It was a simple email: four sentences sent in early 2010 to a nursing home administrator about the care of one of the home’s residents. Days later, the author of that email — along with his girlfriend, the resident’s daughter — were accused of trespassing, civil harassment, intentional interference with contractual relations, and, bizarrely, defamation; ostensibly because they had exercised their legal right to copy their attorney on the message.
If you’re familiar with the legal standards for defamation, you probably already know why we’re comfortable describing this allegation as “bizarre.”
Under California law, in order for a statement to be defamatory it has to pass a multi-part legal test. If it fails any of the conditions, the defamation claim fails.
The California standard for defamation:
1. It must be a statement of fact. (Not opinion.)
2. It has to be false. (The truth may hurt, but it’s never defamatory.)
3. It has to be unprivileged. (Defamation can’t take place between an attorney and their client. It’s safe to make up a bunch of horrible lies if you only tell them your lawyer.)
4. The subject of the alleged defamation has to be injured by the statements.
5. The party that made the statements had to have at least been negligent in doing so. (They did not exercise a reasonable level of care in determining whether or not their statements were true before they wrote or said them.)
One requirement is that the communication cannot be privileged communication between a lawyer and their client; the fact that others are copied on the email does not necessarily negate that privilege. In other words, you cannot defame someone to your own attorney.
It’s now more than six years later and Val and David are still fighting to hold the nursing home, the Los Angeles Jewish Home for the Aging (LAJHA) — and Arent Fox, the prominent law firm hired to file the lawsuit against them — accountable for filing that lawsuit; a suit that Val and David maintain had no chance of succeeding.
It’s a case that raises some important unanswered questions about our legal system: Who is responsible when lawyers file “nuisance” lawsuits that they, as professionals, should know aren’t valid?
Do attorneys have an obligation to refuse to file such lawsuits? Or does the responsibility for their actions fall only on their clients?
Legal experts we spoke to put the blame for this bad behavior on everything from poorly trained attorneys to clogged court systems to old-fashioned cronyism, and while there are remedies in some states for defendants to try to quickly get out of nuisance complaints, Val and David’s story highlights the shortcomings of these options at a time when federal lawmakers are considering a nationwide fix for frivolous legal actions.
The SLAPP Down
The defamation lawsuit filed against Val and David is an example of what’s known as a SLAPP — a “strategic lawsuit against public participation” — wherein the plaintiff, typically a company or individual with substantial financial and legal resources at their disposal, files a lawsuit primarily for the purpose of stopping the defendant from exercising their constitutional right to free expression.
READ MORE ABOUT SLAPP COMPLAINTS & ANTI-SLAPP STATUTES HERE
In the case of Val and David, they contend that LAJHA was tired of Val’s and her mother’s efforts to hold the company accountable for what they viewed as questionable business and care practices.
A Timeline Of Trouble
The dispute here traces back to early 2009, when Val’s mother says she began raising concerns about possible identity theft, missing medication, and wrongful healthcare claims. Over the next several months, Val, her mother, and David all met with various LAJHA officials about these issues. According to David, a state ombudsman even admonished the home regarding its apparently fluctuating rental rates.
During these meetings, David says it was also made clear by both Val and the ombudsman that LAJHA administrators were not to meet with Val’s mother on her own. Additionally, the family says that the home knew Val’s mother, et al, had consulted with an attorney from Bet Tzedek Legal Services.
According to court documents, Val’s mother — a diabetic breast cancer survivor — had provided LAJHA with written orders from her endocrinologist that he was to be paged if her blood sugar levels passed a certain threshold. However, in early Jan. 2010, her blood sugar level soared to 302.
She and Val say they asked the nursing home to page the mother’s endocrinologist, as per the written instructions, but claim the nursing home instead brought in a different doctor who prescribed a slow-acting insulin, allegedly without reviewing her charts or checking with the endocrinologist, and without speaking to Val. When Val — who has medical power of attorney over her mother’s care — learned of this, she says she took her mother to the emergency room.
Thanks to a declaration filed with the court in April of 2013, we now know that only days after this incident, the nursing home instructed attorneys at Arent Fox to begin preparing a lawsuit against Val and David, even though all the allegations against the couple, including the trespassing and the allegedly defamatory email, had yet to occur.
In the weeks that followed the hospitalization, Val — unaware that a lawsuit was being prepared — says she made several visits to the nursing home, some of them at the invitation of management.
During one meeting with the home’s director of nursing, Val and David say they were interrupted by an administrator who accused them of trespassing and threatened to contact the police if they didn’t leave.
On Jan 27, 2010, according to a sworn declaration provided by the attorney involved, Arent Fox made its only attempt to contact David before filing the lawsuit.
On Feb. 3, 2010 — still more than a week before any lawsuit was filed — Val says her mother called to tell her that staffers were refusing to disclose her glucose levels. According to Val, when she called LAJHA, a nurse allegedly explained, “They told me not to give you anything.”
That same day, David wrote a four-sentence e-mail to an administrator at the nursing home and copied both Val and the family’s attorney from Bet Tzedek Legal.
One week later, on Feb. 10, the lawsuit against David and Val was filed.
SLAPPing Back
“I had never heard of SLAPPs or anti-SLAPP laws,” Val tells Consumerist. “I now have the sense that most people are not aware of SLAPPs and the possible protective measures to challenge such meritless lawsuits.”
Luckily for Val and David, California is one of 28 states with a so-called “anti-SLAPP” law on the books that allows defendants to ask the court for expedited review of certain lawsuits. If successful, it means the defendants can avoid the time-consuming and costly process of discovery by having the allegations stricken early.
In filing their anti-SLAPP motion, Val and David were able to show that the defamation allegation fell short of meeting the standard because of the issue of privilege.
• ESQ. MEANS ESQUIRE
As mentioned earlier, one of the conditions required to meet the California standard for defamation is that the communication is unprivileged. On that point alone, Val and David argued the defamation claim should not have been filed.
One trial attorney, who reviewed the case but asked to not be identified, told Consumerist that this should have been a no-brainer for an attorney, especially one from a respected firm like Arent Fox.
She points out that, in the header of the email, it says “Esq.” right next to the legal aid attorney’s name, an obvious reference to “esquire,” implying that this person is an attorney.
David contends that even if the Arent Fox attorney questioned whether this “Esq.” was indeed an attorney and indeed represented the family, it would have only required a single phone call to Bet Tzedek to confirm this information.
William Simon, the Arthur Levitt Professor of Law at Columbia Law School, is not involved in this dispute but tells Consumerist that an attorney should take advantage of every low-cost method for fact-checking a complaint before filing.
With that in mind, it makes sense that in a sworn declaration to the court made in April 2013, the lead attorney from Arent Fox told the court that he tried to contact David in advance of filing the lawsuit “to inquire regarding the background and circumstances of the email communication which formed the basis for the defamation claim,” and to ask David “about the individuals who the email was sent to.”
The problem with the attorney’s version of events is that David could not possibly have provided him with any information about the email — and Arent Fox couldn’t possibly have asked him about the email — because according to that same declaration, that lone attempt to contact David took place on Jan. 27, 2010, a full week before the allegedly defamatory email was even sent.
• TRUTH, THE ULTIMATE DEFENSE
A second issue that did not factor into the court’s decision to strike the defamation claim, but which would most certainly have become an issue if the dispute had gone to trial, was the question of the truth or falsity of the email sent by David.
In order for a statement to be defamatory, it must also be false. Consumerist has reviewed the email in question. It states that LAJHA staff refused to provide Val and her mother with certain medical information, including results of the mother’s glucose tests.
While there may have been some dispute over the truth of the statements contained in the email at the time the lawsuit was filed, only a few weeks later, on March 2, 2010, an investigation by the California state regulators concluded that Val’s claims were “substantiated.” That’s not the same as a court of law determining that the statement was indeed truthful, but it is strong evidence in support of Val and David’s insistence that the email was not false.
Nonetheless, in the April 2013 declaration, years after the email was shown to be factual, an Arent Fox attorney continued to assert — under oath — that he “did an investigation regarding the substance of the email which, as it turned out, had untrue factual basis.”
The Undying Lawsuit
While Val and David successfully used the anti-SLAPP process to have the defamation action stricken with relative ease, the court allowed the rest of the case — allegations of trespassing, civil harassment, and intentional interference with contractual relations — to continue for an additional three years until May of 2013, when the nursing home finally dropped the case at the urging of the court, which questioned, according to a statement by the judge, the “appropriateness of continuing to prosecute a case if it had no merit, or did not actually seek damages, solely for the purpose of making it appear that the case had not been resolved adverse to the plaintiffs.”
As that original complaint was winding down, Val and David sued both LAJHA and Arent Fox for malicious prosecution, alleging that the 2010 lawsuit was brought without probable cause and with malice.
“Arent Fox prolonged the lawsuit for over three years after their defamation action was tossed as being a meritless SLAPP, inflicting a heavy financial and emotional toll on us,” says Val, noting that the plaintiffs had actually sought to prolong the three-year-old lawsuit before the judge told them to drop it. “The stress was life-changing and I’ll never be the same.”
In California, juries in malicious prosecution cases are asked to consider several factors: The accused must have been actively involved in filing the suit; that lawsuit must have ultimately gone in favor of the party claiming malicious prosecution; that no reasonable person would have believed there were reasonable grounds to bring the lawsuit; that the party being accused must have filed the suit for a purpose other than prevailing on the claims in the complaint.
Val and David contend that the defamation lawsuit was so obviously an attempt to retaliate against them and Val’s mother that both the nursing home and Arent Fox should be held responsible.
“If malicious prosecution does not exist where someone is sued for emailing something true to their own attorney, in what other situation could it possibly exist?” asks attorney Daniel Quisenberry, who has represented Val and David in this case.
Do Lawyers Have An Ethical Obligation To Not File Junk Lawsuits?
Jeremy Rosen of the Public Participation Project tells Consumerist that while lawyers have an obligation to be vigorous advocates for their own clients, there is also an “ethical obligation to be a true officer of the court, and not present anything frivolous.”
Rosen, who is familiar with Val and David’s case but not actively involved, says that, for example, “If a client asks you to file a case that is plainly barred by the First Amendment, you would be ethically obligated to not file it.”
Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct — which have been adopted in some form by every state except California — states that lawyers should not bring lawsuits “unless there is a basis in law and fact for doing so that is not frivolous.”
Even though California has not directly adopted the ABA conduct rules, the California state bar similarly prohibits lawyers from bringing lawsuits “without probable cause and for the purpose of harassing or maliciously injuring any person” or litigating, without merit, a claim that isn’t covered by existing law.
Yet, as we’ve already seen above, there appear to have been several indicators that the defamation complaint against Val and David was hollow and could not stand up to any real scrutiny.
Who Holds Lawyers Accountable?
Trial courts in California can sanction attorneys — and sometimes do — for bringing frivolous claims, but it doesn’t happen often.
“Discipline under the ethics rules is possible but unlikely, except in the most extreme circumstances,” explains Prof. Simon of Columbia University Law School. “The disciplinary process is run by lawyers. They are generally responsive when other lawyers breach duties to clients, but are not particularly sympathetic where the victims are non-client adversaries.”
This means that a court is much more likely to sanction a lawyer for doing something unethical to their own client than they are for an injury to someone on the other side of a case.
Rosen, of the Public Participation Project, adds that the California trial court system — and most state courts around the country — are simply too busy.
“The court system is crushed with an overwhelmingly stuffed docket. There’s no way they can engage in that type of policing,” he explains.
Even when a court does sanction an attorney, says Simon, the most likely outcome is a reprimand instead of a fine.
This means that the wronged party often has few options other than to do what Val and David did: file a malicious prosecution complaint.
“Malicious prosecution cases can yield substantial damage awards,” adds Simon, pointing to the 2007 ruling in Seltzer v. Morton, where the court ordered a law firm to pay $11 million for its part in bringing a frivolous lawsuit against an art expert whose opinion on the disputed provenance of a painting resulted in an auction house refusing to sell the artwork.
One California attorney who is experienced in anti-SLAPP cases tells Consumerist that she often advises her clients to file malicious prosecution claims if they prevail at the anti-SLAPP stage.
“The attorneys who file SLAPPs can be held liable in an ensuing malicious prosecution action,” she explains. “The problem is usually showing that the attorney harbored ‘malice.'” Additionally, even the most well-founded malicious prosecution lawsuit is invariably met with an anti-SLAPP motion of its own.
And, cautions Simon, malicious prosecution cases are difficult to prove and expensive to mount.
There was also the concern among some attorneys we spoke to that holding lawyers accountable for their clients’ bad decisions could ultimately have a chilling effect on attorneys’ willingness to zealously advocate for their clients.
“If I know I could have to mount my own defense based on a lawsuit my client insisted I file, I’m probably going to not take as many risks,” said one litigator.
Others were not convinced by this line of reasoning. Prof. Simon of Columbia Law likened this rationale to doctors who claim that malpractice chills their activities.
“A chilling effect is desirable to the extent it deters illegitimate cases,” he tells Consumerist. “If lawyers do their jobs, liability shouldn’t have much of an effect on legitimate ones.”
Even when defendants prevail in a lawsuit, it’s frequently after they’ve expended significant time and resources. Simon contends “It’s important to have some enforceable responsibilities on the people who impose these costs.”
The Kafka-esque Trap
Which is something that Val and David are learning. Things seemed promising at first, when the trial court denied Arent Fox’s motion to be stricken from the case. Then an appeals court ruled that the trial court must explain why Arent Fox should remain part of the lawsuit.
Rather than do that, or hear arguments from Val, David, or any parties with an interest in this case, the trial court acquiesced and struck Arent Fox from the complaint.
While all of that was going on, the case against the co-defendant nursing home had been on hold. After Arent Fox succeeded in getting itself stricken from the case, LAJHA convinced the trial court to likewise strike that allegation from the complaint. Val and David recently filed a notice to appeal both rulings.
“It is hoped that, finally, the Court of Appeal will consider the actual facts of the case,” explains their attorney Quisenberry, “and provide a reasoned opinion which indicates whether the claim of malicious prosecution even exists in California.”
Val says this experience has all been a lot more than an inconvenience, arguing that lawsuits like the one filed against her and David are “stressful, expensive litigation used to intimidate and suppress the rights of those unable to stand up to deep-pockets bullies.”
For Val, the defamation lawsuit was even more surreal, as she was merely copied on the email at the center of this years-long dispute.
She tells Consumerist that her goal in filing the malicious prosecution claim is to provide a “teachable moment using my experience as the victim of a malicious, meritless SLAPP that citizens should feel they do have the right to consult with an attorney without fear of retaliation.”
Val contends that anti-SLAPP statutes can only be truly effective when they can used to hold bad attorneys’ feet to the fire.
“Otherwise, law firms such as Arent Fox are free to line their pockets filing SLAPP actions, in this case including with community donor and possibly taxpayer funds, profiting without accountability or financial consequence,” she explains.
“Far too much of our time has been spent on this,” David tells Consumerist. “It’s a very Kafka-esque experience to be sued for communicating with one’s own attorney.”
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