Cosby Must Defend Suit Based on Lawyer’s Reaction to Rape Claims

By Joan C. Rogers

Cosby accuser Janice Dickinson can go ahead with her tort suit claiming that the entertainer defamed her through his lawyer’s statements in reaction to her rape accusation, the California Court of Appeal, Second District, ruled Nov. 21.

Cosby isn’t entitled to an early exit from Dickinson’s suit under California’s anti-SLAPP law, the court concluded in an opinion by Justice Laurence D. Rubin ( Dickinson v. Cosby , 2017 BL 417585, Cal. Ct. App., 2d Dist., B271470, 11/21/17 ).

Even though the decision isn’t a ruling on the merits of the claims against Cosby, it could prompt lawyers to think twice before describing accusations against their clients as lies.

When Dickinson went public with her rape accusation against Cosby, his lawyer Martin Singer reacted with (1) a letter demanding that media outlets not repeat her allegations; and (2) a press release characterizing her rape accusation as a lie.

Anti-SLAPP Motion

Dickinson sued Cosby for allegedly defaming her in the demand letter and press release. Cosby responded with a motion to strike her complaint under California’s anti-SLAPP law.

The anti-SLAPP law, codified at Cal. Civ. Proc. Code §425.16, frowns on “Strategic Lawsuits Against Public Participation.” It provides a procedural mechanism for defendants to quickly escape a meritless suit that’s intended to squelch speech on public issues.

In response to the anti-SLAPP motion, Singer submitted a declaration explaining how he came to draft the two statements and why he believed their contents were true. Cosby didn’t file a declaration denying the truth of the rape accusation.

On appeal from a mixed trial court ruling on the anti-SLAPP motion, the battleground was whether Dickinson demonstrated a probability of prevailing on her complaint.

Not Covered by Litigation Privilege

Cosby argued that the demand letter was protected by the absolute litigation privilege set out in Cal. Civ. Code §47, but the court didn’t agree.

The court noted that the litigation privilege applies to a prelitigation communication only when it relates to litigation that is contemplated in good faith and under serious consideration. The evidence here supported the inference that Cosby sent the demand letter without a serious, good faith contemplation of litigation, it found.

The court pointed out that the demand letter was sent only to media outlets that hadn’t yet run the story of Dickinson’s rape allegation but had indicated an intention to do so. Also, Cosby never sued any media outlet that ran the story.

These facts suggested 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 said.

The litigation privilege doesn’t extend to press releases so Cosby was correct not to argue otherwise, the court said in a footnote.

Not Just Opinion

With regard to both the demand letter and the press release, Cosby argued that the statements in them were simply Singer’s opinion and thus couldn’t support a claim for defamation. Cosby also contended that he couldn’t be held liable for Singer’s statements without evidence that he furnished or approved them.

However, the court found that both the demand letter and the press release contained statements of fact—that is, that Dickinson lied about Cosby raping her.

The court pointed out that the demand letter came from Cosby’s litigation counsel on his behalf. 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’s reasonable for the recipient of the letter to infer that the accused is, in fact, denying the rape, the court said.

As for the press release, the average person reading it would assume that Singer, as Cosby’s attorney, was speaking for Cosby and that the statement was Cosby’s denial of having raped Dickinson, the court said.

Complaint Reinstated Against Lawyer

On a separate issue in the case, the court held that Dickinson had the right to amend her complaint to add Singer as a defendant even though Cosby’s anti-SLAPP motion was pending at the time when she filed the amended complaint.

There’s no reason for a new defendant to escape being added simply because an existing defendant has an anti-SLAPP motion pending, the court said.

“We fail to see how justice is served by granting Singer a windfall immunity based on Cosby’s pursuit of a meritless motion,” the court said.

The other panel members were Justices Patricia A. Bigelow and Elizabeth A. Grimes.

DLA Piper and Greenberg Gross LLP represented Cosby. Horvitz & Levy LLP and Lavely & Singer P.C. represented Singer.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

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