Monday, July 20, 2015

The Email, "Homosexual Tendencies" and Defamation

This post examines an opinion the California Court of Appeals – Fifth District recently issued in a civil case:  Martin v. Siegel, 2015 WL 4099840 (2015).  The court begins the opinion by explaining that
Ed Martin filed a complaint for defamation per se against . . . William Siegel and the City of Lemoore. [Siegel] filed a motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion).  [Martin] filed opposition and [Siegel] filed a reply. The trial court denied the motion and [Siegel] appealed.
Martin v. Siegel, supra. 
The Court of Appeals began its analysis of the issues involved in the case by explaining that in Martin’s complaint, he alleged that he
is a former mayor of the City of Lemoore and currently an assistant principal at Lemoore Union High School. [Siegel] is alleged to be the duly elected mayor of the City of Lemoore and performed the acts complained of in the complaint in his official capacity as mayor of the City of Lemoore. [Martin] alleged that in May 2013, [Siegel] contacted Lemoore Union High School District Superintendent Debbie Muro and requested that [Martin] be terminated from his position at the high school.

On September 1, 2013, [Siegel] sent [Martin] an e-mail, which was attached as an exhibit to the complaint, that referenced [Martin’s] `homosexual tendencies,’ `infatuation with young boys’ and `self termination.’ [Martin] alleged that all of these assertions are false and libelous on their face. The complaint identified by name and position several persons to whom [Siegel] published the e-mail and it was alleged that those persons read the e-mail. The complaint alleged that [Siegel] acted with malice and knew the statements were false or recklessly disregarded their falsity, thereby justifying an award for general, special and punitive damages.
Martin v. Siegel, supra. 
The Court of Appeals goes on to explain that the
subject e-mail is dated September 1, 2013, and reads as follows:

`Dear Ed Martin,

`It makes me sad that people consider you as a clown. I hope Mr. Simonson has given you some ideas to help you understand your [i]nconsequential life, and as you seem to be obsessively infatuated with my life I assure you that I hold you in the same regards as the company you keep. It is my opinion that you have a serious chemicals [sic ] imbalance. People in the community speak of your homosexual tendencies and your infatuation with young boys. This, while bothersome and disturbing, is a concern.’

`I want you to know that I do not judge or condemn you for your actions. I ignore the rumors of your moral turpitude as much as I ignore the nonsense you print in the emails you send. I hope that you will find happiness in life and will never consider self termination again. If you need help and feel that the city council can do anything to help you find solace, please reach out to us. We are here to serve and will always find a way to help those in need. We look forward to assisting and guiding you on a path away from your troubled journey.’

`William Siegel’
`City of Lemoore’
Martin v. Siegel, supra. 
The Court of Appeals then explains that Siegel filed “an answer to the complaint generally denying the allegations and setting forth several affirmative defenses, including his assertion that the statements are true and that he did not publish the statements about a `public figure’ with malice.”  Martin v. Siegel, supra. 
The next development in the case was that, “[s]everal weeks later,” Siegel
filed the subject anti-SLAPP motion, alleging that the defamation action arose from an act in furtherance of [his] right to free speech made in connection with a public issue and that [Martin] could not establish a probability of success because each of [Siegel’s] statements was either opinion or not a statement able to be proved as false or true.

[Siegel’s] declaration in support of the motion alleged that [Martin] wrote approximately one article per week in his weekly newspaper pertaining to [Siegel], that the topics covered recalling [Siegel] as mayor, [his] alleged intimidation of recall proponents, his alleged violation of campaign rules, etc. [Siegel’s] declaration also indicated that through a series of conversations between [Martin] and Bill Henry, between June 2013 and early 2014, Mr. Henry told him that people in the community believed [Martin] was homosexual and had an infatuation with young boys. [Siegel] also asserted that he believed Mr. Henry's comments to be true based upon conversations with Joe Simonson regarding [Martin’s] possession of pornographic material. He also explained the basis for his statement in the e-mail that [Martin] was a `clown.’
Martin v. Siegel, supra. 
The next development in the case, apparently, was that “[Siegel’s] lawyer filed a declaration in which he attached numerous published articles in `The Leader’ publication since June 2013 relating to [Siegel], including several editorials and critical opinions by others of [him].”  Martin v. Siegel, supra. 
Martin, then, “[i]n opposition to the motion,”submitted a
declaration denying that he has ever had a chemical imbalance, been a homosexual, had an infatuation with young boys, or ever attempted suicide or any other form of `”self-termination.”’  He asserted that his sexual orientation was not then or had ever been a subject of public hearings or public debate.

He confirmed that in September 2013, he received an e-mail from the superintendent of the high school district informing him that in May 2013, [Siegel], in his capacity as mayor, reported to her that [Martin] had an `IRS complaint’ and he should be fired from his job.

[Martin] declared that there was not then or had there ever been an IRS complaint filed against him. He also stated that [Siegel] filed a police report with the Kings County District Attorney's Bureau of Investigation in January 2014, but no criminal charges were ever filed, and there was never any basis for [Siegel] to file such a police report against him.
Martin v. Siegel, supra. 
The Court of Appeals then took up the substance of the issues raised by Siegel’s appeal, explaining, initially, that defamation
is effected by libel or slander. (California Civil Code § 44) Libel is a false, unprivileged, writing or fixed representation to the eye, which exposes a person to hatred, contempt, ridicule, or obloquy or which causes said person to be shunned or avoided or which has a tendency to injure him in his occupation. (California Civil Code 45) Slander is a false, unprivileged, oral publication. (California Civil Code § 46) The basis for respondent's defamation claim is the written e-mail which, if proven, constitutes a libel rather than a slander.

A defamation per se cause of action requires a plaintiff to prove that a defendant published a false statement to another person or persons, that those persons reasonably understood the statements to be about the plaintiff, that the statements were defamatory on their face (without the necessity of explanatory matter), and that the defendant failed to use reasonable care to determine the truth or falsity of the statement. (California Civil Code §§ 45, 45a; CACI No. 1704.) False statements charging the commission of a crime or tending to directly injure one in his or her profession by imputing dishonesty or questionable professional conduct are defamatory per se. (Burrill v. Nair, 217 Cal. App. 4th 357 (California Court of Appeals (2013)).  The complaint alleged these elements.
Martin v. Siegel, supra. 
The court then prefaced its analysis of the issues in the case by explaining that it
reviews the order granting or denying the motion to strike de novo. (Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (California Court of Appeals 2006) A reviewing court considers the pleadings, the supporting and opposing affidavits, and accepts as true the evidence favorable to the plaintiff and evaluates the defendant's evidence to determine if it has defeated that submitted by the plaintiff as a matter of law. (Smith v. Adventist Health System/West, 190 Cal.App.4th 40 (California Court of Appeals 2010).
Martin v. Siegel, supra. 
Next, the Court of Appeals explained that a
cause of action against a person arising from an act in furtherance of that person's right of petition or free speech in connection with a public issue is subject to a special motion to strike unless the court determines the plaintiff has established that there is a probability the plaintiff will prevail on the claim. (California Code of Civil Procedure § 425.16(b)(1).) A complaint that is subject to being stricken under section 425.16 is known as a strategic lawsuit against public participation (SLAPP). Thus, section 425.16 is referred to as the anti-SLAPP statute. (Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (California Supreme Court 2002).

In ruling on an anti-SLAPP motion, the court first decides whether the moving party has shown that the lawsuit arises from protected activity. If the court concludes that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing. (Equilon Enterprises v. Consumer Cause, supra.) In deciding the probability of prevailing issue, the plaintiff need only show `”`that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’”’ (Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (California Supreme Court 2011) . . . .

Acts in furtherance of a person's right of petition or free speech include conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (California Code of Civil Procedure § 425.16(e)(4)).  Whether statements have been made in connection with a public issue include whether the statement or the activity precipitated in the claim involve a topic of widespread public interest. (Wilbanks v. Wolk, 121 Cal. App. 4th 883 (California Court of Appeals 2004).
Martin v. Siegel, supra. 
The court then took up Siegel’s arguments on appeal, noting, first, that he
argues that the defamation cause of action arises from protected activity because the content of the e-mail involved matters of public interest. We disagree. None of the evidence presented by [Siegel] supports the claim that the referenced e-mail statements (homosexual tendencies, infatuation with young boys and self-termination) pertain to issues involving the public interest or a public issue. Evidence that [Martin] wrote many articles critical of [Siegel’s] performance as Mayor of Lemoore does not give [Siegel] legal immunity to defame [Martin] about personal matters. The e-mail's content did not concern [Siegel’s] performance as Mayor nor did it relate to any articles [Martin] wrote about [Siegel]. Instead, they appear to be personal comments directed at [Martin] rather than addressing any public issue.
Martin v. Siegel, supra. 
The Court of Appeals also noted that Siegel
further argues that the e-mail statements are protected speech because the credibility and trustworthiness of [Martin] is a public concern. However, he fails to explain how statements about homosexual tendencies or a past suicide attempt affects credibility or trustworthiness.
Martin v. Siegel, supra. 
The court also, though, noted that
[e]ven assuming arguendo that the e-mail furthers the free speech rights of [Siegel], [Martin’s] evidence has established a probability of prevailing, which defeats the motion. That evidence includes [Martin’s] declaration in which he stated the subject e-mail statements about him are false; there have never been any public hearings or debate about his sexual orientation, alleged infatuation with young boys or alleged attempt at suicide (self-termination); the school superintendent informed him that [Siegel] told her [Martin] had an IRS complaint and that such claim was false; the superintendent told him [Siegel] told her [Martin] should be fired; and [Siegel] filed a police report against him, which had no basis and never resulted in any charges being filed.
Martin v. Siegel, supra. 
Finally, Siegel also argued that
because his e-mail statements about homosexual tendencies and infatuation with young boys were mentioned as coming from `people in the community,’ the statements are only libelous, that is, false, if people in the community did not make such statements. We agree with the trial court that libelous comments, even though couched in language that `[p]eople in the community speak of,’ did not convert the defamation into opinion, nor did it permit [Siegel] to establish the truth of the statement by simply proving that people in the community had spoken of [Martin] in a libelous way. (Jackson v. Paramount Pictures Corp., 68 Cal.App.4th 10 (CaliforniaCourt of Appeals 1998) [when a party repeats a slanderous charge, he is equally guilty of defamation, even though he states the source of the charge and indicates that he is merely repeating a rumor].)
Martin v. Siegel, supra. 
For these and other reasons, the Court of Appeals affirmed the trial judge’s denying Siegel’s motion to strike Martin’s complaint for defamation.  Martin v. Siegel, supra. 
You can, if you are interested, read more about the parties and litigation in this case in the news stories you can find here, here and here.


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