Can’t Apologize and Then Sue Someone for Libel When They Rely on Your Apology

Starting at Burghardt v. YvonToday’s decision by the California Court of Appeal in a unanimous opinion of Justice William Dato joined today by Justices Truc Do and Cynthia Aaron:

Brigitte Yvon lost her dog Davie shortly after or during routine surgery. Yvon resolved the possible veterinary malpractice case against Dr. James Theodore Burghardt, Jr., and Companion Pet Care, Inc. (collectively, Burghardt). After Yvon wrote a negative Yelp review of Burghardt’s incident, the case erupted. Burghardt responded to the Yelp review by suing Yvon[, among other things,] defamation ….

Burghardt did a “neuter- and scrotal surgery” on Davie, 21 February 2019. He informed Yvon of the success and Davie was sent home with her that afternoon.

Davie “whimpered,” his first night back at home. He became lethargic over the following days and began to “whine some” more. Yvon stayed with him, and even accompanied him outside for a trip to the restroom to ensure he was safe.

Yvon observed Davie’s fur wet on March 1. He had probably been scratching at the fur. She noticed blood when the fur was still wet. The wet hair was ripped away by her, leaving a huge open wound that had been bleeding and oozing. Yvon took Davie quickly to an animal clinic, where he was diagnosed with a serious burn below his fur.

Burghardt received the photograph from Yvon via email. Within minutes, Burghardt called to apologize and accept full responsibility. It was a third-degree burn, he said to Yvon and attributed it to a heating pad used in surgery.

Burghardt stated that he would “do what is right going forward” over the next few days and then apologized to Yvon. Burghardt assured her that no mistake such as this would ever happen again, because “…”[w]Hot water bottles are no longer used as heating elements. We have completely rid of that as a protocol…. This will not be repeated.”

Davie was operated on to remove the tissue. Below is a photograph of the two-foot incision that resulted.

Yvon was dissatisfied by Burghardt’s inability to reimburse her for Davie’s medical expenses.

Companion Pet Care received my 2 year old yellow lab on Feb 21st. He needed to be neutered. He went in a healthy, happy dog and came out with third degree burns to at least 20% of his body…. The sight of the bloody and raw wound across Davie’s chest was something we were shocked to see.

“On March 4th, I called the vet who performed the neutering procedure and owns this practice, Ted Burghardt …. After seeing the pictures he admitted responsibility for the burn citing ‘improper heating technique’ as the cause and apologized….

“[Burghardt]My anxiety was only increased by my inability to follow a prescribed treatment program. While all of this was going on, my dog was literally a bloody mess ….

“On March 15, the new vet was able to close the wound after cutting out the dead skin and now my dog has over 40 staples in his back and an incision that is over 24 inches long …. Burghardt replied twice when I sent Burghardt the invoice. His response was that it was “too costly” and that he was concerned about his dog. [his]”Bank account.

Similar reviews were also shared on Facebook and other social networks. San Diego television stations ran stories about the incident….

[T]The Complaint states that Yvon made false and defamatory comments about Burghardt via Yelp or Facebook. Burghardt made a declaration stating that it was not likely that he had caused the burn, despite the fact that Yvon only noticed it 10 days later. Burghardt admitted that he regretted the incident and promised to never do it again. However, he claimed that this was an attempt to comfort Yvon. He described an experiment in which he found out that anyone who carried a heated water bottle would notice it was hot before it could be used on any animal. He reviewed Davie’s records and found that Davie was “good at getting in things”. The dog would also eat wood and bricks. Burghardt concluded from all of this that “Davie was not injured during surgery.”

Burghardt’s declaration is triable in that it raises the issue of falsehood. But to establish minimal merit on this claim, Burghardt also has to show that Yvon failed to exercise reasonable care in determining whether her statements were true…. What criteria must be used to determine the reasonableness and fairness of Yvon’s behavior? SheBurghardt could not be believed to have the information Burghardt did. PrivatBelieved to be the reason. Burghardt gave her the information that led to her knowledge. Take, for example:

  • March 6, 2016: I take this extremely seriously. It is my intention to make sure that the damage doesn’t happen. It is a horrible thing. It’s so awful.
  • March 8, 2008: Our facility strives for the best care possible, so a mistake such as this cannot happen again. To that end, I made immediate and permanent changes. I again apologize for what Davie and you are going through …. Hot water bottles are no longer used as heating elements. This protocol has been completely eliminated.”
  • March 11, 2011: I apologise and accept full responsibility.
  • March 13, 2013: Davie was burned by hot saline bags placed against his back when he was still unconscious from the neutering process. Davie has since stopped using hot, saline-laden bags.

Burghardt’s admissions are so convincing that Yvon could not believe it. OtherDavie also sustained third degree burns during Burghardt’s treatment.

Burghardt argues for a different conclusion by arguing that when he apologized, it was “in the context of saying that he was sorry that she and Davie were experiencing this and not because he was sorry that he was admitting his fault.” Burghardt cannot prove that Yvon is correct in believing this, even if he did mean it. Unexpressed subjective intentRather, it is based on the way a normal person would understand his words. It is reasonable to interpret his statements like “I fully apologize” and “a mistake such as this cannot happen again” in one direction.

Burghardt argues in a similar vein, “[P]Many people say that they’re sorry for someone who was hurt or killed in a vehicle accident. He also claims that Yvon was unhinged and started throwing things at his employees. He claims he did not apologize for his fault but to try to soothe her.

The context of the anti SLAPP motion [to dismiss the defamation claim]All of that is true, therefore we agree to it. Again, it is not about whether Burghardt was consciously intending to admit fault or responsibility. It is more important to determine if there are any evidence that Yvon recklessly decided that he did. There is none….