37 Cal. App. 5th 1138
Cal. Ct. App. 5th2019Background
- In 2014 Janice Dickinson publicly accused Bill Cosby of drugging and raping her in 1982; Cosby’s lawyer Martin Singer sent a demand letter (Nov. 18) and issued multiple press releases (Nov. 19, 20, 21) denying the accusations and calling them lies.
- Dickinson sued Cosby (and later Singer) for defamation and related torts; Cosby moved to strike under California’s anti-SLAPP statute (§ 425.16).
- In a prior appeal (Dickinson I) the appellate court held the anti-SLAPP statute did not bar Dickinson’s claims based on the Nov. 18 demand letter and Nov. 19 press release and reversed the trial court; the first amended complaint (FAC) later added claims based on the Nov. 20 and 21 press releases.
- On remand Cosby filed a second anti-SLAPP motion as to the FAC; Singer filed his own anti-SLAPP motion and the trial court granted Singer’s motion (finding no actual malice) but denied Cosby’s motion as to two statements in the Nov. 20 and Nov. 21 releases (finding Dickinson showed a probability of prevailing).
- The appellate court affirmed: it declined to revisit issues resolved in Dickinson I and held Dickinson produced sufficient evidence to show (1) Cosby could be directly liable (approval/ratification), (2) the Nov. 20–21 statements were “of and concerning” Dickinson by reasonable implication, and (3) the statements could be actionable assertions of fact (not shielded as opinion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cosby can be held directly liable for Singer’s press-release statements | Dickinson: Cosby approved or ratified Singer’s statements (approval before or retention and failure to retract after publication) | Cosby: no evidence he authorized or approved the statements; proving approval would require privileged communications | Held: Sufficient circumstantial evidence of approval/ratification (Singer’s routine practice, Cosby’s retention and refusal to retract) to show probability of direct liability |
| Whether Nov. 20 and 21 releases were “of and concerning” Dickinson | Dickinson: temporal proximity, publicity, language and the Nov. 19 release referring to her make the statements reasonably refer to her | Cosby: releases addressed other accusers and were not specifically about Dickinson; no third-party evidence showing reference to her | Held: A reasonable fact-finder could conclude the statements referred to Dickinson by reasonable implication and that third-party understanding can be shown circumstantially |
| Whether the statements are nonactionable opinion or actionable assertions of fact | Dickinson: statements imply provably false facts (i.e., the women were lying); releases lack disclosed supporting facts and imply undisclosed facts (e.g., Cosby did not rape) | Cosby: statements are advocacy/opinion; Singer disclosed bases for opinion regarding some accusers, so they’re protected | Held: Statements are expressed as unqualified factual assertions, imply undisclosed/falsifiable facts, and lack adequate disclosed factual basis — therefore reasonably susceptible to defamatory meaning |
| Whether the court should reconsider issues already resolved in Dickinson I | Dickinson: prior appellate ruling is law of the case; Cosby cannot relitigate Nov. 18/19 rulings | Cosby: FAC alleges new theories (direct liability) so reconsideration is proper | Held: Law-of-the-case applies; appellate court will not reconsider its prior holding as to Nov. 18/19 statements |
Key Cases Cited
- Dickinson v. Cosby, 17 Cal. App. 5th 655 (Cal. Ct. App.) (prior appellate decision holding anti-SLAPP did not bar claims re: Nov. 18 letter and Nov. 19 release)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion that implies provably false facts may be actionable)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public-figure defamation requires proof of actual malice)
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (overview of anti-SLAPP two-step procedure)
- Blatty v. New York Times Co., 42 Cal.3d 1033 (1986) (‘of and concerning’ requirement and group-defamation principles)
- Rakestraw v. Rodrigues, 8 Cal.3d 67 (1972) (ratification doctrine and its retroactive effect)