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Dickinson v. Cosby

California Court of Appeals, Second District, Eighth Division

July 26, 2019

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

          APPEAL from an order of the Superior Court of Los Angeles County. No. BC580909 Randolph M. Hammock, Judge.

          The Bloom Firm, Lisa Bloom, Franklin L. Ferguson, Jr., and Alan Goldstein for Plaintiff and Respondent.

          Greenberg Gross, Alan A. Greenberg, Wayne R. Gross, and Sarah Kelly-Kilgore for Defendant and Appellant.

          BIGELOW, P. J.

         In 2014, plaintiff Janice Dickinson publicly alleged that defendant William Cosby drugged and raped her in 1982. Cosby responded by issuing a demand letter and several press releases through his attorney, which expressed or implied that Dickinson was lying. Dickinson filed a complaint against Cosby for defamation and related causes of action, which Cosby moved to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).[1] The trial court granted Cosby's motion in part, which we subsequently reversed in Dickinson v. Cosby (2017) 17 Cal.App.5th 655 (Dickinson I). We concluded that none of Dickinson's claims were barred by the anti-SLAPP statute.

         On remand, Cosby filed a second anti-SLAPP motion seeking to strike claims newly asserted in Dickinson's first amended complaint. The trial court granted the motion in substantial part, but refused to strike Dickinson's claims premised on two allegedly defamatory statements appearing in press releases issued by Cosby's attorney.

         Cosby contends the trial court erred in declining to grant his motion in full. He argues that Dickinson cannot show he is directly or vicariously liable for his attorney's statements. He also argues the allegedly defamatory statements were his attorney's nonactionable opinions and did not refer, directly or indirectly, to Dickinson. We disagree and affirm.

         FACTUAL AND PROCEDURAL BACKGROUND[2]

         During a nationally televised Entertainment Tonight interview that aired on November 18, 2014, Dickinson, a successful model and television personality, accused Cosby, a successful comedian and actor, of drugging and raping her in 1982. After the interview went public, Cosby's attorney, Martin Singer, sent a demand letter to the executive producer of Good Morning America, with similar letters to other media outlets. The body of the letter states, among other things, “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.”

         The next day, November 19, 2014, Singer issued a press release, with the heading, “STATEMENT OF MARTIN D. SINGER ATTORNEY FOR BILL COSBY”

         The body of the press release asserts, among other things, “Janice Dickinson's story accusing Bill Cosby of rape is a lie, ” and “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.”

         Around this time, several other women, including Linda Traitz, also accused Cosby of sexual misconduct. In response to Traitz's allegations, on November 20, 2014, Singer issued a press release, which was headed, “STATEMENT BY MARTIN D. SINGER ATTORNEY FOR BILL COSBY REGARDING LINDA JOY TRAITZ”

         The statement reads, in its entirety, as follows:

         “Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my client.

         “Linda Joy Traitz is making ridiculous claims and suddenly seems to have a lot to say about a fleeting incident she says happened with my client more than 40 years ago, but she hasn't mentioned either her 3 1/2 year incarceration or her extensive criminal record with charges spanning from the 1980's through 2008.

         “For the first time, she is claiming that in approximately 1970, my client supposedly drove her to the beach and had a briefcase filled with drugs and offered her pills to relax, which she says she turned down and demanded to be taken home after Mr. Cosby came on to her. There was no briefcase of drugs, and this is an absurd fabrication.

         “Ms. Traitz's long criminal record for numerous offenses including charges for criminal fraud, possession of Oxycodone, cocaine possession, marijuana possession, and possession of drug paraphernalia, speaks for itself.

         “As the old saying goes, ‘consider the source.' ”

         On November 21, 2014, Singer issued a third press release, which was headed, “STATEMENT BY MARTIN D. SINGER ATTORNEY FOR BILL COSBY”

         The statement reads, in its entirety, as follows:

         “The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity.

         “These brand new claims about alleged decades-old events are becoming increasingly ridiculous, and it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of so many years.

         “Lawsuits are filed against people in the public eye every day. There has never been a shortage of lawyers willing to represent people with claims against rich, powerful men, so it makes no sense that not one of these new women who just came forward for the first time now ever asserted a legal claim back at the time they allege they had been sexually assaulted.

         “This situation is an unprecedented example of the media's breakneck rush to run stories without any corroboration or adherence to traditional journalistic standards. Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop up out of the woodwork. When will it end?”

         Demands for Retraction

         On February 2, 2015, Dickinson's counsel, Lisa Bloom, sent several Cosby attorneys, including Singer, a letter seeking retraction of both the November 18 demand letter and November 19 press release. Bloom argued that Singer's statements on behalf of Cosby had defamed Dickinson and harmed her reputation, and she demanded Cosby “immediately publicly correct the record to restore [Dickinson's] reputation.”

         On December 24, 2015, Bloom sent additional letters to Cosby's attorneys, as well as Singer's attorney, demanding retraction of the November 20 and 21 press releases.

         Neither Cosby nor Singer retracted the statements.

         Dickinson's Original Complaint

         On May 20, 2015, Dickinson filed a complaint against Cosby for defamation and related causes of action.[3] Her complaint alleged that Cosby had drugged and raped her, which she disclosed publicly in 2014. “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.”

         Dickinson's complaint alleged that Singer's November 18 demand letter and November 19 press release were defamatory. She also alleged that Cosby “issued” and “published” both statements, through his attorney, which were 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 fabricated “constitutes actual malice.” She also argued that failure to retract “constitutes [Cosby's] acceptance, endorsement and ratification” of Singer's statements.

         Dickinson did not assert any claims based on the November 20 and 21 press releases.

         Cosby's First Anti-SLAPP Motion

         On June 22, 2015, Cosby filed an anti-SLAPP motion seeking to strike Dickinson's entire complaint. Among other things, Cosby argued that Dickinson could not prevail on her defamation claims because the allegedly defamatory statements were protected by the litigation privilege and were nonactionable opinions.

         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, and a failure to retract is not sufficient. He further argued that since Dickinson is 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.

         As Cosby's anti-SLAPP motion had put Singer's malice into question, Dickinson moved to lift the automatic discovery stay (§ 425.16, subd. (g)) to depose Cosby and Singer on the issue. After considerable litigation, the trial court indicated that, prior to allowing such discovery, it would first determine whether Dickinson had a reasonable probability of establishing the elements of her defamation action other than actual malice.

         On March 8, 2016, in an apparent bid to entirely remove the malice issue from consideration, Cosby filed a supplemental brief in the trial court stating he was no longer “pursuing on this Special Motion to Strike the arguments advanced in the opening brief regarding agency and actual malice.”

         Dickinson's First Amended Complaint

         While Cosby's original anti-SLAPP motion was pending, Dickinson filed a first amended complaint (FAC), which added Singer as a defendant. In addition, the FAC newly alleged that Cosby is liable for defamatory statements contained in the November 20 and 21 press releases. It also added explicit allegations that Cosby is both directly and vicariously liable for publishing the demand letter and press releases. The trial court struck the FAC on procedural grounds.

         Order and Appeal on Cosby's First Anti-SLAPP Motion

         The trial court in part granted Cosby's original anti-SLAPP motion. It found the November 18 demand letter was subject to the litigation privilege, which defeated all of Dickinson's claims based on the letter. However, the court determined Dickinson showed a probability of prevailing on her claims premised on the November 19 press release.

         Cosby and Dickinson filed cross appeals to the court's order, which we resolved in Dickinson I, supra, 17 Cal.App.5th 655. On appeal, Cosby briefed the issues of malice and agency on the merits. We declined to address the arguments, however, given he had withdrawn them before the trial court. (Id. at p. 675.) We noted that Cosby did not argue that his anti-SLAPP motion should be reconsidered after Dickinson was permitted to conduct limited discovery. (Id. at p. 673, fn. 6.)

         As to the remaining issues, we concluded Dickinson made a sufficient showing of probability of success of prevailing on the merits of all her defamation claims, and the trial court erred in finding the litigation privilege defeated her claims related to the November 18 demand letter. (Dickinson I, supra, 17 Cal.App.5th at pp. 681, 685.) We also concluded the trial court erred in ...


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