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Defamation is term used to describe any statement that hurts a person’s reputation. Defamation can be broken down in to two types: (1) written; or (2) spoken. If the statement is written, it is called “libel,” and if the statement is spoken it is called “slander.”
In order to prove defamation, the statement in question must be all of the following:
A false statement of fact
The statement in question must not only be a false statement, but the person making the statement must be portraying that statement as a fact. If the statement is not false, then it is not considered damaging. What this means is that if someone is called a “thief” and they in fact stole the item in question, this will not be a false and damaging statement. Also, opinions cannot be used as a basis for a defamation suit because they cannot be proven false. For example, if someone calls the cake you baked the worse cake they’ve tasted, that statement cannot be the basis of a defamation suit because the statement cannot be proven to be false.
- Published to someone other than the plaintiff
Publication means that the statement must either be seen or heard by a third party. A common misconception is that in order meet the publication requirement the statement needs to be contained in a newspaper, book, or magazine. That is not the case. The statement can be posted on social media (Facebook, Twitter, etc.) or can be made public by simple word of mouth.
- Injures the plaintiff’s reputation or tends to injure the plaintiff in his or her occupation
The purpose of the right to bring a case for defamation is to recover money for injuries sustained to a person’s reputation for a false statement that someone wrote or said. The statement in question must cause the victim to be shunned, ridiculed, or disgraced by friends, family, coworkers, or colleagues; lose business or work as a result of the statement.
- Unprivileged statement
Certain statements are considered privileged and those statements cannot be used as a basis for a defamation suit. For example, statements given in court by a witness cannot be the basis of a defamation suit. Courts want people to be able to testify freely and fear being sued privately for something they say while on the witness stand (already subject to the penalty of perjury). Also, politicians are not liable for defamation for statement they make in the legislative process of in official materials.
Examples of defamation cases brought an employee against their employer:
- Poor performance review. Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958 (if the performance review accuses an employee of “criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.”).
- Being called incompetent. Rodriguez v. North American Aviation, Inc. (1967) 252 Cal.App.2d 889 (employee terminated as a result of a conspiracy to defame through publication of defamatory per se statements that Plaintiff was “not a competent engineer” and a “traitor to the company.”).
- Accused of lacking job knowledge. Agarwal v. Johnson (1979) 25 Cal.3d 932 (employee terminated as a result of internal publications concerning his alleged “lack of job knowledge and cooperation.” These statements were found to have been “maliciously motivated for the purpose of terminating [the employee].”
- Questioning an employee’s ethics. Cameron v. Wernick (1967) 251 Cal.App.2d 890 (statement was that the plaintiff was “out for a fast buck” “describ[ing] [him as having] questionable ethics.”).
- Calling an employee crazy. Clay v. Lagiss (1956) 143 Cal.App.2d 441 (statement made calling her a “crazy old woman . . . she belonged in an institution and that they were thinking of putting her there.”).
- Being called insubordinate. Biggins v. Hanson (1967) 252 Cal.App.2d 16 (employee was called “disloyal” and “insubordinate” by internal memo by immediate supervisor to personnel manager).
- Accused of not following office rules. Mercado v. Hoefler (1961) 190 Cal.App.2d 12 (employee “fired for not doing things properly” and “for not following office rules.”).
- Accused of falsifying an expense account. Washer v Bank of America (1943) 21 Cal.2d 822 (bank officer’s statement justifying the bank’s termination of an employee because he falsified an expense account and had been guilty of flagrant insubordination was libelous per se as it related to plaintiff’s qualifications as an employee).
- Being accused of falsifying invoices. Rider v Superior Court (1988) 199 Cal.App.3d 278 (former supervisor accused employee of falsifying invoices was slanderous per se in that it accused the employee of forgery).
- Employer claimed that employee made a big error. Gould v Maryland Sound Industries (1995) 31 Cal.App.4th 1137 (Employee alleged he was defamed by statements made by supervisors who accused him of poor job performance and, specifically, making a $100,000 error in a contract bid).
- Called a “son of a bitch”. White v. Valenta (1965) 234 Cal.App.2d 243, 257-258.
- Accused of stealing money. Davaris v. Cubaleski (1993) 12 Cal.App.4th 1582 (employee was accused of “behind in her work,” “stealing money from the company” and “conspiring to steal money.”).
INSINUATED CRTICISM OF PERFORMANCE CAN BE DEFAMATORY
A claim for defamation may be available for a statement insinuates as well as for what it stands for on its face. It is not necessary that there be a direct and specific statement of improper conduct to be defamation. The fact that a statement may contain an implication or insinuation leaves room for an innocent interpretation as well does not change the fact that it is defamatory. Courts have said that “[s]uch hair-splitting analysis of language has no place in the law of defamation, dealing as it does with the impact of communications between ordinary human beings”. MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547-551.
STATUTE OF LIMITATIONS
The statute of limitations is one year from the date the defamatory statement is published. California Civil Procedure Code section 340(3).
REMEDIES & DAMAGES
- Compensatory damages. California Civil Code sections 48a(4)(a) and 3333.
- Special damages. California Civil Code sections 48a(4)(b).
- Punitive damages. California Civil Code sections 48a(4)(c).
- Nominal damages. Underwriters, Inc. v National Chiropractic Insurance Company (1965) 232 Cal.App.2d 829.
Our defamation lawyers in Orange County are here to help you understand the rights and help you get justice if those rights have been violated. Our attorneys can help you understand if you have a wrongful termination claim and help you in taking legal action for the justice. If you believe you have been a wrongfully terminated, contact Aegis Law Firm, Orange County wrongful termination law firm for a free consultation.