It’s Not Defamation if No One Knows it’s You

Sammy Hagar BookAs the old saying goes, if a tree falls in the forest and no one is there to hear it, does it make a sound?* In the context of defamation law, the saying could be, “if no one knows it’s you, is the statement still defamatory?” The answer is no.

I get a surprising number of calls like this. Now that anyone can publish a book with a few mouse clicks, more people are publishing their life stories, and those stories always manage to irritate someone. That someone then calls me, stating that some person in the book is them, and they want to sue for defamation. They go on to explain that the name given is not theirs, that the geographic location given is someplace they have never lived or visited, and the gender has been changed, but they know it’s them and damn it they want to sue. In some cases it is clear that the caller made the whole thing up in their mind, but in other cases it is clear that the person referenced really is the caller. Even so, if the author changed the identity so much that no one would recognize them, there is no case.

Today’s example involves rocker Sammy Hagar. He wrote a book called “Red: My Uncensored Life in Rock“, which tells a story of a woman he had sex with following a concert, who later claimed to be pregnant.  He explains that he paid her some support during the alleged pregnancy, but that no child was ever born and he now thinks the entire thing was simple extortion. Had he named her, that would have supported a claim for defamation since he accuses her of a criminal act, but she is identified only as a “Playboy bunny from California”. Apparently the woman in question was a Playboy bunny, but Hagar changed the state from Michigan to California, perhaps specifically to make her less identifiable.

Nonetheless, the still unidentified “Playboy bunny from California” sued Hagar for defamation and infliction of emotional distress. Not surprisingly, the trial court today threw out the case.

U.S. District Court Judge Linda Reade ruled that Hagar did not defame the woman because he did not refer to her by name in the book – identifying her erroneously as a “Playboy bunny from California” – and the woman did not prove she suffered any financial, reputational or emotional injuries from his statements. Only individuals who already knew about their relationship, not the general public, would have understood Hagar was referring to her in the book, she added.

Although Hagar’s statements in ‘Red’ brought back painful memories for Doe, the evidence does not support a finding that Hagar’s conduct was extreme enough to permit the court to find outrageous conduct sufficient to support Doe’s intentional infliction of emotional distress claim, Reade wrote.

 

* It’s a deep thought, but I’ve always thought it was kind of silly because of course a falling tree makes a sound. The laws of physics don’t stop just because no one is there.

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Is Discrimination Against Redheads Illegal in the Workplace?

redheadWhen I am explaining the concept of at-will employment, to illustrate the point that an employer can fire an employee for anything so long as it does not violate public policy or statute, I will sometimes say, “He could decide he doesn’t like the color of your hair and fire you for that.” But an interesting case out of New Jersey might prove me wrong.

According to an article in the New York Post, the NYPD sent out an anti-bias message this month to Manhattan sergeants and lieutenants, who were told that redhead harassment would not be tolerated.

“We’re apparently victims now,” said one cop with ginger locks. “We’re protected from discrimination.”

No lawsuit has been filed against the city, but the feds say a claim alleging unfair treatment over red hair would be supported by federal law, which bars workplace bias against applicants and employees based on race, national origin, skin color, religion, sex or disability.

Wait a second. What does hair color have to do with any of those protected classes? That’s were things get interesting. Think about it. If you had to guess the nationality of someone with red hair, what would you pick? You’d probably guess Ireland, because people with red hair are found in higher numbers in Britain and Ireland than elsewhere, according to the federal Equal Employment Opportunity Commission. So if someone could prove discrimination against redheads, that would mean that there is a disparate impact against those of Irish dissent, and nationality is a protected class.

These are the sort of mental games that only attorneys play. In the real world, it would be very unlikely that anyone is going to suffer adverse job action or discrimination based on being a redhead. As one retired officer quoted by the New York Post stated, “To put redheads in a protective class — that’s ridiculous!” However, the analysis is still useful to illustrate how a seemingly “innocent” form of bias can create illegal discrimination.

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Demand Letters Can Stray Into Civil Extortion — Miguel Mendoza v. Reed K. Hamzeh

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If the threat of getting in trouble with the State Bar is not enough, maybe the threat of both civil and criminals actions will get attorneys to toe the line.

You know that it is an ethical violation for an attorney to threaten criminal action as a means to extract a civil settlement. For example, California’s Rules of Professional Conduct state that “a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (Rule 5-100.)

Then there are the criminal extortion laws:

“Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear. . . .‟ (Pen. Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]’ (Pen. Code, § 519.) ‘Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.’” (Pen. Code, § 523.)

Despite these prohibitions, some attorneys can’t resist throwing a threat of criminal action into their demand letters. They apparently think (if they give it any thought at all) that an express or veiled threat of criminal action will be protected under the litigation privilege, but that is not the case. If you include a demand for money in a letter that threatens to pursue criminal action, you have committed extortion, and as Flatley v. Mauro held, that is not protected speech because criminal acts are not protected.

The most recent example of this was discussed in the just published decision of Miguel Mendoza v. Reed K. Hamzeh. According to the opinion, an attorney named Reed K. Hamzeh was representing a client named Guy Chow, seeking to recover money allegedly owed to Chow by Miguel Mendoza. The dispute concerned Mendoza’s employment as the manager of Chow’s print and copy business. Hamzeh sent a letter to Mendoza’s attorney, which according to the opinion stated:

“As you are aware, I have been retained to represent Media Print & Copy (“Media”). We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. . . . To date we have uncovered damages exceeding $75,000, not including interest applied thereto, punitive damages and attorneys’ fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic].”

The letter goes on to list Mendoza’s alleged transgressions, including failure to pay Media‟s employees, sales taxes and bills.

What followed next was Flatley all over again, with some additional twists. In May 2011, Mendoza responded to the demand letter by filing an action against attorney Hamzeh, asserting causes of action for civil extortion, intentional infliction of emotional distress and unfair business practices. Just as in Flatley, Hamzeh thought his letter was protected under the litigation privilege, and brought an anti-SLAPP motion to strike Mendoza’s complaint. But here, the plaintiffs counsel had the benefit of the already decided Flatley, and wrote to Hamzeh to say that the anti-SLAPP motion would be frivolous since the facts fell squarely under that decision. Hamzeh decided to go ahead regardless, and after the court denied the motion it awarded attorney fees on the grounds that the motion had, indeed, been frivolous. Hamzeh then appealed from the denial of the anti-SLAPP motion, and lost. The action against Hamzeh for civil extortion and the other causes of action will now proceed.

The takeaway from Hamzeh’s experience is that the standard for civil extortion is very low. On appeal, Hamzeh argued that his demand letter was not nearly as egregious as the one utilized in Flatley, which was true, but as the court found, the issue is not how far the letter goes, it is whether it amounts to civil extortion as a matter of law. As you can see from the Penal Codes above, that requires only a demand for money in conjunction with a threat to “expose, or impute to him . . . any deformity, disgrace or crime . . . .” That standard is incredibly broad! It doesn’t even matter whether or not a crime occurred that can be properly reported. Further, as I just realized in preparing this article, the threat doesn’t even need to concern criminal conduct; it is enough to threaten “disgrace”. If an attorney wrote a letter suggesting that the defendant should settle to avoid having his family realize what he had done, it appears that would constitute civil extortion.

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Appeal Victory: Treble Damages for Theft Affirmed Against Defendant

As we reported in October of 2011, we persuaded an Orange County Superior Court Judge to apply Penal Code section 496(c) – making it illegal to receive stolen goods – to a case where the defendant had failed to repay a loan. The loan agreement did not provide for attorney fees, so by bringing the civil action under Penal Code section 496(c), our client was entitled not only to recovery of all of her attorney fees, but treble damages as well.

The case involved a loan made by our client to the defendant, who we will call Joe Badguy. Badguy and his entities failed to repay the loan, and we were retained by the plaintiff to sue. I am always bothered by cases where the worst that can happen to the defendant is that he is made to repay the money that he borrowed in the first place (plus interest). Most attorneys would have pursued this as a garden variety breach of contract case. However, since the loan agreement did not provide for attorney fees, Badguy would face no downside in fighting such an action. Sure, he would incur his own attorney fees, but at the end of the day the case would likely have settled for less than what was owed, or gone to trial and resulted in a judgment for only the loan amount. Our client would have been left far from whole.

We figured out a better way. Penal Code section 496(c) makes it illegal to receive stolen property, and provides for a civil action to recovery any losses that result from violation of that criminal code. We included a cause of action under that statute, arguing that Badguy had used a false pretense to obtain the money from our client. Basically, he told her he had a certain valuable trademark, and that the money from the licensing of that trademark would be used to repay the loan. It turned out he did not own that trademark, and he made no money from its licensing.

A quick aside for an important concept. Picture that an aluminum salesman comes to your door and sells you aluminum siding for $12,000. He presents you with and you sign an agreement for the installation of the aluminum siding, you pay the $12,000, and then he never installs it. You sue for breach of contract, but during discovery you find out that he is not even a licensed contractor and has no access to aluminum siding. You can add a claim for fraud, and that gives you a shot at punitive damages, but basically your damages are the same under both the breach of contract and fraud causes of action — the $12,000 you paid for the aluminum siding that was never installed.

But here’s the thing. If he had come to your door, put a gun in your face and stolen the $12,000, everyone would understand that was a theft. The fact that he used a bogus contract instead of a gun to steal the money from you does not make it any less of a theft. That reality is so self-evident, but it escapes many judges. Kudos to Judge James Di Cesare who understood that a theft is a theft, whether by way of burglary, robbery or bogus contract.

Let me make this perfectly clear. It a party enters into a contract, and simply fails to perform, that is still nothing more than a breach of contract. But if a party enters into a contract in order to obtain money or other property from the other party to the contract, knowing that he has no ability to perform, that is both fraud and theft. Badguy argued on appeal that if the court affirmed this verdict, all breach of contract actions would become claims for theft. As you can see, that simply is not true.

And now back to our story. The Judge agreed that this was more than a simple breach of contract, and amounted to receipt of stolen property (the money). Although he expressed that he didn’t like it, because it afforded a set “penalty” with none of the considerations of a punitive damages claim, he agreed that the criminal statute applied, and awarded three times the damages, and all of our attorney fees. Our client had loaned Badguy $202,500, but the total judgment was just under $700,000.

Although Judge Di Cesare saw this as a bad thing, from the viewpoint of the victim and her attorney, this application of Penal Code section 496(c) affords another huge benefit. The same result (albeit without the attorney fees) could be achieved with a fraud action and the award of punitive damages. However, punitive damages require a showing of the defendant’s net worth and the ability to pay the damages. That can be a huge hurdle when the defendant is someone like Joe Badguy, because he won’t have any property in his name or show any personal income. The purpose of punitive damages — punishing a wrongdoer — is sometimes thwarted where it is most appropriate, if the defendant is successful at hiding his assets. Conversely, the treble damages under 496(c) are a fixed penalty, and require no such showing.

Joe Badguy appealed the treble damages aspect of the judgment, claiming (1) his conduct did not amount to a theft; (2) that a civil action could not proceed under 496(c) unless he had first been criminally convicted; and (3) if he was the party who stole the money, he could not be convicted for receiving it.

The Court of Appeal rejected his arguments, and affirmed the judgment. The Court found that the criminal statute means exactly what it says. It agreed with us that theft by false pretense (the bogus contract) is still a theft, that there need not first be a criminal conviction, and that even the person who steals the money is still liable for receiving it. As icing on the cake, the Court of Appeal decided that our application of the statute, and the fact that the statute has generated no appellate decisions, made the opinion worthy of publication. In the future, when we advance this theory and encounter a judge who just can’t wrap his or her mind around the concept, we can cite to our own case as authority.

Here is the published opinion.

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Parents Claim Yoga Classes Violate First Amendment

Yoga as violation of First Amendment
“Foolery, sir, does walk about the orb like the sun. It shines everywhere.” — William Shakespeare

Parents in San Diego are objecting to yoga classes offered at a grade school, claiming they violate the First Amendment. As reported by the New York Times, the parents claim that yoga promotes Hindu religious beliefs.

The Times quoted Mary Eady, the parent of a first grader, who stated, “They’re teaching children how to meditate and how to look within for peace and for comfort. They’re using this as a tool for many things beyond just stretching.”

The problem is that the parents have fallen prey to a false syllogism. Here is how it played out. The yoga program at the school is supported by a nonprofit organization called the Jois Foundation. Some members of that foundation have the view that yoga is part of a spiritual experience that goes beyond exercise and stretching. Since they believe and espouse that, the parents therefore believe that yoga is part of a religious belief.

However, any activity can be found to have religious significance, and it is the participant who decides whether to ascribe the religious tie-in. To use an analogy, if I bought a pool for a public school, and then gave a speech about how I believe swimming is akin to receiving a Christian baptism, then should all parents pull their children out of any swim classes on First Amendment grounds because of my beliefs? This point becomes even more obvious when you consider that even the Foundation members don’t agree. “We’re good Christians that just like to do yoga because it helps us to be better people,” Foundation member Russell Case told the Times.

I did enjoy the quote from the school’s superintendent, Tim Baird. “If your faith is such that you believe that simply by doing the gorilla pose, you’re invoking the Hindu gods, then by all means your child can be doing something else,” he told the Times.

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Judge Orders Man to Apologize to Ex-Wife on Facebook

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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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