Randazza adv. Mayers Brief on Damages (PDF)

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BREF
Ronald D. Green (Nev. Bar No. 7360)
Alex J. Shepard (Nev. Bar No. 13582)
RANDAZZA LEGAL GROUP, PLLC
4035 S. El Capitan Way
Las Vegas, NV 89147
Telephone: 702-420-2001
Facsimile: 702-420-2003
ecf@randazza.com

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EIGHTH JUDICIAL DISTRICT COURT
CLARK COUNTY, NEVADA
JENNIFER RANDAZZA, an individual,

)
)
Plaintiff
)
)
vs.
)
)
ALEXANDRA MELODY MAYERS, )
a/k/a
MONICA
FOSTER,
an )
individual, JANE DOE, and JOHN )
DOE,
)
)
Defendants.
)
)

Case No.: A-14-699072-C
Dept. No.: XXXII
PLAINTIFF JENNIFER RANDAZZA’S BRIEF
ON DAMAGES

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Plaintiff Jennifer Randazza hereby files this Brief on Damages, pursuant to

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the Court’s Order of July 14, 2016 granting Summary Judgment in favor of

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Mrs. Randazza on all her claims against Mayers.

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1.0

INTRODUCTION

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Defendant Alexandra Mayers, as part of a personal grudge campaign

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against Plaintiff Jennifer Randazza and her family, published false and

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defamatory statements outright stating that Mrs. Randazza is and was involved

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in organized crime and prostitution. She knew these statements were false when

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she made them and published them to thousands of people with the express

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purpose of injuring Mrs. Randazza’s reputation and causing her emotional harm.

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Mayers never had any factual basis for making her statements. But even

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after the Court found that she was liable for defamation and placing Mrs.

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Randazza in a false light, Mayers unapologetically re-published her statements
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and continued to assert that her statements are true. She should be required to

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pay for the reputational and emotional harm Mrs. Randazza suffered. The Court

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should also award Mrs. Randazza punitive damages for Mayers’ willful and

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wanton behavior in repeatedly defaming Mrs. Randazza online.

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sufficient punitive damages award will dissuade her from continuing to do so.

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2.0

Perhaps a

FACTUAL BACKGROUND

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2.1

The Summary Judgment Order

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In its order entered on July 14, 2016, the Court granted summary

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judgment, finding that Mayers was liable to Mrs. Randazza for defamation and

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false posts on the social media platform Twitter, explicitly stating and/or

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insinuating that Mrs. Randazza was involved with organized crime, prostitution,

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and pornography. (See Summary Judgment Order at 3-5.) These allegations

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are defamatory per se. (See id. at 4.) Mayers did not attempt to verify the

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accuracy of her statements before publishing, and even expressed subjective

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doubt as to their accuracy when she published them. (See id.) The Court found

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that it was reckless for Mayers to have published her statements. (See id. at 5.)

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2.2

Mrs. Randazza’s Damages

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Mrs. Randazza has previously worked as a schoolteacher and was seeking

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employment as an art teacher at schools in Clark County at the time Mayers

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published her statements on Twitter.

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(hereinafter, “Randazza Decl.”), attached as Exhibit 1, at ¶¶9-10.) She obtained

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a Bachelor of Fine Arts in art education from the University of North Carolina-

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Greensboro, and a Master’s Degree in Elementary Education from Lesley

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University. (See id. at ¶3.) She has nine years of experience as an art teacher,

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five of which are from Nevada schools.

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qualified for the position she sought, and despite previously having little difficulty

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in securing such employment, she was unable to find employment as an art

(See Declaration of Jennifer Randazza

(See id. at ¶¶4-5.)

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Despite being

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teacher.

(See id. at ¶¶6-10.)

Given that Mrs. Randazza did not have a

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significant online profile at the time Mayers made her defamatory statements on

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Twitter (see id. at ¶13), and that it is a common practice to perform online

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searches on employment candidates, it is likely that any school looking to hire

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Mrs. Randazza came across Mayers’s defamatory statements.

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In addition to loss of reputation among potential employers due to

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Mayers’s statement, Mrs. Randazza also suffered reputational harm among the

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general public. These statements still exist and may still be found by people

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searching for information about Mrs. Randazza.

Mrs. Randazza retained the

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services of an online reputation management firm to estimate the cost of

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rehabilitating her reputation considering Mayers’s statements.

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determined that Mrs. Randazza would need to conduct a campaign of at least

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18 months, consisting of targeted use of Google Adwords, Twitter, and YouTube,

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and creating a web site.

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Exhibit 2, at 3-10.)

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campaign of at least 9 months utilizing search engine optimization (“SEO”)

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techniques.

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between $58,100 and $66,600 to rehabilitate her reputation. (See id. at 12.)

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Additionally, Mrs. Randazza did not have a significant Internet presence prior to

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Mayers’s statements, and there is no assured way of preventing future

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republication of these statements, meaning the only adequate way of

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countering these reputational harms is by increasing Mrs. Randazza’s Internet

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presence.

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Podolsky [“Podolsky Decl.”], attached as Exhibit 3, at ¶¶5-8.)

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would have preferred to remain a private figure, but Mayers’s actions have

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dragged her into the public eye, destroying her privacy, permanently.

The firm

(See <wiserbrand.com> estimate, attached as

Mrs. Randazza would additionally need to engage in a

(See id. at 11.)

These campaigns would cost Mrs. Randazza

(See Randazza Decl. at ¶13; see also Declaration of Michael

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Mrs. Randazza

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Furthermore, as already briefed in her Motion for Summary Judgment,

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Mrs. Randazza has suffered emotional harm resulting from Mayers’s statements

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that has affected the quality and quantity of her time with her friends and

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family. (See Declaration of Jennifer Randazza in Support of Motion for Summary

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Judgment, attached as Exhibit 4.) Mayers did not at any point attempt to rebut

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this evidence.

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2.3

Mayers’s Pattern of Abusive Conduct

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Mayers has engaged in abusive and harassing conduct towards

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Mrs. Randazza and her family even discounting her defamatory statements on

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Twitter. She published on her Twitter account a depiction of Mrs. Randazza’s

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toddler daughter as the recipient of a “gang bang” award. (See id. at ¶12.)9

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During the course of litigation, Mayers continued to make statements regarding

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Mrs. Randazza and her family that threatened them with physical violence and

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were calculated to provoke violence against them.

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This conduct became so oppressive that Mrs. Randazza was forced to obtain a

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temporary restraining order against Mayers in July 2014. (See id. at ¶13.)

(See id. at ¶¶13, 20.)

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On August 16, 2016, after the Court entered summary judgment against

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Mayers on all counts, Mayers continued her campaign against Mrs. Randazza.

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She first published on her Twitter account @alexandramayers “[t]he truth is

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Jennifer Randazza IS attached to organized crime & I will never apologize for

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saying so.” (Aug. 16, 2016 9:08 AM Twitter post, attached as Exhibit 5) (emphasis

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added.)

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Randazza Legal Group IS attached to ORGANIZED CRIME – namely the

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ENABLING & DEFENSE OF HUMAN & SEX TRAFFICKING. #TRUTH.” (Aug. 16, 2016

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She then published on the same account “Jennifer Randazza of

This fact is mentioned not to premise liability on this depiction, but rather to
show that Mayers was also targeting Mrs. Randazza’s family as a whole, making
her statements on Twitter more disturbing.
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9:12 AM Twitter post, attached as Exhibit 6.)10 This makes it clear that Mayers,

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even after admitting to the Court that she expressed subjective doubt as to her

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statements before publishing them, has no remorse for her actions, and will not

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cease unless enjoined.

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3.0

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ARGUMENT
3.1
Mrs. Randazza Is Entitled to Recover Damages for Loss of
Employment Opportunities and Injury to Reputation

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The Court has already found that Mayers is liable for defamation per se.

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In a defamation per se case, “[d]amages are presumed ‘because of the

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impossibility of affixing an exact monetary amount for present and future injury

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to the plaintiff’s reputation, wounded feelings and humiliation, [or] loss of

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business.”’

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Gertz v. Robert Welch, Inc., 418 U.S. 323, 373 n.4 (1974) (White, J., dissenting)),

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abrogated on other grounds by Pope v. Motel 6, 121 Nev. 307 (2005).

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A factfinder is “permitted to assess damages considered to be the natural and

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probable consequences of the defamatory words on proof of the defamation

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alone.” K-Mart, 109 Nev. at 1195. A plaintiff must offer competent evidence to

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support a request of general damages awarded for defamation per se, but this

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evidence is “not necessarily of the kind that ‘assigns an actual dollar value to

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the injury.”’ Nevada Ind. Broadcasting Corp. v. Allen, 99 Nev. 404, 418 (1983)

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(quoting Gertz, 418 U.S. at 350).

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damages in such cases will be affirmed “unless the award is so excessive that it

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appears to have been given under the influence of passion or prejudice.”

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Bongiovi v. Sullivan, 138 P.3d 433, 448.

K-Mart Corp. v. Washington, 109 Nev. 1180, 1195 (1993) (quoting

In Nevada, an award of compensatory

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Mayers has since deleted this incriminating evidence from her Twitter
account.
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In addition to general reputational harm, loss of business is also

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compensable as presumed damages in defamation per se cases. See K-Mart,

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109 Nev. at 1195. Even without thorough documentation of economic harms,

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courts have upheld significant damages awards for such presumed damages.

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Despite being barred from presenting evidence of quantifiable economic harm,

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the plaintiff in Cohen v. Hansen, 2016 U.S. Dist. LEXIS 55976, *16-17 (D. Nev. Apr.

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27, 2016) was awarded $38.3 million in damages by a jury in a defamation per

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se case. See id. at *16.11 Part of the evidence considered by the jury consisted

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of business deals that may not have gone through due to the defendant’s

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statements (the value of which could not be quantified) and the costs of an SEO

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campaign to rehabilitate the plaintiff’s reputation. See id. at *14-15. The District

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of Nevada did not find this amount to be excessive. See id. at 17.

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Mayers’s

statements

have

significantly

harmed

Mrs.

Randazza’s

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reputation. She did not have a significant online presence that would have

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diluted the effect of Mayers’s statements to her almost 14,000 Twitter followers

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and the general public, meaning that anyone searching for Mrs. Randazza’s

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name was likely to encounter Mayers’s statements.

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¶ 13.; Podolsky Decl. at ¶¶ 4-8.)

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among potential employers when she sought employment as a school teacher

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around the time Mayers made her statements.

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publicly accessible at the time Mrs. Randazza applied for this position, and

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anyone

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application process would have seen them. (See Randazza Decl. at ¶¶ 7-10.)

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As a result of Mayers’s actions, it will likely take at least 18 months and between

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searching

for

Mrs.

(See Randazza Decl. at

She suffered additional reputational harm

Randazza’s

name

Mayers’s statements were

during

the

employment

This is not to suggest that Mrs. Randazza claims her damages are close to this
amount, but rather this case shows that presumed damages can support a
large award without specific quantifiable harm.
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$58,100 and $66,600 to rehabilitate her reputation. (See Exhibit 2 at 12; Podolsky

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Decl. at ¶¶9-10.)

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Aside from quantifiable harm to reputation, Mayers’s actions have also

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effectively eliminated Mrs. Randazza’s ability to remain anonymous on the

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Internet. Mrs. Randazza is not a public figure, but Mayers’s statements have

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made it so that anyone searching for information about Mrs. Randazza will

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come across Mayers’s Twitter posts and her long-running harassment of the

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Randazza family. Due to the possibility that third parties may disseminate and

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republish Mayers’s statements, there is no guaranteed way to remove these

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statements from public view even with an injunction against Mayers.

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(See Podolsky Decl. at ¶ 5.) Because of this, the only adequate way to counter

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the reputational harm caused by Mayers’s statements is with additional speech.

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(See id. at ¶¶ 6-8.) Beyond costing a significant sum of money, a campaign to

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rehabilitate Mrs. Randazza’s reputation will also by necessity increase her public

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profile and share information about her with the public.

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Mrs. Randazza does this purely out of necessity, not because she wishes to

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become anything resembling a public figure. While the loss of Mrs. Randazza’s

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online anonymity is difficult to quantify, the Court should take this loss into

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account when determining Mrs. Randazza’s damages.

(See id. at ¶¶ 6-8.)

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3.2

Mrs. Randazza Is Entitled to Recovery for Emotional Harms

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A false light claim in Nevada allows for the recovery of a plaintiff’s

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emotional harm, which is one of the distinguishing factors between false light

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and defamation claims. See Franchise Tax Board v. Hyatt, 335 P.3d 125, 142

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(2014). While the emotional distress that Mayers has caused Mrs. Randazza as a

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result of her statements on Twitter is significant, it has not caused a particular

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physical or emotional disorder in Mrs. Randazza. Her emotional damages thus

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fall into the category of “garden-variety” emotional distress, which is ‘“ordinary
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or common place emotional distress,’ [and] is ‘simple or usual.’” Roberts v. Clark

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Cnty. Sch. Dist., 312 F.R.D. 594, 607 (D. Nev. 2016). Allegations of these damages

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do not necessarily require expert testimony or documentation of medical

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expenses. See id. (citing EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 640-41

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(E.D. Wash. 2011)).

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Because of Mayers’s pattern of conduct, Mrs. Randazza suffered

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emotional distress, wondering what vicious falsehood Mayers would publish next

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to the general public and her thousands of Twitter followers.

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at ¶ 11.)

(See Exhibit 4

The effects of Mayers’s statements were exacerbated by her prior

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targeting of Mrs. Randazza’s family, specifically by posting an image depicting

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Mrs. Randazza’s daughter (then 3 or 4 years old) as the recipient of a “gang

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bang” award. (See id. at ¶ 12.)12 The harm caused by her repeated targeting

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of Mrs. Randazza and her family, including threats of physical violence, became

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so intense that Mrs. Randazza was forced to seek a temporary restraining order

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against Mayers. (See id. at ¶¶ 13, 20.)

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Mrs. Randazza acknowledges that emotional harm can be difficult to

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quantify. Given the severity of Mayers’s conduct and the harm she caused over

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a period of years, however, going so far as to necessitate a temporary

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restraining order, Mrs. Randazza seeks $100,000 in emotional damages.

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3.3

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Punitive damages are available where there is clear and convincing

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evidence that the defendant is “guilty of oppression, fraud or malice, express or

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implied.” NRS 42.005(1). ‘“Oppression’ means despicable conduct that subjects

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a person to cruel and unjust hardship with conscious disregard of the rights of

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The Court Should Impose Punitive Damages on Mayers

This fact is mentioned not to premise liability on this depiction, but rather to
show that Mayers was also targeting Mrs. Randazza’s family, making her
statements on Twitter more disturbing.
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the person.” NRS 42.005(4). ‘“Fraud’ means an intentional misrepresentation,

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deception or concealment of a material fact known to the person with the

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intent to deprive another person of his rights or property or to otherwise injure

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another person.”

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intended to injure a person’; ‘implied malice’ is ‘despicable conduct which is

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engaged in with a conscious disregard of the rights . . . of others.’” Clark v.

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Lubritz, 113 Nev. 1089, 1099 (1997) (quoting NRS 42.001(3)). A decision to award

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punitive damages will not be overturned if it is supported by “substantial

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evidence,” that is, ‘“evidence that a reasonable mind might accept as

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adequate to support a conclusion.”’ Bongiovi, 122 Nev. at 581 n.75 (quoting

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First Interstate Bank v. Jafbros Auto Body, 106 Nev. 54, 56 (1990)).

NRS 42.005(2).

‘“[E]xpress malice’ is ‘conduct which is

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NRS 42.005(1)(a) allows for punitive damages awards of three times

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compensatory damages award where compensatory damages are $100,000 or

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more. Nevada does not place a statutory cap on the amount of a punitive

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damages award for defamation actions, however.

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But even in defamation actions, there are constitutional safeguards against

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excessive awards of punitive damages. The Nevada Supreme Court in Bongiovi

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adopted the three federal guideposts in determining the constitutionality of a

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punitive damages award:

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See NRS 42.005(2)(e).

(1) “the degree of reprehensibility of the defendant’s conduct,” (2)
the ratio of the punitive damages award to the “actual harm
inflicted on the plaintiff,” and (3) how the punitive damages award
compares to other civil or criminal penalties “that could be imposed
for comparable misconduct.”
Bongiovi, 122 Nev. at 582 (quoting BMW of North America, Inc. v. Gore, 517 U.S
559, 575, 580, 583 (1996)). The Bongiovi court found that the jury could have
awarded the plaintiff $750,000, three times the compensatory damages

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