17 Cal. App. 5th 655
Cal. Ct. App. 5th2017Background
- Janice Dickinson publicly accused Bill Cosby of raping her in 1982; she alleged she had told her ghostwriter and publisher but the book omitted the rape disclosure.
- After Dickinson repeated the allegation in 2014, Cosby’s lawyer Martin Singer sent media demand letters asserting Dickinson’s claim was a fabrication and threatening litigation; Singer also issued a press release stating "Janice Dickinson's story accusing Bill Cosby of rape is a lie."
- Dickinson sued Cosby for defamation, false light, and intentional infliction of emotional distress; she later filed a first amended complaint adding Singer as a defendant.
- Cosby filed an anti‑SLAPP motion and argued (inter alia) the demand letter was privileged pre‑litigation communication and both statements were nonactionable opinion; Singer joined Cosby’s motion to strike the amendment naming him.
- The trial court struck Dickinson’s amended complaint as to Singer, granted the anti‑SLAPP motion as to the demand letter (litigation privilege), and denied it as to the press release (found factual, not opinion). Dickinson and Cosby appealed different parts; the court of appeal reversed the striking as to Singer, reversed the grant as to the demand letter, and affirmed the denial as to the press release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) May plaintiff amend to add Singer while an anti‑SLAPP motion by Cosby is pending? | Dickinson: § 472 allowed amendment as of right before demurrer/answer; she timely added Singer. | Singer/Cosby: Anti‑SLAPP filing bars amendment to plead around motion and would prejudice Singer. | Court: Amendment as to Singer (who had not filed an anti‑SLAPP motion) was permitted; reversal of order striking first amended complaint as to Singer. |
| 2) Is Cosby’s demand letter protected by the absolute litigation privilege? | Dickinson: Evidence shows no serious good‑faith intent to litigate (Cosby never sued media), so privilege does not apply. | Cosby: Demand letter was a pre‑litigation communication made in connection with contemplated litigation, hence privileged. | Court: Litigation privilege did not bar claims—inference supported that letters were hollow threats; anti‑SLAPP grant as to demand letter was reversed. |
| 3) Are the demand letter and press release actionable statements of fact or nonactionable opinion? | Dickinson: Both convey provable factual assertions (that the rape never happened) and are therefore actionable. | Cosby: Statements are opinion or predictable advocacy in adversarial setting and based on disclosed facts. | Court: Both documents convey provably false factual assertions (not mere protected opinion); press release denial held properly non‑struck; demand letter likewise found capable of defamatory meaning. |
| 4) Do false light and IIED claims stand or are they redundant to defamation and subject to strike? | Dickinson: Distinct harms shown; claims should survive. | Cosby: They are duplicative of defamation and should be dismissed. | Court: Not appropriate to resolve on anti‑SLAPP; false light and IIED survive at this stage (demurrer, not anti‑SLAPP, is proper vehicle). |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (two‑step anti‑SLAPP framework and summary‑judgment‑like second prong)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (Cal. 2007) (litigation privilege applies to prelitigation communications only when litigation is in good faith and under serious consideration)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion that implies provably false facts may be actionable)
- Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991) (‘‘gist’’/substantial truth controls falsity inquiry in defamation)
- Simmons v. Allstate Ins. Co., 92 Cal.App.4th 1068 (Cal. Ct. App. 2001) (post‑tentative ruling attempts to amend to avoid anti‑SLAPP undermine statute’s objectives)
- Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc., 122 Cal.App.4th 1049 (Cal. Ct. App. 2004) (plaintiff may file amended pleading as of right; anti‑SLAPP motion still adjudicated on original pleading)
- JKC3H8 v. Colton, 221 Cal.App.4th 468 (Cal. Ct. App. 2013) (amendment filed before anti‑SLAPP motion preserves amended pleading)
- Blanchard v. DIRECTV, Inc., 123 Cal.App.4th 903 (Cal. Ct. App. 2004) (evidence that defendant sued many recipients supports inference letters were sent in good faith contemplation of litigation)