The opinion
Filed 11/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JANICE DICKINSON, B271470
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC580909)
WILLIAM H. COSBY, JR.,
Defendant and Appellant;
MARTIN D. SINGER,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County. 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.
__________________________
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
1 SLAPP is an acronym for Strategic Lawsuit Against Public
Participation. (Summit Bank v. Rogers (2012) 206 Cal.App.4th
669, 678, fn. 2.) The statute is designed to provide a quick and
easy means by which a defendant can obtain dismissal of a
meritless lawsuit “brought primarily to chill the valid exercise of
the constitutional rights of freedom of speech and petition for the
redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)
2
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
3
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
4
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
5
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
6
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.”
5. 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
7
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.
8
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
2 Cosby’s briefing on appeal relies on Cosby’s counsel’s
recollection of the telephone call to support the repeated
assertion that “Dickinson, through her lawyers, ultimately issued
a public retraction of her claim that Mr. Cosby influenced the
9
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
content published in the Autobiography.” The evidence does not
support the statement. There is no evidence that Bloom ever
issued a “public retraction”; at most, she privately retracted it in
a conversation with Cosby’s counsel – a statement she disputes.
Dickinson also disputes that she ever asserted that Cosby had
pressured HarperCollins to remove the rape story.
3 As we shall explain, this allegation was mistaken with
respect to Entertainment Tonight – an error which resulted in
additional briefing when the trial court called it to the parties’
attention.
10
[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.)
11
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
12
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.
13
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.”
14
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 Amended Complaint
On November 16, 2015, while the writ proceeding was
pending, Dickinson filed her first amendment complaint. The
main distinction from the original complaint was that Dickinson
now named Singer as an additional defendant.4 It added an
allegation that “[a]t all times relevant herein, Defendant Singer
acted at the direction of Defendant Cosby, as an actual and/or
apparent agent, authorized representative, press agent, lawyer,
servant and/or employee of Defendant Cosby, acting within the
course and scope of his respective employment and/or agency.” It
4 The complaint also added allegations about two additional
November 2014 statements by Cosby, through Singer, which did
not name Dickinson specifically, but spoke in disparaging terms
about all of the women accusing Cosby of rape. As the only
amended-complaint issue presented on appeal is the correctness
of the trial court’s ruling dismissing the complaint as to Singer,
we have no occasion to consider the additional allegations
mentioned above.
15
alleged that the two statements were issued by “Defendant Cosby
through Defendant Singer.”
Dickinson specifically alleged that Cosby knew that he had
drugged and raped her. She alleged that Singer acted with
reckless disregard by, among other things, issuing the statements
without conducting a reasonable investigation and/or without
interviewing obvious witnesses, including Cosby himself.
13. Motion to Strike First Amended Complaint
Cosby moved to strike the first amended complaint, on the
basis that a plaintiff is not permitted to file an amended
complaint while an anti-SLAPP motion is pending. He argued
that the first amended complaint was “nothing more than an
11th-hour attempt to plead around Defendant’s pending anti-
SLAPP motion.”
Singer joined Cosby’s motion to strike the first amended
complaint, with no substantive argument of his own.
14. Opposition to Motion to Strike First Amended Complaint
Dickinson opposed the motion to strike the first amended
complaint. She argued that, procedurally, she was permitted to
amend because the court had not yet found that Cosby satisfied
the first prong of the anti-SLAPP test. Moreover, she argued
that she had not been trying to plead around Cosby’s anti-SLAPP
motion, but was simply attempting to preserve her rights against
Singer before the statute of limitations expired.
15. Singer’s Reply in Support of the Motion to Strike the First
Amended Complaint
Both Cosby and Singer filed replies in support of the
motion to strike the first amended complaint. Because, as we
shall discuss, the court’s order as to Cosby’s motion is not before
us, we focus only on Singer’s reply.
16
Singer argued that Dickinson’s suggestion that she filed
her amendment to avoid the statute of limitations was belied by
the fact that Dickinson knew of Singer’s involvement from the
beginning and she could have named him in her original
complaint. He argued that Dickinson could have (1) amended the
complaint before Cosby filed his anti-SLAPP motion; (2) sought
leave of court to amend after the anti-SLAPP motion was filed; or
(3) commenced a separate action against Singer. But, instead,
she did what she was not permitted to do: attempted to amend
her complaint after that right was foreclosed by Cosby’s filing of
an anti-SLAPP motion.
Singer argued that the amendment was not just
prejudicial, but “highly prejudicial” to him. Specifically, since a
separate action against Singer would now be time-barred, Singer
would be prejudiced if the court refused to strike the first
amended complaint as to him. He also argued, “Forcing Singer to
file multiple motions (i.e., the instant Motion, a subsequent anti-
SLAPP motion, and a demurrer) to dispose of the action against
him is inherently prejudicial as it unreasonably delays the
resolution of the matter.”
16. The First Amended Complaint is Stricken
The court granted the motion of Cosby and Singer to strike
the first amended complaint, concluding that the amendment
was procedurally impermissible, given the pending anti-SLAPP
motion. The court believed it would cause unfair delay to permit
Dickinson to amend based on facts which had been known to her
at the commencement of the action.
17. Dickinson’s Opposition to Cosby’s Anti-SLAPP Motion
With the first amended complaint out of the case, the
parties returned to briefing Cosby’s anti-SLAPP motion.
17
As to Dickinson’s probability of prevailing, Dickinson
argued that the demand letter was not protected pre-litigation
conduct because the privilege applies only if litigation was under
“serious consideration.” Dickinson argued that there was no
evidence that Cosby seriously considered litigation and, in fact,
he never sued any of the media outlets he had threatened with
legal action.
As to whether she could establish both statements were
defamatory, Dickinson argued that the statements were not
protected opinion, but instead provably false assertions of fact.
She also argued that she had been harmed by the statements.5
Dickinson supported her motion with declarations of
friends, who stated that Dickinson had told them about the rape
in 1982, shortly after it happened. She included the declarations
of ghostwriter Fenjves and publisher Regan, who agreed that
Dickinson had told them about the rape and wanted to include it
in the book. She relied on the declaration of her counsel, Bloom,
who countered Cosby’s assertion that she had “retracted” any
allegation that Cosby had influenced HarperCollins to omit the
rape story from Dickinson’s book; stating instead that she denied
Dickinson had ever made that claim. Finally, she included the
declaration of her agent, who had personal knowledge that she
had lost jobs as a result of being branded a liar by Cosby on the
“very difficult and painful subject of rape.”
5 Despite the fact that the motion had been permitted to
proceed on the merits except for the issue of malice, Dickinson
briefed malice in an abundance of caution. She also briefed
Singer’s agency to act for Cosby.
18
18. Cosby’s Reply
In reply, Cosby repeated his prior arguments. He again
argued that the demand letter was protected pre-litigation
conduct. He argued that the “gist” of the two statements was
“that Plaintiff is not a truth teller, or put another way, a liar.”
Armed with that characterization of the statements, he argued
that the statements were both opinion and true.
19. First Hearing
A hearing was held on February 29, 2016. At the hearing,
the court expressed confusion that plaintiff’s complaint had
referred to a demand letter which had been sent to Entertainment
Tonight and BuzzFeed.com whereas Cosby’s anti-SLAPP motion
relied on a demand letter sent to Good Morning America.
The court also asked Cosby if he was asserting the
litigation privilege with respect to the press release. The hearing
was continued for further briefing.
20. Cosby’s Supplemental Briefing
In Cosby’s March 8, 2016 briefing, Cosby argued that the
complaint was in error; there was no demand letter to
Entertainment Tonight. Cosby attached the declaration of Singer
authenticating the demand letter he sent to BuzzFeed.com. The
letter was virtually identical to the letter he had sent to Good
Morning America. It had been attached to a cover e-mail saying,
“PLEASE SEE ATTACHED CONFIDENTIAL LEGAL NOTICE
REGARDING THE ABOVE SUBJECT.”
The brief also stated, “Defendant is not asserting the
litigation privilege as to Mr. Singer’s November 19, 2014 press
statement, nor is he pursuing on this Special Motion to Strike the
arguments advanced in the opening brief regarding agency and
actual malice.”
19
21. Dickinson’s Supplemental Briefing
Dickinson again argued that the litigation privilege could
not apply to the demand letter because the privilege only applies
when litigation is contemplated in good faith and under serious
consideration, which she believed to be a disputed issue of fact.
22. Second Hearing
At the continued hearing, the focus was on whether
Dickinson had established a probability of prevailing.
As to the demand letter, the court concluded it was a pre-
litigation communication in connection with proposed litigation
contemplated in good faith and under serious consideration; thus,
it was subject to the litigation privilege. The court therefore
concluded the litigation privilege defeated all three of Dickinson’s
causes of action to the extent they were based on the demand
letter, and granted the anti-SLAPP motion in part. (See Baral v.
Schnitt, supra, 1 Cal.5th at p. 382 [an anti-SLAPP motion can be
granted as to a portion of a cause of action].)
As to the press release, the court reached a different result.
First, the court rejected Cosby’s argument that the gist of the
press release was simply that Dickinson was a liar. Instead, the
court believed that the gist of the statement was that “plaintiff is
lying about the rape occurring.” The court therefore rejected
Cosby’s argument that the press release constituted opinion
rather than fact. The court stated, “In other words, either the
rape did occur or it did not occur. And in this regard, Dickinson
is either telling the truth or not telling the truth. The press
statement presents the factual assertion that the rape did not
occur and that Dickinson is lying. Plaintiff’s factual position, on
the other hand, is that the rape did occur and thus, she is not
lying, contrary to what the press statement says about
20
Dickinson.” The court acknowledged that Dickinson presented
evidence that she had disclosed the rape to friends, and her
publisher, long before Cosby’s other accusers came forward. This
was sufficient evidence to establish a prima facie case that Cosby
did rape her and the press release was therefore false.
The court further concluded that Dickinson could establish
all elements of defamation, including damages. The court
rejected Cosby’s assertion that Dickinson could not establish
damages because she had already cultivated the reputation of a
liar. The court stated, “Lying about trivial things that are made
to entertain an audience does not mean that plaintiff’s reputation
is so tainted that she’s impervious to a reputational harm for
being accused of lying about a horrific incident to intentionally
harm defendant Cosby’s reputation.” The court similarly found
Dickinson could establish the elements of false light and
intentional infliction of emotional distress with respect to the
press release. Finding that Dickinson had established a
probability of prevailing on all three of her causes of action, the
court denied the anti-SLAPP motion as to the press release.
Despite the fact that Cosby had specifically withdrawn his
arguments regarding malice, the court addressed the issue,
stating that there was no evidence that Singer had investigated
whether Cosby had raped Dickinson prior to issuing his
statements denying the rape. Similarly, despite the fact that
Cosby had specifically withdrawn his arguments regarding
agency, the court addressed that issue as well, stating that Cosby
had ratified Singer’s statements by failing to retract them.6
6 The court later acknowledged that Cosby had withdrawn
his arguments regarding agency and actual malice, and stated,
“For purposes of this special motion to strike only, the court
21
23. Notices of Appeal
Dickinson filed a timely notice of appeal from the original
order striking her first amended complaint. Cosby filed a timely
notice of appeal from the ruling on the anti-SLAPP motion, to the
extent it denied his motion with respect to the press release.
Dickinson filed a timely notice of cross-appeal from the same
ruling, to the extent it granted Cosby’s motion with respect to the
demand letter.
24. Limitation of Issues on Appeal
A. Cosby is Not a Party to the Appeal of the Order
Striking the First Amended Complaint as to Singer
Cosby and Singer both moved to dismiss Dickinson’s appeal
from the order striking her first amended complaint. On May 27,
2016, we dismissed Dickinson’s appeal from that order as it
relates to Cosby (as the order was not appealable as to him), but
denied the motion to dismiss the appeal as it pertains to Singer,
construes this as an admission that he [Cosby] does not have
evidence to rebut his [sic] showing of the actual malice. For
purposes of this special motion to strike, the element of malice is
satisfied. As such, the court finds that a continuance of this
hearing for plaintiff to conduct limited discovery at this time on
the issue of malice is not required.” We need not decide whether
Cosby’s position was an actual admission. Cosby’s withdrawal of
his argument on malice may have been a recognition that the
scope of his anti-SLAPP motion had been narrowed in response to
his efforts to avoid discovery on the issue of malice – not a
concession that Dickinson had presented sufficient evidence of
malice. However, on appeal, Cosby does not argue that the
court’s rulings on malice and agency were premature, and that
his anti-SLAPP motion should be reconsidered on those issues
only, after Dickinson is permitted to conduct limited discovery.
22
as the order could be construed as a final judgment in favor of
Singer.
Following that order, Cosby alone withdrew those portions
of his respondent’s brief which addressed the motion to strike the
first amended complaint.
B. Singer is Not a Party to the Cross-Appeals Regarding
the Anti-SLAPP Ruling
The parties established a consolidated briefing schedule
and filed briefs accordingly. In Singer’s respondent’s brief in
connection with Dickinson’s appeal of the order striking her first
amended complaint against him, Singer included over 20 pages of
briefing under the heading, “THIS COURT SHOULD AVOID
ISSUING ANY DECISION ON WHETHER SINGER COULD
PREVAIL ON AN ANTI-SLAPP MOTION AGAINST
DICKINSON. AT ANY RATE, DICKINSON’S LAWSUIT
SHOULD BE STRICKEN.” This included lengthy arguments
under the subheadings, “The trial court properly granted Cosby’s
anti-SLAPP motion as to claims based on Singer’s demand letter”
and “The trial court erroneously denied Cosby’s anti-SLAPP
motion as to claims based on Singer’s press statement.” In her
reply brief, Dickinson argued this court should disregard Singer’s
briefing pertaining to the cross-appeals of the order on Cosby’s
anti-SLAPP motion. Singer’s counsel responded with a
supplemental letter brief, arguing that Singer is permitted to
address the issues as briefing in the appeals was consolidated.
Singer further argued that, if Dickinson’s first amended
complaint is reinstated against him, any ruling we might make in
favor of Dickinson in connection with Cosby’s anti-SLAPP motion
could have an injurious effect on any future anti-SLAPP motion
23
Singer may bring. In the alternative, he argued that we should
consider his briefing as that of an amicus curiae.
Singer’s only involvement as a party in this litigation was
to successfully join in Cosby’s motion to strike the first amended
complaint. Once that motion was granted, Singer was no longer
a party to the lawsuit. He did not purport to brief the anti-SLAPP
motion; his only involvement was as a witness submitting a
declaration. If Dickinson had never filed the first amended
complaint, Singer would have had no right to appear as a party
in the appeal or to file a brief without obtaining leave of court.
That he is the respondent in Dickinson’s appeal of the order
striking her first amended complaint does not give him appellate
rights with respect to the Cosby/Dickinson anti-SLAPP cross-
appeals.
Nonetheless, we acknowledge Singer’s request that we not
issue any opinion which may prejudice his right to pursue an
anti-SLAPP motion in the future, and we consider his briefing of
the anti-SLAPP issues in that light. We do not address whether
anything in the trial court’s rulings, or our opinion, may have any
preclusive effect in any further litigation between Dickinson and
Singer, as that issue is not before us.
C. Malice and Agency are Not Before Us
On appeal, Cosby briefs the issues of malice and agency on
the merits – despite the fact that he had expressly withdrawn his
arguments on both malice and agency before the trial court ruled
on his anti-SLAPP motion. The issues were withdrawn; we
therefore do not address them. Although the trial court briefly
addressed malice and agency at the hearing on the anti-SLAPP
motion, the court’s statements must be characterized as dicta, as
the issues were no longer before it.
24
Because Cosby withdrew the arguments, we do not address
whether Cosby is liable for Singer’s statements and whether
Cosby and/or Singer acted with actual malice. Cosby simply
excluded these issues from the scope of his anti-SLAPP motion.
The parties cannot now revive them.
25. The Issues Before the Court
Stripped of briefing on irrelevant issues, the appeal before
us presents the following issues: (1) When a defendant’s anti-
SLAPP motion is pending, is the plaintiff precluded from
amending her complaint to name an additional defendant?
(2) Was the demand letter in this case a pre-litigation
communication protected by the absolute litigation privilege?
(3) Do the press release and demand letter contain statements of
fact, capable of being proven false, which support a defamation
cause of action? (4) Is the gist of the statements defamatory? and
(5) Should Dickinson’s false light and intentional infliction of
emotional distress causes of action have been stricken?
DISCUSSION
1. Dickinson’s Absolute Right to Amend Her Complaint to Add
a Defendant Was Not Foreclosed by Cosby’s Anti-SLAPP
Motion
The first amended complaint was filed November 16, 2015.
At that time Code of Civil Procedure section 472 provided, in
pertinent part, “Any pleading may be amended once by the party
of course, and without costs, at any time before the answer or
demurrer is filed, or after demurrer and before the trial of the
issue of law thereon, by filing the same as amended and serving a
25
copy on the adverse party, . . .”7 The right to file an amended
pleading during this time, without leave of court, includes the
right to file an amended complaint to add new parties. (Gross v.
Department of Transportation (1986) 180 Cal.App.3d 1102, 1105.)
Here, Cosby had not answered; and while he had filed a
demurrer, it had not yet been heard. The amendment thus was
offered “before the trial on the issue of law thereon.” Accordingly,
Dickinson had a statutory right to file her first amended
complaint naming Singer.
Singer argues, however, that Cosby’s filed anti-SLAPP
motion cut off Dickinson’s right to amend to name a new party.
As we will discuss, there is a solid line of case authority
discussing limitations on a plaintiff’s right to amend the
complaint when an anti-SLAPP motion is pending. However, the
parties and amici have not cited, and independent research has
not disclosed, any authority discussing the precise scenario at
issue here – where the party challenging the plaintiff’s right to
amend has not filed an anti-SLAPP motion and, in fact, is named
as a new party to the litigation. As we now discuss, our review of
the language in and policy behind the cases restricting
amendment when an anti-SLAPP motion is pending do not
support extending their holdings to cases where the plaintiff
amends to add an additional defendant.
7 The current version of the statute, operative January 1,
2016, replaces the arcane “trial on the issue of law thereon” with
“before the demurrer is heard” and further restricts the right to
file an amended pleading without leave of court to amendments
“filed and served no later than the date for filing an opposition to
the demurrer.”
26
We begin our discussion with a simple premise. Although
the anti-SLAPP statute does not specifically state it, a plaintiff
whose complaint is stricken by a successful anti-SLAPP motion
cannot try again with an amended complaint. There is no such
thing as granting an anti-SLAPP motion with leave to amend.8
(Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th
164, 167; Martin v. Inland Empire Utilities Agency (2011)
198 Cal.App.4th 611, 629.)
The appellate courts have also addressed whether a
plaintiff could avoid that bar if he or she amended after the court
indicated its intention to grant the anti-SLAPP motion, but
before the court actually ruled. The court in Simmons v. Allstate
Ins. Co. (2001) 92 Cal.App.4th 1068 answered the question in the
negative. At issue in Simmons was Simmons’s cross-complaint,
and the cross-defendant’s anti-SLAPP motion. At the hearing on
the anti-SLAPP motion, Simmons as counsel, “faced with an
adverse tentative ruling, asked the court to grant Simmons leave
to amend the cross-complaint.” (Id. at p. 1072.) Counsel sought
to “remove any allegations that might be ‘objectionable’ under the
anti-SLAPP statute.” (Id. at p. 1073.) The court denied leave
and granted the anti-SLAPP motion. (Id. at p. 1072.) On appeal,
the Court of Appeal affirmed, reasoning as follows: “Allowing a
8 In Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, the
trial court did, in fact, purport to grant an anti-SLAPP motion
with leave to amend. (Id. at p. 869.) In that case, a slander
plaintiff had failed to plead actual malice; however, in opposition
to the anti-SLAPP motion, she presented sufficient evidence of it.
(Id. at p. 862.) The trial court granted the anti-SLAPP motion
with leave for plaintiff to amend her complaint to allege malice.
(Id. at p. 869.) The Court of Appeal construed this as an order
which “effectively denied” the anti-SLAPP motion. (Id. at p. 865.)
27
SLAPP plaintiff leave to amend the complaint once the court
finds the prima facie showing has been met would completely
undermine the statute by providing the pleader a ready escape
from section 425.16’s quick dismissal remedy. Instead of having
to show a probability of success on the merits, the SLAPP
plaintiff would be able to go back to the drawing board with a
second opportunity to disguise the vexatious nature of the suit
through more artful pleading. This would trigger a second round
of pleadings, a fresh motion to strike, and inevitably another
request for leave to amend. [¶] By the time the moving party
would be able to dig out of this procedural quagmire, the SLAPP
plaintiff will have succeeded in his goal of delay and distraction
and running up the costs of his opponent. [Citation.] Such a
plaintiff would accomplish indirectly what could not be
accomplished directly, i.e., depleting the defendant’s energy and
draining his or her resources. [Citation.] This would totally
frustrate the Legislature’s objective of providing a quick and
inexpensive method of unmasking and dismissing such suits.
[Citation.]” (Id. at pp. 1073-1074.)
One might then ask how far back the prohibition goes.
That is, what is the first point in the process leading to a
successful anti-SLAPP ruling at which the plaintiff is prohibited
from amending the complaint? JKC3H8 v. Colton (2013)
221 Cal.App.4th 468 establishes that the point is no earlier than
the filing of the anti-SLAPP motion. When a plaintiff files an
amended complaint before the defendant files an anti-SLAPP
motion – even by a matter of hours – the amended complaint is
effective and the defendant has no right to a hearing on the anti-
SLAPP motion directed to the original complaint. (Id. at pp. 475,
478.)
28
There is a disagreement in the appellate courts as to
whether the bar to amendment comes into effect as soon as the
defendant files an anti-SLAPP motion, or instead only if the court
has indicated the anti-SLAPP motion has some level of merit.
(Compare Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280,
1294 [extending the rationale of Simmons to bar attempts to
amend after an anti-SLAPP motion is filed and before it is heard]
with Mobile Medical Services, etc. v. Rajaram, supra,
241 Cal.App.4th at p. 171 [the amendment bar comes into effect
once the court has found the defendant has met its burden on the
first prong of the anti-SLAPP motion] and Law Offices of Andrew
L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 881 [same].)
We need not stake out a position in this debate because
even if we hold that the Simmons analysis applies as soon as the
defendant files an anti-SLAPP motion, Simmons says nothing
about an amendment to add a new defendant so it is not
controlling of the issue presented to us. However, we take
guidance from the courts which have interpreted Simmons as not
actually preventing the plaintiff from filing an amended
complaint; but instead permitting the plaintiff to file its
amendment, without depriving the defendant of its right to have
its anti-SLAPP motion adjudicated with respect to the initial
complaint.
This hybrid result is best illustrated by Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal.App.4th 1049. In that case, Sylmar filed a cross-
complaint and Pueblo filed an anti-SLAPP motion addressed to
the fraud cause of action in the cross-complaint; Pueblo also
demurred to the cross-complaint. Three days prior to the hearing
on the anti-SLAPP motion and demurrer, Sylmar filed a first
29
amended cross-complaint, pleading the fraud cause of action in
greater detail. The trial court took the demurrer off calendar, but
nonetheless granted the anti-SLAPP motion and struck the fraud
cause of action, and awarded Pueblo attorney fees as prevailing
party on the anti-SLAPP motion. (Id. at pp. 1052-1053.) On
appeal, Sylmar argued that the court erred in considering the
anti-SLAPP motion, as it had amended its complaint as a matter
of right prior to the hearing. Division Four of our court
disagreed. As between the anti-SLAPP statute and Code of Civil
Procedure section 472, the court stated, “We discern no conflict
between the two sections. Sylmar received the benefit of section
472 when it was permitted to file the first amended complaint.
The filing of the first amended complaint rendered Pueblo’s
demurrer moot since ‘ “an amendatory pleading supersedes the
original one, which ceases to perform any function as a pleading.
[Citations.]” [Citation.]’ [Citation.] The trial court agreed that
the demurrer was moot and took it off calendar.” (Id. at p. 1054.)
However, the court refused to read section 472 as an implied
condition to the operation of the anti-SLAPP law. “Thus, we
conclude the determination of Pueblo’s claim for attorney fees
and costs was not moot and the trial court did not err in
addressing the merits of the SLAPP motion. [Citations.]” (Id. at
p. 1056.)
In short, Sylmar held that the cross-complainant was
entitled to file the first amended cross-complaint under Code of
Civil Procedure section 472, and the first amended cross-
complaint was given effect with respect to the then-pending
demurrer; however the amendment did not override the cross-
defendant’s right to adjudication of its then-pending anti-SLAPP
motion on the original cross-complaint.
30
To similar effect are the cases holding that, if a plaintiff
voluntarily dismisses the case prior to the hearing on the anti-
SLAPP motion, the court loses jurisdiction to rule on the anti-
SLAPP motion, but retains the limited jurisdiction to consider
the merits of the motion in order to decide if attorney fees and
costs should be awarded the successful defendants. (E.g., Law
Offices of Andrew L. Ellis v. Yang, supra, 178 Cal.App.4th at
pp. 875-876.) In short, the dismissal is given effect, but the
defendant does not lose its anti-SLAPP right to recover fees if its
motion would have been successful. (Id. at p. 879.)
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 (an issue not before us), Dickinson’s amendment
as to Singer should have been given immediate effect under Code
of Civil Procedure section 472. 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.
Our conclusion does not detract from the strong policy
interests identified in Simmons and other cases. Those cases are
concerned that to allow a complaint against a party to be
amended when that party’s anti-SLAPP motion is about to be
granted (or even pending) may give the plaintiff a second bite at
the apple of pleading a complaint sufficient to survive an anti-
SLAPP motion. Yet, anti-SLAPP is designed as a final remedy
with no second chances. Allowing a plaintiff to name a new
defendant when an anti-SLAPP motion is proceeding as to the
original defendant will not implicate these concerns. The motion
31
will rise or fall on its own merits whether the second defendant is
a party or not.9
We reach the same result when considering the issue from
the perspective of the statutory right to amend. Code of Civil
Procedure section 472 grants the plaintiff an absolute right to
amend to add a new defendant prior to a hearing on a demurrer.
There is no reason the new defendant should be able to avoid
9 After briefing had been completed in this appeal, Division
One of the Second District Court of Appeal decided Okorie v. Los
Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, petition
for review filed October 2, 2017. In Okorie, plaintiffs argued the
trial court incorrectly granted an anti-SLAPP motion with
respect to several causes of action in their complaint. One cause
of action was a federal civil rights claim, which plaintiffs
conceded on appeal was fatally flawed, as it had been brought
against an entity immune from suit under the 11th Amendment.
On appeal, the plaintiffs argued that the court nonetheless erred
in granting the anti-SLAPP motion with respect to this cause of
action, as they could have named other (non-immune) defendants
in an amended complaint following discovery. The appellate
court disagreed, stating, “Whether Plaintiffs could have filed an
amended complaint that could have successfully identified
individual defendants against whom the federal civil rights claim
could have been asserted is a question that we cannot consider.
Under the anti-SLAPP analysis, we, like the trial court, must
take the challenged pleading as we find it.” (Id. at p. 598.)
Okorie does not undermine our conclusion. The court there was
not faced with an otherwise timely amendment and a new
defendant attempting to avoid liability because an existing
defendant had an anti-SLAPP motion pending. We agree with
the Okorie court’s analysis – consideration of Cosby’s anti-SLAPP
motion is properly based on the complaint to which it was
addressed; the amendment as to Singer has no effect on that
analysis.
32
being added to the complaint simply because an existing
defendant has an anti-SLAPP motion pending. On appeal,
Singer argues only that the amendment “threatened to moot
Cosby’s anti-SLAPP motion challenging the initial complaint and
to trigger the new round of anti-SLAPP litigation the statute is
meant to prevent.” Yet this pertains only to Dickinson’s attempt
to amend as to Cosby; it has nothing to do with Singer.
Finally, we are not persuaded by Singer’s argument that he
would have been prejudiced by the denial of his motion to strike.
He argued that he would have suffered harm because, without
the first amended complaint, the claim against him would have
been time-barred. But having to face a timely lawsuit is not the
type of prejudice from which the law protects a defendant, and it
certainly has nothing to do with Cosby’s anti-SLAPP motion.
Singer also argued, “Forcing Singer to file multiple motions (i.e.,
the instant Motion, a subsequent anti-SLAPP motion, and a
demurrer) to dispose of the action against him is inherently
prejudicial as it unreasonably delays the resolution of the
matter.” But he was not forced to file the motion to strike the
complaint and, as we conclude here, it should not have been filed
or granted. An anti-SLAPP motion and demurrer are typical
filings in any case implicating protected speech and are not
prejudicial. The idea that these three motions “unreasonably
delay[] the resolution of the matter” is also not prejudicial. The
case against Singer did not commence until the filing of the first
amended complaint, and, in the normal course, would have
proceeded apace. There is no prejudice to Singer here.10
10 To the extent Singer is arguing that allowing the
amendment against him would have prejudiced Cosby by
33
In fact, if any party was at risk of unfair prejudice, it is
Dickinson. As we shall discuss, Cosby’s anti-SLAPP motion was
correctly denied with respect to the press release and should have
been denied with respect to the demand letter. Nonetheless,
Singer would have us affirm the dismissal of the complaint
against him – thereby protecting him from any timely suit being
pursued by Dickinson – simply due to the circumstance that
Cosby, his eventual co-defendant, had filed an ultimately
unmeritorious anti-SLAPP motion at the time Dickinson sought
to include Singer as a defendant. We fail to see how justice is
served by granting Singer a windfall immunity based on Cosby’s
pursuit of a meritless motion.
We therefore reverse the trial court’s order striking
Dickinson’s first amended complaint as to Singer.
2. The Anti-SLAPP Motion Should Have Been Granted in its
Entirety
A. Introduction and Standard of Review
We now turn to Cosby’s anti-SLAPP motion, specifically,
the second prong of the analysis and whether Dickinson has
established a probability of prevailing on her defamation cause of
action. We conclude that she has.
“Review ‘of an order granting or denying a motion to strike
under 425.16 is de novo. [Citation.] We consider “the pleadings,
and supporting and opposing affidavits . . . upon which the
liability or defense is based.” [Citation.] However, we neither
“weigh credibility [nor] compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to
delaying resolution of his anti-SLAPP motion we are
unpersuaded. Even if true, that is not Singer’s concern.
34
determine if it has defeated that submitted by the plaintiff as a
matter of law.” [Citation.]’ [Citation.]” (GetFugu, Inc. v. Patton
Boggs LLP (2013) 220 Cal.App.4th 141, 150.)
B. The Litigation Privilege Does Not Defeat Cosby’s
Claims at the Anti-SLAPP Motion Stage
The first question we address is Cosby’s affirmative defense
that the demand letter is protected by the litigation privilege.11
“The litigation privilege, codified at Civil Code section 47,
subdivision (b), provides that a ‘publication or broadcast’ made as
part of a ‘judicial proceeding’ is privileged. This privilege is
absolute in nature, applying ‘to all publications, irrespective of
their maliciousness.’ [Citation.] ‘The usual formulation is that
the privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the action.’
[Citation.]” (Action Apartment Assn., Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1241 (Action Apartment).) The privilege
is given a broad interpretation. (Ibid.)
The privilege is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior to
litigation. (Action Apartment, supra, 41 Cal.4th at p. 1241.) Not
all pre-litigation conduct is subject to the privilege. The test is:
“To be protected by the litigation privilege, a communication
must be ‘in furtherance of the objects of the litigation.’ [Citation.]
11 Cosby did not argue that the litigation privilege extends to
the press release. He was correct not to do so. The litigation
privilege does not extend to press releases. (GetFugu, Inc. v.
Patton Boggs LLP, supra, 220 Cal.App.4th at pp. 153-154;
Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1149.)
35
This is ‘part of the requirement that the communication be
connected with, or have some logical relation to, the action, i.e.,
that it not be extraneous to the action.’ [Citation.] A
prelitigation communication is privileged only when it relates to
litigation that is contemplated in good faith and under serious
consideration. [Citations.]” (Id. at p. 1251, emphasis added.)
Under this standard, a demand letter written by an
attorney can fall within the litigation privilege. (See, e.g., Lerette
v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 577-
578.) However, a demand letter is privileged pre-litigation
conduct only when it relates to litigation contemplated in “good
faith and under serious consideration.” (Action Apartment,
supra, 41 Cal.4th at p. 1251.) The element that litigation must
be under serious consideration was emphasized in Edwards v.
Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35, fn. 10:
“The classic example of an instance in which the privilege would
attach to prelitigation communications is the attorney demand
letter threatening to file a lawsuit if a claim is not settled.
[Citation.] Nevertheless, because the privilege does not attach
prior to the actual filing of a lawsuit unless and until litigation is
seriously proposed in good faith for the purpose of resolving the
dispute, even a threat to commence litigation will be insufficient
to trigger application of the privilege if it is actually made as a
means of inducing settlement of a claim, and not in good faith
contemplation of a lawsuit.” (Ibid.) Stated slightly differently,
“By the same token even a threat to file a lawsuit would be
insufficient to activate the privilege if the threat is merely a
negotiating tactic and not a serious proposal made in good faith
contemplation of going to court.” (Id. at p. 35.) The reason for
the rule is that a successful invocation of the privilege results in
36
the bar of a potentially meritorious claim. “ ‘No public policy
supports extending a privilege to persons who attempt to profit
from hollow threats of litigation.’ [Citations.]” (Action
Apartment, supra, at p. 1251.)
Whether litigation was contemplated in good faith and
under serious consideration are questions of fact. (Action
Apartment, supra, 41 Cal.4th at p. 1251.) The good faith inquiry
is not a question of whether the statement was made with a good
faith belief in its truth, but rather, whether the statement was
made with a good faith intention to bring a lawsuit. (Ibid.)
While not dispositive, whether a lawsuit was ultimately brought
is relevant to the determination of whether one was contemplated
in good faith at the time of the demand letter. (See, e.g.,
Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 909-
910, 920 [defendant sent demand letters to thousands of people
who had purchased devices that could pirate defendant’s
television programming, and ultimately sued many, but not all, of
them; filing numerous lawsuits gave rise to an inference that the
demand letters were sent in good faith contemplation of
litigation]; Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 271-
272 [the fact that the defendant did not bring suit did not
undermine a finding of good faith when the recipients of the
demand letters had largely complied with the demand].)
In this case, in his anti-SLAPP motion, Cosby argued that
Dickinson could not establish a probability of prevailing on her
causes of action arising from the demand letter, due to the
affirmative defense of the litigation privilege. There is some
dispute in the case law as to which party bears the burden of
proof on an affirmative defense in the context of an anti-SLAPP
motion. Some cases state that “although section 425.16 places on
37
the plaintiff the burden of substantiating its claims, a defendant
that advances an affirmative defense to such claims properly
bears the burden of proof on the defense. [Citation.]” (E.g.,
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 676.) Others suggest that the
litigation privilege presents “ ‘a substantive defense a plaintiff
must overcome to demonstrate a probability of prevailing.
[Citations.]’ [Citation.]” (E.g., Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1485.) Given the
evidence in this case, we need not resolve the dispute here. What
is important is that, regardless of the burden of proof, the court
must determine whether the plaintiff can establish a prima facie
case of prevailing, or whether the defendant has defeated the
plaintiff’s evidence as a matter of law. (Blanchard v. DIRECTV,
supra, 123 Cal.App.4th at p. 921; see also Bently Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 434.)
We are concerned with a demand letter, sent by Cosby’s
attorney, Singer, to Good Morning America and other news
outlets. According to Singer’s declaration, the genesis of the
demand letter was as follows. After Entertainment Tonight broke
the story of Dickinson’s rape allegations, several media outlets,
including Good Morning America, contacted Cosby’s publicist
inquiring about Dickinson’s allegations. Cosby’s publicist
forwarded the information to Singer, who drafted the demand
letter and sent it to those outlets. The demand letter, which was
clearly captioned as a confidential demand letter, stated that
Dickinson’s allegations were a recently fabricated defamatory lie,
and threatened litigation if the outlets were to go ahead with
their planned coverage of Dickinson’s allegations. No demand
letter was sent to Entertainment Tonight, the outlet which
38
originally reported Dickinson’s allegations. Singer explained that
he sent demand letters “only to media outlets that [he] was aware
had expressed the intent to publish Ms. Dickinson’s accusations,
and requested a response before doing so, to place those media
outlets on notice of the falsity of Ms. Dickinson’s accusations, and
to inform them that the publication of Ms. Dickinson’s false and
defamatory accusations would be actionable.”
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.12 According to Bloom’s
undisputed declaration, Cosby “has not sued any of these media
outlets. Nor has he ever sued any of the thousands of media
outlets who have published stories about the over fifty women
who have now accused him of attempted or actual sexual assault
over the last decade.”
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
12 BuzzFeed.com not only ran the story, it posted Singer’s
demand letter in its entirety.
39
Court, “hollow threats of litigation.” (Action Apartments, supra,
41 Cal.4th at p. 1251.)
As the evidence supports a prima facie inference that Cosby
sent the demand letter without a good faith contemplation of
litigation seriously considered, Dickinson made a showing of a
probability of prevailing on the merits of the litigation privilege
affirmative defense under the second prong of the anti-SLAPP
statute. Accordingly, the trial court erred in granting the motion
as to the demand letter.13
C. The Demand Letter and Press Release Contain
Actionable Statements of Fact, Not Just Opinions
Dickinson’s appeal and Cosby’s cross-appeal raise the
question of whether the demand letter and press release consist
of actionable provable facts or only nonactionable opinion. For
Dickinson to prevail on the second prong of the statute, she must
demonstrate a probability of prevailing on the merits of her
defamation claim. She cannot do so unless she establishes with
respect to both the demand letter and the press release, that her
claims are based on provable facts, not protected opinions. At
issue is the nature of the alleged defamatory statements. We
discuss the applicable law, then apply it to the demand letter and
press release respectively.
1. Defamation Law – Fact and Opinion
“ ‘Defamation is “a false and unprivileged publication that
exposes the plaintiff ‘to hatred, contempt, ridicule, or obloquy, or
which causes him to be shunned or avoided, or which has a
tendency to injure him in his occupation.’ [Citation.]”
13 We do not suggest that as a matter of law Cosby cannot
prevail on the litigation privilege defense, only that Dickinson
has shown a probability of prevailing at this juncture.
40
[Citations.]’ [Citations.] ‘ “The sine qua non of recovery for
defamation . . . is the existence of a falsehood.” [Citation.]’
[Citation.]” (Brodeur v. Atlas Entertainment, Inc. (2016)
248 Cal.App.4th 665, 678.)
Because defamation requires a falsehood, it is sometimes
said that an opinion, which is neither true nor false, is not
actionable. This is an oversimplification. Statements of opinion
do not enjoy blanket protection. (Franklin v. Dynamic Details,
Inc. (2004) 116 Cal.App.4th 375, 384.) The issue is whether the
statement of opinion implies a statement of fact. “Statements of
opinion that imply a false assertion of fact are actionable.
[Citation.]” (Id. at p. 385.)
The distinction was illustrated by the United States
Supreme Court in Milkovich v. Lorain Journal Co. (1990)
497 U.S. 1. “If a speaker says, ‘In my opinion John Jones is a
liar,’ he implies a knowledge of facts which lead to the conclusion
that Jones told an untruth. Even if the speaker states the facts
upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is erroneous,
the statement may still imply a false assertion of fact. Simply
couching such statements in terms of opinion does not dispel
these implications; and the statement, ‘In my opinion Jones is a
liar,’ can cause as much damage to reputation as the statement,
‘Jones is a liar.’ As Judge Friendly aptly stated: ‘[It] would be
destructive of the law of libel if a writer could escape liability for
accusations of [defamatory conduct] simply by using, explicitly or
implicitly, the words “I think,” ’ [Citation.]” (Id. at pp. 18-19.)
“The ‘crucial question of whether challenged statements
convey the requisite factual imputation is ordinarily a question of
law for the court. [Citation.]’ [Citation.] ‘Only once the court has
41
determined that a statement is reasonably susceptible to such a
defamatory interpretation does it become a question for the trier
of fact whether or not it was so understood. [Citations.]’
[Citation.] The question is ‘ “whether a reasonable fact finder
could conclude the published statement declares or implies a
provably false assertion of fact. . . .” [Citation.]’ [Citation.]”
(Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696.)
To make this determination, we apply a totality of the
circumstances test. First, we examine the language of the
statement itself, to determine whether the words are understood
in a defamatory sense. Second, we examine the context in which
the statement was made. (Franklin v. Dynamic Details, Inc.,
supra, 116 Cal.App.4th at p. 385.)
In considering the language of the statement itself, we look
at whether the purported opinion discloses all of the facts on
which it is based and does not imply that there are other,
unstated facts which support the opinion. If that is the case, the
statement is defamatory only if the disclosed facts themselves are
false and defamatory. (Franklin v. Dynamic Details, Inc., supra,
116 Cal.App.4th at p. 387.) We also consider whether the
statement was cautiously phrased in terms of the author’s
impression. (Baker v. Los Angeles Herald Examiner (1986)
42 Cal.3d 254, 260-261.)
In considering the context of the statement, we look at facts
including the audience to whom the statement was directed
(Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at
p. 261 [consider how the average reader of the statement would
reasonably have understood it]), the forum in which the
statement was made (e.g. Summit Bank v. Rogers, supra,
206 Cal.App.4th at p. 699 [anonymous misspelled rants on an
42
internet board devoted to rants and raves are generally not
expected to be taken seriously]), and the author of the statement
(e.g. Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at
p. 389 [finding it significant that the author did not purport to be
a lawyer stating opinions as legal truths in legal verbiage]).
Another factor to consider in the context portion of the
totality of the circumstances test is whether the statement is so-
called “predictable opinion.”14 “Part of the totality of the
circumstances used in evaluating the language in question is
whether the statements were made by participants in an
adversarial setting. ‘[W]here potentially defamatory statements
are published in a . . . setting in which the audience may
anticipate efforts by the parties to persuade others to their
positions by use of epithets, fiery rhetoric or hyperbole, language
which generally might be considered as statements of fact may
well assume the character of statements of opinion.’ [Citation.]”
(Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401-1402; see
also Information Control v. Genesis One Computer Corp. (1980)
611 F.2d 781, 784.)
14 In his brief on appeal, Cosby suggests “predictable opinion”
is a defense on its own, based on the common law privilege of self-
defense. We disagree; case authority is clear that this is simply
part of the totality of the circumstances test. The only case on
which Cosby relies for that privilege, Foretich v. Capital
Cities/ABC, Inc. (4th Cir. 1994) 37 F.3d 1541, does not hold that
the common law self-defense privilege is still viable, but simply
uses it as a tool in the analysis of whether private individuals
making public statements only to defend themselves have
nonetheless become limited purpose public figures by having
made the statements. (Id. at pp. 1559-1560.)
43
We apply these principles and consider the demand letter
and press release separately.
2. The Demand Letter Contains Statements of
Fact
Cosby takes the position that the demand letter is not
actionable as it is simply Singer’s opinion, based on fully
disclosed facts. 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.
We first consider the language of the demand letter. We
observe that the letter is not phrased cautiously in terms of
opinion. Although not dispositive, the letter does not say, “I
believe Dickinson’s allegations are false,” or “Based on the
following facts, I am of the opinion that Dickinson’s rape
allegation is false.” Instead, it states, repeatedly and
unconditionally, that Dickinson’s rape allegations are “false and
outlandish claims,” an “outrageous and defamatory lie,” a
“defamatory fabrication,” and “false”; and that “the alleged rape
never happened.” Dreamstone Entertainment Ltd. v. Maysalward
Inc. (C.D. Cal. Aug. 18, 2014, No. 2:14-CV-02063-CAS) 2014 WL
4181026, on which Cosby relied at oral argument, is
distinguishable. In that case, an attorney’s press release
discussing a pending lawsuit was held to be nonactionable
opinion when part of the statement was cautiously phrased in
terms of what a filed complaint alleged, rather than the language
44
of absolute facts. (Id. at p. *7.) Here we have no such cautionary
language.15
Even if we were to assume the absolute factual statements
in the demand letter were merely Singer’s opinion, the next step
in our consideration of the language of the letter is to determine
whether the demand letter sets forth the factual basis for such an
opinion. To the extent the demand letter sets forth its underlying
factual bases, it relies on: (1) the fact that Dickinson’s biography
and related New York Observer interview told a different story;
and (2) the fact that Dickinson’s purported assertion that Cosby
killed the rape story in Dickinson’s book was a lie. The demand
letter goes on to add (3) that HarperCollins can confirm that both
the rape story and the assertions that Cosby pressured
HarperCollins to not print it are lies.16
There are three reasons why the disclosure of these facts on
which Singer’s purported opinion is based is insufficient to render
the demand letter an opinion based on fully disclosed, non-
actionable facts. First, it does not disclose all of the facts on
which the opinion is based. Singer’s declaration admits that he
reached his opinion based on two additional facts – his prior
15 The only conditional language appears at the end of the
letter, where Singer suggests “it appears that [Dickinson is]
seeking publicity to bolster her fading career.”
16 We repeat the language of the demand letter relating to
HarperCollins’s presumed ability to confirm the rape allegations
are false: “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.”
45
experience with Dickinson and his internet research into her
credibility – but neither of these facts is contained in the letter,
making it impossible for the readers to judge for themselves
whether the facts support the opinion. Second, Dickinson’s
evidence is that one of the purported facts – that HarperCollins
can prove her rape allegation is false – is itself false. Dickinson’s
evidence is that she wanted to include the rape in her book, and
that HarperCollins knew it and would say so. An opinion based
on a provably false fact is itself actionable. Third, and most
important, we believe that the language of the demand letter
implies an additional fact – indeed, it explicitly states it: “the
alleged rape never happened.”
For these reasons we find distinguishable a case on which
Cosby heavily relied at oral argument. In Nygard, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, a disgruntled former
employee gave an interview stating, in “colorful” language that
the defendant’s place of business was an unpleasant place to
work. Among other things, defendant stated that his former
employer did not want to let his employees see a doctor when
injured. This statement could have been actionable fact, but it
was immediately followed by a specific retelling of an incident in
which the former employee had been injured and his employer
had not wanted him to take the time to seek medical assistance –
the complete and undisputed factual basis for what was, in
context, clearly a statement of opinion. (Id. at p. 1053.) Such a
complete factual basis is missing in Singer’s demand letter, and
where a factual basis is present, it is disputed.
While our analysis of the language of the demand letter
alone is sufficient to establish a reasonable fact finder could
conclude the letter conveys a provably false assertion of fact, an
46
analysis of the context of the letter further supports that
conclusion.
The statement was a demand letter, sent only to media
outlets who were preparing to run Dickinson’s story and had
asked the Cosby camp for its response. The letter was written by
Cosby’s attorney, and framed in legal terms, threatening
litigation for future defamatory statements which, Singer argued,
would be made “recklessly and with Constitutional malice.” This
was not an anonymous posting on an internet message board
where unsupported rants and raves are expected; this was a
lawyer’s letter threatening litigation and setting out the factual
and legal basis for it.
Most importantly, the letter was sent by Cosby’s litigation
counsel, on behalf of Cosby. We again observe that, at least for
purposes of the present appeal, Cosby has waived any argument
that Singer was not acting as his agent when he made the
statements at issue in this case. When someone is publicly
accused of rape, is asked for a response, and sends back a letter
from counsel saying, “the alleged rape never happened,” it is
reasonable for the recipient of the letter to infer that the accused
is, in fact, denying the rape. The “predictable opinion” doctrine
does not change this result. The statement is not full of epithets,
fiery rhetoric or hyperbole; it is a clear, simple factual denial of
the rape as expressed in a lawyer’s letter.
The fact that Cosby’s attorney authored the statement is an
important factor supporting our conclusion. The rape allegations
against Cosby were a subject of national attention and much
public speculation. It would perhaps be unactionable opinion if
an unrelated individual, with no actual knowledge of the rape,
chatting in a public forum, were to say, “Dickinson lied about the
47
rape; after all, she told a different story in her book.” That may
be unactionable opinion because it is based on disclosed facts and
the speaker would not be presumed to be basing the opinion on
anything else. But here, the demand letter was authored by
Cosby’s attorney, who was speaking for Cosby, who, in turn,
would certainly know whether or not he sexually assaulted
Dickinson. Cosby’s agent’s absolute denial is a factual one. At
the very least, the demand letter is susceptible of this
interpretation, which is sufficient to establish Dickinson’s burden
at this stage of the proceedings.17
17 The parties rely, to varying degrees, on federal court
decisions arising out of other claims against Cosby for
defamation. The claims involve other statements that Singer
made on Cosby’s behalf, denying other women’s claims of sexual
assault. As the opinions relate to different statements, and, in
nearly all of them, are not applying California law, we find them
to be of limited persuasive value. (McKee v. Cosby (1st Cir. 2017)
874 F.3d 54 [applying Michigan law to a 6-page letter with
footnotes to sources supporting each statement attacking the
accuser’s credibility, ruling in favor of Cosby]; Hill v. Cosby (3d
Cir. 2016) 665 Fed.Appx. 169 [applying Pennsylvania law to a
brief statement generally challenging the credibility of all of
Cosby’s accusers, ruling in favor of Cosby]; Green v. Cosby (D.
Mass. 2015) 138 F.Supp.3d 114 [applying California law to one
plaintiff and Florida law to two others; ruling against Cosby on
his motion to dismiss].)
To the extent Cosby relies on McKee and Hill for their
conclusion that the statements at issue in those cases consisted of
Singer’s non-actionable opinion, we are not convinced those cases
are germane here. The statements were different and did not
contain the repeated language in Singer’s statements absolutely
and unconditionally claiming Dickinson’s rape allegations were
false. The federal court opinions did not give sufficient weight to
48
3. The Press Release Contains Statements of Fact
We now turn to the press release and consider both its
language and its context on the question of provable facts versus
nonactionable opinion.
The language of the press release is, again, unconditional.
The first line of the press release is “Janice Dickinson’s story
accusing Bill Cosby of rape is a lie.” The statement goes on to
reveal three bases for this conclusion – the same three as in the
demand letter – that Dickinson told a different story in her book
and the New York Observer interview, that nobody in the Cosby
camp tried to kill the rape story, and that “[Dickinson’s]
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.”
As with the demand letter, Singer fails to disclose the other
facts on which he purportedly relied. As with the demand letter,
Singer falsely states that HarperCollins can confirm “there was
no [rape] story.” As with the demand letter, Singer expressly
states that the rape allegations are “a lie.” The language of the
the fact that Singer was making the statements as Cosby’s agent.
When a man is publicly accused of raping a woman and responds
with a public statement claiming the accusation itself is false, it
is reasonable that a member of the public hearing the statement
would not think the denial means, “I’m neither affirming nor
denying that I raped her, but look at all this evidence challenging
her credibility.” That the speaker making the denial is himself
the accused rapist strongly implies that the denial includes a
denial of the rape itself. Here, the speaker was the accused’s
attorney, speaking with presumed agency. We see no reason the
result should be different.
49
press release is that of actionable fact, not mere opinion based on
fully disclosed facts.
The context is similar to that of the demand letter, and
again supports the same conclusion. The press release is
captioned:
“STATEMENT OF MARTIN D. SINGER
ATTORNEY FOR BILL COSBY”
It was widely disseminated to the public, and it is reasonable the
average person reading it would assume that Singer, as Cosby’s
attorney, was speaking for Cosby. The statement did not simply
state that Dickinson’s story was contradicted by her
autobiography; it stated that her story “is a lie.” The average
person would infer that the statement was Cosby’s denial of
raping Dickinson. Again, the predictable opinion doctrine does
not change this result; there is nothing about the fact that Cosby
is responding to accusations that would make the reader assume
the press release was merely opinion.
D. The Gist of the Demand Letter and Press Release
was that Dickinson Lied About Cosby Raping Her
Cosby next argues that Dickinson cannot establish a
probability of prevailing on her defamation claim for an
additional reason. He argues that the gist or sting of the
statements was not that Dickinson lied about the rape
allegations, but simply that she was a liar. Armed with this
reinterpretation of his defamatory statements, he argues that
Dickinson will be unable to recover for defamation because
(1) she actually is a liar, having lied about the rape in her
autobiography; and (2) she had cultivated the professional
reputation of a liar, so she was not harmed by this sting.
50
“The common law of libel takes but one approach to the
question of falsity, regardless of the form of the communication.
[Citations.] It overlooks minor inaccuracies and concentrates
upon substantial truth. As in other jurisdictions, California law
permits the defense of substantial truth and would absolve a
defendant even if she cannot ‘justify every word of the alleged
defamatory matter; it is sufficient if the substance of the charge
be proved true, irrespective of slight inaccuracy in the details.’
[Citation.] In this case, of course, the burden is upon petitioner
to prove falsity. [Citation.] The essence of that inquiry, however,
remains the same whether the burden rests upon plaintiff or
defendant. Minor inaccuracies do not amount to falsity so long as
‘the substance, the gist, the sting, of the libelous charge be
justified.’ [Citations.] Put another way, the statement is not
considered false unless it ‘would have a different effect on the
mind of the reader from that which the pleaded truth would have
produced.’ [Citations.]” (Masson v. New Yorker Magazine (1991)
501 U.S. 496, 516-517; see also Summit Bank v. Rogers, supra,
206 Cal.App.4th at p. 697.)
Cosby would have us conclude, as a matter of law, that the
gist or sting of the demand letter and press release was that
Dickinson is a liar, not that Dickinson lied about the rape. This
is an inference we cannot make. That Cosby, through Singer,
repeatedly characterized Dickinson’s rape allegations as
fabrication was not a “minor inaccuracy” in the statements; it
was the heart of the statements. The statements were made in
response to Dickinson’s allegations that Cosby had raped her.
The statements never said, as a general proposition, that
Dickinson was unreliable and untruthful; instead, the statements
51
repeatedly and unconditionally asserted that Dickinson lied
about Cosby having raped her.
The standard we apply is whether the allegedly defamatory
statement would have a different effect on the mind of the reader
from what the pleaded truth would have produced. The pleaded
truth was that Cosby raped Dickinson; she wanted to tell the
truth in her book; but her publisher forced her to replace it with a
sanitized version of their encounter. The gist of Cosby’s
statements, to the contrary, was that he had not raped Dickinson
and she told the truth in her book. The pleaded truth and the
gist of the statements are incompatible.
That Cosby cannot recast the statements to a simple charge
that Dickinson was a liar in general is apparent when we
consider the ultimate result Cosby would reach. Cosby argues
that calling Dickinson a liar is not actionable because it is
substantially true – either Dickinson lied in her autobiography or
lied in the Entertainment Tonight interview, so she is admittedly
a liar. Yet there is no interpretation of Cosby’s statements which
allows for the possibility that Dickinson lied in her autobiography
and was telling the truth now.
To the extent Cosby argues that Dickinson can show no
damages because she had already cultivated the professional
reputation of a liar, the argument is refuted for now by
Dickinson’s evidence that she did, in fact, lose jobs as the result
of being branded a liar by Cosby on the subject of rape.
E. False Light and Intentional Infliction of Emotional
Distress Survive the Anti-SLAPP Motion
As his final argument, Cosby contends that, even if
Dickinson’s defamation cause of action survives his anti-SLAPP
52
motion, her remaining two causes of action should be dismissed
as superfluous.
Depending on the specific allegations in a case, causes of
action for false light and intentional infliction of emotional
distress may be redundant to a defamation cause of action and
subject to dismissal on demurrer for that reason. (Kapellas v.
Kofman (1969) 1 Cal.3d 20, 35, fn. 16; Couch v. San Juan Unified
School District (1995) 33 Cal.App.4th 1491, 1504.) While this
may be legally correct, an anti-SLAPP motion is not the
appropriate time to pursue the argument. “Appellants first argue
that this false light claim is ‘surplusage’ because the complaint
also contains a specific cause of action for libel. However, an
anti-SLAPP motion is not the correct vehicle for asserting this
position. Rather, this argument is properly the subject of a
demurrer. [Citation.]” (Hailstone v. Martinez (2009)
169 Cal.App.4th 728, 742.) We therefore do not order these
causes of action dismissed at this time.
DISPOSITION
The order granting Singer’s motion to dismiss Dickinson’s
first amended complaint against him is reversed. The order on
Cosby’s anti-SLAPP motion is affirmed in part and reversed in
part. To the extent the anti-SLAPP motion was granted as to the
causes of action based on the demand letter, it is reversed; to the
extent the anti-SLAPP motion was denied as to the causes of
action based on the press release, it is affirmed.
///
///
53
Dickinson is to recover her costs on appeal from Singer and
Cosby.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
54