Author Archive

‘American Hustle’ Producers Can’t Nuke Defamation Lawsuit – Hollywood Reporter

Paul Brodeur, a science writer who claims he was defamed by something Jennifer Lawrence said in David O. Russell’s 2013 film American Hustle, has survived an attempt to knock out his $1 million lawsuit on First Amendment grounds.

Source: www.hollywoodreporter.com

This is such an entertaining and ridiculous lawsuit.

In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, “I read it in an article by Paul Brodeur.”

Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.

Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.

At the time, I gave the motion little chance of success, because I didn’t think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.

[UPDATE (June 6, 2016):] Cases such as this continue to show the importance of the automatic right of appeal, even from denial of an anti-SLAPP motion.

Paul Brodeur’s ridiculous lawsuit survived an anti-SLAPP motion, dooming the defendant (Atlas Entertainment, Inc.) to litigate issues through trial, were it not for the automatic right of appeal. That ability to demand a second look at the applicability of the anti-SLAPP statute resulted in the dismissal of this waste of court resources.

As it had to, the Court of Appeal held: Read the rest of this entry »

Bill Cosby to Give New Deposition in Janice Dickinson’s Defamation Lawsuit

Bill Cosby will give a new deposition in the defamation lawsuit from Janice Dickinson over her allegations of sexual assault.

The former supermodel told Entertainment Tonight in November 2014 the comedian drugged her into unconsciousness and raped her. Cosby’s former attorney Martin Singer responded in a statement to the media calling Dickinson’s story “an outrageous defamatory lie” and “completely fabricated.”

In a hearing Monday, judge Debre K. Weintraub ordered Dickinson will depose Cosby and Singer by Nov. 25 on whether they knew if her allegations were true before denying them to the press. The testimony will follow Cosby’s recent deposition in Judy Huth’s lawsuit (which will be sealed until a Dec. 22 hearing in which the sides will argue if the testimony should be public).

Sourced through Scoop.it from: www.hollywoodreporter.com

 

Recent developments in one of the actions against Bill Cosby illustrate the availability of limited discovery after an anti-SLAPP motion has been filed, and how defamation claims are sometimes used to resurrect actions that would otherwise be barred by the statute of limitation.

Joining the bandwagon of Cosby accusers (or perhaps she was the first) Janice Dickinson stated that she was drugged and raped by Cosby many years ago. Any action for that alleged assault would be far past the statute of limitations, but when Cosby denied the allegations, Dickinson was then free to sue for defamation, claiming that by denying that the rape had occurred, Cosby was in essence calling her a liar. (Or in this case, Cosby’s attorney actually did call her a liar.)

This is a common tactic, and puts an accused party in a precarious position. They can remain silent, in which case everyone will think and the press will report that they must be guilty since they are not denying the charges, or they can speak up and deny the charges, in which case they face a defamation action. Cosby chose to claim innocence, and the defamation suit followed.

Cosby responded with an anti-SLAPP motion, and that led to Dickinson’s request for leave to take Cosby’s deposition.

Celebrities enjoy a benefit that the rest of us plebes don’t, and that is that anything said about them is deemed to be a matter of public interest, triggering the anti-SLAPP statute. The downside is that said celebrities are deemed to be public figures, and given the inherent ability of celebrities to respond to criticism by simply calling a press conference, the law imposes an extra requirement on them to prove defamation. To successfully sue for defamation, they must show that the purportedly defamatory statements were made with malice. Since Dickinson is also a celebrity, she must therefore show that when Cosby called her a liar, he did so with malice.

One way to prove malice is to show that the person making the comment knew it wasn’t true. And thus we go full circle. Dickinson says Cosby raped her, Cosby says he didn’t, so Dickinson says that’s proof of malice because he raped her and knows it.

When an anti-SLAPP motion is filed, the plaintiff can request leave to conduct discovery, and here Dickinson requested leave to take Cosby’s deposition, to prove the malice. It’s a long shot, because the only way Cosby’s testimony would prove malice is if he admits that he raped Dickinson and knew he had raped her when he denied the claim. (Or, I suppose, Cosby could get befuddled and say he doesn’t remember.)

See on Scoop.itCalifornia SLAPP Law

Singer/actress Ronee Blakley must pay $200K to former lover

A judge ordered singer/actress Ronee Sue Blakley to pay more than $200,000 in attorneys’ fees to her former lover, who won dismissal earlier this year of a lawsuit alleging he based the character of an abusive mother on his ex-flame when penning the screenplay for the  film “What Maisie Knew.”

Los Angeles Superior Court Judge Rafael Ongkeko granted $209,670 to writer Carroll Cartwright on June 5, the same day he heard arguments on the motion for attorneys’ fees brought by Cartwright’s attorneys. He also ordered Blakley to pay Cartwright an additional $1,840 in associated legal costs.

Sourced through Scoop.it from: mynewsla.com

At least three times a week, I end a telephone conversation with the following statement, after concluding that the legal action the caller is proposing would be met with an anti-SLAPP motion:

“I’m sure you can find any number of attorneys who will happily take your money to pursue this action, but I think you will be met with a successful anti-SLAPP motion if you move forward. If you do find an attorney willing to take this case, please ask them how they will deal with the anti-SLAPP motion. If they can’t provide a good answer, don’t pursue the case.”

This was one of those cases. Ronee Sue Blakley found an attorney to pursue the case, it was met with an anti-SLAPP motion, and Blakley is now paying the price.

Consider the theory of this case. Blakley dated someone for five years way back in the 80s, and 35 years later when said significant other wrote a screenplay about a fictional character, Blakley claimed the fictional character was based on her, and that the characterization was defamatory.

I never understand this reasoning. I recently received a call from a woman who was convinced that a person portrayed as an incompetent parent on a popular sitcom was based on her. (She knew one of the writers, and felt that he was using her as a model.) But if she wasn’t an incompetent parent, then why would she think that other people would assume this incompetent parent was her? Even if the character was based on the caller, that is irrelevant unless the people watching the sitcom would understand the connection.

The court in the Blakley case came to the same conclusion. The judge found that a reasonable viewer of the movie would not see any similarities between Blakley and the character.

After granting the anti-SLAPP motion, the court awarded defendant $209,670 in attorney fees, representing 476 hours of attorney time. A high price to pay to take a run at such a thin claim.

See on Scoop.itCalifornia SLAPP Law

SCOCA grants review in pivotal anti-SLAPP case

On May 13, 2015, the California Supreme Court granted review in Baral v. Schnitt to resolve the divide among lower courts regarding whether anti-SLAPP motions can strike so-called “mixed” causes of action.

Source: scocablog.com

This is a very important case in the anti-SLAPP world, and the Supreme Court may finally clear up the competing decisions as regards mixed causes of action.

Here is how these causes of action typically arise. A homeowner is having a dispute with a neighbor and sues for harassment and infliction of emotional distress, alleging that the neighbor has made false police reports, called child protective services, and has left dog poo on his lawn.

Of those allegations, two are protected activities — calling the police and child protective services. The third, involving the dog poo, is not. So if the neighbor brings an anti-SLAPP motion, how should the court deal with these mixed causes of action?

Some courts have held that the entire claim falls under the anti-SLAPP motion, while others have held that the protected activity allegations should be stricken. Others still have held that the claim survives. Hopefully, this review by the California Supreme Court will finally resolve the issue.

See on Scoop.itCalifornia SLAPP Law

Libel Lawsuit against NYTimes for Slavery ‘Not So Bad’ Comments Dismissed

The New York Times won’t be sued for libel over its article quoting a Loyola professor saying slavery was “not so bad,” the Columbia Journalism Review reported.

The professor, Walter Block, said the Times took his comments “out of context” and suggested he “is a racist, a supporter of slavery, and/or against the Civil Rights Act … solely because of racial prejudices,” the judge’s ruling stated.

Source: www.imediaethics.org

This is another example of how, in a defamation action, the speaker gets to define his own words.

It sometimes comes up in my practice that I get a call from a potential client who wants to sue for defamation because someone referred to him as a “stalker”. The caller has looked up the criminal code section that defines “stalker”, and argues that he does not meet the elements, making the accusation false.

That analysis would only be true if the alleged defamer said or wrote, “Joe is a stalker as defined by the criminal code.” But if the defamer merely stated, “Joe is a stalker,” then what he meant by that is crucial. Stated another way, Joe does not get to define the term used by the defamer, unless that definition is reasonable.

This case presented that issue, with an additional layer. Here, a college professor was talking about slavery, and from a specific context, said it was “not so bad.” The reporter from the New York Times who reported on the comment, said that the professor had stated that slavery was “not so bad”, but really didn’t provide the context.

The professor sued for defamation, stating the newspaper article took him out of context; that he didn’t really mean to say that slavery was not so bad.

But here’s the thing, Professor. We don’t have to agree with your interpretation. I get that in your mind, you were attempting to make the point that from an external viewpoint, slaves were fed and clothed, and even got to sing in the fields as you put it, in order to make the point that what made slavery so horrific was its involuntary versus voluntary nature. But the author is free to decide that even in that context, your comment exhibits extreme insensitivity.

The NYT brought an anti-SLAPP motion on that basis, and the trial judge agreed and dismissed the action. “The Court finds that the references made to Block are not capable of defamatory meaning, nor do they place him in a false light,” the judge wrote.

See on Scoop.itCalifornia SLAPP Law

Governor signs anti-SLAPP bill, protecting calls to police from retaliation

A dispute over a campaign sign in 2010 in rural Washington County was the impetus for a new law that will protect a person who calls the police from being sued.

Source: www.twincities.com

Sometimes the law seems so self-evident, until you see a case in another state that does not afford the same protections as California.

I get innumerable calls from potential clients wanting to sue for what they contend were false police reports. In California, calls to the police are protected speech, even if false. Apparently not so in Minnesota, and this case illustrates why it is a really bad idea to allow a criminally charged defendant to use civil court as a means to badger his accusers. At least Minnesota has seen the error of its ways and is amending the anti-SLAPP law.

See on Scoop.itCalifornia SLAPP Law

C.A. Upholds Ruling in Suit by Customer Claiming False Arrest

Prison inmate isolated on the white

A finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony, the Court of Appeal for this district ruled yesterday.

Source: www.metnews.com

Great case, discussing the elements of malicious prosecution.

I get many calls from clients wanting to sue for defamation and/or malicious prosecution after they are found not guilty of a criminal charge (or if the District Attorney decides not to pursue the case). As this case makes clear, a finding of probable cause at a preliminary hearing bars the defendant from subsequently claiming that he was prosecuted without probable cause, despite his claim the finding was based on false testimony.

The Court of Appeal ruled that case law has long held that a magistrate’s ruling at the preliminary hearing that prosecutors presented sufficient evidence to bind a defendant over for trial is preclusive on the issue of probable cause on a subsequent malicious prosecution claim.

The justice acknowledged on exception. There can still be a claim for malicious prosecution when the magistrate’s ruling is procured by false testimony, but the exception does not apply where the magistrate directly determined that the allegedly false witness was credible. “Accordingly, the magistrate’s probable cause determination, based on its credibility finding that Casasola testified truthfully about plaintiff’s threat, was sufficient to invoke collateral estoppel.”

It is a really tough burden to pursue a malicious prosecution action based on a criminal prosecution.

 

See on Scoop.itCalifornia SLAPP Law

Sony, CBS: Actress Can’t Sue for Retaliation Because She Never Applied for Job

Former ‘Young and the Restless’ star Victoria Rowell claims she was refused reemployment after advocating for more African-Americans in soap operas.

Source: www.hollywoodreporter.com

Interesting case with employment law and anti-SLAPP issues.

The plaintiff, an actress, claimed she was retaliated against when she complained that there are not enough African-Americans in soap operas. The only problem is, she never asked for a job. I’m considering bringing an action against the NBA for favoring tall people, even though I’ve never tried out.

The case also includes anti-SLAPP issues, with the defendants managing to get the case transfered from New York, where the anti-SLAPP law does not cover free speech issues, to California where it does.

See on Scoop.itCalifornia SLAPP Law

Courtney Love Fails to Get an Appeals Court to Dispense Defamation Lawsuit

A California appeals court sees no evidence that Courtney Love’s fame is on par with Marlon Brando’s. As a result, the rock star will continue fighting a lawsuit from a fashion designer who claims being defamed by Love on social media and Howard Stern’s radio show.

Dawn Simorangkir, a.k.a. the “Boudoir Queen,” is the plaintiff who’s fought Love on and off (and on) for the last six years.

Source: www.hollywoodreporter.com

I first reported on this case about six years ago, and the beat goes on.

A designer named Dawn Simorangkir, aka the “Boudoir Queen”, managed to get on the bad side of Courtney Love, who took to Twitter to call Simorangkir a “thieving prostitute” and the like. Simorangkir sued for defamation, and that action ultimately settled for $430,000.

But Love was undeterred.

She again began talking trash about Simorangkir on various social media, and the designer again sued. This time Love sought to dispose of the action by way of an anti-SLAPP motion.

Will that work? Well, let’s go through the analysis. To prevail on an anti-SLAPP motion, the defendant must first establish that the matter falls under the anti-SLAPP statute, and that requires a showing that the protected speech in question involves a matter of public interest.

“No problem,” said Love’s attorneys, “we can rely on the Marlon Brando case, wherein his housekeeper claimed an invasion of privacy when a television show did a story on how she was named in Brando’s will.” (I didn’t actually hear Love’s attorneys say this, but the story flows better if we assume they did.) In the Marlon Brando case, the court found the housekeeper and the will were matters of public interest because Brando was such a huge celebrity. Following the reasoning of the Brando case, Love’s attorneys argued that this was not a simple matter between two individuals with no public interest, but rather fell under the anti-SLAPP statute because Love’s fame made it a matter of public interest.

But there was a problem. Judge Allan Goodman said, “I knew Marlon Brando, Marlon Brando was a friend of mine, and you, Ms. Love, are no Marlon Brando.” Actually he didn’t say that, but that was the essence of his holding. He simply found that Love’s fame is not enough to make her controversies a matter of public interest.

The takeaway here is that the first prong of the anti-SLAPP analysis is still alive and well. So many controversies are deemed to be matters of public interest that some attorneys fail to focus sufficiently on that prong. But if the issue is between two individuals or limited to a small group, take a hard look at that prong.

 

See on Scoop.itCalifornia SLAPP Law

Judge Dismisses Slander Lawsuit Filed By Gang Crackdown Defendants

Judge Thomas Anderle has dismissed a lawsuit filed against the City of Santa Barbara, police chief Cam Sanchez, and police spokesperson Sgt. Riley Harwood by 10 people who claim they were the victims of slander and emotional distress when they were named in an ongoing gang suppression operation and when their mugshots were displayed during a November 2013 press conference on the crackdown. The ruling also allows the city to recover its attorney’s fees.

Source: www.independent.com

 

Ouch. When this case was filed, I predicted it would end like this. When will attorneys learn?

In the case, the plaintiffs’ mugshots were shown in conjunction with a “gang suppression operation”. They took umbrage, claiming that while they had all indeed been arrested as part of the operation, they were not gang members. They claimed such an allegation caused all kinds of emotional distress.

Let’s freeze right there. As I explain in excruciating detail at WhatIsDefamation.com, to a certain extent, the speaker of the alleged defamation gets to define their own terms. Defendants here may define gang member as “someone who gets arrested during a gang suppression operation”.

But aside from this reality, it is not enough to show that the statements were false. Because this was a matter of public interest, the Plaintiffs had to show that the defendants acted with malice.

Counsel for Plaintiffs was seeking $1 million per client. He fell a little short. Instead, these Plaintiffs will get to split the cost of the defendants’ attorney fees.

See on Scoop.itCalifornia SLAPP Law

Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

Email Aaron Morris
Latest Podcast
California SLAPP Law Podcast
SLAPP Law Podcast

Click on PLAY Button above to listen to California SLAPP Law Podcast, or listen on Stitcher Radio, iTunes and TuneIn Radio!

Subscribe
SiteLock
Section 6158.3 Notice
NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.