12:51pm PT by Eriq Gardner
Janice Dickinson Scores Huge Appellate Wins in Bill Cosby Defamation Case
Janice Dickinson, the former supermodel who accuses Bill Cosby of drugging and raping her in the 1980s, has revived a good portion of her defamation case against the entertainer. Additionally, a California appeals court on Tuesday decided that she should also be able to amend her complaint to sue Cosby's former attorney Marty Singer.
The procedural background of the case is complicated, but it emanates during the heat of the Cosby sexual misconduct scandal when Entertainment Tonight interviewed Dickinson about her rape allegations. After the interview went public, several media outlets contacted the Cosby camp with indications they would run follow-up stories and wanted Cosby's response.
So Singer, on behalf of Cosby, sent demand letters that asserted that Dickinson's story was "fabricated and is an outrageous defamatory lie." Further, Singer threatened to sue Good Morning America if the ABC show proceeded with a planned segment with Dickinson. The following day, Singer issued a public statement again repeating that Dickinson's story of rape was a lie and different than what she had written in her own autobiography.
Fast forward to the resulting defamation lawsuit that had Dickinson suing Cosby over these statements.
In response, Cosby brought a motion to strike her complaint under California's anti-SLAPP statute, which provides early recourse for individuals targeted for First Amendment activity. After Cosby brought the motion and arguments were made, Dickinson attempted to amend her complaint to add Singer as a co-defendant. The trial judge wouldn't allow this.
California associate justice Laurence Rubin writes in today's precedential opinion (read in full here) that the ruling was an error. But it was not an easy call whatsoever given the fact that California's anti-SLAPP statute is intended to prevent frivolous litigation deterring free speech on matters of public interest. To allow complaints to be amended after SLAPP motions, as Rubin notes, could provide no easy escape hatch for defendants, thus accomplishing the indirect goal of "depleting the defendant’s energy and draining his or her resources. This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits."
But with all that said, Rubin continues by adding that there's nothing in the case law about an amendment to add a new defendant.
"When applied to this case, it would mean that, regardless of whether the case had proceeded to the point where Dickinson’s amendment as to Cosby could not preclude a hearing on his anti-SLAPP motion... Singer had not filed an anti-SLAPP motion so there was no basis for the trial court to strike the first amended complaint as to him."
Meaning, Marty Singer must again face claims.
"We fail to see how justice is served by granting Singer a windfall immunity based on Cosby’s pursuit of a meritless motion," writes Rubin.
But this big decision doesn't stop there.
When judges analyze anti-SLAPP motions, if First Amendment rights are implicated, the question becomes whether plaintiffs can show the likelihood of prevailing. If not, the case stops.
In this lawsuit, Cosby raised an affirmative defense that Singer's demand letters to media outlets were shielded by litigation privilege, meaning that the attorney's statements were in conjunction with an anticipated or actual court action and couldn't form the basis of a defamation claim.
But the California appeals court recognizes that litigation privilege only attaches to communications from lawyers when it relates to litigation contemplated in "good faith and under serious consideration."
Rubin writes that this is an issue of fact, but that the trial judge should have determined whether Dickinson could establish a prima facie case of prevailing.
"Although some, if not all, of the outlets to whom the demand letter was sent ran the story anyway, Cosby did not follow through with his litigation threat," he writes. "Under the circumstances, the facts that: (1) the demand letter was sent only to media outlets which had not yet run the story but had indicated an intention to do so; and (2) Cosby never sued any media outlet which ran the story, give rise to an inference that the demand letter was not sent in connection with litigation contemplated in good faith and under serious consideration. Instead, these facts suggest that the demand letter was a bluff intended to frighten the media outlets into silence (at a time when they could still be silenced), but with no intention to go through with the threat of litigation if they were uncowed. Hence the letters were, in the words of our Supreme Court, 'hollow threats of litigation.'”
And thus, the appeals court reverses the trial judge by concluding that Dickinson should be able to sue over the demand letter.
Dickinson wins even more ground.
Also put to the appeals court was whether the demand letter and press release merely conveyed opinion rather than provable facts.
"Cosby takes the position that the demand letter is not actionable as it is simply Singer’s opinion, based on fully disclosed facts," states the decision. "We disagree. As we shall explain, nearly every factor of the totality of the circumstances test points strongly toward the conclusion that a reasonable fact finder could conclude the demand letter states or implies a provably false assertion of fact – specifically, that Cosby did not rape Dickinson, and she is lying when she says that he did."
Although this might not seem controversial, it, in fact, is quite so with different appeals courts around the nation looking at Marty Singer statements on behalf of Cosby and coming to different conclusions about whether denying a rape allegation and branding someone to be a liar can be read as more than an opinion. A California appeals court has just rendered its big conclusion here.
In response to the decision, Singer's appellate attorney, Jeremy Rosen, said, "We disagree with the Court of Appeal’s decision permitting Mr. Singer to be named as a party, and are exploring all legal options, including whether to seek Supreme Court review. Ultimately, we feel confident that Mr. Singer will prevail on the merits if and when a court ever reaches those issues.”