Dear scvmomma,
Some of the conduct you describe may constitute defamation so as to
support a cause of action, but there are significant issues which
should be considered before you decide to pursue legal action.
I. What Is Defamation?
California law defines "defamation" as either "libel" or "slander".
Libel involves statements expressed in writing, picture or fixed
representation, so you are correct to be thinking of slander. Pursuant
to statute (California Civil Code Section 46):
===============================
Slander 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 chasity; or
5.Which, by natural consequence, causes actual damage.
===============================
That statute can be found on the website of the Legislative Counsel of
California,
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=7979222383+0+0+0&WAISaction=retrieve
In other words, to prevail in a cause of action for defamation, a
plaintiff must establish the following:
A. The defendant made a statement about the plaintiff to another
person or persons;
B. The statement was false and unprivileged;
C. The statement falls under one of the statutory classifications (1 -
5).
According to Section 340 of the California Code of Civil Procedure,
the statute of limitations for slander is normally one year from the
date of publication. Each new time the false statement is made would
constitute a "publication". This statute, also, is available on the
website of the Legislative Counsel of California,
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=335-349.4
If the victim of the wrongful conduct is a minor, the limitations
period is "tolled" (extended) during the period of time before the
minor reaches adulthood. See Section 352 of the California Code of
Civil Procedure, on the website of the Legislative Counsel of
California,
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=350-363
II. Do the facts you have alleged support an action for defamation?
You have alleged two categories of conduct against your son:
* Repeated claims that your son stole twenty dollars; and
* Accusations that your son is a "faggot" by your neighbor's sons.
The first allegation falls under California Civil Code Section 46(1),
as it is an allegation of a crime. Thus, that statement may support an
allegation for defamation.
The second allegation might arguably fall under California Civil Code
Section 46(5), as a false statement which, by natural consequence,
causes damage. However, given that young boys often utilize the insult
"faggot", it seems unlikely that anybody would regard those insults as
expressions of fact as opposed to a juvenile effort to hurt your son's
feelings. It doesn't matter to them if the accusations are true or
false - they just want to hurt his feelings.
In Moyer v. Amador Valley Joint Union High School District, 225
Cal.App.3d 720, 275 Cal.Rptr. 494 (1st Dist. 1990), the California
Court of Appeals expressed that "the dispositive question for the
court is whether a reasonable fact finder could conclude that the
published statements imply a provably false factual assertion." An
accusation of theft should meet that standard. However, for reasons
outlined above, the name-calling may not be regarded as "factual" in
nature.
III. Bringing a Cause of Action for a Minor
As the wrongful conduct you describe is against your son, and not
against you, the cause of action belongs to your son. As a minor, to
bring such a lawsuit, he would require an adult to serve as his "next
friend" and to file the lawsuit on his behalf. In California, a minor
can commence a lawsuit on his own behalf and petition a court to
appoint a next friend to conduct the litigation. However, it is
usually easier for the adult who will serve as "next friend" to assist
from the outset.
IV. Is Litigation A Good Idea
The conventional wisdom among lawyers is that caution should be
exercised when deciding whether or not to bring an action for
defamation, as defamation torts tend to be difficult to prove and
damage awards tend to be small. Most lawyers will decline typical
defamation cases on anything but an hourly basis, as the cost of
attorney time often exceeds the total eventual recovery.
In the specific case you describe, your son's only apparent injury is
to his feelings. I don't mean to diminish the importance of his
feelings, but absent the need for psychotherapy, or a material harm
such as the loss of a job or business relationship, even if you
prevail in the suit his hurt feelings probably won't translate into a
significant money judgment.
Beyond cost, another reason people often choose not to bring
defamation actions is the realization that the publicity resulting
from the litigation can be more harmful than the original allegations.
If the media picks up the story, the allegations are transformed from
being whispered among a small circle to being known to the entire
community. Even where the plaintiff prevails, the verdict may be a
small story which may never reach the attention of people who have
read about the original allegations.
Also, no matter how false the allegations, plaintiffs may have great
difficulty proving their case. In the case of a false accusation of
theft, a jury may conclude that the defendant had a reasonable basis
for making the accusation, even if they aren't convinced that the
accusation was true. Most people aren't going to apply a deep analysis
to the fact that a plaintiff lost a defamation suit, but will instead
infer that the loss means that the allegation was true.
In short, a person who brings a defamation action is likely to spend a
considerable amount of money prosecuting the action, may suffer from
having the false accusations reach a wider audience as a result of the
suit, and is likely to either recover a token amount of damages or to
lose the lawsuit despite the fact that the statements were false. That
is to say, litigation can make things worse instead of better.
There are also social reasons why litigation might not be the best
approach for this type of situation, which are outlined in some of the
comments below. It is quite possible that the only reason these
allegations continue to be raised is to hurt you and your son, and
that the best way to end them is not by raising the stakes, but by
ignoring them. As I previously commented, there are what I find to be
good suggestions for kids who have to deal with this type of conduct
on the "Bullies to Buddies" website:
http://www.teasingvictims.com/manual/kids/index.html
Another option you may wish to explore is whether you can get
assistance from a community dispute resolution center. These centers
typically offer facilitative mediation services to neighbors who are
in conflict, and have a considerable success rate with determining the
true nature of the disputes and finding ways for the neighbors to
bring them to a close. Information on community dispute resolution
services for Los Angeles County is available through the Department of
Community and Senior Services website:
http://dcss.co.la.ca.us/DR/disputetxt.htm
Research Strategy:
In part, my answer is derived from my experience as a lawyer (albeit a
Michigan lawyer, not a California lawyer). I also performed the
following research:
Google Searches:
* california civil code
://www.google.com/search?q=california+civil+code
* defamation california statute limitations
://www.google.com/search?q=defamation+california+statute+limitations
* california statute of limitations tolled minors
://www.google.com/search?q=california+statute+of+limitations+tolled+minors
* community dispute resolution los angeles
://www.google.com/search?q=community+dispute+resolution+los+angeles
* california "next friend"
://www.google.com/search?q=california+%22next+friend%22
LexisOne search for California case law (LexisOne is a free database
of recent case law):
* "statute of limitations" & minor! /3 toll!
* element /s (defamation or slander)
http://www.lexisone.com/
I also browsed the California Code on the Legislative Council of
California website:
http://www.leginfo.ca.gov/
I hope this answer provides you with the information you need.
- expertlaw |
