QUESTION:
I am taking a person to small claims court for defamation. She has made some very serious and provably false claims about my conduct as the immediate past treasurer of a small political club (less than 200 members). One of her buddies, who also happens to be a local (estate planning) attorney, has trumpeted her likely defense strategy in an email to me and others. He made reference to "malice," "innocent communication" (by which I think he actually meant "innocent misrepresentation"), and "the public interest," all of which suggests to me that she intends to claim that I am a "public figure," at least in part, to defend herself against this claim. Can my conduct in this role in any reasonable way be considered a matter of "public interest?" Can I, in any reasonable way, be considered to have been a "public figure" in this role? I think not, but would surely appreciate your take on this. Thank you!
ANSWER:
In order to come within the category of agreements affected with a “public interest,” the transaction must concern a business of a type generally thought suitable for public regulation, involving the performance of a service of great importance to the public; and the exculpatory agreement must basically have been a contract of adhesion. [Tunkl v. Regents of Univ. of Calif.,supra, 60 C2d at 98–101, 32 CR at 36–38]. In practice, activities affecting the “public interest” are generally confined to essential ser- vices of “practical necessity” to the general public … such as hospitalizations, escrow and banking transactions, and common carrier transportation. Subject to certain exceptions (below), a public entity must provide a defense for and indemnify an employee sued on account of the employee’s act or omission occurring in the scope of employment. The employee bears the burden of establishing that the act or omission was within the scope of employment. The test is the same as when a third party seeks to hold the employer liable under the doctrine of respondeat superior. Moreover, unwarranted litigation tactics may themselves give rise to tort claims (e.g., malicious prosecution, abuse of process, defamation, infliction of emotional distress, invasion of privacy). However, a trio of important privileges provides a shield against liability for a broad range of potential “litigation torts”—the statutory “litigation privilege” (CC § 47(b)) and the judicially-created doctrines of “judicial” and “quasi-judicial” immunity. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.
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