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Posted By BillD16 on 07/23/2022 10:27 AM
Iâm not certain I agree that the statement is defamation per se: 1) I think (in these circumstances) itâs an opinion, and 2) I think there might be cause to consider the Board members to be Public Figures{1}. Laska claims to have proof that heâs telling the truth - which might be enough to eliminate malice even if heâs wrong (not sure).
Regarding LaskaS expressing an "opinion" when she wrote to fellow owners that, "The people serving on the board are enriching themselves at our expense," I think this statement from a law firm site puts it well:
The more a statement implies a definitive act that can be proven to be true or false the more likely it is to be a fact. On the other hand, the more a statement is couched in cautionary language making it clear the speaker is expressing his personal point of view, the more it is likely to be considered an opinion. You think LaskaS's published statement is opinion. I think what she asserts is provably wrong. For one thing, she presents evidence in this thread about some of the directors but not all of them. Yet her statement recklessly asserts all the directors are enriching themselves at the expense of owners.
On "public figures": From my reading in the past HOA/COA directors will fall into the category of being, at a minimum, a "limited public figure" and so if this goes to court, the burden on the plaintiff COA will be higher.
Reality As BillD16 appears to know, what's important is that some people will agree with him, and some will agree with me. Meaning IMO taking this to court is a roll of the dice. The Board here may very well wish to sue to make LaskaS's life difficult and force her to be more careful in her assertions. The Board may feel this is money well-spent. I might agree with the Board, especially if I felt that her statement was referring to me; I had done none of what the other directors did; and I made an effort to enforce the pet rule and stop the alleged encroachment.
Same thing regarding malice: I think going to court with the hope that the COA cannot show actual malice would be foolish. (Actual malice meaning roughly, 'with knowledge that the statement was false or with reckless disregard of whether it was false or not.') Let's keep in mind the falseness in the other part of LaskaS's missive: She asserts there is no accountability for things like encroachment and violating pet rules. This is false. The Directors may be held accountable in at least five constructive ways: Submitting a formal complaint to the Board; the annual election; recall; lawsuit by private individual to enforce the covenants; and questioning the Board at a Special Meeting (even if the directors refuse to answer questions. What LaskaS's assertion translates to in my book is wanting the Board to follow the rules while she is free not to follow the rules. She's clearly being reckless, AFAIC. Yes it's a rogue board, but she is forgetting who has more power and more money here. And now LaskaS herself is being rogue.
To me the bottom line question for readers here is: If you published to owners the statement that LaskaS published, would you feel feel safe from being sued? Would you feel certain that you would win such a lawsuit?
For the archives, in my opinion publishing a statement like LaskaS's is foolish. It is begging for serious and expensive legal repercussions. If one is already on the board's radar and subsequently out of frustration (wanting to tweak the directors' noses for all of a microsecond of ego gratification and potentially, much regret later), puts out 'defamatory per se'-type statements, then one should prepare for battle. Make sure you have money to throw away. Be ready to lose your home.
A smattering of HOA/COA owners nationwide go this route. They think spending tens of thousands of dollars of their own money, while the COA perhaps spends more, means victory. It's not a victory to me. It's pyrrhic. Only the attorneys win.
In my opinion LaskaS should immediately send out a retractio. She can state her specific concerns, preferably in the form of questions she has. She should make no accusation that suggests anything that could fall under the category of defamation per se. That is, make no suggestion of criminal behavior. Make sure only facts are published, though I am going to be snotty here and note I think LaskaS is not well-equipped for identifying the facts at this time. LaskaS should suck it up and apologize profusely to any director who is not violating the rules or covenants (even if these particular directors are not taking the actions LaskaS wishes).
Why do these things? To minimize the likelihood and damage of a lawsuit.