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Court of Appeal:
Emails to Woman’s Attorney/Husband Constituted Defamation
Contention That Writings Were Settlement Offers and Were Improperly Admitted Is Rejected
By a MetNews Staff Writer
Div. Four of the Court of Appeal for this district yesterday affirmed a $311,500 compensatory-damages award to a woman whose brother accused her, in emails to her attorney/husband, of attempting to defraud their elderly parents, threatening in the communiques to bring a lawsuit.
A $100,000 punitive-damage award was reversed, however, in light of insufficient evidence of defendant Kenneth Lopez’s financial condition.
San Luis Obispo Superior Court Judge Craig B. Van Rooyen, sitting on assignment, authored the unpublished opinion upholding, though paring, a judgment by Los Angeles Superior Court Judge Jon R. Takasugi, pursuant to a jury verdict, in favor of plaintiff Cynthia Lopez in an action for defamation, intentional infliction of emotional distress, and other torts.
Admission of Emails
Cynthia Lopez’s brother argued on appeal that Takasugi erred in admitting into evidence emails sent in 2016 to her husband, attorney Daniel Boone of the Sacramento law firm of Miller Axline & Sawyer, accusing her of committing bank fraud and identity theft in handling their parents’ financial affairs.
At the time of the first email to Boone, Cynthia Lopez had sued Kenneth Lopez based on allegations he had made about her to the Adult Protective Services. The brother had offered to desist from filing a cross-complaint against her if she did not pay his legal expenses plus $5,000 and, with the deadline for accepting approaching, called upon Boone to persuade his wife to accept, writing:
“Your wife has gotten herself into trouble once again. My attorney feels she needs some consul [sic] from someone that is rational. I intend to go to the district attorney’s office and the FBI tomorrow, as well report this matter to the credit agencies. [the Financial Industry Regulatory Authority] and Comptroller of the Currency. I also have a…friends with various state agencies that deal with this kind of issues regarding banks and elderly people. I hope you weigh the cost and benefits of continuing with [Cynthia] s irrational behavior.”
He attached a copy of his settlement offer which contained allegations of crimes.
There was no response. After filing his cross-complaint, Kenneth Lopez sent another email to Boone in which he said:
“[M]ore evidence came to light about your wife that is very damming. Since you are married you will ultimately be responsible for any judgment’s against your wife.”
Evidence Code §1154
On appeal, Kenneth Lopez asserted that admission of the emails was violative of Evidence Code §1154 which provides:
“Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it.”
Van Rooyen wrote:
“The parties dispute whether the two emails in question should properly be deemed settlement negotiations. We need not resolve that question. Under Evidence Code section 1154. settlement discussions are only inadmissible when offered to prove the invalidity or weakness of a claim. (Evid. Code. § 1154.) While the emails may be construed as an offer by Kenneth to forgo filing a cross-complaint in return for a payment of far less than he would ultimately request in that cross-complaint, the letters were not offered to show the cross-complaint was invalid. Indeed, no witness testimony or argument from counsel attempted to connect Kenneth’s emails to the validity or strength of his cross-complaint.”
Not Inadmissible
The jurist continued:
“Cynthia offered the emails primarily to show that Kenneth falsely accused her of criminal conduct with the knowledge that these accusations would be viewed by other attorneys and employees at Boone’s firm. In other words, the emails were not offered to undermine Kenneth’s cross-complaint, they were offered to prove Kenneth’s liability for defamation. Nothing in section 1154 renders the emails inadmissible for that purpose. The trial court did not abuse its discretion by rejecting Kenneth’s argument under Evidence Code section 1154.”
Kenneth Lopez argued further that even if the emails were admissible, they did not amount to defamation.
Van Rooyen responded:
“In an attachment to the first email. Kenneth accuses Cynthia of defamation, bank fraud, and identity theft and says he will report her to the district attorney and FBI. The emails are framed as assertions of fact, not opinion. For example, the second email claims “more evidence came to light about your wife that is very damning.” Kenneth’s accusations of wrongdoing were assertions of fact, not hypothetical opinions of wrongdoing.”
The case is Lopez v. Lopez, B331972.
Boone represented his wife on appeal. Cerritos attorney Dilip M. Vithlani joined with L. Richard Walton of the Marina Del Rey firm of Walton & Walton in arguing for reversal.
Prior Appeal
Div. Four decided a prior appeal in the case. Cynthia Lopez contested an order by Takasugi disqualifying her husband as counsel because he was apt to be a witness in the case.
Then-Presiding Justice Nora M. Manella (now retired), in a July 20, 2022 opinion reversing the order, pointed to the informed-consent exception to the advocate-witness rule. She also noted:
“[T]he court failed to demonstrate that it had properly considered appellant’s heightened interest in remaining represented by Boone, who had gained mastery over the case by litigating it for over four years, and who was providing his services pro bono or at a discounted rate.”
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