A former Santa Clara City Council candidate has threatened to slap a well-regarded community advocate with libel in order to silence her, claiming she is smearing him online.
In a Sept. 17 letter, San Francisco-based attorney Peter Bagatelos alleges that Mary Grizzle, a member of the civic group Reclaiming Our Downtown, made “false statements” about David Kertes that are “defamatory.”
Kertes challenged Council Member Suds Jain for the District 5 seat last year and is in the process of trying to get Jain recalled.
The source of tension arose from online exchanges between Grizzle and Kertes on Nextdoor and Facebook.
In the posts, Grizzle defended Jain, saying his track record on the return of Santa Clara’s downtown is “unblemished.” Conversely, she claimed Kertes has “no comparable history of civic or community engagement,” adding that Kertes’ record, when compared to Jain’s, is “laughable at best.”
On social media, Grizzle wrote that Kertes has displayed a “temper,” especially during public meetings where he has presented, adding that Santa Clara “deserves better than attacks and harassment.” Further, she has attacked Kertes for attempting to recall Jain.
“Your statement about Mr. Kertes displaying a temper at Council meetings is false and intended to depict him in a false light, discredit him publicly, and cause persons reading your comments to hold Mr. Kertes in lower esteem,” Bagatelos wrote.
Also at issue was Grizzle’s reference to a lawsuit involving Kertes’s former employer that named him. That suit implied that Kertes colluded with a former colleague to defraud the company.
However, Kertes’s lawyer notes in his letter that the case was settled and Kertes didn’t face charges. Simply drawing attention to Kertes’ involvement, his lawyer wrote, “creates a false impression by innuendo.”
Despite Bagatelos characterizing Kertes as a victim, his online posts are hardly passive. He regularly accuses Grizzle of having someone write her posts and exercises his free speech rights to criticise her and her supporters. But, when Grizzle punches back, expressing opinions of her own, he claims she is “spreading lies.”
Particularly galling is Kertes’ propensity to use the sort of language his lawyer claims is libelous. In his exchanges with Grizzle, Kertes wrote that he is “so tired of [Grizzle’s] lies and defending criminals,” adding that she “defends Suds and his felons.” He adds that Grizzle “flies with four criminals. I guess you are a criminal as well.”
Included in Kertes’ rogue’s gallery is former Santa Clara Vice Mayor — someone who has been convicted of a felony. However, he also lumps in Jain and Council Member Kevin Park, both of whom do not have a criminal record.
In his five-page letter, Bagatelos demanded Grizzle “immediately cease and desist from disseminating any further information that contains such false statements” and “take steps to immediately notify the public about the falsity of the information you have already disseminated.”
While Bagatelos acknowledges other statements Grizzle made online are opinions, he claims they are “taken out of context.” In addition to demanding that Grizzle apologize and remove the social media posts, Bagatelos also demands that she avoid posting “further information that contains such false information.”
In his Sept. 22 response letter to Bagatelos, San Jose-based lawyer J. Byron Fleck writes that Grizzle is an “esteemed member of the Santa Clara community,” calling her the “Grand Dame of the City.”
“After careful review, it is clear that not one of the statements you attribute to my client are defamatory under law. There is no dispute,” he wrote. “The legal bar of the first amendment protecting my client does not get any higher, as you know.”
Fleck goes on to rebut the cases Bagatelos cites in his letter, writing that they are “problematic and inapposite.”
He asserts that Bagatelos is using outdated and irrelevant cases, ones that pertain to newspaper publication, not social media. Further, Fleck argues, Kertes is a “political public figure engaged in a political public campaign for political public office, and now, a purported leader of a political public recall.”
“As a general rule, anyone who actively participates in the publication and republication of false and libelous statements may be liable for special, general, and/or even punitive damages,” Bagatelos wrote, citing DiGiorgio Corp. vs. Valley Labor Citizen. “This could apply to public platforms such as Facebook and Nextdoor.”
But Fleck notes that the case cited involves demand for a newspaper to print a retraction for alleged libel, adding that he is “unaware of any such demand being made upon Facebook, Nextdoor, or any blog.”
Another case Bagatelos cited, Washburn vs. Wright, involved statements labeling the plaintiff non-profit trust as an “extremist organization” in a newspaper advertisement during a recall campaign. The court determined that label was not libelous, dismissing the case with prejudice.
Contact David Alexander at d.todd.alexander@gmail.com
