Judge Orders Man to Apologize to Ex-Wife on Facebook

Posted on March 8, 2012 by Aaron Morris

Facebook Censorship by Contempt

Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.

In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.

With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:

“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “

But there was a problem. Continue reading →

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Some Judges Just Don’t “Get” Defamation

Posted on February 21, 2012 by Aaron Morris

Defamation on the Internet Calling Someone a Liar

I run into this attitude from judges occasionally. Thankfully, I’ve always been able to turn them around, but when I read about it, it still raises my hackles a little.

The attitude of which I speak was most recently illustrated by a New York judge named Harold Baer. The case involved a couple of former girlfriends of Matthew Couloute Jr., a New York Lawyer. The women went to the website LiarsCheatersRUs.com and allegedly posted bad comments about Couloute. (One denies making the posts, the other says they were truthful.)

If the comments had been limited to statements about how he was a cheap date or a lousy kisser, I would defend to the death their right to say such things. But as is often the case, someone who is mad enough to go to such a hate site is someone who wants to inflict pain, so they stray far afield. One of the women allegedly posted the comment, “He is very, very manipulating, he’s an attorney so he’s great at lying and covering it up without batting an eye.”

In anyone’s book, that is defamatory. The statement “great at lying” states not only that he has lied, but that he had lied on multiple occasions to the point that he is great at it. The “without batting an eye” comment means that he has no compunction against lying, so that is a slam on his ethics. But here was the judge’s reasoning for throwing out the case:

“The average reader would know that the comments are ‘emotionally charged rhetoric’ and the ‘opinions of disappointed lovers.’”

With all due respect Judge (Judges hate it when you say that), that does not make the comments non-defamatory. Continue reading →

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Australian Defamation Case Illustrates Life Without the CDA

Posted on February 17, 2012 by Aaron Morris
Internet Defamation on Twitter

"That J-Lo, she be crazy!"

I have frequently written here on the pros and cons of the Communications Decency Act (“CDA”). Without it, no website could permit comments, but by the same token it allows unscrupulous website operators to encourage defamatory postings, and then use those postings to extort payments from the victims.

Because of the latter reality, many have suggested to me that they would like to see the CDA abolished. But a case out of Australia demonstrates just how ridiculous things get without the CDA.

Those Australians are people of few words, so I had to read a number of news accounts to piece together what had occurred. A blogger by the name of Marieke Hardy apparently picked up an anonymous on-line bully. For undisclosed reasons, Hardy decided that she had determined the identity of her mystery bully, so she posted the following comment on Twitter:

“I name and shame my ‘anonymous’ internet bully. Liberating business! Join me.”

The “tweet” then provided a link back to her blog, and there on the blog she identified Joshua Meggitt as the bully. Problem was, Meggitt was not the bully. Continue reading →

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Gloating Over $5,000 Settlement Costs Parents $234,011.87

Posted on January 18, 2012 by Aaron Morris

Canadian Teacher, eh?Some callers to my office, wanting to sue for defamation because someone said terrible, false and hurtful things about them, are disappointed to learn that they cannot seek legal action because the speech falls under a privilege. By definition, “privileged” speech can never be defamatory, and therefore cannot support a defamation action.

Examples? Speaking at a City Council meeting, testifying in court, or filing a police report – all privileged speech. (There are of course exceptions to every rule of law, but my New Year’s resolution was to write shorter articles.) So, if someone trashes you from the witness stand in court, there is nothing you can do about it from a defamation standpoint. (Although the person could be criminally liable for perjury. Sorry, couldn’t let that one go.)

“BUT,” I tell the caller, “if the person steps out of court and makes the same statements, you have them.”

I ran across this case out of Canada that so beautifully illustrates the point, eh. Continue reading →

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How to Fight Back Against Online Defamation

Posted on December 31, 2011 by Aaron Morris

Aaron Morris on Internet Defamation

Always striving not to reinvent the wheel, I keep my eyes open for articles that do a good job of explaining basic legal concepts.  In that regard, I receive many calls from prospective clients who don’t yet know the fundamentals of pursuing an online defamation claim.  Many times, the callers want to sue Google since it is Google’s search engine that is revealing the sites that are posting the defamatory comments.  That is not possible (although in one instance we persuaded Google to stop indexing a particular magazine, but that is rare).

The following article [reprinted with permission] provides a brief outline of how to attack online defamation.  If you happen to be in New Jersey, contact the author for any action you need to pursue or defend.  If you’re here in California, or the action needs to be brought in California, then call Morris & Stone at (714) 954-0700.

___________________________

Individuals now have the freedom to inexpensively and easily share everything  from their art to their opinions online. However, the ease and anonymity  associated with posting information on the Internet, comes at the cost of  providing a perfect avenue for those seeking to abuse the system. So what  happens when, for instance, an opinionated Internet rant goes too far? What if a  video stream broadcast damages the reputation of someone featured in it? More  importantly, do the victims of these scenarios have any rights under the law, or  are they at the mercy of the author or poster? Continue reading →

Posted in Article, Cases, Defamation, Defamation Solutions, Internet Defamation, Law, Libel, SLAPP | Tagged , , , , , , | Leave a comment

Top Ten Ways to Blow a Job Interview

Posted on December 28, 2011 by Aaron Morris

Interviewing prospective employees is an amazing process.  How long does an interview last?  Ten minutes? Thirty minutes? Maybe an hour and a half if the interview is over lunch?  And yet, even over such a short amount of time, it is amazing how some interviewees cannot keep from revealing their true natures.  They are doing something that will likely change their live in a significant way, and they can’t put on a good show for even that small amount of time.

I don’t mean to imply that someone should put on a false front, but interviewing is like a first date; the other person knows you possess some flaws, but they want to feel like you respect them enough to forgo slurping your soup just this once.

So, make sure your phone is off before you walk into the interview.  Unless your wife is nine months pregnant, don’t even check who is calling.  Be super nice to the support staff, because they may well be asked about you.  Don’t be late, and don’t act rushed.

For a list of ways to blow an interview, go to Top Ten Ways to Blow a Job Interview.

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“I Know Better Syndrome” Can Cost You Your Job

Posted on December 20, 2011 by Aaron Morris

I Know Better Syndrome Can Cost You Your Job

A case out of San Diego beautifully illustrates an issue that I frequently encounter with prospective clients, and provides a cautionary tale.

The fact pattern is so common that I have given it a name — the “‘I Know Better’ Syndrome”, or “Syndrome” for short.  The Syndrome arises when an employee takes a firm stand on some issue, to the point of refusing to do what they are told, believing that they have a better understanding of the law or company policies.

For example, the company policy will be that reimbursements can’t be made out of petty cash without a receipt. The boss tells an employee to reimburse another worker for a company lunch, and the employ refuses because the worker does not have a receipt. The boss writes her up for insubordination, but the employee will have none of that and goes to Human Resources to complain that she was written up when all she did was follow company policy. The next thing she knows, she is called in and terminated because her inflexible adherence to the strict letter of the policies has just become too much of an annoyance.

So it was in the San Diego case.  Here is a summary of the facts, as reported by Sign On San Diego. The Superior Court in San Diego is way behind the electronic curve so I could not review the actual court documents on file.  This summary is based on what was reported on Sign On San Diego and may not be entirely accurate. The point here is not the specific facts but the legal issue they illustrate.

Shari Watson, a Chula Vista council aide, was told to deposit a $2,400 check from Cox Communications, made out to “The City of Chula Vista/International Friendship Games”. This bothered Watson, because Cox had only agreed to a $1,000 sponsorship for the event.  Watson could not reconcile why Cox would be sending a check for $2,400.  Watson asked Deputy Mayor Rudy Ramirez if she could call Cox to see if the check was made out in error, but he told her to go ahead and deposit it and let the finance department work out any problems.

Freeze.  Right there is the moment in time that employees fall prey to the I Know Better Syndrome.  The supervisor has just given clear instructions, but the employee thinks she knows better. Continue reading →

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Judges Must be Wary of Anti-SLAPP Appeal Trap

Posted on December 15, 2011 by Aaron Morris
Anti-SLAPP Appeal Platypus

Rare North-American SLAPP Platypus

A few months back I won on an anti-SLAPP motion that I brought long after the case was filed. The thing is, I was not representing the Defendant initially, but when I was retained the first thing I saw from my review of the case was that the case was a quintessential SLAPP.  No discovery or anything beyond the complaint and answer had occurred, so I persuaded the court to allow me to bring a SLAPP motion well beyond the normal 60-day deadline.  I won the motion, the case was over, the client celebrated with champagne, and all was good with the world.

That case got some publicity, and now it seems like every attorney thinks they can file an anti-SLAPP motion at any time during the litigation, even on the eve of trial. It just happened to me today. Our case is nearly two years old, and the trial is about a month away.  All of a sudden, defense counsel decided that our action is a SLAPP, and it would be an unforgivable miscarriage of justice to allow this matter to go to trial without first bringing an anti-SLAPP motion. Indeed, this was such an emergency, that defense counsel had to go into court on an ex parte basis to ask the court to shorten the notice period to bring the motion because there is not enough time before the trial.  An ex parte application requires a showing of irreparable harm, and defense counsel so argued.

The anti-SLAPP motion, which was attached to the ex parte application, was utterly without merit, which is not surprising given that if the complaint was a SLAPP the defendant’s counsel certainly would have been able to reach that conclusion in the prior 22 months. Not surprisingly, the application DENIED.

Why would an attorney do such a thing? By Code, an anti-SLAPP motion is supposed to be brought within 60 days of service of the complaint. It can be brought later upon a showing of good cause to the court, but any delay is counterproductive. The point of an anti-SLAPP motion is to stop a SLAPP action from going forward, and stay the discovery. The discovery stay is one of its most powerful attributes, since the plaintiff is basically frozen in time and made to show his proof without the benefit of any discovery. If the motion is brought after discovery, the defendant loses the biggest advantage of the anti-SLAPP motion. And nothing changes during an action that somehow makes a complaint a SLAPP when it was not previously. In other words, discovery might reveal that an action is ripe for a motion for summary judgment, but it is very unlikely that discovery will reveal that an action was a SLAPP if that was not apparent from the complaint.

So, what possible justification could there be for this tactic of waiting until the eve of trial to bring a meritless anti-SLAPP motion? Continue reading →

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Morris & Stone Gets Triple Damages and Attorney Fees for Theft

Posted on December 10, 2011 by Aaron Morris

When is a breach of contract also fraud? When the party never intended to perform.

When do you get triple damages and all of your attorney fees for fraud? When you hire Morris & Stone (although your results could differ).

Breach of contract is easy to spot, but business owners are often confused about what constitutes fraud. Someone fails to pay all the money owed on an invoice, and the client wants us to add a cause of action for fraud. That’s probably not fraud.

The elements of fraud are (1) a misrepresentation of a material fact; (2) made with the intention that the party rely on that representation to his detriment; (3) reasonable reliance on the misrepresentation; and (4) damages. As you can see from the above elements, in the case of a contract, for there to be fraud the fraudulent intent must exist at the time of the contract. If a person enters into a contract intending to perform, if he later fails to perform, that breach will not transmute into fraud no matter now egregious and flagrant his breach. To prove fraud, you must show that at the time the defendant entered into the agreement, he had no intention of performing.

So how do you get into the mind of the defendant to determine if he intended to perform when he signed the agreement? Thankfully, California courts have held that the behavior after the contract was signed can be used to show that the defendant never intended to perform. In our case, the defendant borrowed a significant amount of money from our client, and pursuant to the agreement that money was to be invested in a business venture. The money was never repaid, and our client hired us to recovery the money.

We went her one better. We sued for fraud, because we could see no indication that the money ever went into the business venture. Continue reading →

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The Legality of the “Tip Jar”

Posted on December 10, 2011 by Aaron Morris

Back in June of 2009, I wrote about the Starbucks tipping case. Some rascally class action attorneys had won a huge payday, claiming that Starbucks was violating the sanctity of the community tip jar. You see, Labor Code section 351 states that no “employer or agent” shall take any part of the gratuity “left for an employee by a patron.” An “agent” is defined by section 350(d) as anyone who can hire or fire, or who controls the acts of the employees.”

The attorneys managed to convince a Superior Court Judge in San Diego that when Starbucks permitted “supervisors” (you know, the ones that make 25 cents an hour more because they’ve been there the longest) to take a cut of the community tips, that violated section 351. The judge awarded $105 million in damages for this outrage. Since Starbucks would need to sell like a hundred Caramel Macchiatos to cover that, it appealed.

The Court of Appeal said, “hold the foam.” The flaw in the logic is obvious (understanding that I always have perfect 20-20 hindsight with court decisions).  When I sit down at a restaurant, enjoy my meal and the service, and then leave a tip, I am leaving a tip for my specific server. However, when I order a latte at a Starbucks and drop my change into the tip jar, who am I tipping? I’m certainly not intending to tip only the barista. At that point, I don’t even know who is going to prepare my beverage (or even if it will be tip worthy). It is probably far more likely that I’m tipping the friendly cashier that accurately took my order and retrieved my scone. Or perhaps my intent was to tip the person that cleaned the washroom where I washed my hands before stepping up to the counter. As you can see, in the case of a community tip jar, we can never truly know who generated the tip, so it makes much more sense to assume that it is my intent to tip everyone working there, who have all joined to make this such a special coffee experience, from the supervisors down. Hell, I wouldn’t even mind if the owners took a cut, because after all they are the ones that hired the fine people who cleaned the restroom, who took my order, who retrieved my scone and who made the Venti, whole milk, extra hot latte that Aaron drank. Continue reading →

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