Epsten, APC

By Mary M. Howell, Esq.

Introduction

What IS defamation?  Defamation is either “slander” or “libel.”  Slander is spoken; libel is written.  To plead and prove up an action for defamation, the victim must show:

1.           Publication to a third party

–Comments solely between “defamer” and victim are not “published”

1. Intentional publication

–If comments between the “defamer” and the victim are accidentally overheard by another, the action for defamation fails.  Haley v. Casa Del Rey Homeowners Ass’n. (2007) 153 Cal.App.4th 863.

1. Statement of “fact” which is false

–Includes any “writing, printing, picture, effigy, or other fixed representation … that exposes any person to hatred, contempt, ridicule or obloquoy or that causes him or her to be shunned or avoided or that has a tendency to injure the person in his or her occupation.”  Civil Code 45.

–Must be a “provably false factual assertion,” that is, you have to be able to prove that the statement is false.  Often used to exclude “opinion” (see discussion of “opinion” infra at VII, Krinksy v. Doe 6.)

1. Not privileged

–Defamation is a “disfavored tort” in the United States, meaning that the law has allowed defenses against the action to facilitate larger social concerns.  “Privilege” is a defense to defamation, which evolved out of America’s overweening adoration of the notion of “free speech.”  Briefly, “privilege” is the notion that one should be able to say anything, true or false, about someone if some social purpose is served.

–Privilege, absolute and qualified:

In some circumstances, statements are “absolutely” privileged.  That means, even if the statement in intentionally false, and made with malice, no damages may be awarded for the falsehood.

The publications which are absolutely privileged are statements made as part of an official duty, statements made before the legislature or in a judicial proceeding, reports to the legislature or complaints to a public official.   The basis for an “absolute” privilege is that the importance of the communication is so great that the law should not permit the speaker to be discouraged by the threat of civil liability.

In other cases, more relevant to association proceedings, a communication of “qualifiedly privileged” when it is made without malice, to a person interested therein.  CC 47(c).  The privilege may pertain to communications between persons who share a common interest, between persons in a ‘special relationship’, and by one who is requested by the interested person to give the information.  However, even statements made between these persons may be defamatory if the false statement is made maliciously.  “Malice” in this case is “ill will beyond the normal feeling toward a wrongdoer” or a statement made by a defendant who “knows the statement is false or has no reasonable ground for belief in the truth of the statement.”

1. Causes damage

–Normally the victim must prove “special damage,” that is, that he has suffered some injury.  If, however, the statement is defamatory “on its face,” no proof of special damage is required.  To be defamatory “per se” (that is, defamatory on its face, without the necessity of explaining that it was defamatory or that it referred to the victim), the statement must be of a particular sort (for example, charges of criminal conduct,  or character defect , such as saying the person was unchaste, or incompetent in his chosen profession).  Epithets and derogatory suggestions that carry with the implication of acts of misconduct are actionable.

What is “invasion of privacy”?

To plead and prove an action for “invasion of privacy” the victim must prove (a) public disclosure of private (although true) information about the victim or (b) statements which tend to paint the victim in a false light, and (c) damage.  The damage which must be proved is different from defamation: in privacy actions, the damage is “mental and subjective.  It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury.”  Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 86.

The action is subject to the same privilege defenses as defamation.

What is “intentional infliction of emotional distress”?

To plead and prove an action for “intentional infliction of emotional distress,”  the victim must prove (a) outrageous behavior, which (b) results in severe emotional distress [“emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western Nat. Life Ins. Co. (1970) 01 Cal.App.3d 376.]  The conduct must be intentional or reckless, and directed primarily at the victim.

The action is subject to the same privilege defenses as defamation.

Anti-SLAPP motion

An “anti-SLAPP” motion (SLAPP = “strategic lawsuit against public interest”) is a motion brought by a defendant immediately after a lawsuit is filed, which attempts to persuade the court to dismiss the lawsuit because it was brought to chill the defendant’s First Amendment rights.  In order to win an “anti-SLAPP” motion, the defendant must first show that the challenged cause of action is based on protected speech, either (a) before or in conjunction with legislative, executive or judicial proceedings, or (b) in a public forum in connection with a public issue.  If defendant succeeds in this regard, the burden then shifts to the plaintiff, who must demonstrate probable success on plaintiff’s claim.  If plaintiff persuades the court that he will likely succeed, then the action may continue.

In the association context, many if not most of the defamation cases are disposed of by means of an anti-SLAPP motion.  In the association context, statements made at board meetings are made “in a public forum'” (Damon v. Ocean Hills Journalism Club, infra.).  Further, statements made about management of the association is a matter of “public interest,” especially when a large, powerful organization may impact the lives of many individuals…”  (Ibid.)  Accordingly, in most cases where a manager or director brings an action for defamation, he/she can anticipate an anti-SLAPP motion, and will have to demonstrate the probable success of his suit at a very early stage in the proceedings, before any discovery has taken place.

See also Healy v. Tuscany Hills., infra [attorney’s statement to all homeowners that plaintiff-homeowner’s denial of access for maintenance has necessitated costly litigation held privileged and therefore unlikely to succeed]; Damon v. Ocean Hills Journalism Club, infra [libel suit based on criticism of manager published to homeowners and others was “public forum” speech, subject to an anti-SLAPP motion]; Ruiz v. Harbor View Community Ass’n., infra [defamation suit based on Association’s attorney’s letters to homeowner subject to anti-SLAPP motion].

Can a director or manager successfully sue a homeowner for defamation?

It’s difficult.  In Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, a former manager sued an association club, and homeowners and directors, for alleged defamation arising from articles critical of him which were published in the club’s newsletter, and statements made by the directors in annual and member meetings.  The defendants responded with an “anti-SLAPP” motion and prevailed.  The court held that the statements in the newsletter (though it was not the official association newsletter) and the statements made in the meetings were statements “in a public forum” and concerned a matter of “public interest.”  Interestingly, however, the court did not address the other provision of the anti-SLAPP statute, viz., that after the public forum/public interest prong is satisfied, the plaintiff may still continue with the action if plaintiff can show a likelihood of prevailing at trial.

Can a director or manager proceed against an “anonymous” web poster?

The answer appears to be “yes”, procedurally (see, e.g., Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, and Tendler v. www.jewishsurvivors.blogspot.com (2008) 164 Cal.App.4th 802), however, discovery proceedings directed at the ISP to ascertain the true identity of the poster  may be fruitless in light of a first Amendment right to speak anonymously on the internet.  In Krinsky, a director of a corporation who was “flamed” on an internet chat room sought to subpoena from Yahoo the identity of the “flamer.”  The court articulated a standard which, if satisfied by the victim, can result in mandating disclosure of the identity of the flamer.  Essentially the victim must show that the posting was “mixed opinion”, that is, not merely an “irrational, vituperative expression of  contempt,” or “juvenile name-calling.”  A reasonable reader must take the statements seriously.

Can a homeowner successfully sue a director or manager for defamation?

Possibly, but the homeowner will have to show all the elements of defamation, including the absence of any privilege.  In Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456, the homeowner (an attorney) sued the Association and its attorney for libel, based on two letters the attorney had written to the homeowner.  The Association and its attorney filed an anti-SLAPP motion.  After the trial court granted the motion, the appellate court ruled that one of the letters was potentially libelous (because it had accused the attorney of unethical behavior), but that there was no evidence that the letter had been published to the public.  As to the second letter, which said the homeowner was “seeking a Shakespearian pound of flesh”, “making cockamamie document requests” and that he was “virtually stalking” the directors, the letter was comprised of  “rhetorical hyperbole, epithets, and figurative statements” (and therefore, not libel.)

In Healy v. Tuscany Hills Landscape & Recreation Corp (2006) 137 Cal.App.4th 1, the homeowner sued the Association for libel after the association’s attorney sent a letter to all residents of the association, telling them that the homeowner’s refusal to allow access to her property for maintenance purposes had resulted in a lawsuit, which was costing the association’s residents money.  The homeowner claimed the statements were false, because it gave the impression there was no other way to access the maintenance area.  The Association filed its anti-SLAPP motion, and after the trial court denied the motion, the Association appealed.  The DCA reversed, indicating that the statements, even if false, were privileged because the letter “expressly refer[s] to the litigation arising from [the homeowner’s] prohibition on ingress and egress for weed abatement purposes…”  The court reasoned that the purpose of the letter was to inform residents of pending litigation involving the Association, it was circulated “in connection with” judicial proceedings and therefore privileged.  Since this meant the homeowner could not succeed on her libel claim, the DCA reversed, granting the anti-SLAPP motion (and exonerating the Association.)

Can the association successfully sue for defamation of its manager or director?

The answer is, generally, “no.”  In Palms Springs Tennis Club v. Rangel (1999) 79 Cal.App.4th 1, the association brought an action for defamation based on statements of a homeowner which were critical of board members.  The association alleged that the statements were false, and exposed the association to “hatred, contempt, ridicule and obloquy,” reflected poorly on the association and its board, and concerned the performance of the directors in their official capacity, and finally, had a deleterious effect on the association’s ability to attract qualified board members.  Nevertheless, the court (after agreeing that corporations may bring actions for defamation) concluded that, “if language written about a corporate officer cannot be interpreted as saying anything about the way that officer performs his or her duties and responsibilities as an officer of the corporation, so as to have a natural tendency to affect the corporation disadvantageously in its business, the corporation has no right of action.  Stated another way, words written about a corporate officer give no right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation.”

Can the association sue someone for defaming the association?

Generally, the answer is “no.”  A corporation can sue for defamation, but it must show that the statement has a tendency to injure its “business reputation.”  A nonprofit corporation can sue for defamation provided it can show that it relies on the public for financial support   An HOA cannot normally show such losses.

Can you sue the ISP who fails to police the chat room?  Again, the answer appears to be “no.”  ISP’s are protected from this type of liability by the federal “Communications Decency Act” (47 USC 230;) in Barrett v. Rosenthal (2006) 40 Cal.4th 33, the California Supreme Court construed that federal statute to protect providers and users of an interactive computer service from liability for defamation, reasoning that to do so would tend to chill online speech.

Relief to prevailing party?

1. If you win, is there insurance?

Possibly not as to the homeowner.  In Stellar v. State Farm Gen’l Ins. Co. (2007) 157 Cal.App.4th 1498, plaintiffs had tendered to State Farm (the issuer of their homeowners’ policy) the defense of an action against them for defamation.  The complaint alleged that the false statements were made “willfully’ and “intentionally.’  State Farm rejected the tender, based on the policy’s definition of a covered occurrence as “an accident.”  On appeal, the court agreed that the policy did not extend to defense of a defamation claim:

” Relying on the definition of “accident” as construed by the California courts, the court in Allstate Ins. Co. v. LaPore (N.D.Cal. 1988) 762 F. Supp. 268 held that an insurer owed no duty to defend its insured in a defamation action because the insured’s allegedly defamatory statements were not accidental. The court explained: “Defamation, which includes libel and slander, is [an] intentional tort which requires proof that the defendant intended to publish the defamatory statement. [Citation.] The very nature of defamation precludes the conclusion that it can occur ‘accidentally.’ ” (Id. at p. 271, italics omitted; see also Tradewinds Escrow, Inc v. Truck Ins. Exchange (2002) 97 Cal.App.4th 704, 714 [citing Allstate Ins. Co. v. LaPore, supra, 762 F. Supp. 268 with approval in ruling that a defamation claim would be excluded from coverage because such a tort cannot occur accidentally].) … On the basis of this authority, the trial court properly ruled that State Farm owed no duty to defend appellants.”

As to an association, the association’s D&O policy will frequently cover alleged defamation by directors, managers, etc.  Thus the Farmers D&O policy (the “Personal and Advertising Injury” portion of the policy) typically defines such injury as including “oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services…”    Please note, however, that there is an exclusion when the oral or written publication is done “by or at the direction of an insured with knowledge of its falsity.”

1. Generally, a victim cannot get an order enjoining future speech.

“An order prohibiting a party from making or publishing false statements is a classic type of unconstitutional prior restraint. [citation omitted]  ‘While [a party may be] held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.’ [citation omitted]  The California Supreme Court recently recognized this fundamental principle, but held the rule does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory.  Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1155-1156.”  Evans v. Evans (2008) 162 Cal.App.4th 1157.

Thus, in general, before a victim of defamation can obtain an order restraining such speech, a court must rule that defamation has occurred, and any order must be limited to the specific items found to be defamatory at trial.

In the Evans case, husband and wife were in the midst of divorce proceedings.  Wife posted “confidential information” about husband on the internet, in addition to accusing husband of child abuse and physical abuse of the spouse.  Husband sued for defamation and in that suit, asked for a restraining order against further disclosures and postings.  Although the trial court granted the restraining order, the appellate court overruled the grant of the restraining order.   The appellate court noted that as to the allegation wife had posted “confidential information” on the internet, it might be appropriate to issue a restraining order, but that husband had failed to show that what was posted was confidential in nature.

The appellate court remanded the matter back to trial court, directing it to reevaluate husband’s request, and to determine whether the information husband sought to keep private was sufficiently confidential, such that his right to privacy outweighed wife’s right to free speech.  The court noted that a “compelling reason” to hold material was confidential ‘includes, but is not limited to, facts showing the disclosure of information would jeopardize the personal safety of [husband] or his family and/or would lead him to fear for his of his family’s personal safety.”

Can a victim obtain a restraining order based on harassment, as opposed to defamation?

In general, the answer is “no.”  While Code of Civil Procedure Sections 527.6 and 527.8 allow the victim or the association as “employer”, respectively, to obtain various types of restraining orders, both are of limited use in the situation where only verbal abuse has taken place.  Section 527.6 allows an individual who has suffered “harassment” to obtain a restraining order, and harassment includes “a knowing and willful course of conduct that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”   And, while the “course of conduct” includes “making harassing telephone calls to the victim, sending harassing correspondence to the victim, or faxing or emailing the same, ” the section goes on to add “Constitutionally protected activity is not

included within the meaning of ‘course of conduct.'”  Section 527.8 describes “harassment” in similar terms, and also defines “employee” to include “a volunteer …who performs services …” and “members of boards of directors of private … corporations…”  However, as with Section 527.8, this section states that it does not permit a court to issue an injunction ‘prohibiting speech or other activities that are constitutionally protected, or otherwise protected by …any other provision of law.”

Also, the application for a restraining order is subject to the same anti-SLAPP protections afforded actions for defamation and invasion of privacy.  Thomas v. Quintero (2005) 126 Cal.App.4th 635

Note that if the speech is “private”, that is, “between purely private parties, about purely private parties, on matters of purely private interest,” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1409) injunctive relief may be appropriate, even if the victim is not entitled to stop the same statements made to other homeowners.

Conclusions

Lone rangers (Le Parc), anonymous posts, unofficial websites, chat room flame fests and ugly letters–and no relief in sight?  Consider:

Giving the defamer enough rope to hang himself, packing the pews

Reporting threats to the police

Keeping track of where the statements go, who sees them

Response?  Maybe not?

By Mary M. Howell , Esq.

In 2012, the California legislature was incensed by unprovoked attacks on small commercial operations by drive-by “disability activists” who, after eye-balling the complex for ADA violations would sue, and then settle for attorney fees and a few dollars more…In response, the legislature enacted a defense for such businesses, Civil Code 55.3, 55.53.  .  In relevant part, these provisions required a potential plaintiff to give notice to the owner, before a suit is filed, of the owner’s rights and obligations under the disability protection laws.    The legislation further allowed the owner a chance to reduce damages by using the services of a “CAsp”, a California certified access specialist.  (A list of CAsp’s is found at www.apps2.dgs.ca.gov/dsa/casp/casp_certified_list.aspx)  The specialist could inspect the premises, prescribe changes to comply with the law, and if done within 30 days of any complaint, the owner could stay the action, and limit damages for each claim.  Civil Code 55.54.

SB 269 expands the defenses available to the property owner.  It lists certain technical violations (e.g., interior signage, lack of some types of exterior signage, such as location of accessible pathways, and the color and condition of parking lots and striping…) of the act and establishes a presumption that these violations do not result in damage to the plaintiff-disabled person.  The bill also protects small business (as defined) from statutory damages if changes are made during the 120 day period after the owner obtains an inspection of its premises by a CAsp.

The impact for associations?  Probably little for wholly residential associations which do not open their facilities to the public at large.  The ADA (and its state analog, Cal. Civil Code 54) do not, as a rule apply to residential associations, unless and until they open their facilities to the public.  But commercial associations need to be aware of these defenses, and most particularly, of the favorable effect of consulting with CAsp’s and taking regular, pre-litigation steps to assure that the premises comply with accessibility guidelines (as those owners have a continuing duty under the law to comply with current guidelines, including a duty to upgrade and improve premises.)

Sadly, the CAsp defense is not generally recognized in federal courts.  The 2012 enactment led to a virtual stampede headed in the direction of federal courts.   While the possibility of recognizing the defense continues to be debated at the federal trial court level, for the most part these statutes will protect against state law claims only.  Stay posted!