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libel per se

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J

jbl

Guest
I was in mediation over an item I won in an auction. The person from whom I won the lot and was disputing the item, stated I "theatened" them on the telephone. I did not.

They reiterated the false accusation.

I read up, and this is libel per se. The onus of proof that I threatened is on them, for it is a claim considered so obviously harmful that malice need not be proved to obtain a judgment for "general damages," and not just specific losses.

Am I correct in this and how do I go about taking them to court?

One time the "threatened" comment was written, it was 'signed' by a person to whom I never spoke.

This occurred on the internet. I am in New York.

Thank You

 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face=" Arial, Verdana, Helvetica">quote:</font><HR>Originally posted by jbl:
I was in mediation over an item I won in an auction. The person from whom I won the lot and was disputing the item, stated I "theatened" them on the telephone. I did not.

They reiterated the false accusation.

I read up, and this is libel per se. The onus of proof that I threatened is on them, for it is a claim considered so obviously harmful that malice need not be proved to obtain a judgment for "general damages," and not just specific losses.

Am I correct in this and how do I go about taking them to court?

One time the "threatened" comment was written, it was 'signed' by a person to whom I never spoke.

This occurred on the internet. I am in New York.

Thank You

<HR></BLOCKQUOTE>


My response:

What you failed to research, Perry Mason, was the defense called "privilege".

The person can say anything about you, in a court proceeding such as mediation, as long as they are communications "in any . . . official proceeding authorized by law." [Ca Civil § 47(b)(3); see Passman v. Torkan (1995) 34 Cal.App.4th 607, 616, 40 Cal.Rptr.2d 291, 296--defendant's letter to district attorney, accusing plaintiff of criminal conduct and designed to prompt a criminal prosecution, was absolutely privileged]

Purposes:

To free litigants and witnesses from fear of harassment for what they say in litigation; to encourage zealous advocacy by counsel; and to "avoid an unending roundelay of litigation." [Silberg v. Anderson (1990) 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 642-643]

Requirements:

Even fraudulent and malicious statements are absolutely privileged if:

· Made in a judicial or quasi-judicial proceeding (not necessarily in the courthouse);

· By litigants or other participants authorized by law;

· To further the objects of the litigation; and

· Having some connection or logical relation to the action. [Silberg v. Anderson, supra, 50 Cal.3d at 213-214, 266 Cal.Rptr. at 642; see Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1141, 57 Cal.Rptr.2d 284, 288]

Compare-- No intent or motives requirement:

The third requirement above (communication must further the objects of the litigation) is not a test of defendant's motives or purposes. It is simply part of the requirement that the communication have some logical relation to the litigation. I.e., as long as the communication is relevant to the litigation, it is absolutely privileged . . . regardless of defendant's selfish or evil motives. [Silberg v. Anderson, supra, 50 Cal.3d at 220, 266 Cal.Rptr. at 643-645; Rothman v. Jackson, supra, 49 Cal.App.4th at 1141, 57 Cal.Rptr.2d at 288]

So, in essence, you can scream and yell all you want about it, but you are helpless to do anything about it; e.g., you can't sue the person because the parties or participants can say virtually anything they want. The only person who CAN'T say anything like you've espoused, is the judge. That's appealable or reversable error if the judge says anything like that DURING the litigation.

IAAL

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J

jbl

Guest
Thank you for responding, Perry Mason wannabe, but this was not a mediation of an official capacity.

It is set up by an internet auction place, to settle matters, and in no way connected with the law, but strictly to try and ameloriate differences in opinion over an item from the buyer and seller, and then the third party gives their suggestion.
 

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