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December 17, 2007
Are You Being Defamed? You Don't Have to Stand For It.
I earlier posted a blog that said boards and owners had no right to exert or threaten physical violence against each other - using the axiom "Sticks and stones may break my bones but words may never hurt me."
I feel that I should take this a step further because words can actually hurt a person. I stand by my earlier post that physical violence or threats are not the answer to words that hurt, damage the reputation, or misstate someone's intentions. But a decision does need to be made about whether to do something about such words, or "turn the other cheek."
In our world of homeowner association living, associations generally have access to legal counsel, and the funds to pay for it collected through assessments from all owners. Individual owners do not enjoy this kind of access. First of all, at least in California, most lawyers with considerable HOA knowledge and experience will only represent HOAs and not homeowners. There are many reasons for this, fiscal and otherwise, but that is not the purpose of this blog. The fact is that this creates a lot of stress for the owner-public that is unhappy with its homeowners association and cannot get help. And so, owners tend to be a lot more critical of the Board and individual directors, and the Association vendors, than the board is of the individuals.
Some owners go overboard in their frustration and defame the board members, the Association and sometimes the Association vendors, managers and attorneys in particular. How far overboard can they go without risk?
In California there are statutes that define defamation and guarantee certain rights. Civil Code Section 43 is one. It says:
"Besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations." Defamation includes libel and slander (Civil Code Sectiion 44)
Civil Code Section 45 and 45a define and explain libel which is "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."
Civil Code Sections 46 and 47 define and explain slander which is "a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted,
convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
With regard to defamation, 1, 2 and 3 above are important because if a person says or publishes something that says another person is a thief or embezzler (for example), is mentally ill, or is incompetent in serving the association, the subject of the comments may be able to sue for slander and get a monetary damages award without having to prove monetary losses.
This happened in a case in Colorado and an HOA and Board members received a judgment in the amount of $10,000 because of an owners comments published on two websites that publish a lot of criticism about homeowner associations, boards and vendors that serve them, especially attorneys. The Judge also issued an injunction that prevented the owner from (quoted from order of judge):
"1. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings of the name of the B Lazy M Ranch Owners Association, the names of its property owners, or the names of its past and present board members;
2. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings alleging criminal conduct, civil wrongs, and mental and/or psychiatric conditions, which refer directly or indirectly to the B Lazy M Ranch, the B Lazy M Ranch Owners Association, its property owners, or its past and present board members;
3. Communication by any means, including but not limited to, e-mail, letter, telephone, or in person with any member of the B Lazy M Ranch Owners Association, its property owners, and its past and present board members which in any way alleges criminal conduct, civil wrongs, or mental or psychiatric conditions by any past or present board member of the B Lazy M Ranch Owners Association."
Furthermore, the judge found that enjoining future conduct would not remedy the fact that there were communications published on the two websites that were defamatory and issued this order as well:
"Within 15 days of this Order, the Plaintiff shall contact the American Homeowners Resource Center, the Gazette YourHub, and any other internet website or blog on which she has posted contributions and shall request that all postings made by her which identify or name the B Lazy M Ranch Owners Association, the names of its property owners, or the names of its past and present board members, be removed from said website or blog. Within 30 days of this Order, the Plaintiff shall file with the Court and provide copies to opposing counsel proof of compliance with this Order."
The judgment in this case may be affected by an appeal, if one is filed, and so I will try to follow it and let you know of changes. I will also be posting more information on addressing defamation, as it is a "tort" (civil wrong) and there are remedies.
In all cases where I have been called upon to advise boards, or groups of concerned owners, I have always recommended that the best defense to any defamation claim is to publish facts, and not innuendos, accusations, suppositions, hypotheticals, or assumptions. "Just the facts, M'am." I always say that if you are going to publish something derogatory, that you need evidentiary support for the truth of what you are publishing. If I am asked to draft a communication, I require that the backup information be produced for me so I can verify the truth.
It is interesting to find, as I do in my experience, that the more outrageous or offensive the allegations about HOAs, boards, or even owners when the tables are turned are, the less believable the allegations are. The conduct of producing unfettered criticism without any substantiation with facts can generally be fairly easily countered with a subsequent publication of the facts, if the audience is contained enough. The other thing I see a lot of is someone says something unflattering about another, or, criticizes the other person by sending them (the target person) a communication, and the person assumes they have a defamation claim. The item or comment or statement has to be said or publishes to "someone else" to be defamation. Criticising a person to his or her face is not defamation, unless there are others in earshot and the comments are defamatory.
One last suggestion. If a person feels they are defamed and cannot afford an attorney, he or she can test his or her theory in small claims court in California for a filing fee of about $25, a service fee of $10-$30 or so, and a court appearance. Say an entire board is accused of stealing or embezzling funds through a publication by an owner. I believe that each board member could file a small claims complaint alleging defamation and seek up to $7500.00 (the small claims upper limit) in damages. If a plaintiff is successful there, the perpetrator (defendant) should be deterred from continuing to publish defamatory materials. In fact, based on whether the conduct is so eggregious it could make the"six o'clock news" [a "test" conceived, I believe, by Mary Howell, an attorney in Southern California], the hearing officer is likely to issue fair warning that future publication could result in subsequent multiple damage awards. The more offensive the text, the more likely it is to get the judge's attention and evoke sympathies for the person that is the subject of the derogatory comments.
The small claims remedy is often overlooked but in the hypothetical described, it seems very possible the small claims venue could be an affordable means of addressing defamation. It may not offer the "injunctive" relief (although I believe a hearing officer could issue sufficient warnings to practically effect an order to do or stop doing something), but it is an available venue. In the Colorado case, the HOA and board members were given a $10,000 judgment but I do not believe they recovered attorney fees and I suspect the fees probably equalled or exceeded the award. One has to consider the economic feasibility of pursuing litigation if one does not have the funds to fight based on "principal."
Posted by Beth Grimm at December 17, 2007 9:52 PM