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Pettibone, Cunningham, Chmielewski

Who knew?  Doug Pettibone, business attorney, much-slandered former Anaheim council candidate and friend of Tom Tait, has a very entertaining and informative law blog, which he runs with his wife and colleague Claire.

And the topic of one of their recent posts, written by Claire, was provocative, given Doug’s recent experience suffering what seemed to many of us to be libel at the hands of this county’s two sleaziest bloggers:  The Liberal OC’s Dan Chmielewksi and the Anaheim Chamber of Commerce’s Matt Cunningham. 

I asked Doug if this piece was the prelude to a lawsuit against either or both of those two reprobates (be still my heart!)  But Doug is playing it close to the vest.  He gave me permission to re-post the following, and “let people think what they want – we are still weighing all our options.”  So here’s Claire:

Ethics in Blogging As To Public Figures

In short: Bloggers can certainly be held liable for defamation. The question is more about the context of the statement (whether it is a statement of verifiable fact vs. opinion) and the heightened standard applied to public figures.

“The First Amendment limits California’s libel law in various respects. When, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’ Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author ‘in fact entertained serious doubts as to the truth of his publication,’ or acted with a ‘high degree of awareness of . . . probable falsity.’ New York Times v. Sullivan (1964) 376 U.S. 254.

Examples of libelous and non-libelous statements

The following are a few examples from actual California cases.

Libelous (when false):

• Charging someone with being a communist
• Calling an attorney a “crook”
• Describing a woman as a call girl
• Accusing a minister of unethical conduct
• Accusing a father of violating the confidence of son

Not-libelous:

• Calling a political foe a “thief” and “liar”
• Calling someone a “local loser,” “chicken butt” and “big skank”
• Calling someone a “bitch” or a “son of a bitch”
• Changing product code name from “Carl Sagan” to “Butt Head Astronomer”

Context is critical. For example, it was not libel for ESPN to caption a photo “Evel Knievel proves you’re never too old to be a pimp,” since it was (in context) “not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation.” However, it would be defamatory to falsely assert “our dad’s a pimp” or to accuse your dad of “dabbling in the pimptorial arts.” (Real case, but the defendant sons succeeded in a truth defense).

If a blogger starts a post with “Jane, you ignorant slut,” it may imply a want of chastity on Jane’s part. But there is a more likely chance that the Blogger has a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact.

In conclusion, bloggers can be held liable under the same principles of California defamation law.  They should be pursued where they cross the line into areas of defamation.

Vern again, here to either refresh your memory of this past election’s wrongdoings, or to fill you in if you weren’t there.  Pettibone and James Vanderbilt were the council choices of hugely popular Mayor Tom Tait, as he ran (successfully) for re-election and tried (less successfully) to create a council majority that would back him up rather than rob taxpayers blind every chance they get.   And so, while defeating Tait was the number one concern of the special interests running Anaheim, discrediting his two running mates was also a high priority.

And lo and behold, some long-expunged and sealed record of a 16-year-old domestic dispute between Pettibone and his former wife was magically, mysteriously, discovered, unsealed, and broadcast to just the people who could use it!   Pettibone immediately withdrew from the race, to save both his family and Mayor Tait from embarrassment.  But the two mouthpieces most eager to jump on this new dirt and not let it go, in a clumsy desperate attempt to discredit Tait by discrediting his friend Pettibone, were not above exaggerating the (thrown-out) charges of loud arguments into tales of domestic violence. 

And that was Matt Cunningham, paid blogger for the virulently Tait-hating Anaheim Chamber of Commerce, and the Liberal OC’s hapless but malevolent Dan Chmielewski – ostensibly unpaid but driven by his love of Democratic Tait opponent Lorri Galloway and his grudge against some of us Tait supporters on this blog.  Dan C was by far the worst of the two;  here’s a screenshot of some of his (in his mind) hilarious Pettibone slander that’s still up at The Liberal OC:

“When battering a woman, do you prefer an open hand or a closed fist” – Dan Chmielewski’s idea of humor.  My esteemed colleague Greg Diamond responded ferociously at the time:

To appreciate how truly awful this statement is … you have to know this:  No one — NO ONE — accuses Doug Pettibone of EVER having physically struck his ex-wife — or any other woman.

To review: in the middle of a child custody dispute (in which he was ultimately granted joint custody, suggesting that the Judge was comfortable with his character) with his ex-wife (who showed her amicable views towards him by supporting his campaign), Pettibone had a loud argument with her.  Anyone with any experience of divorces and custody disputes knows that such verbal altercations happen, but they are a FAR CRY from physical altercations.

The DA quickly dropped any battery charges against Pettibone for lack of evidence — although a document that Pettibone had never seen, despite searching for it, and that was either erroneous or forged was either exhumed or planted in the official records by someone with the power to do so, wrongly stated that it had gone to a jury trial.   Pettibone was also never convicted of making threats; the FAMILY COURT judge (as opposed to a criminal court judge) ordered him to go through counseling to keep his custody bid alive, which he happily did, at which point the charge was dropped.  

It is not even clear whether a charge of “making excessive noise” actually remained in force — if so, it was without Pettibone’s knowledge — because the records in question are so unreliable.  (And, of course, the office of the DA, who recently came up with an implausible TV ad blasting Tait, would be one of the few that might be able to get a new document snuck into the public record.  Not that I’m saying that they did; I’m just saying that the record wasn’t there, and then one day — heralded by commenter “Anon No. 9″ here at OJB, who pretended it was there all along — it was.)

I don’t think that there’s any way to read [Chmielewski’s] statement in response to Vern’s “Voters want to know people’s positions on things” —  namely, “You mean like, ‘when battering a woman, do you prefer an open hand or a closed fist?’ Pettibone attempted to hide this detail.” – as anything other than an assertion that Pettibone engaged in physical battery of a woman, presumably his wife.

This is FLAT OUT FALSE.  There is NO EVIDENCE FOR IT.  [Chmielewski], based on what we know he has read about the case, VERY LIKELY KNOWS THIS.  It is literally as unsupported as speculation over whether [Chmielewski] himself has ever battered his wife.  Even with Pettibone being a public figure, this vicious smear probably clears the high bar for “malice” in a defamation case. 

I omitted the passages where Greg challenged Dan’s beloved Galloway [someone who ironically works in the field of ACTUAL domestic violence] to distance herself from Dan’s slanders;  but, predictably, the unprincipled little mouse kept her silence.

Many of us relish the idea of Doug suing Dan (and maybe Matt), holding them accountable for once for the poison they spew, especially given Dan’s bogus grounds for suing Art Pedroza a few years ago.  But the real outrage and mystery is:  who was responsible for unsealing these sealed court records in the first place and getting them publicized?  (They’re now back to invisibility.)  Very few people could pull that off, and signs point to someone close to our worthless District Attorney Tony Rackauckas, who campaigned (inappropriately) against Tait, and has now been re-elected by ignorant OC voters to something like his nineteenth term as our Exalted Administrator of Injustice. 

We hope Doug pursues these questions, and one of his blog posts from last month hints that he may be:  (Here’s Doug…)

Expungement

Expungement takes a criminal charge off of the court’s records. Once complete a Defendant can say they were never convicted (Penal Code 1203.4).

Sealed Records

For innocent people who have been wrongfully charged you can get all records sealed and destroyed (Court Rule 8.46).

Protection for Disclosure

Records expunged or sealed are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include restricting access to those with a need to know to perform their official duties, and using locks, alarm devices, passwords, and/or encrypting data communications.

The expunged record and sealed record system is restricted to only those with privileges necessary to perform an authorized task(s) and is not available for public viewing.

Rule of Court Rule 8.46 (d) prohibits the disclosure of the contents of any materials expunged or under seal.

The only way the records can thereafter become public is upon a noticed motion or petition for writ (Rule 8.46 (b)).

Improper Disclosure

Persons who have access to the records and cause these rules to be violated by releasing expunged or sealed records to the public are subject to civil sanctions and investigation by the Attorney General’s Office (42 U.S. Code 1983).

In most situations, expunged or sealed records are protected from public view. Protections are in place to provide that the expunged or sealed records are not made public. Although there has never been a reported case in California where an authorized person released expunged or sealed records, an aggrieved party has a civil remedy as well as being able to seek an administrative investigation.

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Vern again… and I don’t mean to give the impression that all of Doug and Claire’s blog posts are related to their own travails.  This month we also learned about a woman suing pop star Rick Springfield for “assaulting her with his buttocks” at a concert.  And last month, under the heading of “Frivolous Lawsuit of the Month,” we learned about the St Paul woman who sued herself, for hitting her own personal vehicle with a city van she was driving.

Doug shows his good-hearted generosity with his valediction to that case:  “Hopefully the perpetrator (Shari Moore) and the victim (Shari Moore) can some day put this behind them and let the healing begin.”