DESPERATE HOUSEWIVES’ STATEMENTS: NONACTIONABLE GROUP DEFAMATION? NONACTIONABLE OPINION OR RHETORICAL HYPERBOLE?
By:
Roman P. Mosqueda, Esq.
The good news is that more than seventy (70) Philippine-educated physicians in Southern California through this Author have demanded of ABC Television Network the correction or retraction of the defamatory statements in its September 30, 2007 season-premiere episode of Desperate Housewives.
Demand For Retraction Preserves
Right To Damages:
Their written demand for correction or retraction dated October 18, 2007 was served on ABC Television Network’s President, Mark Pedowitz, on the same day, by personal service through this Author’s process server.
If and when they file slander suit within one (1) year from awareness of the slander under Section 340(c) of the Code of Civil Procedure, they have reserved and preserved their rights to claim general and exemplary damages, in addition to special damages, by demanding the correction or retraction.
The demand letter proposes as an alternative correction an ABC-produced historical documentary about Filipino physicians in the United States in the past half century.
Under Section 48(a)(2) of the California Civil Code, if the retraction is not sufficient and effective, there can be no mitigation of general and exemplary damages. For the retraction to be sufficient, it should fully correct every aspect of the defamatory statement without reservation or evasion, under Twin Coast Newspapers, Inc. v. Superior Court (1989) 208 Cal. App. 3d 656.
Retraction is different from an apology to the American Medical Association (AMA) membership and to the Filipino physician community asked by AMA President Ronald M. Davis, M.D., in his October 18, 2007 letter to ABC’s President.
Nonactionable Group Defamation:
The bad news is that the California Supreme Court considers a group of over twenty-five (25) members (there are about 22,000 Philippine-educated physicians practicing in the United States) too large a group for plaintiff(s) as member(s) of the group to show that the contested statements were “of and concerning” them.
Michael J. Polelle, Esq., in his article “Racial And Ethnic Group Defamation: A Speech-Friendly Proposal,” concludes that: “Generally, defamation of a large group is almost never actionable, either by the group or by any individual within the group.” The basis for this conclusion is that: “…a member of…(a) large group that has been defamed will not be able to establish the individual identification necessary for personal defamation.” He qualifies that: “The only hope for a member of an obviously large group is to claim that he or she is a member of an identifiable small subset within the large group.”
Indeed, Section 564A of the Restatement (Second) of Torts states: “One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it, but only if, (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member.”
In Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033, the Supreme Court of California held: “If the group is small and its members easily ascertainable, [the] plaintiff may succeed. But where the group is large -- in general, any group numbering over twenty-five members -- the courts in California and other states have consistently held that plaintiffs cannot show that the statements were ‘of and concerning them.’”
The Oklahoma Supreme Court, in McCullough v. Cities Services Co., (Okla. 1984) 676 P.2d 833,837 held that: “…impersonal reproach of an indeterminate class, such as 19,686 Doctors of Osteopathy, is not actionable because the larger the group libeled, the less likely a reader would take the libel to refer to a particular individual.”
Is there an identifiable small subset (less than 25 physicians) within the large group, such as white Caucasian or Filipino Philippine-med school-educated physicians practicing OB-GYN in California?
So, the two (2) problems inherent in group defamation are: (1) lack of plaintiff’s identification, that is, absence of a specifically identifiable plaintiff, and (2) dilution of personal injury to members of a sufficiently large group. The dilution problem leads to difficulty of proof of special damages to members of a defamed group, as well as apportionment of general damages for loss of reputation, shame, or mortification and hurt feelings of, and among plaintiffs, under Section 48a.4(a) of the California Civil Code.
Statements As Nonactionable
Opinion:
Another bad news is if the court decides that the contested statements in Desperate Housewives are nonactionable opinion or rhetorical hyperbole. Indeed, statements of opinion and exercise of literary style are generally protected by the First Amendment.
But expressions of opinion that imply a probably false assertion of fact is not protected, under Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal. App. 3d 720. California courts have utilized the “totality of the circumstances” test to ascertain whether the statements in question are probably false factual assertions, under Rudmick v. McMillan (1994) 25 Cal. App. 4th 1183, 1191.
This test first examines the language of the statement. For words to be defamatory, they must be understood in a defamatory sense. Second, the context in which the statement was made must be considered.
Under this contextual analysis, the California courts are required to look at the nature and full extent of the communication and to the knowledge and understanding of the audience to whom the publication was directed. As held in Moyer, supra, this crucial question of whether the challenged statements convey the requisite factual imputation is a question of law for the court to decide.
Once the court concludes that the statement could reasonably be construed as either fact or opinion, the issue goes to the jury, under Campanelli v. Regents of University of California (1996) 44 Cal. App. 4th 572, 578.
Do the statements of Teri Hatcher, as Susan Mayer, imply that Philippine medical schools are below acceptable standard of quality; and therefore their graduates are deficiently-educated and their competence to practice medicine questionable?
Do they have disprovable factual content? Or are they too vague to be capable of being proven true or false?
The letter demand for correction attaches portions of the April 20, 1999 Report issued by the Medical Board of the State of California, basically stating that the quality of Philippine medical schools are equivalent to California medical schools, courtesy of Dr. Noli R. Zosa.
Statements As Nonactionable
Rhetorical Hyperbole:
In Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal. App. 3d 991, the Court stated that: “Unlike hyperbole or satire, the publication of implied defamatory statements against the background of apparently objective and neutral reporting is almost certain to be understood as factual.”
The contested statements of Susan Mayer (“… in some med schools in the Philippines” and “I don’t know what kind of nonsense they taught you at….”) are in a fictitional, satirical context. In Ferlauto v. Hamsher (1999) 74 Cal. App. 4th 1394, the Court ruled that: “Caricature, imaginative expression, and rhetorical hyperbole, as used here, are often subject to the threat of a defamation action, but generally constitute a legitimate exercise of literary style.”
In Ferlauto, supra, the phrases “creepazoid attorney” and “loser wannabe lawyer” were considered “classic rhetorical hyperbole which ‘cannot reasonably [be] interpreted as stating actual facts,’” citing Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 12-21.
Calling appellant Judge a “bad guy” was at most a rhetorical hyperbole, and is therefore not actionable, said the Court in Aisenson v. American Broadcasting Co. (1990) 220 Cal. App. 3d 146.
Rhetorical hyperbole has been defined as statements that even the most careless reader would perceive to be no more than unbelievable rhetoric. Rhetorical hyperbole is protected because the language is so expansive, is used loosely, that the reader or listener knows that it is only opinion.
Did the more than 125,600 persons as of October 23, 2007 who registered at www.petitiononline.com/FilABC/petition.html to protest the contested statements and demand an apology believe the statements to be no more than unbelievable rhetoric? Thank you Mr. Kevin Nadal for creating the online petition to ABC.
Anti-SLAPP (Strategic Lawsuit Against
Public Participation) Statute:
In 1992, California enacted Section 425.16 of the Code of Civil Procedure to prevent the misuse of litigation in SLAPP (Strategic Lawsuit Against Public Participation) suits, which are filed to intimidate and silence critics or opponents with the cost of legal defense, so that they would abandon their criticism or opposition.
Section 425.16 of the California Code of Civil Procedure provides for a special motion to strike a complaint, that may be filed within sixty (60) days after the service of the complaint, arising from conduct that falls within the rights of petition or free speech.
Unless the court determines that the plaintiff in a SLAPP suit has established that there is a probability of prevailing on the claim, by considering the pleadings, and supporting and opposing affidavits, (no live testimonies required), stating the facts upon which the liability or defense is based, a prevailing defendant on a special motion to strike shall be entitled to recover attorney’s fees and costs, under Section 425.16(c) of the Code of Civil Procedure.
But if the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, it shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, under the 1993 amendment of the anti-SLAPP statute.
A slander complaint against a defendant television broadcaster falls within the purview of the anti-SLAPP statute, under Section 425.17(d) of the Code of Civil Procedure, enacted on September 06, 2003. And to be able to surmount the special motion to strike the complaint, plaintiff(s) must “make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff’s favor,” under Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 646.
On October 06, 2005, Section 425.18 of the Code of Civil Procedure was enacted to provide a SLAPPback cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior SLAPP action that has been dismissed pursuant to a special motion to strike.
Thus, in addition to payment of reasonable attorney’s fees and costs for the granted motion to strike the complaint, there is exposure to malicious prosecution against plaintiff(s) and plaintiffs’ counsel if the SLAPP action is dismissed. Are these risks worth taking by Philippine-educated physicians contemplating slander suit against ABC?
These are the various legal issues facing Philippine-educated physicians if and when they decide to sue ABC for slander under Section 46 of the California Civil Code.
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(The Author, Roman P. Mosqueda, has handled defamation cases for both plaintiffs and defendants.)