Free Speech

Minor's Slander Lawsuit Against Another Minor, Prompted by Defendant's Allegations of Rape

Are parents liable for defamation by their minor children?

|The Volokh Conspiracy |

An excerpt from a recently filed Complaint (which used the parties' full names, but I decided to abbreviate the names because they are minors):

A. and H. [who are currently minors] dated for a few months, from approximately March 2017 thru July 2017. A. and H. had consensual sexual contact on two occasions.

A. ended the relationship, after which H. continued to express her desire for them to continue dating but that was rebuffed by A. In February 2019, at a homeschool dance, A. first learned that H. had recently told other members of their homeschool group that A. had "raped" her. That statement and accusation is patently false and was uttered maliciously by H. with the intent of damaging A.'s reputation….

The allegation of "rape" constitutes slander per se as it falsely accuses Plaintiff of committing a crime …. Defendant H. orally published this statement knowing its falsity and made it with malice and with the intent to injure, and has injured, Plaintiff's character, personal reputation as well as done damage to Plaintiff's future career and employment opportunities.

[The second defendant] is the mother of H. and has custody and control over her daughter. As such, pursuant to California Civil Code section 1714.1, the misconduct of H. is imputed to her mother, and [the mother] is jointly and severally liable for the misconduct of H.

Therefore, in addition to general damages and injunctive relief, Plaintiff is entitled to an award of punitive damages against Defendants in an sum appropriate to punish and deter such misconduct in the future, in an amount of not less than $200,000.

Two interesting practical and legal twists:

  1. Section 1714.1 provides, in relevant part,

Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct….

[Such parental liability] shall not exceed [$45,000] for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed [$45,000]….

Does this extend to libel cases? No, suggests a trial court (nonprecedential) decision, Caplin v. Harvard-Westlake School (Cal. Super. Ct. 2008). That case involved chiefly emotional distress damages rather than reputational damages, but its logic would apply here:

The damages allegations [in this case] are of a psychological and emotional nature to Plaintiffs…. Plaintiffs' attempt to analogize property damage to the [insulting internet postings on plaintiff's site] is without merit …..

Even assuming that the nature of the injuries complained of fall within the ambit of Section 1714.1, Plaintiffs' seventh cause of action would nevertheless fail, as the only damages allowed under the statute are for "medical, dental and hospital expenses …." Here, the allegations do not support a claim to recover such expenses, as the damages sought are for psychological and emotional injuries rather than for physical injuries….

I'm inclined to think that the Caplin analysis is right, and would apply fully to defamation cases. The statute contemplates holding parents liable for physical injuries that require "medical, dental and hospital expenses," not reputational injuries, and for damage to property, which generally isn't seen as covering reputation. But I don't know of any binding precedent on this point.

2. Litigants usually have to indicate their full names, but minors, especially in California, are often allowed to litigate using initials or pseudonyms—especially when there are allegations of sexual impropriety involved. Here, the plaintiff is acknowledging that there was a sexual relationship when the parties were, at most, 15; a quick search for defendant H.'s full name, coupled with the name of the city she lives in, reveals a local newspaper article that describes her as having been age 12 in January 2016, which would have made her 13 or 14 at the time of the relationship (March to July 2017). And of course defendant allegedly accused plaintiff of having raped her.

It thus seems odd that the lawsuit was filed using the parties' full names. This is especially so because A.'s name is quite unusual, he appears to be an aspiring actor (with a few bit parts in some TV shows), and a Google search for the full name now shows the docket (on the UniCourt.com site) on the first results page. I am generally not a fan of pseudonymous litigation, but my tentative thought is that a case involving minors' sexual conduct (and possible misconduct) would have been a suitable case for that. Of course, query whether it is a sound decision at all for the plaintiff to sue, and turn an alleged slander within a group of home schoolers into something that could easily become a matter of public record even had the case been litigated pseudonymously.

In any event, this struck me as an interesting case (and a good fit with another libel-of-a-child case I blogged about last month), so I thought I'd pass it along.

NEXT: On Congressional Inquiries and Presidential Defiance

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  1. Don’t be too surprised. Occam’s razor suggests it may be one of many below-average attorneys (out of the 200,000 or so in California). I don’t know who it is, so maybe not. But that seems like an egregious decision (against his own client’s interests) to use the full name. Was the decision to do so, and its consequences, fully explained to the minor and the guardian ad litem.? Plus, I don’t think you’re supposed to list the amount of punis in California complaints, and that Civil Code section seems inapplicable (as you note).

  2. Why not? Good will is reputational and proprietary, and gets a line on a balance sheet. An ‘injury to the property” could consist of pecuniary loss resulting from lost opportunities that follow an actionable harm to reputation. The use of the term “injury” suggests something beyond destruction of a physical object.

    1. One can argue that the statute should cover injury to reputation as much as injury to property. But the legal term “property” generally doesn’t cover reputation, and “injury to property” doesn’t cover libel. See, e.g., Paul v. Davis (1976) (“any harm or injury to that interest [in reputation], even where as here inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law”); Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc. (8th Cir. 1999) (“Damage to reputation is generally considered personal injury and thus is not an injury to ‘business or property’ within the meaning of [RICO].”). Some cases, to my knowledge almost exclusively in Louisiana, do say that a person’s “reputation is his property,” but these are a minority view, and I’ve seen no such cases in California.

      1. The language of the first sentence of 1714.1(a) would appear to cover injury to reputation though. Black’s Law Dictionary (2010) defines “injury” as: (1) The violation of another’s legal right, for which the law provides a remedy; a wrong or injustice, (2) Anything said or done in breach of a duty not to do it if harm results to another in person, character, or property. A similar definition of “injury” is used in the Restatement of Torts, Second Edition. The language that you quote from the complaint indicates that H., a minor, engaged in willful misconduct that injured A. (the conduct being the the rape claim and the injury being harm to A’s reputation). An act of willful misconduct, by a minor, which causes injury to another person, is covered by the first sentence of 1714.1(a).

        What the complaint leaves out, and which defendant will surely also point to, is that the remainder of 1714.1(a) limits the imputed liability of parents and guardians in cases involving injury to person to specifically enumerated types of medical expenses. In Cynthia M. v. Rodney E. (Cal. App. 4th Dist. March 22, 1991) the Court, reviewing the history of 1714.1, wrote:

        “The original version of section 1714.1, for example, was limited to property damage. The statute was amended 10 years later to make parents liable for personal injuries as well as property damage willfully caused by their children and to increase the maximum liability to $ 500. Subsequent amendments increased the maximum liability, added a section dealing with defacement of property, extended liability to guardians as well as parents, and restricted liability to parents and guardians who have custody and control of the minor.”

        The 1965 amendment that included the injury to person language also limited the liability in such cases to the enumerated areas of medical, dental, and hospital expenses. As I read it, the “injury to person” language covers a broad universe of torts, but the financial liability of the parent is greatly narrowed by the subsequent language that enumerates the types of expenses.

        Plaintiff’s complaint appears accurate then, and defendant’s answer to it stating 1714.1 only covers certain medical-related expenses will also be correct. Plaintiff’s attorney can then try to argue that A. will have to undergo medical treatment for the psychological trauma suffered, and that this will cost over $25,000.

        1. QuantumBoxCat: I think that’s indeed consistent with Carlin v. Harvard Westlake, which I quote: the statute covers (1) up to $45K of medical, dental, and hospital expenses (not reputational injury), and (2) up to $45K in property damage (not reputational injury). Either way, reputational injury — which is what this case is about — can’t be compensated, though indeed in principle one can imagine a claim (likely not this one) in which libel allegedly led to medical, dental, or hospital expenses.

          1. Professor….Might that be revisited? = Either way, reputational injury — which is what this case is about — can’t be compensated, though indeed in principle one can imagine a claim (likely not this one) in which libel allegedly led to medical, dental, or hospital expenses.

            The case you cite is from 2005. I don’t think social media had quite the impact then, than it does now. In these cases where false claims are made, and then perpetuated by the internet and social media….isn’t the defendant now permanently harmed? Anytime they apply for employment, this will come up. So my question to you: Will this be revisited, do you think? [meaning, the question of compensation for reputational harm]

            1. You’re looking forward, but there’s also the opportunity to go further back.

              The “traditional” remedy for reputational harm but not identified damages is to award nominal damages. So mom and kid are jointly liable for the $1.

  3. “The allegation of “rape” constitutes slander per se as it falsely accuses Plaintiff of committing a crime…”

    I wonder if this is still true, since nowadays some young people are taught that the term “rape” sometimes encompasses perfectly innocent behavior, like consensual sex after a few drinks, “cajoling” a person into consent, consensual sex with someone higher up in the professional food chain, etc.

      1. Only a few years ago, when the military rape crisis media hysteria was at its peak, I sat through a mandatory training, the gist of which was, that if you were drinking after hours and she/he was drunk, said person couldn’t consent and it was akin to rape. There was some grey areas admitted to when some sea lawyers in the audience started to ask some pointed questions, but they shut up when they realized it wasn’t going to reflect well on their marks if they kept at it.

      2. Also, check out Irina Manta’s posts, on this blog, about how lying to get someone into bed is rape rape, not just rape.

      3. There have been efforts to bring into being a “rape by fraud” category, which A) seems to fit within the legal definition of rape (if consent is not meaningful, then…) but B) not at all practical to apply to the real world.

    1. The ages of the litigants leads me to wonder whether California has a statutory rape statute. If so, what age is the cut-off.

      1. JimB: I looked into it — sex among under-18-year-olds is statutory rape, but only a misdemeanor if the parties are within three years of each other. And the statute of limitations for such misdemeanors is one year.

        1. So, there could be a California case where each person in such a past sexual relationship (both under age 18, and, say, both the same age) sues each other for statutory rape? I’m assuming that, so far, this is only a law school hypothetical, yes? Given the amount of sex that happens in high schools (and even earlier). . . maybe PI attorneys should be leaving their business cards in all the high school (and Jr. high school) classrooms.

          1. They could both be prosecuted for statutory rape, but I’m not sure how the tort law analysis would play out. For a fairly recent decision canvassing the cases on consent as a defense in underage sex tort cases generally, see Bjerke v. Johnson (Minn. Ct. App. 2007), but it doesn’t deal with the situation where both parties are underage. Would courts allow the lawsuits, but effectively set off the parties’ recoveries against each other? Would the jury be invited to decide which party was the more culpable? My quick search couldn’t find any cases dealing with that specific question.

            1. Would (potential) Plaintiff Two have to counter-sue in response to seeing the initial lawsuit, in order to have the two potential cases consolidated? Or could he/she let the first case proceed to judgment, and only later file the countersuit? Or does this–and all other similar questions–fall into the “Not sure how tort law plays out.” basket?

              1. I’m just winging at this point, but wouldn’t there often be a statute of limitations problem if one waits until the first case proceeds to judgment? Seems to me a cross-complaint would be called for (plus possibly an affirmative defense of consent, if the court is willing to entertain that).

                1. Can a minor give legal consent re sex? (I think the answer ought to be ‘yes,’ with a showing of sufficient maturity, but I’m not sure about the legal standard.) I thought that the reason you can charge a 22 year old woman who is sleeping with a 17 year old boy is because he is not permitted (in the eyes of the law) to give consent. So, regardless of the apparent consent he tried to give, it had no legal effect. Same if he had been the one pursuing the 22 year old: he instigated the sexual relationship, but since he was not legally capable of giving consent . . . .

                  1. The statutes are written the way they are, on purpose. Can you find a 15-year-old with sufficient maturity to give meaningful consent? (yeah.) But how does the defense prove it, and how does the prosecutor disprove it?
                    MUCH easier to prove that sex happened, and when the victim was born. So that’s all the statutes require.

                    Also, a thorough inspection of ability to give meaningful consent invites doing the same for people who AREN’T minors. This presents a potential challenge to every sexual encounter that ever happens. Yikes!

  4. A couple of points occurred to me. Since a key objective of the award of damages in a defamation case is vindication, it is in principle necessary that the plaintiff be named and the plaintiff’s attorney can hardly be criticised on that ground. The larger question was whether the action should have been brought at all, but given the potential long-term damage of such an allegation one can see an argument in favour.

    Second point: I do not think there was any rule at common law that made a parent liable for his child’s torts. It is still the case in England, so far as I am aware.

  5. Quote: “A. and H. [who are currently minors] dated for a few months, from approximately March 2017 thru July 2017. A. and H. had consensual sexual contact on two occasions.”

    Funny thing is, every time I try to use the world “consensual” in regard to minors, I am invariably told “minors can’t legally consent!” So technically doesn’t that make a rape allegation truthful? (although not just one, but both sides could make that claim of statutory rape against each other)

    1. That was my thought. (See my earlier comment, about 5 hours earlier.)

    2. Refer to a different area of law for guidance.
      The minors had apparent authority as agents for their own interests, which is being mislabeled as “consent”.

      Or, just accept that the English word “consent” covers some territory that the legal term “consent” doesn’t.

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