Cease & Desist

August 23rd, 2006 by Editor B

Well, the good news is the postal system around here may be getting better. This letter was posted on Monday and arrived at our house on Tuesday:

Cease & Desist

The bad news is it’s nothing nice. It’s a D&C letter from a lawyer on behalf of the landlord across the street, related to — you guessed it — the events of last Wednesday. To save you undue eyestrain, here’s the text:

Charles G. Merritt
Law Offices
1226 N. Broad
New Orleans, LA 70119
Phone (504) 821-1135
Fax (504) 821-9809

August 19, 2006

Ms. Christy Paxson
Mr. Bart Everson
215 N. Salcedo Street
New Orleans, LA. 70119

Dear Ms. Paxson and Mr. Everson:

I represent Mrs. Maria Santana, owner of the property, 216-218. 216-A and 218-A North Salcedo Street, New Orleans, Louisiana.

Recently Mrs. Santana has been required to evict some of her tenants for non payment of rent and Mrs. Paxson has made insulting remarks to my client, such as, that she was not nice, she was unfair, she was overcharging rent, was not providing tenants with electricity or gas, and was a slum landlord.

Mrs. Santana complained to Ms. Paxson and Mr. Everson and they made additional complaints.

Then Mr. Ferguson and Ms. Paxson painted a sign and placed it on the inside of their building at 215 North Salcedo Street, New Orleans, LA., on, or about Wednesday, August 15, 2006, with additional untrue and accusatory remarks inciting tenants to refuse to rent or pay rent to Ms. Santana all of which contributing harassment and problems for her with the neighbors and with probable tenants and which have caused Mrs. Santana mental pain and suffering, possible loss of income, for which she is entitled to damages and for which she is entitled to an injunction requiring you to remove the signs from your property which are accusatory in nature and preventing you from doing anything or taking an action that would adversely effect the renting of the property of Mrs. Maria Santana located at 216-218-216-A and 218-A North Salcedo Street, New Orleans, LA.

My client hereby makes demand upon you to remove the signs which are unjust and attached to your building at 215 North Salcedo Street, New Orleans, LA., and to refrain from making accusatory or unjust statements against her, that she is an unfair landlord, and to pay her the sum of $1,000.00 in damages for mental pain and suffering from your past actions, and that this cease and desist shall be continued in a court proceedings by order of court in the form of an injunction.

Sincerely,
CHARLES G. MERRITT
CGM:fd ATTORNEY FOR MRS. MARIA SANTANA

Now isn’t that the most ridiculous thing you’ve ever read? So of course we’re wondering how to respond. The simplest thing to do would be to do nothing at all. I sincerely doubt she’s taking this to court, despite that malformed final sentence. We could do nothing and hope it ends here.

However, that’s not very satisfying. I’d like to do something creative, something that indicates we’re not intimidated by such tactics, and most importantly something that might actually result in Ms. Santana being a better landlady.

So once again I turn to my readers. Any suggestions? Any local lawyers out there who find this intriguing enough to get involved?

40 Responses to “Cease & Desist”

  1. Jeff Elbo Says:

    as a pre-law/political science student…

    when it comes to slander and libel…the burden of proof is on her. not you.

    she has to PROVE that the statements on Xy’s sign were untrue. YOU don’t have to prove that they were.

    something similar happened locally here not too long ago…

    i don’t know the details…but apparantly, Mr. A cheated Mr. B out of some kind of land deal…

    so they guy put up a sign saying that he had been cheated and that people shouldn’t do business with him.

    so Mr. A took Mr. B to court…and lost.

    basically, you can’t sue for libel or slander if the things that have been said are 100% true.

  2. Jeff Elbo Says:

    http://www.expertlaw.com/library/personal_injury/defamation.html

    What Defenses Are Available To People Accused of Defamation?

    The most important defense to an action for defamation is “truth”, which is an absolute defense to an action for defamation.

    Another defense to defamation actions is “privilege”. For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.

    A defense recognized in most jurisdictions is “opinion”. If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context – that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.

    A defense similar to opinion is “fair comment on a matter of public interest”. If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

    A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.

    A defendant who transmitted a message without awareness of its content may raise the defense of “innocent dissemination”. For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.

    An uncommon defense is that the plaintiff consented to the dissemination of the statement.

  3. Editor B Says:

    Oh, I forgot to note: The signs mentioned in the letter were taken down by a heavy rainfall some days ago. So they aren’t up any longer.

  4. Bullet Says:

    Ridiculous as it may be, talk to a lawyer anyway. Truth has little to do with the outcome in something like this. She thinks she can intimidate you with a fancy letter and a threat. But she may be crazy enough to go all out with it.

  5. Jeff Elbo Says:

    true, she may be crazy enough to go through with it…she probably feels embarassed that XY called her out in front of the neighbors for being a ‘slumlord’ but in court…the burden of proof is on HER, the plaintiff.

    she has to PROVE that what XY said was not true.

    she has to prove that…

    1. she’s NOT a slumlord.
    2. she’s HASN’T repeatedly evicted people with little or no notice.
    3. that she HAS lost business solely because of XY’s comments.
    4. that XY has caused her ‘mental anguish and suffering’. (which is difficult)

    from what i understand, she already had a ‘repuation’ in the area of being a slumlord. which doesn’t help her situation.

    i think that she’s just doing this to scare or intimidate B and XY, because she feels that XY ‘embarrassed’ her publically. which is of course, may be embarassing, but certainly not illegal.

    but still, i’m just pre-law, B and XY should consult with a lawyer just to be sure.

  6. Jon Says:

    Also not a lawyer, and maybe hers isn’t tech-saavy, but leaving the pix of the signs on your site and flickr probably isn’t a good idea.

  7. greg Says:

    Some of the most important considerations when discussing defamation are: 1) as noted above, “Is it true?” If it is, you’re largely — but not entirely — in the clear. 2) Was there a compelling interest in making the information available to the public? You’re good here, it seems to me, assuming the truth of the statements. 3) Would a reasonable person believe the statements? The classic example is “Joe Schmoe is a sack of shit.” Not actionable, as a reasonable person would recognize the statement as both metaphor and opinion, and not assume that Joe was actually a canvas bag stuffed with human doots. Saying that someone is “mean” is opinion. Saying she cheats tenants out of deposits is not, and you would have to be able to prove something like that. And then there’s 4) True or not true, was the statement made out of malice? Can be sticky, but truth is an absolute defense, in most jurisdictions and under most conditions; the whole thing can get absurdly complicated, but this seems like a no-brainer.

    Not a lawyer, but forced to become familiar with defamation law — just part of being an editorial cartoonist.

  8. joe Says:

    Just remember it will cost her a lot more to take you to court than it did to send you that letter. 1st Ammendment baby.

  9. David Says:

    Two approaches for payback (which you know I love):

    First, a Rox episode about her, her tenants, and more broadly the changing housing situation in the city. Clearly, such activity is completely protected by the first amendment. You could also take the smug satisfaction in writing her and her attorney, telling them that you have taken down the sign and are instead producing a tv show about her which will air on the dish network. (Actually, you could also tie this in with interviewing a FEMA trailer resident inside their trailer, which you had discussed. A common theme is “breaking” the law.) It could be a sequel to “Property is Theft.”

    Second, talk to her past tenants a assist them in suing her for rent (up to $3000). Following that process could also be used in the video. I’ve got a really helpful book on small claims court.

  10. Jeff Elbo Says:

    that’s an excellent idea….make a rox episode on it.

  11. Brenda Helverson Says:

    Recovering attorney here: Ignore the letter. Put up a bigger sign. If he sues, deny everything and issue discovery for ALL of her medical records (a claim for pain and suffering brings those records in). You will also want to talk to ALL of her former tenants in any property that she has ever owned.

    I recommend the Nolo Press books for sound legal advice.

  12. David Says:

    My small claims book is a NOLO book.

    Brenda, I like your style.

    Also, I would confirm that this attorney actually exists and is practicing in the city, and if so, he sent the letter. She could have sent a bogus attorney’s letter, which I think, is illegal. I don’t know how likely that is, but it’s a thought.

  13. Simon Dorfman Says:

    I like Brenda’s idea. Next to the bigger sign, put a poster size blow up of the lawyer’s letter so your neighbors will know she’s trying to intimidate you.

    On second thought… Finding a course of action that “might actually result in Ms. Santana being a better landlady” is a tall order. Hmmm. Maybe call her up try to talk. Try to get her to explain her side. Does she have a good reason for not having the electricity working yet? If you can get her to explain her side. Then maybe you can get her to hear your side. You want her to be a better landlady. You’d rather have an amicable relationship, but it’s going to require her changing her behavior. Of course she might just call your phone call more reason for mental anguish. I dunno.

  14. Karen Says:

    Mrs. Santana is giving me mental anguish for trying to intimidate you. Please make her stop.

    P.S. Don’t fall for the old attorney letter intimidation

  15. Kelly K. Says:

    A quick Google, which you’ve probably already done, shows he’s a solo practioner specializing in family law/estate planning. But that’s not to say that he wouldn’t be able to pursue an injunction. The mental distress claim smells like puffery, and the other poster here is right – before that could be settled (if it gets that far), discovery of her records/extensive testimony would be required. I do recommend seeking the advice of a local attorney, in person, to get a better assessment of the situation. Little problems can become big ones if the other side is motivated enough, and she may be. I would also specifically ask whomever you speak with what they advise about removing this and the related content from your site (and from the video site). If it comes out that your broadcast the incident over the internet, her claim for damages, well… I don’t want to go there it writing. I’m sure you follow… I bet you’ll find a blog support legal type there who might consider some pro bono work. This is an interesting case. I also recommend that you check with the local law schools. Not sure if they’re back in session yet, but if they are, they may provide legal clinic type consultation services and/or be able to point you in the right direction.

  16. Kelly K. Says:

    (I’m tired. I meant to say a blog-supporter legal type person… you get the jist).

  17. Adrastos Says:

    Me, I’d just ignore her. Every lawyer I know has written threatening letters to placate some nutjob client. I’ve done a few myself. I wouldn’t worry about it.

  18. Maitri Says:

    I’m no lawyer, but know too many of them. Talk to Ernie the Attorney for a quick rundown.

    Other than that, get a bigger hammer. Has always solved my problems.

    I’m so proud of Xy.

  19. Garvey Says:

    If you put up new signs, let them say only facts, like the “no utilities” bit.

    Also, if this does go to court, remember where you are. This is N.O. we’re talking about. Get a local lawyer with some juice. The whole system is one of patronage. Your judge could wind up being a guy who has a standing lunch date at Galatoires with her lawyer. And then you’re screwed, regardless of the “law.”

  20. Fish Says:

    Did the tenants turn her in for any of the violations? There are laws that protect tenants in every state. Housing Commission, etc.. with the conditions of the city there, I don’t know how long that would take now, but surely there has to be some agency…

  21. Editor B Says:

    Fish, from what I can tell, there were no violations, since tenants have almost no rights in Louisiana. No electricity, no hot water? No problem! Outrageous, but I’ve been told that’s the way it is down here.

  22. Sean P. Clark Says:

    I’m not siding with her (and I’m no expert), but lawyers cost mullah… $ you might want to spend elsewhere. Does she have insurance coverage that also protects the Landlord of libel/slander? Not likely, but just a thought. With libel you’ve got the signs and if you were to do a rox show that would also be published defamation. The unpublished remarks would be slander.

    If the City Council rep says electricity is not part of the definition of habitability, and IF she can show she is not allowing the property to deteriorate, then that would not make her a slumlord, eh? And if someone doesn’t pay their rent then its reason to evict. So maybe this burden of proof is not so hard? I don’t really know the details, but that’s just my initial thoughts.

    If you’ve got a goal of counter-suing her that’s one thing. It seems like you want her to fix up her act, get out of the neighborhood, or expose landlord abuse. I guess the true question is what your hopeful outcome is.

  23. Kelly Says:

    What a small world. I just saw on his site that Ernie the Attorney attended the Geek Dinner. I’ve been following his site now and then for the past three years. Neat. I’m almost a little jealous.

    Do talk with him. Depending on all the facts (especially if no H20 and no elec. is legal), this issue could become a messy problem, and who needs that?

  24. Mike Fergusons Says:

    What you should do is sick some watchdogs on her and her lawyer, They will shut up so fast all of your heads will be spinning. There is groups out there that will eat this up and have field day over this.

    The power of People and the Power of blogging. You got to find the groups. Tenant landlord groups, free speech groups. The press although Nola.com is paid for by lawyers.

    I will post this on http://community.livejournal.com/neworleans/

  25. William Says:

    You and Xy are now two of my personal heros. We should all be so lucky to have neighbors like you.

  26. Mike Fergusons Says:

    Talk to these guys, you will see what I am talking about.

    http://bridgenews.org/news/022006/neworleans/view?searchterm=louisiana

  27. Sophmom Says:

    Unbelieveable. I like bigger sign and put it on the show. Also, make sure that it’s in the Flickr doodle so it pops up on the heading from time to time. She said Xy was “not nice”! How dare she! LMAO.

  28. Jenny Says:

    I think information–like no utilities–is important to know. Isn’t it necessary to have water and heat for sanitary reasons?
    Do people move in knowing there are no utilities?

  29. Mike Fergusons Says:

    Jenny do you know who Joe Strummer is?

  30. Lushlie Says:

    I’m a local lawyer, but I represent the City of N.O. and the O.P.S.B., so I can’t get officially involved, even for free. They frown on that sort of activity. However, were I to be in a position to offer advice, it would be very similar to Brenda’s.

    What a greedy bitch.

  31. a Says:

    How about the you tube effect….

  32. Editor B Says:

    I appreciate all the comments. I’m sorry I haven’t had time to respond.

    Jenny, the electricity was on when the tenants moved in. Now there’s no one living there and I believe she’s trying to get power hooked up again.

    Simon, your suggestion is very much in line with my values, but there is a bit of a language barrier, plus my own natural shyness.

    Sean, you are quite correct — I don’t think she’s done anything illegal. But then again, I don’t think we have either. For the record, Xy did not call her a “slumlord,” despite what the letter says.

    I consulted with a local lawyer. He advised me to simply ignore the letter for now. He also said it might be smart to remove the relevant content from the internet, at least for the time being. I’m in the process of trying to figure out how smart I am. If this page disappears soon, don’t be surprised!

  33. Gulfsails Says:

    Sick Chartreuse on her.

    That’s my new answer to everything these days.

  34. Bullet Says:

    Gulfsails: Excellent suggestion! Make him useful.

  35. intelligentrix Says:

    Hi. I found you through a livejournal post, and I just had a question. You answered half my question above, about whether or not there had been electricity after the storm, but I’m still wondering if utilities were included in the rent. If so, and they were shut off, the tenants should have been able to contest the eviction for the reason that the landlord was in violation of the lease. If, however, the utilities were the responsibility of the tenants, was there some reason (other than non-payment) that the gas and electricity were not functioning?

    In any case, I agree with most of the people posting here–as long as you can back up what you put on the signs, the landlady doesn’t have a leg to stand on. And I don’t believe there’s any way she’d be able to prove “pain and suffering” to the satisfaction of a court. Don’t let her intimidate you!

  36. Editor B Says:

    Intelligentrix: The short answer is, yes, although utilities were the responsibility of the tenants, there were reasons beyond their control why they were shut off. They said it was the landlady’s fault. It’s complicated and because of the language barrier I never understood the details. I don’t think the tenants had a legal case given Louisiana law, nor did they have the means nor the desire to get into a legal battle.

    And neither do I.

  37. frank smith Says:

    When the law is unfair and stacked against you, change the law. Don’t fight the legal battle with her. But Make an example out of the case and the landlady with publicity by telling the story. Get it out there that some las are unequitable and in serius need of reform and get people to start discussing these impoortant issues.

    We need to be able to make these kind of changes to continue moving forward. Lets get on it.

  38. lemming Says:

    If you need help wth lawyer bills, let us know. You and Xy are fighting the good fight – it needs to be done and “attention must be paid.” It does occur tome that the lady in question would not be so defensive if she were actually behavng in a responsible and appropriate manner….

  39. b.rox » Blog Archive » Toxic Waste Panic in Mid-City Says:

    [...] yard at the direction of Maria Santana, local landlord extraordinaire — a name that may be recognized by long-time [...]

  40. b.rox » Blog Archive » Welcome Home Says:

    [...] She denied any wrongdoing, but she continued to yell at me so vociferously that I only tended to suspect her all the more. In any case, it became abundantly clear that she is not a very nice person. Maybe she’s still mad about her confrontation with Xy three years ago. [...]

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