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C.A. Snips $1 Million From Default Judgment For $3.9 Million in Online Defamation Case
Remand Ordered for Recalculation of Punitive Damages
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday whacked off from a default judgment an award of $1 million in punitive damages, declaring that there was insufficient proof of the defendant’s financial condition, but remanded for a reassment of those damages and left intact the award of nearly $3 million for past and future harm from defamatory Internet postings.
Justice William W. Bedsworth authored the opinion, which was not certified for publication. It rejects the contention of the poster, Joseph Wilk, that he should be given a chance to prove in court that he has meritorious defenses to the action brought against him by Eric Brahms.
“A defaulting defendant has only limited grounds for appealing the judgment itself,” Bedsworth wrote. “He cannot, for example, now contend that the allegations of the complaint are not true.”
To the contrary, he said, “[b]y failing to answer, Wilk in effect ‘confessed’ that these allegations were true.”
He continued:
“To be clear, Wilk admitted that the statements he made about Brahms were factual, false, unprivileged, and malicious and that they caused damage….Wilk cannot challenge the truth of the allegations on an appeal from a judgment of default.”
Motion to Vacate
The opinion affirms the default judgment, except as to the punitive damages, as well as the order denying Wilk’s motion to vacate the judgment. As to the motion, Bedsworth said:
“The trial court ruled that Wilk did not show a satisfactory excuse for his failure to respond to the complaint. He knew about the lawsuit as of March 24, 2020, after he was served, as well as his duty to respond to it, as evidenced by his email to an attorney in April seeking representation. The court did not buy his other excuse—he thought the courts were closed owing to Covid-19—because he was receiving papers during May and June that indicated the case was ongoing. The court also did not believe Wilk’s assertion that he was not at home when the process server came to serve him with the statement of damages.”
Orange Superior Court Judge Theodore R. Howard, in granting a default judgment on Jan. 12, 2021, made findings that allegations posted by Wilk on various websites concerning Brahms were false. His findings included that Wilk “is not a ‘scammer,’ ” was not banned from an online forum based on scams, is not perpetrating the same scam now “with Porshe parts,” and was not “banned from PayPal and ebay for fraud.”
Howard declared:
“Damages are awarded in favor of Plaintiff ERIC BRAHMS as against Defendant JOSEPH WILK, for loss of earnings in the amount of $121,816.00; loss of future earnings in the amount of $1,793,398.20; emotional distress damages of $1,000,000; and punitive damages of $1,000,000; plus costs of $702.30, for a total of $3,915,214.20.”
Lost Income
Bedsworth said the amount of the lost income was substantiated by bank statements showing a drop in income for a business Brahms ran for 11 years and which, the plaintiff declared, could be attributable only to the postings. With respect to diminished future income, the jurist wrote:
“Given the longevity of internet postings and repostings and the difficulty of cleaning up after them, it is a reasonable inference to project that people will still be reading and reacting to Wilk’s defamatory statements when they google Brahms’ name three and one-half years from now, even if Wilk took them down from his particular websites immediately after judgment was entered in January 2021.”
He went on to observe:
“We cannot find that the emotional distress damages, while high, are high enough to shock the conscience of the court.”
Bedsworth noted that they “are actually lower than the amount of special damages” which is an indicator of a lack of disproportionality.
Punitive Damages
Addressing punitive damages, he said:
“Brahms’s declaration states that Wilk owns revenue-generating websites, but he does not state what that revenue is or how he knows Wilk owns the websites. He also states that Wilk owns two expensive Porsches, but he does not state how he knows these cars belong to Wilk. Finally Brahms states that Wilk lives in a house owned by his parents (without stating how he knows this) and that “presumably” he has no housing expenses. None of these statements is evidence of personal knowledge of Wilk’s wealth.
“We need not, however, reverse the part of the judgment awarding punitive damages. Brahms is entitled to recover punitive damages; the only question is the amount. We may therefore strike the award of punitive damages and remand for a new hearing on the amount of punitive damages alone, based on evidence of Wilk’s financial condition at the time of the new default prove-up hearing.”
The case is Brahms v. Wilk, G060250.
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