John Doe 2 v. Superior Court, 2016 Cal. App. LEXIS 635 (Cal. Ct. App. 2016) If someone sent an email stating they hope that they might whistle-blow on you, have you been libeled?  Los Angeles County Superior Court Judge Terry A. Green thought so, reasoning that “People don’t whistle-blow fun, nice things that are meaningless. People whistle-blow wrongdoing. . . . And the word whistle-blow . . . causes me to read it in a different light.” The California Court of Appeal agreed that in the context of litigation “whistle-blow” could imply an allegation of criminal or wrongful conduct. However, the Court of Appeal found that the word must be considered “not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of [the] reader.” John Doe 2 v. Superior Court, 2016 Cal. App. LEXIS 635 (Cal. Ct. App. 2016) quoting MacLeod v. Tribune Publishing Co. 52 Cal.2d 536, 547 (1959). In this case, the Court of Appeal found that the words “hoped” and “might” signal that the term was being used hyperbolically to introduce information that the email recipients may not know.  In this context at least, whistle-blow was not defamatory.

Following up on yesterday’s post, this case to the Court of Appeal on a petition for a writ of mandate. Thus, the relief granted was the issuance of a writ to the trial court, a lower tribunal, ordering the court to vacate its prior order and issue a new order. Note that a writ is a legal, not equitable, procedure. Thus, it is not subject to the equity’s sensitivities about issuing mandatory injunctions.