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

 I know the world isn't fair, but why isn't it ever unfair in my favor? - Bill Watterson, Author of Calvin & Hobbes

Watterson's observation echoes many of the kinds of statements I hear weekly from potential defamation plaintiffs. After listening patiently to their side of the story, (usually several minutes), I begin describing the bad news in detail: Defamation law is decidedly in favor of defendants; especially in California. To state it more broadly, and perhaps in a more even-handed way, California is extremely protective of free speech.

Generally, in order to state a claim for defamation in California, Plaintiff must prove the following elements by a preponderance of the evidence: (1) a publication; (2) of statement of fact;  (3) that is false; (4) defamatory; (5) unprivileged; and that (6) has a natural tendency to injure or causes special damages. Most of the elements seem fairly straightforward at first glance, but they are not. For example, whether a statement is a provably false one is not an easy determination to make in many situations. Many are arguably opinion, which is protected under the First Amendment. Still others are an opinion, which imply a provably false fact, which can be actionable under California law.

There are also many applicable privileges or defenses to a cause of action for defamation. For instance, statements made in an official proceeding (judicial, executive, or administrative) are absolutely protected under Civil Code 47(b). Statements that are not made in such a proceeding, but which are made to a person with a "common interest," may be protected under Civil Code 47(c). In addition, in the absence of malice, statements made by reporters are protected by a so-called reporter's privilege.

Truth is also a complete defense to civil liability for defamation. But the defendant is not required to show that the alleged defamatory statement is true in every particular--only that the gist or sting of the statement is substantially true. Thus a defendant does not need to justify the literal truth of every word of the allegedly defamatory statement.

Another insidious defense is the statue of limitations, especially in internet defamation cases. The statute of limitations is one year for defamation, libel, and slander. But in internet defamation cases the discovery rule does not apply. This means that it doesn't matter when you discovery the alleged injurious material. So if a statement was published on Twitter, Facebook, or a blog in 2007 and you just learned of it in 2011, too bad, so sad. You probably don't have a case. I've seen a couple of opposing attorneys fall into this trap.

Then there is the specter of the anti-SLAPP motion. Where a cause of action arises from petitioning or free speech activity, the defendant may file a motion to dismiss the case entirely at an early stage, before the plaintiff has had an opportunity to conduct discovery. All the defendant needs to show is that the claim arises from petitioning activity or free speech, then the burden of proof shifts to the plaintiff to show that he can probably prevail. If the plaintiff cannot meet his burden, the case is dismissed and the defendant is entitled to his or her attorney fees. In other words, the plaintiff would be required to pay the other guy's attorney fees and costs in defending the SLAPP action. Beyond the mechanics of the SLAPP statute, it is particularly dangerous because many lawyers do not understand it well. I do not know how many times I have heard opposing counsel tell me, "Gee, I wish I had read your blog," before filing their client's complaint. I don't say this to impress you, I say it to impress upon you the fact that you must work with a lawyer who knows this area inside and out. It is very easy to fall into a trap in this area of law.

After I list all of these possibilities to potential clients, understandably, they generally do not wish to proceed. The truth is, that an argument could be made that California Defamation Law is unfair, from a plaintiff's point of view. 

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In what will probably be one of the most significant anti-SLAPP cases of 2011, the First District in Grewal v. Jammu, expressed in no uncertain terms that the anti-SLAPP statute is being abused. Justice Richman, writing for the majority, took the opportunity to detail the particular abuses of Section 425.16, with a not so subtle plea to the Legislature to limit the application of the anti-SLAPP statute.

In support of its conclusion, the Court cites to various amendments to the statute (425.17, in particular), decisional authority expressing concern with the expansion of the anti-SLAPP statute, and the explosion of published and unpublished decisions in this area. The Court maintains that the glut of anti-SLAPP appeals has become a burden on its docket.

The Court's suggested remedy: eliminate the automatic right of appeal to defendants who lose at the trial level. 

While I respect the Court's concerns, eliminating the right to appeal would be a mistake.

The Court's recommendation merely shifts the burden to trial judges. It assumes that judges understand the complexities of the anti-SLAPP statute. While I have the utmost respect for the California Judiciary, my experience is that many trial judges are not very familiar with the anti-SLAPP procedure. And even though Judges make the right decision in most cases, I have personally seen reversible error in a number of situations. For example, some trial judges have refused to carefully consider objections to key evidence, which could have likely changed the outcome of the anti-SLAPP motion.

Eliminating the right to appeal would likewise prolong some cases which have no merit. Discovery would continue, motions would be made, and further burden trial judges. In this respect, the Court's recommendation is akin to dusting. The dust never disappears. It's just moved from one corner of the living room to the other.

I propose an alternative. Rather than eliminate the right to appeal, perhaps the Court could set up a special Division that screens anti-SLAPP appeals, much like the procedure used by the California Supreme Court to determine whether it will review cases. However, the standard would be more relaxed such that review would occur in more cases than in the case of a writ of mandate. Alternatively, the screening process could occur at the trial level. In any case, the legislature could increase the filing fee for anti-SLAPP motions.

There are many ways to tackle this problem. But a wholesale elimination of the right to appeal is not the answer.

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Relying primarily on a recent California Supreme Court decision, I wrote a while back that the discovery rule does not apply to defamation cases. That is, generally, you have one year to file a lawsuit for defamation (slander/libel) from the time the statement or statements are published. Unfortunately, the Supreme Court did not address specifically whether the discovery rule applies to internet libel. 

Well leave it to the Fourth District, Court of Appeal to decide the issue. It determined that Internet websites are subject to the single publication rule. In plain English, (and grossly simplified) it means that you can only sue for damages based on the first publication of a defamatory statement. You can't, for example, sue multiple times based on a single defamatory statement. This is important because the statute of limitations is triggered at the first publication of a defamatory statement. So the Fourth District effectively held that in regard to alleged defamatory statements made on Internet websites (like blogs or Twitter), the statute of limitations begins to run at the time the statement is first published.

Many lawyers are not aware of this rule. They believe that the discovery rule applies to Internet libel or that the single publication rule does not. But they are wrong on both counts. This is why it is necessary for you to consult with a defamation lawyer, or at least someone who is somewhat knowledgeable in this area.

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Access to the court system just became even more difficult for litigants whom have limited resources. In an unsurprising (yet still disappointing) move, Governor Arnold Schwarzenegger signed SB 857, which increases filing fees in Los Angeles County and the rest of California. Additionally, because this bill includes an urgency clause, the new fees took effect upon the Governor's execution of the document. In other words, the new filing fees are effective immediately.

Here is a list of some of the new fees:

• First appearance in an unlimited civil action (over $25,000.00), Family law petitions, and Probate petitions by plaintiff(s) and each defendant will increase to $395.00. This fee increase applies to all types of filings in which the previous fee was $355.00 (civil, probate, family, etc...).
• First appearance in a limited action ($10,000.00 up to $25,000.00) by plaintiff(s) and each defendant will increase to $370.00.
• First appearance in a limited action (under $10,000.00) by plaintiff(s) and each defendant will increase to $220.00.

Note: The above fees do not include the additional fees required for Unlawful Detainer filings (additional $15.00) or the surcharges imposed in Riverside County, San Bernardino County, or the City and County of San Francisco.

• Motion for Summary Judgment/Adjudication will increase to $500.00.
• Application by counsel to appear Pro Hac Vice will increase to $500.00.
• Adds an additional $3.00 penalty to every parking violation.
• Additional increases in various criminal penalties and traffic fines.
• A fee for telephonic appearances (a fee payable to the court in addition to fees paid to vendors). Fee has not been determined yet. An additional notice will be sent once we learn what this fee will be set at.

This is another example of what politicians do in Sacramento when they have failed to manage our resources properly. They increase fees. Pretty soon litigation will exclusively be the "sport of kings."

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Dear respective members of the bar,

If you are an avid reader of this blog, I would appreciate it if you would send me an e-mail or leave a comment below so that we can get in touch. The reason I am asking this is two-fold: (1) I would like to get to know you and see if you have any suggestions for topics I could write about on this blog; and (2) I am considering forming a Defamation Lawyer's Association in Los Angeles, where we would delve into certain topics like Defamation and anti-SLAPP law in greater detail. Your responses would allow me to gauge the interest in such an organization.

Please send me an e-mail and/or leave a comment below.

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and which is the WRONG question. It goes something like this: "Adrianos, someone wrote defamatory comments about me on the internet and I want to do something about it. Can I file a lawsuit?" This is the WRONG question.

Anyone can file a lawsuit at anytime, whether it's defamation, libel, slander, intentional infliction of emotional distress, breach of contract, you name it. The courts in Los Angeles (and most other courts in California and elsewhere) are open 5 days a week. The proper question, however, is whether you should file a lawsuit. And the answer to that question depends on a number of factors, including but not limited to:

• do you have a strong claim or claims? Many claims appear strong on the surface (especially to non-lawyers) but are much weaker upon close examination, which is why I reject most cases.
• Is a cross-complaint likely? If the cross-complaint is successful, the defendant may get a judgment against you for damages.
• Is your lawsuit subject to an anti-SLAPP motion? Many individuals and lawyers misapprehend the expansive reach of the almighty anti-SLAPP motion. It has the potential of knocking out your case at an early stage, not to mention the fact you'd have to pay the defendant his attorneys' fees. This is why you need an experienced anti-SLAPP lawyer to review your complaint before you file it.
• Is the potential recovery substantial enough? Most lawyers will not handle a case which is smaller than $100,000.00 on a contingency basis--it's just not worth the time and risk for most of us. In that event, would you be willing to spend thousands of dollars to litigate your case?
• Is this merely a "matter of principle" or a "vendetta case?" Many people tell me that they want to sue someone as a "matter of principle." I usually turn down these cases because they involve an emotional cauldron that I'd prefer not to spend 1 to 2 years dealing with.
• Do you have the intestinal fortitude to deal with obnoxious opposing counsel who may relentlessly question you about topics you'd rather not talk about? Are you willing and able to spend a considerable amount of time working with your attorney to prepare the case?

Those are just some of the questions you should be asking yourself before you decide to file a lawsuit.

If you liked this post, please leave a comment below.

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