Is This Defamation?

Your honor, In preparation for this hearing, I read Rule 12(B)(6) which
says, “If, on a motion asserting the defense in Subparagraph (6) of this
paragraph to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 1-056.” So, I read Rule 1-056
and its annotation cases, the first of which says that the purpose of a
summary judgment proceeding is to expedite litigation by determining
whether a party possesses competent evidence to support his pleadings so as
to raise genuine issues of material fact... Goffe v. Pharmaseal Labs., Inc.,
90 N.M. 764, 568 P.2d 600 (Ct. App. 1976). Another case says, “One of
the principal purposes of the summary judgment rule is to isolate and
dispose of factually unsupported claims or defenses. Goradia v. Hahn Co.,
111 N.M. 779, 810 P.2d 798 (1991).

In view of these cases, I have prepared my contribution to this hearing so
that what I say deals with how my claims are supported or can be supported.

Then, because later of the annotation cases say that summary judgment is
drastic and its purpose is not to substitute for existing methods in the trial of
issues of fact. Holcomb v. Power, 83 N.M. 496, 493 P.2d 981 (Ct. App.
1971)... and many other case names are cited under this statement, so that
I understand this to be well settled, I am submitting that after the Court
hears my presentation, that it will be required by this law to not dismiss.

So, I am going to tell you what the issues of fact are, which require this case
not be dismissed. If you think my complaint falls short, then please allow
me to amend. But, given that the function of the complaint is to notify the
defendants about what they must defend, I believe the complaint tells them.

On the basis of my complaint, I should be allowed to bring witnesses to
court to testify that they understand the article to be about me and know of
no one else to whom it could refer.

The issues for trial are:

1.        Was I negligent as the article says: did I really ignore experts.

2.        Was the article true and factual when it says that the author
suggested a path of least resistance and cost.

3.        Was I unreasonable, as the article says.

4.        Did I do something which created a public danger, which the article
says in such a way that it creates fear that I did.

5.        Was the real culprit the broken sewer pipe, or did Mr. Alba
negligently ignore evidence to the contrary which evidence he should have
reported.

6.        Was the article clearly about me and did it identify me clearly even
though it didn’t use my name.

7.        Was Mr. Alba truthful to say that a passel of experts had suggested
before him, what he suggested.

8.        There is the issue of whether Mr. Alba and the paper should poke
fun of my handicap.

9.        There is the issue of damages.

Regarding issue 1: Did I negligently ignore experts:

The fact is that I followed the advice of the structural engineer, whose
report I attached to the complaint; this shows that I did not ignore experts.
Was it negligent of me to ignore what Mr. Alba suggested, I don’t think so,
but that is an issue for trial, not for me to decide, or for him, for that matter.

Regarding issue 2: was the article truthful to say its author suggested the
path of least resistance and cost:

The fact is that the author did not suggest the path of least resistance and
cost, and this can be shown by a copy of the proposal email Mr. Alba sent
me. I need him to produce it, though, since I changed Internet Service
Providers and haven’t been able to access my copy. Once this is produced,
it can be contrasted to the path suggested by the structural engineer, which
will show the falsity of Mr. Alba’s written and published statement, since
Mr. Alba proposed hand filling the hole and hand tamping every eight
inches, at a total cost of over $4,000, while the structural engineer suggested
having flow fill poured in which would instantly fill the hole, at a cost of
about $600.

Regarding issue 3: was I really unreasonable as the article states:

Mr. Alba wrote, “It was at this point that she decided to retreat from reason
and jump back into the same hole that she and her laborers had so expertly
dug. She ignored the counsel of everyone who advised her, selectively
acting only on those elements she found appealing. It looked very much like
what sometimes happens when you take only one dose of your medicine.
For a time it may appear that you’re making progress, just to have the
malady return with a vengeance.”

When Mr. Alba wrote, “It was at this point that she decided to retreat from
reason,” he is making a slur on my behavior and character unless in fact I
did what he said, so he must show that what he wrote was true, that in fact
I did ignore the counsel of everyone who advised me, and that indeed I
behaved unreasonably in doing what I did.

But he cannot show that I behaved unreasonably, or retreated from reason,
in fact, because in fact I followed the advice of the structural engineer.

I should have the opportunity to call the structural engineer as a witness and
ask him what his advice was, why he gave it, and whether or not it was
unreasonable for me to follow his advice.

I should also have the opportunity to ask the structural engineer to testify as
to his evaluation of the proposal made by Christopher Alba and say whether
or not the plan was one of least resistance and cost.

The fact is that Mr. Alba wrote falsely, and because of this he does not
have the defense of truth, which is a full defense against allegations of libel
and defamation.

It is precisely because what he wrote and the New Mexican published was
not true, that it publicly, wrongfully and actionably damaged me and my
reputation.

Regarding issue 4: Did I do something which created a public hazard:
Mr. Alba wrote, “She ignored the counsel of everyone who advised her,
selectively acting only on those elements she found appealing. It looked very
much like what sometimes happens when you take only one dose of your
medicine. For a time it may appear that you’re making progress, just to
have the malady return with a vengeance.”

By writing this, Mr. Alba is saying in his article that I did something that put
others at risk. I should have the opportunity to call the structural engineer as
a witness and ask him if me following his advice did in fact put other people
at risk, or endanger them in some way.

Regarding issue 5: Was the story negligent to say the real culprit was the
broken sewer pipe: see Paragraphs 13, 14 and 15 of Complaint.

The story published by the newspaper is about the singular situation of a ten
foot deep hole under my house; in digging that hole, dozens of old bottles,
chunks of coal, a spoon, all things that could not be flushed down a toilet or
go through a sewer pipe, were dug up. Some of the bottles were lined up a
few feet from the mouth of the hole and were clearly in evidence. In fact, I
pointed them out to Alba when I was talking to him about the outhouse pit.

I have some photos here that I would like the court to look at, of the
bottles from the pit. While the pit does not show in the photos, it is the
width of a brick path from the bottles. The brick path begins just next to
where the stones in the picture begin to curve toward the fence, on the right
side of the photo. On the other side of the brick path is the excavation,
which is shown in the other picture. I showed the actual bottles to
Christopher Alba.

Yet, Mr. Alba’s story denies the existence of the bottles, which bottles show
that the outhouse pit existed. Mr. Alba’s story warps the facts. For instance,
there was no bilge under my house; no one ever said bilge might go fifteen
feet deep, except for Mr. Alba who was falsifying to make himself look
good while making defamatory and libelous statements about me.

I should have the opportunity to call the structural engineer who inspected
the outhouse pit several times, and can verify that there was no bilge.

Regarding issue 6: did the article clearly identify me
This newspaper story is one which the people who live near me or know
me, immediately recognize as being about me. The newspaper story
contains enough references to matters which would only apply to me, that
people who know me, would know this was me and did in fact know it was
me.

This is a story that identifies me by linking me with my cat, by reporting
that I was staying in a hotel at the time in question, that I complained to the
city about inadequate inspection prior to permitting the house to be built,
that I hired a couple of immigrant laborers, that I had a support installed. All
of these being things that do actually identify me, with precise detail.

I should be able to call witnesses who can say whether or not there was or
they know of even one other person at this time who had an old outhouse
pit excavated.

Regarding issue 7: Was Mr. Alba honest to write that a passel of experts
before him had suggested what he suggested

In his story Mr. Alba identifies himself as someone who was called in to
catch a “now-wild tiger by the tail,” and “safely finish the work.” He says
his plan “was little more than reassembly and sequencing of critical action
that a passel of preceding experts had suggested.” If this is true, then he
needs to identify where any expert before him, much less a “passel” had
said the hole should be “hand filled” and “hand tamped every eight inches,”
which is what Mr. Alba proposed.

At the very least, Mr. Alba’s two writings show an issue for trial.

Regarding issue 8: Should Mr. Alba and the newspaper make fun of my
handicap which is extremely serious and a debilitation the challenges of
which I face every day, and others like me face every day.

I have been damaged to have had my handicap made a joke by Mr. Alba
who ridiculed me saying my shortness of breath became loss of short term
memory. My handicap is not a loss of short term memory, and to
characterize it as such is prejudicial. My handicap is that I have reduced
working memory and processing speed.

To make fun of a handicapped person, and of the handicap, is not
something the newspaper should be encouraged to do. The newspaper
should not be allowed to do this, nor should the newspaper’s columnist be
allowed to do this. As a handicapped person, I have a right to be treated
with respect. This article treated me with the opposite of respect and invited
people to laugh at me. That is a horrid and an actionable thing for it to do. I
have been hurt by the paper and author doing this. I have been made to
look stupid and held up for ridicule when in fact I have a serious handicap.

I should have the opportunity to call witnesses testify to the exact and true
nature of my handicap, experts who can testify that I was not forgetting
things as a matter of convenience, as Mr. Alba’s article in the New Mexican
said.

Regarding issue 9: There is an issue of what damages I am suffering.
There is also the damage done to me by the Condo Association refusing to
pay their share of the excavation costs based on Mr. Alba’s writing that the
real culprit was a broken sewer pipe.

If Mr. Alba wants to say he was an expert witness before I called him to
look at and bid on the outhouse pit, he needs to provide documents which
show this to be a fact. If not, there appears to be an issue here for trial.

I believe Mr. Alba cannot write false things in a newspaper article because
he was paid to do so by the association, if in fact that was the case, and say
that his defamatory writings are protected because he is an expert witness.
In fact, to falsely write that there was bilge extending down 15 feet, under
my home, when there was not, is a false statement, not a differing opinion.

It is also the case that I was told that after I filed this legal action, Mr. Alba
returned the check, which I saw written to him by the association for over
$1,600. If the check had been to retain him as a legal expert, then there
would have been no reason to return the check. But it was returned, and I
was told it was returned because I filed this case.

The issue of the check and whether or not it was accepted by Mr. Alba as
payment for writing false things in the newspaper to support the condo
association in not paying their share of the costs, is one which cannot be
decided in a hearing like this; it which must be decided at trial.

Because I have not had payment of the association’s share of costs which it
owes as supported by the condominium act, I can rightly say that Mr. Alba
has interfered with that contract, and as a result I am in extreme poverty.

As an example of my extreme poverty, I will testify here and now, and
please may I take an oath.... that I have been sick since Thanksgiving,
throwing up, aching, etc. And, I have not had the money to go to a doctor,
or to a dentist now that I have also been having toothaches.

I have had to get help from charities in order to pay my heating bills. I have
had my utilities almost shut off. I was kept from renting my townhouse
because I didn’t have the money to pay the sewer and garbage and in
consequence the city shut off the water. I am facing foreclosure. It is
extremely distressing to be facing foreclosure. My therapist has told me that
I am under way too much stress to be able to learn the compensation
techniques that could help me find a job despite my handicap. My other
therapist, also under the Department of Vocational Rehabilitation, has noted
several times when I was so distressed that I could not finish a sentence.

Under oath as witnesses these health care providers can testify that anyone
who is under as much stress as I have been, will lose cognitive function.

While it is certainly true that the article did not cause the hydrogen sulfide or
the outhouse pit itself, it is also true that the effects of these things are being
felt by me because I do not have the money I need because Mr. Alba wrote
a story which is defamatory, and because the association says it won’t pay
me because it believes what Mr. Alba says. Mr. Alba is hurting me,
damaging me, injuring me. That story should not have been published, but it
was and that has hurt me.

I need the justice system to remedy this situation.

And finally, the fact is that Mr. Alba is an employee of the Corporation he
named at the bottom of his article, which indicates that the corporation has
responsibility under respondeat superior.

So, to recap your honor, I have shown that this defamation/libel case cannot
be dismissed and do justice because of the many issues that need to be
addressed at trial....