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Slander Per Se Versus Slander Per Quod

Defamation generally falls into two categories:  slander and libel. Slander is spoken defamation, libel is written.  Within slander, there are several types of speech that constitutes defamation.

In California, there are five types of slander (this part is right out of the Civil Code section 46 statute):  Speech that:  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; and, 4.  imputes to him impotence or a want of chastity; or 5., which, by natural consequence, causes actual damage.

The first four fall within the category of slander per se, or slander in and of itself.  The last one is slander per quod, or false statements that cause some special damage.  Malice and the special damage must be alleged and proved to constitute slander per quod.

On the other hand, slander per se arises when the false remarks in themselves may form the basis of an action for damage in which both malice and damage are presumed as a matter of law.  In other words, if someone utters something about you in one of the first four categories, then you don't have to prove malice or damages.

The law considers the statements so bad that you're automatically entitled to damages.

Now don't get excited here if you're in court and an attorney slanders you.  We have immunity from liability for making just those kind of statements (see Civil Code section 47(b).  After all, it's just our job.

So, now that you've spent the last five minutes in law school wondering what the heck I'm talking about, let me explain why I gave you all of that background.  Here's the setup.

J. B. Nethercutt, the now-deceased father of Jack B. Nethercutt, II, founded the Merle Norman Cosmetics Company and began collecting automobiles in 1956.  In 1978, Michael Regalia left his position as a partner in an automobile body and paint shop to work for J. B. Nethercutt on J. B. Nethercutt's private automobile collection, then known as the Merle Norman Classic Beauty Collection

What else would you call it?

Everything went smoothly for a long time.  Then, in 1995, the Merle Norman Classic Beauty Collection became The Nethercutt Collection, an automobile museum that also restored cars. J. B. had established The Nethercutt Collection as a not-for-profit foundation funded by his estate.  J. B. first appointed Regalia executive vice president of the foundation and then promoted him to president.

When J. B. was hospitalized in August 2004, his son, Jack B. Nethercutt, II assumed control of the overall operations of The Nethercutt Collection, subject to his father's approval.  Unfortunately, J. B. died in December 2004

According to Regalia, he thereafter met with Junior to talk about his salary.  Regalia pointed out to Junior that he had played an integral part in obtaining a donation from Betty Locke of her Talbot-Lago automobile, which was appraised at $2.3 million.  Regalia also told Junior that he had been under budget every year he had been president, and he believed he had earned "consideration for more compensation." 

Junior offered Regalia a $10,000 raise.  Not happy, Regalia asked for more, and Junior said he'd think about it overnight. The next day, Nethercutt raised Regalia's salary by $35,000, to $160,000 per year.  Because J. B. had died recently, Junior believed that Regalia was still needed. 

That's where things started to go south. 

Junior claimed Regalia wanted a 10 percent finder's fee for the "Talbot" donation or $230,000.  Junior refused to pay Regalia the finder's fee.  On the other hand, Regalia denied that he asked for a commission for the Talbot-Lago contribution. 

Just to set the record straight, Junior fired Regalia. 

Junior then held a meeting of employees of The Nethercutt Collection.  According to Christopher Parker, one of the employees at that meeting, Junior said he thought that Regalia acted as if he owned the museum.  Junior also said certain people did not want to work for Regalia, and, therefore, Junior had to terminate Regalia.  According to Kenneth Sisk, another employee who apparently described the same meeting, Junior said that "people would leave if Mr. Regalia had stayed." 

Here's where things really went south. 

The following week, Junior and his wife Helen, a board member of the foundation, held a meeting attended by most of the restoration staff.  According to Parker, Helen said that Regalia had said some hurtful things about her and that he wanted a $250,000 finder's fee for the Talbot-Lago donation.

Yes, it's hearsay, but admissible in trial.

According to Junior, in April 2005, Locke - who had donated  the Talbot Lago, was at The Nethercutt Collection's facility having work performed on an automobile.  According to Lisa De Lao, the secretary for The Nethercutt Collection, Locke asked Junior why Regalia had been terminated.  Nethercutt said Regalia had been terminated for the good of The Nethercutt Collection.  Nethercutt told Locke that Regalia had demanded a finder's fee on the donation of her Talbot-Lago. 

Junior apparently did not think that Locke believed him.  Nethercutt then told Locke that "the employees couldn't get along with Mike Regalia, or Mike Regalia couldn't get along with the employees"; that "people were threatening to leave if [Regalia] stayed"; and that, in his opinion, Regalia "had been abusive." 

Things got worse. 

Apparently describing the same conversation, Locke testified that Nethercutt told her that he terminated Regalia because, "if he had not fired him, all of the other personnel would have quit." 

According to Bruce Meyer, another board member of the foundation, Junior told him that Regalia demanded a finder's fee for helping acquire Locke's Talbot-Lago.  Meyer did not believe that Junior would fabricate such an account.  If the event actually occurred, Meyer would view such a demand as inappropriate because Regalia was an employee and he Regalia's efforts to acquire the Talbot-Lago were "just part of his line of work." 

In his deposition, Regalia's lawyers asked Junior if his wife had told people that Regalia had tried to extort money from The Nethercutt Collection.  Nethercutt responded, "Only in the aspect that he demanded a finder's fee for the Talbot-Lago."  There is no evidence that Junior actually said that Regalia attempted to extort money.

Here's where that law school lesson comes in handy.  Notice that this statement does not fall within one of the first four categories.  It's actually only in the last category - the one that requires a showing of both malice in making the statement and damages from the statement being made.

In an attempt to show damages, Regalia testified that his new restoration business, Regalia Concours Restoration, depended on the car collecting community, and his potential customers were those at the top level of that community.  Such customers needed to trust Regalia and believe in his integrity. 

The jury, however, didn't buy Regalia's testimony, probably because he didn't have any Regalia Concours Restoration testify that they didn't use him because of the allegations that Junior made against him.

The Court agreed, and said since there was no showing that Junior or Helen intended any malice and that Regalia failed to show damages, the jury was correct in holding for Junior and Helen against Regalia.

Now where did I park my Lamborghini?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, March 24, 2009 at 21:47 Comments Closed (0) |
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