many levels it probably shouldn't) in California at least, you cannot be held liable for defamation by omission. I know it sounds a bit weird but I'll explain it down below.

In Paterno v. Superior Court (2008) 163 Cal.App.4th 1242, a newspaper sued a student journalist because the student had made some statements in a magazine article about the newspaper. The article stated that the newspaper had "killed" a story about a drunk driving sentence imposed onone of the newspaper's editors. The article also stated that the newspaper initially investigated a workplace restraining order against a former employee, but then dropped it.

Now what's interesting is that instead of claiming that the statements were false, the newspaper complained that the magazine article did not include important facts, which identified why the newspaper did what it did. Essentially, the newspaper said that the magazine article didn't tell the whole story, and therefore falsely implied bad motives with respect to the newspaper.

First off, I doubt this would be the first time a newspaper didn't tell the whole story and omitted key facts, so the newspaper should have known better.

In any event, the court held that defendant had no obligation to include plaintiff's explanation of the story. Therefore, there is no liability for defamation by omission in California.

If you liked this post please subscribe to the California Defamation Newsletter to receive "The Ultimate Beginner's Guide To Defamation Law" for free.

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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.

If you liked this post please subscribe to the California Defamation Law Newsletter to get more updates about defamation law and learn how to protect your reputation online. 

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I was at a Kiwanis club meeting the other day and the topic of Tiger Woods came up. Someone mentioned that Tiger was in deep trouble (an obvious observation) and began to rattle off the names of each of Tiger's mistresses and then there was some generally commentary about Tiger's "transgressions." All in good taste, of course.

What struck me about this conversation was the amount of detail some of my fellow Kiwanians knew about Tiger's dilemma. I mean, all the guys at my table were well-educated men over the age of 50. They're certainly not the type of guys who'd watch Entertainment Tonight or check out the latest celebrity gossip at TMZ.com. Know what I mean?

And yet they knew so much about a golfing celebrity's love life, which brings me to the point of this post.

Are the details of a celebrity's love life a matter of public interest for purposes of the anti-SLAPP statute? 

One would think not given that there other more weighty issues of public interest which deserve debate such as political speech, child abuse, homelessness, AIDS, etc. etc. Whether Tiger cheated with 2 or 10 women or is not really of great public significance. Right?

Not so say the California courts. 

Details of a celebrity's life can be a matter of public interest if they involve issues in which the public is interested. Stated another way, the issue does not need to be "significant" as long as the public is interested in it. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027.

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Total read time: 2 minutes 49 seconds.

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." -Winston Churchill

Truth is a complete defense to a claim of defamation.  

It is the great equalizer in any libel or slander suit. It is what the plaintiff's defamation lawyer fears the most; that what his client's accuser says is true. It does not matter that the defendant made the statement out of malice or out of bad faith, so long as the statement is true. Washer v. Bank of America (1948) 87 Cal.App.2d 501, 509; Campanelli v. Regents of Univ. of Calif. (1996) 44 Cal.App.4th 572, 581; Rest. 2d, Torts § 581A; Francis v. Dun & Bradstreet (1992) 3 Cal.App.4th 535, 540 (credit report, even one causing harm, is not defamatory if true); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953 (statements as to dentist's misconduct were true given Board of Dental Examiner's determination that dentist had been grossly negligent and in violation of provisions of Business and Professions Code).

So what does it mean to establish truth? Does that mean the defendant must establish the truth of his statements in every particular? Surprisingly, the answer is no.

It is sufficient if the defendant proves that the substance or the "gist" of the statement is true. Heuer v. Kee (1936) 14 Cal.App.2d 710, 714; Gantry Const. Co. v. American Pipe & Const. Co. (1975) 49 Cal.App.3d 186, 194 ("The concept that it is the gist or sting of the alleged defamatory statements that must be false rather than the specific details of the charge is deeply rooted in our common law."). Weller v. American Broadcasting Cos. (1991) 232 Cal.App.3d 991, 1009, footnote, 17; See Campanelli, supra (admission that plaintiff basketball coach engaged in tirades so bad that seven players were thinking of quitting established truth of defendant's assertion that players "were in trouble psychologically").

But who bears the burden of proof? The previous rule in California was that the plaintiff needed to plead that the statements were false. This is no longer required. The burden of pleading and proving that the statements are true rests squarely on the shoulders of the defendant. See Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a free copy of "The Ultimate Beginner's Guide To Defamation Law." 

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Many people believe that defamation of character litigation is out of control. They go on and on about how rising costs are encouraging defendants to settle "frivolous" cases and "abusive" discovery procedures are chilling free speech. But they don't really offer any solutions to this so-called problem.  Instead, they just talk, talk, and talk, and it's really getting old.

The real problem here is the delusion that Internet speech deserves greater protections than speech made in other places.  It shouldn't.  And I predict that courts will begin to see the error of their ways in the near future.

What do you think?

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Why would you ever want to talk to a lawyer unless you are in an unpleasant situation? It's simple. You want an answer to a basic question:  Do I have a case?  Or, if you're being sued, does the other person have a case?

The reality is that you'll rarely get a clear-cut answer from an attorney. Why is that? Because the law is a reflection of society and its values and mores, which is pretty complicated to say the least.  If everything was "black and white" there would be no need for lawyers, right?

Instead of a simple yes/no answer, a lawyer is more likely to advise you of the basic law relevant to the facts of your case and make general recommendations.

Enter the purpose of this post.  

I'm going to outline general principles of California defamation law so that you can make a preliminary assessment of your situation.  I use the word "preliminary," because it is essential for an attorney to take a closer look at your particular set of facts.  By no means should this post be taken to be a comprehensive treatment of defamation law in California. But at least you will have a basic understanding of the law, and as they say, knowing is half the battle.

Defamation is known by many names: libel, slander, disparagement, defamation of character, etc.. Many of the terms refer to the same idea, however; a statement which results in damage to a person's reputation.

In order to prove defamation in California, a person must prove the following elements by a preponderance of the evidence, that is, it is more likely than not that each element is satisfied based on the evidence.

1) Defamatory - the statement must be defamatory.  What does that mean? It has been defined as any statement that tends to lower the reputation of a person in the community, and/or subject that person to contempt, ridicule, or obloquy, or cause the person to be shunned or avoided.  For example, what if a newspaper described a person as being "gay?"  Would that be defamatory? Well, it depends on the community.  Obviously, in most places in California and, indeed in the United States, such a statement would clearly not be defamatory.  But what if that statement was written in a small town newspaper in the south, for example? In that situation, the statement may be found to be defamatory.

2) Statement of Fact - the statement must be a fact.  Generally, you would not be able to prove defamation if the statement is an epithet, hyperbole, or is merely an opinion. That is not to say that all opinions are created equal.  Some statements that appear to be opinions may be construed to be factual statements if the statement implies a provably false statement.  This is one of the most misunderstood concepts relating to defamation law. I talk more about this here.

3) Falsity - the statement or statements must be false.

4) Of and Concerning - The average reasonable person must understand that the statement refers to the plaintiff, and not someone else, or a group of other people.

5) Publication - this element is a bit misleading.  A statement can be published in a number of ways, including orally, in writing, by photograph, or other fixed means, and, it must be conveyed to a third party.  So, if Mr. Jones comes up to you and claims that you've been convicted of a crime, it's not going to count as defamation unless a third party heard the statement.

6) Causing - The statement must cause the plaintiff harm to his or her reputation.

7) Damages - Damages are presumed and therefore do not need to be proved if the statement is libelous on its face.  A statement is libelous if it is permanent in nature.  For instance, any statement on the internet would be libelous; any photograph that is defamatory would be defamatory as well since it is fixed.  See what I mean?

A statement is libelous on its face if it is defamatory without reference to any other information. So if I write in a blog post that Mr. Jones robbed a bank last year, it is clear to all, without reference to any other information, that the statement negatively reflects on Mr. Jones' reputation.

Damages must be proved if the statement is slanderous (oral) unless, the statement is slanderous on its face.  A statement is slanderous on its face if it falls within the following categories:  (1) charges someone with a crime; (2) indicates someone has a infectious or loathsome disease; (3) hurts someone with respect to their office, trade, or business; (4) imputes to a person impotence or a lack of chastity; and (5) any statement which causes actual damage.

8) Fault - There are different standards of fault depending on whether the plaintiff is deemed to be a private person or a public figure.  Private person plaintiffs must only show negligence.  Public figures must show that the statement was made with constitutional malice, that is, that the defendant knew the statement was false at the time it was made, or with a reckless disregard for the truth.

That's California defamation law in a nutshell.  There are MANY issues that I simply could not cover in this post.  However, this is a good starting point for any person wanting to understand this area of law.

[Editor's note: a previous version of this post failed to include falsity as an element of defamation.  Thanks to Josh King over at Avvo for pointing this out.]

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