California Business Litigation Attorney Blog

Civil mediation in California (as opposed to mediation in family law or other cases) is a type of alternative dispute resolution that helps parties try to resolve their cases without having to face the time and expense of trial. Although many people have heard the term "mediation" they often do not know what to expect. There are a number of rules and procedures regarding mediation and understanding these procedures may help ease anxiety before mediation occurs.

Initiating Mediation. Mediation may be initiated at any time. Sometimes the parties may agree to mediation prior to a lawsuit and other times mediation is scheduled after a complaint is filed. Mediation can be initiated by the court or the parties. The court may order mediation if it determines that the case is suitable and may be resolved before trial. The parties can initiate mediation by agreement, for example through a mandatory contract clause, or by a signed stipulation. If the parties agree to mediation by stipulation, the stipulation must be filed not later than 90 days before trial, unless the court permits otherwise.

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Debt collection in California is tricky. It is never worthwhile to try to harass or embarrass a debtor into paying a debt. There are a myriad of laws protecting debtors and even though your debt is legitimate it is best to consult with a business lawyer to make sure your debt collection practices will not expose you to liability so that you wind up owing your debtors money. The laws that apply to debt collection in the business world apply equally to debt collection in the horse industry. While each case may vary, it is best to avoid these types of debt collection practices:

Discussing a Debt with Third Parties. Generally speaking, it is best to discuss a debt only with the debtor or the debtor's lawyer. Under the Federal Fair Debt Collection Practices Act; and the Rosenthal Fair Debt Collection Practices Act communications with anyone but a debtor or a debtor's attorney is prohibited. The publication or posting of "deadbeat lists" not only can violate the California and Federal laws listed above but they can also give rise to an action called known as "Public Disclosure of Private Facts." (See California Civil Jury Instruction 1801). Similarly, comparing notes with other vendors, "black-listing" a client, or other public humiliation tactics expose you to the risk of suit if they result in damage to the debtor. Even mentioning the debt can be risky. Further, if the information you convey is not completely accurate you also face the possibility of being sued for defamation. You may not communicate with the debtor's employer or trainer or any horse show or horse association regarding the debt unless you are specifically authorized to do so by law or by a written waiver from the debtor. While you are not obligated to continue providing services, you do not owe anyone an explanation and a statement such as "they owed me money" can be enough to get you sued if you then caused the debtor damage. The best answer is "it is a private business matter" and leave it at that.

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Last week in United States v. Alvarez, the United States Supreme Court struck down the "Stolen Valor Act" which made it a crime to lie about receiving a military decoration or medal. The court recognized that a lie, in and of itself, is protected by the First Amendment unless it creates some "legally cognizable harm." One of the types of "legally cognizable harm" recognized by the court was defamation. In California, the rules on defamation change depending on whether the defamed individual is a public figure or a private figure and it also depends on whether the lie is about a matter of public concern or private concern. As a business law litigation attorney, most of the defamation cases I deal with involve private figures who are defamed about private matters. Most of our cases arise in a business context where two parties have a dispute and then tell others about their point of view.

The elements of this type of defamation action can be found in the California Civil Jury Instructions. First, the statement had to be made to a person other than the Plaintiff. In other words, it is not defamation to tell someone a lie about themselves. If some one writes a letter addressed to you personally telling you that you cheated them on a real estate transaction, that alone is not defamation; the statement had to be made to someone else. However, let's say you are in a crowded elevator and someone loudly shouts defamatory statements to you. Since the statement was heard by others, that may satisfy this requirement.

Continue reading "Is it Defamation? The Basic Elements of Slander and Libel." »