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Dickinson v. Cosby

California Court of Appeals, Second District, Eighth Division

November 21, 2017

JANICE DICKINSON, Plaintiff and Appellant,
v.
WILLIAM H. COSBY, JR., Defendant and Appellant MARTIN D. SINGER, Defendant and Respondent.

         APPEAL from orders of the Superior Court of Los Angeles County No. BC580909. Debre Katz Weintraub, Judge. Affirmed in part and reversed in part.

          Liner, Angela C. Agrusa; Greenberg Gross and Alan A. Greenberg for Defendant and Appellant William H. Cosby, Jr.

          The Bloom Firm, Lisa Bloom, Jivaka Candappa and Alan Goldstein for Plaintiff and Appellant Janice Dickinson.

          Horvitz & Levy, Jeremy B. Rosen and Felix Shafir; Lavely & Singer and Andrew B. Brettler for Defendant and Respondent Martin D. Singer.

          Buchalter and Harry W.R. Chamberlain II for Amicus Curiae on behalf of Association of Southern California Defense Counsel.

          California Anti-SLAPP Project and Mark A. Goldowitz for Amicus Curiae on behalf of California Anti-SLAPP Project.

          RUBIN, J.

         Plaintiff Janice Dickinson went public with her accusations of rape against William H. Cosby, Jr. Cosby, in turn, through his attorney, Martin Singer, reacted with (1) a letter demanding media outlets not repeat Dickinson's allegedly false accusation, under threat of litigation (“demand letter”); and (2) a press release characterizing Dickinson's rape accusation as a lie (“press release”). Dickinson brought suit against Cosby for defamation and related causes of action. Cosby responded with a motion to strike under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute).[1] When Cosby's submissions indicated that Singer might have issued the statements without first asking Cosby if the rape accusations were true, Dickinson filed a first amended complaint, adding Singer as a defendant. Cosby and Singer successfully moved to strike the first amended complaint because of the pending anti-SLAPP motion. The court then heard Cosby's anti-SLAPP motion, granting it as to the demand letter, and denying it as to the press release.

         Dickinson appeals the order granting the motion to strike her first amended complaint; and the grant of the anti-SLAPP motion with respect to the demand letter. Cosby appeals the order denying his anti-SLAPP motion with respect to the press release. We conclude: (1) the court erred in striking Dickinson's first amended complaint, as it pertains only to a party, Singer, who had not filed an anti-SLAPP motion; (2) the court erred in granting the anti-SLAPP motion with respect to the demand letter; and (3) the court correctly denied the anti-SLAPP motion with respect to the press release. Accordingly, we affirm in part and reverse in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. The Alleged Rape

         According to Dickinson, Cosby drugged and raped her in 1982. Dickinson was a successful model; Cosby was a famous comedian and television actor. They met for dinner, and Dickinson complained to Cosby of menstrual cramps. Cosby offered her a pill that he said would help; the pill was actually a narcotic which heavily sedated her. Later that night, he sexually assaulted her, committing vaginal and anal rape. Dickinson did not report the crime, due to fear of retaliation by Cosby, “a wealthy, powerful celebrity.” The evidence would show, however, that she did tell some close friends.

         2. Dickinson's Autobiography

         In 2002, Dickinson's autobiography, No Lifeguard on Duty, was published by Regan Books, an imprint of HarperCollins. Dickinson's evidence in opposition to the anti-SLAPP motion shows the following: Dickinson disclosed the rape to her ghostwriter, Pablo Fenjves, and wanted it included in the book. The president of Regan Books, Judith Regan, discussed the matter with the legal department at HarperCollins, which said the rape could not be included without corroboration. Regan thought corroboration would be difficult, but believed Dickinson to be credible and argued to include the rape. As the HarperCollins legal department refused to publish the rape allegations, Fenjves wrote a “sanitized version of the encounter, ” in which Dickinson “rebuffed Cosby's sexual advances and retreated to her room.” The book stated that when Dickinson turned Cosby down, “he gave [her] the dirtiest, meanest look in the world, stepped into his suite, and slammed the door in [her] face.” According to Regan, Cosby was “mentioned in the book to satisfy Ms. Dickinson in some way; however the story was modified to deal with the issue without any legal problems.”

         In September 2002, shortly after publication of the book, the New York Observer published an interview with Dickinson. The article begins with the interviewer discussing highlights from the book, including that Dickinson believed Cosby when he told her that she had a good singing voice, “that is, until she didn't want to go to bed with him and he blew her off.” The interviewer later asked Dickinson about the Cosby encounter from her book, to which Dickinson is quoted as responding, “ ‘Oh, he's so sad.' ” Dickinson did not mention rape in the published portion of the interview.

         3. The November 18, 2014 Disclosure

         By late 2014 - 12 years after Dickinson's book had been published - other women had publicly accused Cosby of drugging and raping them. On November 18, 2014, in a television interview with Entertainment Tonight, Dickinson disclosed that Cosby had raped her. By this time, Dickinson had become a successful reality television personality. Her accusation garnered substantial media attention.

         Cosby would subsequently make much of the point that, in addition to accusing him of rape, Dickinson may have also accused him of killing the rape story in her autobiography. A story on ETOnline states that Dickinson wanted to write about the rape, “but claims that when she submitted a draft with her full story to HarperCollins, Cosby and his lawyers pressured her and her publisher to remove the details.” While it is true that the ETOnline story states this, it is not completely clear whether Dickinson had actually made that statement to Entertainment Tonight - or instead, ETOnline may have misconstrued Dickinson's explanation as to why the rape was omitted from her autobiography. A transcript of Dickinson's actual interview with Entertainment Tonight makes no mention of Cosby or his lawyers pressuring HarperCollins.

         4. The Demand Letter

         After the Entertainment Tonight interview went public, several media outlets contacted the Cosby camp, indicating an intention to run follow-up stories and seeking Cosby's comment. In response, that same day, Singer, on behalf of Cosby, sent a demand letter to the executive producer of Good Morning America, with similar letters to other media outlets. The demand letter was over two pages long, on letterhead from Singer's law firm, and began with the warnings: “CONFIDENTIAL LEGAL NOTICE” and “PUBLICATION OR DISSEMINATION IS PROHIBITED.”

         The body of the letter started with, “We are litigation counsel to Bill Cosby. We are writing regarding the planned Good Morning America segment interviewing Janice Dickinson regarding the false and outlandish claims she made about Mr. Cosby in an Entertainment Tonight interview, asserting that he raped her in 1982 (the ‘Story'). That Story is fabricated and is an outrageous defamatory lie. In the past, Ms. Dickinson repeatedly confirmed, both in her own book and in an interview she gave to the New York Observer in 2002, that back in 1982 my client ‘blew her off' after dinner because she did not sleep with him. Her new Story claiming that she had been sexually assaulted is a defamatory fabrication, and she is attempting to justify this new false Story with yet another fabrication, claiming that Mr. Cosby and his lawyers had supposedly pressured her publisher to remove the sexual assault story from her 2002 book. That never happened, just like the alleged rape never happened. Prior to broadcasting any interview of Ms. Dickinson concerning my client, you should contact HarperCollins to confirm that Ms. Dickinson is lying.”

         The next paragraph explained that Cosby and his team had no contact with HarperCollins about any story planned for the book. It stated, “You can and should confirm those facts with HarperCollins. Because you can confirm with independent sources the falsity of the claim that my client's lawyers allegedly pressured the publisher to kill the story, it would be extremely reckless to rely on anything Ms. Dickinson has to say about Mr. Cosby since the story about the publisher is patently false.”

         The letter continued, again repeating that both the rape allegation and interference with HarperCollins were false - and asserting that HarperCollins could confirm this. It threatened, “If you proceed with the planned segment with Janice Dickinson and if you disseminate her Story when you can check the facts with independent sources at HarperCollins who will provide you with facts demonstrating that the Story is false and fabricated, you will be acting recklessly and with Constitutional malice.” Singer stated, “It would be extraordinarily reckless to disseminate this highly defamatory Story when Ms. Dickinson herself told an entirely different story in her book, ” confirmed the same story in the New York Observer interview, and “when you may independently confirm with her publisher the falsity of her new assertion that my client's lawyers supposedly pressured HarperCollins to delete the alleged rape story from her book, and when her new allegation of rape was made for the first time only now when it appears that she [is] seeking publicity to bolster her fading career.”

         The letter repeated, “Since at a minimum Ms. Dickinson fabricated the assertion that my client's lawyers pressured the publisher more than a decade ago to take out the sexual assault story - a story we heard now for the first time - it would be reckless to rely on Ms. Dickinson in this matter.”

         Singer's letter explicitly threatened litigation: “If Good Morning America proceeds with its planned segment with Ms. Dickinson and recklessly disseminates it instead of checking available information demonstrating its falsity, all those involved will be exposed to very substantial liability. [¶] You proceed at your peril. [¶] This does not constitute a complete or exhaustive statement of all of my client's rights or claims. Nothing stated herein is intended as, nor should it be deemed to constitute a waiver or relinquishment, of any of my client's rights or remedies, whether legal or equitable all of which are hereby expressly reserved. This letter is a confidential legal communication and is not for publication.”

         The Press Release

         The next day, November 19, 2014, Singer issued a press release, which was headed

         “STATEMENT OF MARTIN D. SINGER ATTORNEY FOR BILL COSBY”

         The statement reads, in its entirety, as follows: “Janice Dickinson's story accusing Bill Cosby of rape is a lie. There is a glaring contradiction between what she is claiming now for the first time and what she wrote in her own book and what she told the media back in 2002. Ms. Dickinson did an interview with the New York Observer in 2002 entitled ‘Interview With a Vamp' completely contradicting her new story about Mr. Cosby. That interview a dozen years ago said ‘she didn't want to go to bed with him and he blew her off.' Her publisher HarperCollins can confirm that no attorney representing Mr. Cosby tried to kill the alleged rape story (since there was no such story) or tried to prevent her from saying whatever she wanted about Bill Cosby in her book. The only story she gave 12 years ago to the media and in her autobiography was that she refused to sleep with Mr. Cosby and he blew her off. Documentary proof and Ms. Dickinson's own words show that her new story about something she now claims happened back in 1982 is a fabricated lie.”

         6. Demand for Retraction

         On February 2, 2015, Dickinson's counsel, Lisa Bloom, sent several Cosby attorneys, including Singer, a letter seeking retraction of both the demand letter and the press release. Bloom's letter explains, “Ms. Dickinson has never lied about what happened between her and Dr. Cosby. She did not disclose the complete story in her autobiography or her interview with New York Observer per her ghostwriter's and publisher's insistence. Each of these individuals - the two individuals from her publishing house who are most knowledgeable about the book and the suppression of Ms. Dickinson's rape disclosure - confirms that Ms. Dickinson fought to have the entire story, including the rape disclosure, in the book, but they could not allow it for fear that Dr. Cosby would sue or otherwise retaliate against the publisher.” Bloom attached declarations from Fenjves and Regan confirming this.

         In Bloom's letter, she also stated that Singer, on behalf of Cosby, acted recklessly and with malice by circulating the demand letter and press release without confirming the facts with independent third parties. Not only did Bloom establish that Fenjves and Regan would have confirmed that Dickinson wanted to include the rape in her book, Bloom added, “our sources at HarperCollins inform us that neither Mr. Singer nor anyone from his office has ever contacted HarperCollins to ‘confirm that she is lying.' ”

         Bloom argued that Singer's statements on behalf of Cosby had defamed Dickinson and harmed her reputation. She demanded that Cosby “immediately publicly correct the record to restore her reputation.”

         Neither Cosby nor Singer retracted the statements.

         7. The End of Any Assertion that Cosby Killed the Rape Story in Dickinson's Book

         On February 9, 2015, a week after Bloom's letter requesting a retraction, a telephone conference occurred between Bloom and Cosby's litigation counsel. According to Cosby's litigation counsel, Bloom “stated that she was retracting Ms. Dickinson's allegation that Mr. Cosby's lawyers had pressured HarperCollins to remove the rape story from the Book.” Bloom denied any retraction. According to her subsequent declaration, “This is categorically false. I never made that statement. What I said was that Ms. Dickinson was not making that claim, nor did she.”[2]

         8. The Original Complaint

         On May 20, 2015, Dickinson filed her complaint against Cosby, stating causes of action for (1) defamation, (2) false light, and (3) intentional infliction of emotional distress. Her complaint alleged that Cosby had drugged and raped her, and she recently disclosed this publicly. “In retaliation, Cosby, through an attorney, publicly branded her a liar and called her rape disclosure a lie with the intent and effect of revictimizing her and destroying the professional reputation she's spent decades building.”

         The complaint alleged that both Singer's demand letter and his press release were defamatory. She specifically alleged that the demand letter was sent to Entertainment Tonight and BuzzFeed.com.[3] She also alleged that both the demand letter and the press release were broadcast and republished by thousands of media entities worldwide as Cosby “foresaw and intended.”

         Dickinson pleaded that Cosby's refusal to retract the statements after having been provided with evidence confirming that her claims were not recently fabricated “constitutes actual malice.” She also argued that failure to retract “constitutes [Cosby's] acceptance, endorsement and ratification” of Singer's statements.

         The false light cause of action was based on the same statements which supported the defamation cause of action. The intentional infliction of emotional distress cause of action relied on the two statements and Cosby's further conduct at a stand-up comedy show in January 2015. During his show, a woman stood up to leave. When Cosby asked where she was going, she said she was going to get a drink. Cosby responded, “You have to be careful about drinking around me.” Dickinson alleged that this “comment was intended by Defendant Cosby to mock, insult, demean and humiliate Ms. Dickinson and his other accusers.”

         9. Cosby Demurs

         On June 22, 2015, Cosby demurred to the complaint, for failure to state a claim. The demurrer was later taken off calendar in light of the events we next describe.

         10. Cosby's Anti-SLAPP Motion

         That same day, Cosby filed his anti-SLAPP motion.

         “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.' [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, fn. omitted.)

         To meet his initial burden under the first part of the anti-SLAPP procedure, Cosby argued that both the demand letter and press release constituted speech in connection with a public issue. (Code Civ. Proc., § 425.16, subd. (e)(4).) The trial court would ultimately agree with this position, and Dickinson does not contest it on appeal. We therefore say no more about Cosby's establishment of the first prong. The real battleground in this case was always the second prong, whether Dickinson could demonstrate a probability of prevailing on her complaint.

         Cosby argued that Dickinson could not prevail to the extent her causes of action were based on the demand letter, because the demand letter was a pre-litigation communication protected by the absolute litigation privilege. (Civ. Code, § 47.) As to both the demand letter and the press release, Cosby argued that Dickinson could not prevail on her defamation cause of action because both statements were, in actuality, privileged opinion - both as an opinion based on disclosed facts and as a so-called “predictable opinion.” He also argued that Dickinson would be unable to establish defamation damages because the real “sting” of the statements was that Dickinson was generally a liar. This would not be actionable because: (1) she admittedly lied about the rape in her autobiography, so the accusation that she was a liar was true; and (2) Dickinson already had cultivated the professional reputation of a liar, so she was not harmed by the accusation.

         Cosby also put forth a series of arguments based on the fact that the statements had been made by Singer, rather than Cosby himself. Cosby argued that he could not be held liable for Singer's conduct without evidence that he furnished or approved the statements. A failure to retract is not sufficient. He further argued that since Dickinson was a public figure, she could only prevail on her defamation cause of action if she established actual malice. He claimed that Singer had not acted with actual malice; and that, even if he had, Singer's malice could not be imputed to him as Singer's principal via respondeat superior.

         Finally, Cosby argued that the false light and intentional infliction of emotional distress causes of action were duplicative of the defamation claim and subject to the same defenses.

         Cosby supported his anti-SLAPP motion with Singer's declaration. Singer explained how he came to draft the two statements and why he believed their contents were true. He argued that the assertion that Cosby's attorneys had pressured HarperCollins to remove the rape story from Dickinson's autobiography “was integral to the claims” Dickinson had asserted in her Entertainment Tonight interview, so he “conducted an investigation which established that this assertion was provably false.” Singer believed his demand letter and press release were true, based on: (1) his knowledge that Cosby's attorneys had not pressured HarperCollins; (2) his understanding that Dickinson's autobiography had told a different story; (3) his prior experience with Dickinson in which she had made false claims against another Singer client; and (4) some internet research which revealed articles and commentary characterizing Dickinson as a substance abuser and liar.

         At no point in Singer's declaration does he state that he actually spoke with Cosby to determine whether Dickinson's accusation of rape was true. Nor did Cosby file a declaration in support of the anti-SLAPP motion denying the rape accusation.

         11. The Discovery Issue

         The filing of an anti-SLAPP motion stays all discovery. (Code Civ. Proc., § 425.16, subd. (g).) “The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Ibid.)

         As Cosby's anti-SLAPP motion had put Singer's malice into question, Dickinson moved to lift the discovery stay to depose Cosby and Singer on the issue.

         On November 2, 2015, the court granted Dickinson's motion, vacating the discovery stay to allow Dickinson to depose both Cosby and Singer on malice. At Cosby's request, the court stayed its order to enable Cosby to challenge the ruling by writ.

         Cosby filed a writ petition in this court. He argued that Dickinson had no right to discovery on actual malice until she could establish a reasonable probability of proving the other elements of her causes of action.

         In opposition to Cosby's writ petition, Dickinson argued that the depositions she sought were necessary not only for the issue of malice, but also to enable her to “establish facts that [Cosby] knew about, directed, approved and ratified” the statements.

         In reply, Cosby argued that the sole issue raised by the writ proceeding was “whether the Superior Court abused its discretion by ordering discovery on the issue of actual malice before requiring full briefing and argument on the legal defenses asserted in Defendant's special motion to strike.” Cosby argued that if any of his defenses “unrelated to malice” were to be successful there would be no need “for burdensome discovery on malice, because the case will have been dismissed.”

         We issued an alternative writ of mandate, directing the trial court to either vacate its order lifting the discovery stay and hear the anti-SLAPP motion on the merits to determine if Dickinson has a reasonable probability of “establishing the elements of her defamation action other than actual malice” or to show cause why not. The trial court complied with the alternative writ. It vacated its order lifting the discovery stay and indicated that it would hear the anti-SLAPP motion on the merits to determine whether Dickinson had a reasonable probability of establishing the elements of her defamation action other than actual malice.

         In light of the court's order, we dismissed the writ petition as moot.

         12. First ...


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