John Higdon, Plaintiff vs. Michael McCarty, a.k.a. Michael Enoch, a.k.a. Ras, a.k.a. Exorcist, a.k.a. Kravitz03, a.k.a. Abbatage, and DOES 1-15, Defendants |
Case No. CV772062 ANSWER TO FIRST AMENDED COMPLAINT FOR DEFAMATION, INVASION OF PRIVACY-PUBLICITY PLACING PERSON IN FALSE LIGHT IN THE PUBLIC EYE |
Defendant MICHAEL McCARTY, answers the Amended Complaint on file herein, as follows:
1. Defendant admits paragraphs 2 and 5 of the Amended Complaint.
2. Defendant denies each and every, all and singular, specifically and generally each and every allegation contained in paragraph 10 of the Amended Complaint on file herein.
3. Defendant is informed and believes and herein alleges that he lacks sufficient information or belief to enable him to answer the allegations of paragraphs 1, 2, 4, 6, 7, 8, 9, and 11 through 57, inclusive, of the Amended Complaint, and basing his denial on that ground, denies each and every allegation thereof.
AFFIRMATIVE DEFENSES
AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the publication of broadcast complained of in Plaintiff's Amended Complaint was not published or broadcast by the Defendant either with knowledge that it was false or reckless disregard of the truth of the statements. Because Plaintiff has made himself a public figure, Defendant is protected by Constitutional Privilege from defamation actions in which the statements were not published or broadcast with actual malice.
AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the allegedly defamatory statement(s) which Plaintiff complains related to a matter of public concern is contitutionally protected in the absence of fault. Defendant was not negligent in broadcasting the statement complained of therefor Defendant is protected from liability by Constitutional Privilege.
AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the Amended Complaint does not state facts sufficient to constitute a cause of action in that Plaintiff has failed to allege that Defendant broadcast the allegedly defamatory statement(s) concerning negligently, and the face of Plaintiff's Amended Complaint shows that the subject of the statement was a matter of public concern.
AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the broadcast complained of in Plaintiff's Compalint made numerous statements about Plaintif. The notice and demand which Plaintiff served on the Defendant within the twenty (20) day statutory period was not sufficiently specific to enable Defendant to ascertain which statements in the broadcast are claimed by Plaintiff to be defamatory. Thus, Defandant was not able to make the required correction or retraction.
AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defandant alleges that Plaintiff did not serve the Notice and Demand for Correction on Defendant within the twenty (20) day period as required by Section 48(1) of the Civil Code. Thus Plaintiff's Amended Complaint does not allege any special damages, Plaintiff cannot recover any damages.
AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the statments complained of in Plaintiff's Amended Complaint were not false. To the contrary, they are completely truthful.
AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the statements complained of in Plaintiff's Amended Complaint were made by Defendant in good faith, honestly, and not maliciously.
AS A EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the statements complained of in Plaintiff's Amended Complaint were made by Defendant about Plaintiff without any feelings by defendant of hatred or ill-will for Plaintiff and in a conversation and/or letter to persons who were interested in the subject matter of the specific communicaiton. Defendant is a person who is also interested in the subject matter of the communication and had a reasonable motive in making the statements of complained of by Plaintiff as therefore eligible for the Qualified Privilege under Civil Code Section 47(c).
AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the statements complained of in Plaintiff's Amended Complaint are barred by the applicable Statute of Limitations.
AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the complaint on file herein, and to each alleged cause of action contained therein, this answering defendant alleges that the statements complained of in Plaintiff's Amended Complaint were made without any feelings by Defendant of hatred or ill-will for Plaintiff. To the contrary, they were made in good humor and as a joke and thus do not carry any defamatory meaning to those who heard the remarks.
| Dated: May 29, 1998 | WALTER A. MacDONALD, JR. Attorney for Defendant MICHAEL McCARTY |