Page 1
Court of Appeal:
Making Official Report Didn’t Immunize Public Comments
Wiley Says Attacks Posted Online Were ‘Akin to Press Releases,’ Not Covered by Litigation Privilege
By a MetNews Staff Writer
The fact that a homeowner complained to the Contractors State License Board about work done by a contractor does not mean that all her denunciations of him on her blog and on Yelp, including the allegation that he committed “hard fraud,” were immunized by the litigation privilege, Div. Eight of this district’s Court of Appeal has held, affirming a denial of the woman’s anti-SLAPP motion in the contractor’s action against her for libel.
Justice John Shepard Wiley Jr. authored the opinion, filed Wednesday. It upholds an order by Los Angeles Superior Court Judge Rupert Byrdsong.
Messages posted by defendant Vanessa Hamilton, some of which made no mention of the board, “were akin to press releases,” Wiley said, declaring that they “were unprivileged.”
Wiley wrote:
“The litigation privilege…is the backbone of an effective and smoothly operating judicial system: it ensures free access to the courts, promotes complete and truthful testimony, encourages zealous advocacy, gives finality to judgments, and avoids unending litigation….
“Yet every privilege has limits. In pursuit of desirable policy goals, an absolute privilege can create injustice by barring actions that would vindicate injuries from false and defamatory statements. At some point, an absolute privilege must give way. But at what point?”
1996 Opinion
For an answer, he turned to the 1996 Court of Appeal opinion by Acting Presiding Justice H. Walter Croskey, now deceased, for Div. Three of this district’s Court of Appeal in Rothman v. Jackson. The appeals court reversed a judgment of dismissal of an action brought by attorney Barry K. Rothman and his firm against entertainer Michael Jackson and others.
Rothman and Jackson are also deceased.
The Los Angeles Superior Court lawsuit was based on allegations at a press conference that Rothman and his client, an alleged victim of child molestation, were seeking to “extort” money from Jackson through the threat of litigation. Demurrers were sustained without leave to amend based on the litigation privilege, contained in Civil Code §47.
“[W]e hold that the litigation privilege should not be extended to ‘litigating in the press,’ ” Croskey declared. “Such an extension would not serve the purposes of the privilege; indeed, it would serve no purpose but to provide immunity to those who would inflict upon our system of justice the damage which litigating in the press generally causes: poisoning of jury pools and bringing disrepute upon both the judiciary and the bar.”
Right of Petition
In line with that decision, Wiley said, Byrdsong was correct in ruling that contractor Vincent T. Paglia’s lawsuit is not based on protected conduct. The anti-SLAPP statute, Code of Civil Procedure §425.16, includes among protected conduct “any act” that furthers a person’s “right of petition”—which includes litigation—but, he wrote:
“Hamilton’s postings lacked a substantial connection to litigation.”
Wiley explained:
“Her posts were not letters to board officials asking them to investigate Paglia. They were not filings with the contractors board. They were not messages between counsel or parties in the course of litigation.
“Hamilton’s posts were merely public denunciations of Paglia.”
The jurist added:
“Hamilton’s Yelp and blog posts could advance her case before the contractors board only by rallying public opinion to her cause and by pressuring the board to bow to that opinion. Otherwise her statements would have no effect on, and no relevance to, the board. But Rothman rightly condemned using this privilege to try matters in the court of public opinion.”
Affirmative Defense
Hamilton pointed out that privilege is an affirmative defense and such a defense, if not pled, is waived. Paglia did not plead that affirmative defense.
Wiley responded:
“The burden indeed rested on plaintiff Paglia to show, in opposition to the special motion to strike, that Hamilton’s statements were unprivileged. Paglia discharged this burden…: Paglia demonstrated Hamilton’s statements were unprivileged. Whether Paglia’s complaint pleaded an affirmative defense is immaterial.”
The case is Paglia & Associates Construction v. Hamilton, 2023 S.O.S. 3927.
Jeffrey Lewis and Sean C. Rotstan of the Rolling Hills Estates firm of Jeff Lewis Law represented Hamilton. Aaron P. Morris of the Lake Forest firm of Morris & Stone and Fullerton attorney Christopher J. Koorstad acted for the contractor.
Copyright 2023, Metropolitan News Company