Saturday, May 2, 2020

"Well, We Have Reviewed That Order, Too"

By Eugene Volokh - May 02, 2020 at 08:02AM

From Olson v. Sardi, decided Thursday by the California Court of Appeal:

Plaintiff Ken Olson provided counseling services to the son of defendant William Sardi. A family law court removed the son from Sardi's custody, citing Sardi's violations of court orders, but also citing a letter report that it had received from Olson. Sardi then posted a negative review of Olson on Yelp, saying, among other things, that Olson "wrote letters to the family court … that got my son taken away from me." …

Olson sued for defamation, and the court ruled against him:

The only statement that Olson claimed was false was that "he wrote letters to the family court on [Mrs. Sardi's] behalf that got [Sardi's] son taken away from [him.]" And his only evidence that it was false was his testimony that: "I have reviewed the March [o]rder of the [c]ourt in the case of Sardi v. Sardi, and it clearly states that the [c]ourt gave sole legal custody of the child to the mother because of [Sardi]'s admitted actions in continuing to disobey court orders."

Well, we have reviewed that order, too. It started with a series of findings. Among these, it found that Sardi had "admittedly violated" four specified court orders. However, it further found that Olson's report was "most disturbing." Based on the report, it found that Sardi had "an unreasonable and inexplicable tendency … to involve [his son] in details of the acrimonious relationship between his parents." It then concluded that Sardi had violated court orders and that the presumption that joint custody was in the best interest of the child had been overcome. The only reasonable interpretation of this is that the court regarded Olson's report as showing either a fifth violation of a court order (a nondisparagement order?) or that joint custody would be detrimental, or both.

There is no way to tell from the order itself whether the family law court would have changed custody even in the absence of Olson's report. The very fact that the court referred to the report in its order shows that it was, at the very minimum, a substantial factor in causing the court to change custody. Thus, the order falls short of proving that the report did not "g[e]t [Sardi's] son taken away from [him.]" …

In the argument on the motion in the trial court, Olson failed to explain how he could prove falsity. The trial court commented, "I'm not sure that you presented enough to show that you can prevail — that you have a lik[e]lihood o[r] reasonable probability of prevailing on any of the causes of action." Olson replied, "Well, I think we have to continue to see what [Sardi's] actions have been after the point of Yelp to see the scope and his intentions of what he's trying to do …. I think it's a broader picture other than what's going on with Yelp. It's a series of events that continue to happen …." The trial court could reasonably take this as a concession that he could not prove the Yelp review false….

The trial court awarded Sardi $3,250 in attorney fees against Olson…. Olson argues that Sardi's papers were "devoid of any beneficial legal analysis." Not so. Olson may disagree with that analysis, but as we have already held, he is incorrect and Sardi is correct….

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