From O.A. v. Devita, decided June 25 by L.A. Superior Court Judge Dean Kitchens, but just recently posted to Westlaw:
The following summary is derived from the allegations in Plaintiff’s complaint. Plaintiff is a high school boy with a disability who had a long-standing friendship with Defendant’s son, M.S., another boy with a disability. Plaintiff is diagnosed with rare and serious genetic conditions causing neurocognitive delays. He also has a language disorder, anxiety, and specific learning disabilities…. Plaintiff has known M.S. for seven years and have been in many of the same special education classes. They also were a part of the same soccer league.
On October 10, 2022, Plaintiff went to M.S.’s home for a playdate allegedly supervised by Defendant and M.S.’s stepfather …. On November 4, 2022, the boys had another playdate allegedly supervised by Defendant. On May 12, 2023, M.S. reported to his teacher that Plaintiff had pressured him to do “sexual things.” Plaintiff was suspended after the report pending an investigation.
During the initial investigation, Defendant allegedly posted several negative statements about Plaintiff on her Twitter account which were recognized by other members of the community. Defendant also allegedly called the coach of the boys’ soccer league and stated that Plaintiff had sexually assaulted M.S. After calling the coach, Plaintiff alleges that Defendant approached them at a softball game and stated that Plaintiff had pulled a knife on M.S. and been physically and verbally abusive since grade school. Plaintiff also alleges that Defendant used the soccer league’s member list to call other parents and warn them about him.
Plaintiff alleges that Defendant also called the director of Beyond Karate, where Plaintiff has been a participant, and told her that Plaintiff had assaulted M.S. She also allegedly communicated with other participants of the program, stating that Plaintiff had raped M.S. She also allegedly circulated a link containing documents related to her request for a restraining order against Plaintiff.
On June 16, 2023, the school concluded its investigation and determined that the actions between Plaintiff and M.S. were not forced. Defendant instituted separate proceedings that effectively expelled Plaintiff from high school for multiple months.
Plaintiff sued for, in relevant part, defamation, and the court allowed the case to go forward:
First, Defendant argues that the absolute defense of truth applies to each of her statements…. Here, Defendant presents evidence that Plaintiff admitted to the school principal he had not thought M.S. wanted to engage in sexual activity and that Plaintiff regretted his actions and admitted to “being dumb.” This evidence would tend to show the veracity of Defendant’s accusations that Plaintiff engaged in non-consensual sexual activity with her child.
Indeed, Defendant need not show the literal truth of every statement made. By proving that Plaintiff engaged in non-consensual sexual activity, Defendant would prove that the gist of her remarks were truthful. Thus, Defendant has met her burden of demonstrating the application of the complete defense of truth to Plaintiff’s cause of action for defamation.
Plaintiff must then demonstrate the existence of a triable issue of material fact. Plaintiff presents evidence that M.S. did not accuse Plaintiff of rape or sexual assault. Additionally, Defendant acknowledged that the principal did not believe the conduct described by M.S. was forced.
Indeed, Plaintiff’s suspension was later overturned, and he was exonerated of misconduct. This substantial evidence alone creates a triable issue of material fact as to the veracity of Defendant’s statements. Thus, the Court finds that Plaintiff has met his burden as well. Accordingly, the Court does not grant summary adjudication based on Defendant’s defense of truth.
Second, Defendant argues that her defamatory statements were opinions which are not provably false or true…. Here, Defendant presents evidence that she reconveyed the opinion of mental health professionals that M.S. had experienced “assault” and “physical abuse.” While it is true that whether certain actions qualify as assault or abuse may be a matter of opinion, accusations of the same imply facts capable of proof…. While sexual assault can describe a range of conduct, it is not a matter of opinion as it declares or implies facts. Thus, Defendant has not met her burden of demonstrating that her statements were a matter of opinion.
Third, Defendant argues that she acted with reasonable care in making her statements. To prove defamation, a private individual plaintiff must show that the defendant did not act with reasonable care in checking the truth or falsity of information before publishing it. Here, Defendant offers evidence that at the time she made alleged defamatory statements, she had been briefed by the school of Plaintiff’s assault and had been told by M.S. of the events. Based on this information from multiple sources, Defendant has met her burden of demonstrating that she acted with reasonable care in making the defamatory statements.
Plaintiff must then demonstrate the existence of a triable issue of material fact. Plaintiff submits evidence that Defendant failed to investigate what occurred on November 4, 2022, before accusing Plaintiff of assault. This was one of the dates on which M.S. allegedly reported he was assaulted. Yet Plaintiff submits evidence that Defendant did not ask M.S. what occurred that day or discuss the matter with Jason DeVita, even though he had been supervising the playdate.
A jury could determine that Defendant did not act reasonably in failing to properly investigate the matter before making accusations. Thus, Plaintiff has demonstrated that triable issues of material fact exist with respect to whether Defendant acted with reasonable care. Accordingly, the Court does not grant summary adjudication on this ground either.
Fourth, Defendant argues that her statements were privileged. Communications are privileged if made without malice to a person interested in that matter by one who is also interested. The privilege is recognized “where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.” Once a common interest is demonstrated, it is the plaintiff’s burden to show that the defendant acted with actual malice in making false statements.
Here, Defendant has failed to demonstrate that all her statements are protected by the common interest privilege. Defendant argues that she made statements to a community of parents in the Santa Monica area with children with disabilities who fraternized together. These parents shared the interest of keeping their children safe.
However, whether these various individuals, including school parents, personnel, teachers, community members, and other people connected to the disability-serving program in which Plaintiff participated qualify as sharing a common interest is a disputed factual issue. Indeed, Plaintiff maintains that these individuals did not share a common interest under Civil Code section 47, subdivision (c). Defendant has not presented legal authority demonstrating that a common interest exists between all individuals who know or associate with Plaintiff. Thus, summary adjudication is not appropriate on this ground, either….
A plaintiff may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice…. In defamation cases, malice may be shown through Defendant’s having reasons to doubt the truth or having relied on unreliable sources or failed to verify them. Here, Plaintiff presents evidence that Defendant failed to check with witnesses to the alleged assault before making accusations. This evidence suggests potential malice through Defendant’s failure to verify her sources….
Ariel Harman-Holmes represents plaintiff.
The post #TheyLied Defamation Suit Over Sexual Assault Claims Involving High School Special Ed Students Can Proceed appeared first on Reason.com.
from Latest – Reason.com https://ift.tt/AkNBwcj
via IFTTT