On How It Is Susie Breitbart Can Be Sued

Andrew Breitbart

I’m not going to go over the Breitbart/Sherrod incident of 2010. Much has already been said about it and I don’t feel there’s anything I can add to it. If you’d like some background on the subject, I direct you to your default browser where you can plug away all you like.

As I look about the internets I see some outrage on the conservative Right over the Sherrod v. Breitbart suit now that Shirley Sherrod is seeking the court’s permission to sue Susannah Breitbart in place of Andrew who, as you may recall, died last year on March 1, 2012.

Bear in mind, the courts are still weighing this decision – it hasn’t come to pass that Ms. Sherrod is actually suing Mrs. Breitbart.

Not yet. But it could happen.

The motion Sherrod filed in Washington’s U.S. District Court last month seeks to make Susannah Breitbart responsible for providing financial recovery for “libel and slander” caused by the Breitbart-publicized videos that led to her resignation in 2010. This stems from a defamation suit Sherrod filed against Andrew Breitbart in 2011 in which he unsuccessfully tried to dismiss.

The case is still ongoing even though Andrew is dead.

Of course the Right is up in arms about this. “Evil”, “despicable”, “vampires” are some of the perjoratives I see slung around the blogosphere but let’s step back for a moment and first examine whether or not Ms. Sherrod can actually petition the courts to name Mrs. Breitbart as a substitute for Andrew.

Turns out she can.

Under California Code of Civil Procedure 377.42. In an action or proceeding against a decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, on a cause of action against the decedent, all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.

Andrew Breitbart left no estate and while its unfortunate, the law is clear – Susannah Breitbart is his successor and may be called to stand as a replacement and she can be compelled by statute.

Now, is this right or even sensible? Shirley Sherrod believes, as do the courts, that she has a case against Andrew Breitbart for defamation of character which caused her to lose her job at the USDA and that Andrew Breitbart has died doesn’t in any way relieve him of having to answer for this tort.

The problem, as far as I can tell, is a simple case of hero worship – the Right loved Andrew Breitbart. He was their hero and as their hero that somehow places him above the ken of mortal men and makes anything he does acceptable – up to and including selectively editing a video of a speech Shirley Sherrod gave to the NAACP about an incident that occurred before she took the post at the USDA to make it seem as if she was practicing racism as a federal employee which led to her forced resignation.

I submit that, alive or dead, he’s not above answering for actionable offenses.

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