Dickinson v. Cosby, No. B271470 (D2d8, Nov. 21, 2017)
This is a high-profile defamation case brought by Janice Dickinson against Bill Cosby and his Attorney after Cosby—through his Attorney—accused Dickinson of lying about her claim that Cosby raped her. The accusations of falsehood were contained in a press release, as well as in a demand letter sent to various media outlets threatening them against publishing any of Dickinson’s allegations. As is routine in defamation cases nowadays, this is all playing out in the context of litigation over an anti-SLAPP motion.
The procedural posture is a little complicated, but necessary to understand what’s going on. Dickinson first sued Cosby for defamation, to which Cosby responded with an anti-SLAPP motion. But Cosby’s motion papers intimated that Attorney made some of the statements without asking Cosby if the underlying facts were true. So Dickinson amended her complaint to add claims against Attorney. Attorney and Cosby then filed a regular motion to strike against the AC, on the grounds that Dickinson wasn’t permitted amend because of the pending anti-SLAPP motion. The trial court ultimately struck the AC, granted Cosby’s anti-SLAPP on the demand letter, but denied it on the press release.
The Court of Appeal goes in reverse chron order. So it starts with the regular motion to strike. The Court of Appeal had previously granted a motion to dismiss Dickson’s appeal as to Cosby on the amendment issue because it wasn’t an appealable order. But since Attorney was only named in the AC, as to him the motion strike was an effective final judgment; it resolved the whole case in his favor. So the Court finds it could reach the merits as to the Attorney.
On the flip side, Attorney wasn’t a party to Cosby’s initial anti-SLAPP motion, so he is not a proper party to the appeal for those issues.
Then the Court finds that a pending anti-SLAPP motion by one defendant does not block plaintiff from amending her complaint as a matter of right under the Code of Civil Procedure to add a new party who has not filed an anti-SLAPP motion. As the court sees it, § 425.16 does not actually preclude amending a complaint. Instead, the court cogently reads the cases that hold a plaintiff cannot amend her complaint while an anti-SLAPP motion is pending to really mean that the moving defendant is simply entitled to have his motion decided on the original complaint. The corollary to that is that a plaintiff can’t avoid a motion by withdrawing problematic allegations in an amended pleading.
So, as the court sees it, an amended complaint isn’t prohibited; the motion just remains directed to the original complaint notwithstanding any amendment. And if granted, the case against that defendant is over, amendment or not. It follows that an anti-SLAPP motion by one defendant does not preclude an amended complaint from adding a new defendant who wasn’t party to the motion. So the motion to strike was erroneously granted.
Moving on to the merits of Cosby's anti-SLAPP motion, there’s no dispute that the case “arises from protected activity.” As to potential success on the merits, a key issue is whether Attorney’s demand letter to the media is covered by Civil Code § 47(b) litigation privilege. The court here finds it is not.
It’s well established that statements in demand letters sent in good faith and serious consideration of litigation are privileged against any torts. “Hollow threats of litigation,” however, don’t cut it. Noting that the question is essentially factual, the court puts the demand letter into the hollow threat category. It finds convincing (1) that the demand letter was sent only to media outlets that had yet to publish Dickinson’s story; and (2) that Cosby never actually sued any of the media outlets who received the letter but published the story nonetheless. (Indeed, as has become common with over-the-top Hollywood attorney demand letters, one online outfit published the letter too, basically daring Cosby to sue.) As the court explains, “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.”
The court goes on to find that Dickinson otherwise made a prima facie showing of the elements of her claims of defamation, IIED, and false light invasion of privacy.
Reversed in part.
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