CASE NO.

B271470
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT

JANICE DICKINSON
Plaintiff and Appellant,
vs.
WILLIAM H. COSBY, JR.,
Defendant and Appellant;
MARTIN D. SINGER,
Defendant and Respondent.

DEFENDANT/APPELLANT WILLIAM H. COSBY, JR.S OPENING BRIEF

On Appeal From the Superior Court for the State of California,

County of Los Angeles, Case No. BC580909, Hon. Debre Katz Weintraub

LINER LLP
Angela C. Agrusa (SBN 131337)
aagrusa@linerlaw.com
1100 Glendon Avenue, 14th Floor
Los Angeles, California 90024.3518
Telephone: (310) 500-3500
Facsimile: (310) 500-3501
Attorneys for Defendant/Appellant WILLIAM H. COSBY, JR.

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Cal. Rules of Court, Rule 8.208)
The undersigned certifies that there are no interested persons or
entities to list in this certificate.
Dated: January 19, 2017

LINERLLP

By:

M
e~
geiaAgfUSa {
Attorneys for Defendant/Appellant
WILLIAM H. COSBY, JR.

47612.003-3515468

TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY OF ARGUMENT ........................ 9
II. STATEMENT OF APPEALABILITY .................................................. 13
III. STANDARD OF REVIEW................................................................... 13
IV. STATEMENT OF THE CASE ............................................................. 14
A.

Ms. Dickinsons Stale Accusations Were Intended to

and Did Grab Media Headlines ............................................. 14

B.

The November 18 Letter and the Statement ......................... 16

C.

Ms. Dickinson Retracts Her Claim that Mr. Cosby

Pressured HarperCollins........................................................ 17

D.

Ms. Dickinsons Reputation and Brand ............................. 18

V. PROCEDURAL HISTORY ................................................................... 19

VI. THE ORDER DENYING THE SPECIAL MOTION BASED
ON THE STATEMENT SHOULD BE REVERSED AND
THE ENTIRE ACTION SHOULD BE DISMISSED ..................... 20
A.

Standard of Review ............................................................... 20

B.

The Trial Court Correctly Held that Ms. Dickinsons

Claims Arise from Protected Activity Under the AntiSLAPP Statute ....................................................................... 22

C.

The Statement Is Not Actionable Because It Contains

Only Privileged Opinion ....................................................... 23

D.

E.

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1.

The Statement Expresses Opinion Based on

Disclosed Facts........................................................... 23

2.

The Statement Is Privileged as Predictable

Opinion ..................................................................... 28

The Statement Is Not Actionable Because Ms.

Dickinson Cannot Show That She Suffered Damages .......... 29
1.

The Statement Is Substantially True .......................... 29

2.

Ms. Dickinson Cannot Prove Damages, Even

Assuming Arguendo that She Could Establish
the Publication of a Falsehood ................................... 31

The Statement Is Not Actionable Against Mr. Cosby .......... 33

1.

Mr. Cosby Did Not Publish the Statement and

Cannot Be Held Liable Based Upon an Agency
Theory ........................................................................ 33

2.

Singer Did Not Issue the Statement with Actual

Malice ......................................................................... 35

3.

Even Assuming the Statement Was Defamatory

And Issued by Singer with Actual Malice, No
Liability Can Be Imputed to Mr. Cosby for Not
Retracting the Statement ............................................ 37

F.

Ms. Dickinson Cannot Establish a Probability of

Success on Her False Light Claim Because It Is
Duplicative of Her Defamation Claim .................................. 38

G.

Ms. Dickinson Cannot Demonstrate Probability of

Success on Her Intentional Infliction of Emotional
Distress Claim Because It Is Based on the Same Facts
as Her Defamation Claim ...................................................... 39

VII. CONCLUSION .................................................................................... 41

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TABLE OF AUTHORITIES
Page
CASES
Ampex Corp. v. Cargle
128 Cal. App. 4th 1569 (2005) ......................................................... 21
Baker v. Los Angeles Herald Examiner
42 Cal. 3d 254 (1986) ....................................................................... 29
Blatty v. New York Times Co.
42 Cal.3d 1033 (1986) ...................................................................... 39
Brodeur v. Atlas Entertainment, Inc.
248 Cal. App. 4th 665 (2016) ........................................................... 31
Clark v. Burleigh
4 Cal. 4th 474 (1992) ........................................................................ 21
Cross v. Cooper
197 Cal. App. 4th 357 (2011) ........................................................... 22
Damon v. Ocean Hills Journalism Club
85 Cal. App. 4th 468 (2000) ............................................................. 21
Dodds v. American Broadcasting Co.
145 F.3d 1053 (9th Cir. 1998) .......................................................... 36
Dreamstone Entre Ltd. v. Maysalward Inc.
No. 2:14-cv-02063-CAS(SSx), 2014 WL 4181026 (C.D. Cal.
Aug. 18, 2014) .................................................................................. 28
Ferlauto v. Hamsher
74 Cal. App. 4th 1394 (1999) ..................................................... 11, 28
Fletcher v. Western National Life Insurance Company
10 Cal. App. 3d 376 (1970) .............................................................. 40
Flynn v. Higham
149 Cal. App. 3d 677 (1983) ............................................................ 39
Foretich v. Capital Cities/ABC
37 F.3d 1541 (4th Cir. 1994) ............................................................ 28
Franklin v. Dynamic Details, Inc.
116 Cal. App. 4th 375 (2004) ............................................... 11, 23, 36
Garrison v. Louisiana
379 U.S. 64 (1964) ........................................................................... 36

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Gertz v. Robert Welch, Inc.

418 U.S. 323 (1974) ......................................................................... 34
GetFugu, Inc. v. Patton Boggs LLP
220 Cal. App. 4th 141 (2013) ........................................................... 30
Gregory v. McDonnell Douglas Corp.
17 Cal. 3d 596 (1976) ....................................................................... 29
Hailstone v. Martinez
169 Cal. App. 4th 728 (2008) ........................................................... 21
Hill v. Cosby
No. 16-1362, --- F. Appx ---, 2016 WL 7229817 (3d Cir.
Dec. 14, 2016) ........................................................................... passim
Hill v. Cosby
No. 15-CV-1658, 2016 WL 491728 (W.D. Pa. Feb. 9, 2016) ... 11, 27
Hustler Magazine v. Falwell
485 U.S. 46 (1988) ........................................................................... 39
Info. Control Corp. v. Genesis One Computer Corp.
611 F.2d 781 (9th Cir. 1980) ............................................................ 29
Ingels v. Westwood One Broadcasting Services, Inc.
129 Cal. App. 4th 1050 (2005) ................................................... 13, 21
Khawar v. Globe International, Inc.
19 Cal. 4th 254 (1998) ...................................................................... 34
Mann v. Quality Old Time Service, Inc.
120 Cal. App. 4th 90 (2004) ............................................................. 13
Masson v. New Yorker Magazine, Inc.
832 F. Supp. 1350 (N.D. Cal. 1993) .......................................... 30, 34
Mitchell v. Superior Court
37 Cal. 3d 268 (1984) ....................................................................... 33
Moyer v. Amador Valley Joint Union High School Dist.
225 Cal. App. 3d 720 (1990) ............................................................ 40
Murray v. Bailey
613 F. Supp. 1276 (M.D. Cal. 1985) ................................................ 34
Navellier v. Sletten
29 Cal. 4th 82 (2002) ........................................................................ 20
New York Times Co. v. Sullivan
376 U.S. 254 (1964) ................................................................... 34, 35
Nicosia v. De Rooy
72 F. Supp. 2d 1093 (N.D. Cal. 1999) ............................................. 23

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Nygard, Inc. v. Uusi-Kerttula

159 Cal. App. 4th 1027 (2008) ......................................................... 21
Readers Digest Association. v. Superior Court
37 Cal. 3d 244 (1984) ................................................................. 34, 39
Rivero v. Fedn of State, County, and Municipal Emps., AFL-CIO
105 Cal. App. 4th 913 (2003) ........................................................... 22
Rosenaur v. Seherer
88 Cal. App. 4th 260 (2001) ............................................................. 38
Selleck v. Globe International, Inc.
166 Cal. App. 3d 1123 (1985) .......................................................... 38
Shumate v. Johnson Publishing Co.
139 Cal. App. 2d 121 (1956) ............................................................ 37
Sipple v. Foundation For National Progress
71 Cal. App. 4th 226 (1999) ....................................................... 20, 21
Smith v. Maldonado
72 Cal App. 4th 637 (1999) .............................................................. 33
Standing Committee on Discipline v. Yagman
55 F.3d 1430 (9th Cir. 1995) ..................................................... passim
Taus v. Loftus
40 Cal.4th 683 (2007) ....................................................................... 31
Tutor-Saliba Corp. v. Herrera
136 Cal. App. 4th 604 (2006) ..................................................... 13, 14
Wilson v. Parker, Covert & Chidester
28 Cal. 4th 811 (2002) ...................................................................... 20
Wong v. Tai Jing
189 Cal. App. 4th 1354 (2010) ......................................................... 31
Young v. CBS Broadcasting, Inc.
212 Cal. App. 4th 551 (2012) ........................................................... 38
STATUTES
Code of Civil Procedure Section 425.16 ......................................... 13, 20, 21
Code of Civil Procedure Section 904.1 ....................................................... 13

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OTHER AUTHORITIES
Restatement (Second) of Torts 594 (1977) .............................................. 27
Restatement (Third) of Agency 7.03 (2006) ............................................. 35
Sack on Defamation 2.10 (4th ed. 2010) ................................................... 35

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I.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case asks whether our legal system allows those who are
publicly accused of serious misconduct to proclaim their innocence
publicly, as well. In November 2014, Defendant and Appellant William H.
Cosby, Jr. faced an onslaught of decades-old accusations of sexual assault,
all of which were time-barred, and all of which were presented in a media
frenzy that took no pains to question his accusers or look into the facts of
the claims. Perhaps the most vocal and high-profile of his accusers was
Plaintiff and Appellant Janice Dickinson, who claimed that in 1982, Mr.
Cosby assaulted her while they were in Lake Tahoe. However, this is not
the first time that Ms. Dickinson made public statements about that alleged
1982 encounter with Mr. Cosby. In her 2002 autobiography and an
interview with the New York Observer, Ms. Dickinson recounted that Mr.
Cosby invited her to sleep with him, and when she refused, he turned cold
and slammed the door in her face. Only after other women came forward
twelve years later making accusations against Mr. Cosby did she change
her story and go on national television, claiming rape for the first time.
When pressed as to why there was an irreconcilable difference between the
two stories, she made up a story that Mr. Cosbys representatives pressured
her book publisher, HarperCollins, not to publish anything about the
alleged rape in Ms. Dickinsons memoir. When confronted about this lie,
she publicly retracted that story.
Based on these facts, Mr. Cosbys then-attorney, Martin D. Singer,
issued two statements. The first was a November 18, 2014 Letter to Good
Morning America, admonishing the television program not to air Ms.
Dickinsons new version of events or there would be legal action (the
November 18 Letter). The trial court correctly found the letter to be
within the litigation privilege and that it could not form the basis of a

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defamation suit. The second of Attorney Singers statements was issued to

the press on November 19, 2014 (the Statement). It states that Ms.
Dickinsons new story is a fabricated lie, describes the contradiction
between the new allegations of rape and the version of events Ms.
Dickinson included in her memoir and New York Observer interview, and
also states that HarperCollins would deny that any attorney representing
Mr. Cosby ever tried to censor Ms. Dickinsons book. AA 000098 13;
AA 000177. This Statement is the subject of this appeal, as the trial court
erroneously concluded that it can form the basis of a defamation action.
Mr. Cosby appeals here from an Order entered on March 29, 2016,
granting in part and denying in part his Special Motion to Strike Ms.
Dickinsons defamation lawsuit pursuant to Code of Civil Procedure
Section 425.16. In considering the motion, the trial court conducted the
proper two-part analysis under the anti-SLAPP statute with respect to both
the November 18 Letter and the Statement. The trial court first properly
concluded that both the November 18 Letter and the Statement arise from
acts in furtherance of Mr. Cosbys right of petition or free speech in
connection with a public issue. The trial court then properly determined
that the November 18 Letter was protected by the litigation privilege, and
Ms. Dickinson therefore could not establish a reasonable probability of
success on any cause of action arising from the November 18 Letter.
However, the trial court erroneously denied Mr. Cosbys motion with
regard to the Statement, holding that Ms. Dickinson established a
reasonable probability of success on her causes of action arising therefrom.
The trial court erred in that portion of the decision for numerous
independent reasons.
First, Attorney Singers Statement is not defamatory as a matter of
law because it expresses an opinion and adequately discloses the factual
basis underlying it. Attorney Singer concluded that Ms. Dickinsons rape

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10

allegations were a lie, based on her statements in her autobiography and to

the press, and because HarperCollins would deny that Mr. Cosby pressured
the publisher into omitting portions of her memoir. [W]hen the facts
underlying a statement of opinion are disclosed, readers will understand
they are getting the authors interpretation of the facts presented and
readers are free to accept or reject the authors opinion based on their own
independent evaluation of the facts. Franklin v. Dynamic Details, Inc.,
116 Cal. App. 4th 375, 387 (2004), quoting Standing Comm. on Discipline
v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995) (and collecting cases).
Because Attorney Singer disclosed the reasons for his opinion, it is not
actionable defamation. In recent weeks, reviewing a very similar set of
circumstances, the United States Court of Appeals for the Third Circuit
affirmed the complete dismissal of a parallel lawsuit challenging, i.a., one
of Attorney Singers statements in defense of Mr. Cosby because it
constituted opinion based on disclosed facts. Hill v. Cosby, No. 16-1362, -- F. Appx ---, 2016 WL 7229817, at *5 (3d Cir. Dec. 14, 2016). The same
is true here, and the causes of action against Mr. Cosby should be
dismissed.
Second, the statements of a lawyer defending his client in the face of
overwhelmingly damaging allegations of serious misconduct are not
actionable in a defamation case. Under the doctrine of predictable
opinion, where potentially defamatory statements are published in a
setting . . . in which the audience may anticipate efforts by the parties to
persuade others to their positions by use of epithets, fiery rhetoric or
hyperbole, language which generally might be considered as statements of
fact may well assume the character of statements of opinion. Ferlauto v.
Hamsher, 74 Cal. App. 4th 1394, 1401-02 (1999) (internal citations and
quotations omitted); see also Hill v. Cosby, No. 15-cv-1658, 2016 WL
491728, at *5 (W.D. Pa. Feb. 9, 2016) , affd Hill, 2016 WL 7229817

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(Attorney Singers statements in Mr. Cosbys defense cannot be

reasonably understood to imply the existence of a defamatory fact
because [a]ny attorney for any defendant must advance a position contrary
to that of the plaintiff).
Third, the trial court erred in determining that Ms. Dickinson could
prevail on her cause of action because she cannot prove damages. Ms.
Dickinson has cultivated a public persona based on outrageous antics and
verbal attacks on public figures. Part of that persona depends on her fluid
presentation of the truth. She has admitted to lying in extremely serious
situations in the past, and she has lied with respect to her 1982 alleged
interactions with Mr. Cosby alreadycontradicting her prior statements
and having to retract false statements about HarperCollins caving to
pressure to censor her. She has had a widespread reputation for lying both
in her modeling days and in recent years, including appearing on a show
captioned Recovering Celeb Addicts, Reformed Liars. Because of this
reputation and public image, Attorney Singer calling her a liar could not
have damaged her as she claims.
Fourth, assuming that the Statement was defamatory in the first
instance (it is not), Mr. Cosby did not write, publish, disseminate or
transmit the Statement. The Statement was written and disseminated by
Mr. Cosbys prior legal counsel. In the First Amendment context, one
generally cannot be held liable for the words of another, either directly or
under a general agency or respondeat superior theory. Thus, the trial court
erred by denying Mr. Cosbys Special Motion to Strike because Mr. Cosby
did not utter the words at issue. The trial court also erred by imputing
liability to Mr. Cosby merely because he did not retract the Statement. The
one case cited by the trial court for this liability by omission theory does
not stand for that proposition.

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Finally, regardless of this Courts determination with respect to Ms.

Dickinsons defamation cause of action, her false light and emotional
distress causes of action should have been dismissed. If this Court affirms
the trial courts denial of the motion respecting the defamation cause of
action, the remaining causes of action should be dismissed because they are
duplicative and the law does not recognize such independent causes of
action based upon the same predicate facts as the defamation claim. If this
Court reverses the trial court and dismisses the defamation cause of action,
the false light and emotional distress causes of action likewise should be
dismissed on the same grounds.
For all of these reasons, discussed in detail below, all of Ms.
Dickinsons causes of action stemming from the Statement should be
dismissed.
II.
STATEMENT OF APPEALABILITY
Code of Civil Procedure 425.16(i) provides that [a]n order
granting or denying a special motion to strike shall be appealable under
Section 904.1. Thus, Mr. Cosby brings this appeal as a matter of right
pursuant to Code of Civil Procedure 425.16(i) and 904.1(a)(13).
III.
STANDARD OF REVIEW
A ruling on a special motion to strike under Section 425.16 is
reviewed de novo. Tutor-Saliba Corp. v. Herrera, 136 Cal. App. 4th 604,
609 (2006) (citation omitted). See also Ingels v. Westwood One Broad.
Servs., Inc., 129 Cal. App. 4th 1050, 1062 (2005), citing Mann v. Quality
Old Time Serv., Inc., 120 Cal. App. 4th 90, 103 (2004) (the court applies
the do novo standard of review to both prongs of [an] anti-SLAPP
statute).

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13

This de novo review includes whether the anti-SLAPP statute

applies to the challenged claim and an application of this Courts
independent judgment to determine whether [the plaintiffs] causes of
action arose from acts by [the defendant] in furtherance of [the defendants]
right of petition or free speech in connection with a public issue. TutorSaliba Corp., 136 Cal. App. 4th at 60910. If those conditions are
satisfied, this Court must then independently determine, from [a] review of
the record as a whole, whether [the plaintiff] has established a reasonable
probability that [s]he would prevail on [her] claims. Id. at 610.
IV.
STATEMENT OF THE CASE
A.

Ms. Dickinsons Stale Accusations Were Intended to and Did

Grab Media Headlines
Janice Dickinson is a former model and reality television

personality, whose livelihood now depends on garnering media attention

through outrageous behavior and statements. She has built a brand for
herself that includes vicious verbal attacks on public figures, and selfproclaimed mental illness, substance abuse, and lying. See, e.g.,
Appellants Appendix (AA) 000098 AA 000100. In 2002, Ms.
Dickinson published an autobiography, titled NO LIFEGUARD ON DUTY:
THE ACCIDENTAL LIFE OF THE WORLDS FIRST SUPERMODEL
(Autobiography). In that book, she specifically describes her interaction
with Mr. Cosby while visiting Lake Tahoe in 1982. While on that trip, Ms.
Dickinson wrote that after having dinner with him, Mr. Cosby invited her
back to his room, and when she declined his invitation, he gave [her] the
dirtiest, meanest look in the world, stepped into his suite, and slammed the
door in [her] face. AA 00096 8; AA 000158. The Autobiography makes
no allegation of assault. Ms. Dickinson later told essentially the same story
while promoting her Autobiography in a 2002 interview with the New York

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Observer. AA 000097 9; AA 000162 AA 000171. For twelve years

following the Autobiographys publication, this was Ms. Dickinsons
version of her interaction with Mr. Cosby.
Ms. Dickinsons story changed dramatically in late 2014, when a
number of women publically alleged sexual misconduct against Mr. Cosby,
stemming from events alleged to have occurred as long as five decades ago
and that had never been reported to law enforcement or the subject of legal
action. See AA 000095 3. The accusations were (and continue to be) the
subject of domestic and worldwide widespread media attention. See id.
At that time, for the first time, Ms. Dickinson revised her version of
events, and jumped into the media frenzy. Suddenly presenting a
diametrically opposite and contradictory story about her alleged visit with
Mr. Cosby in 1982, she now claimed that he sexually assaulted her thirty
years prior. On or about November 18, 2014, Ms. Dickinson claimed for
the first time, in a nationwide television interview broadcast on
Entertainment Tonight, that Mr. Cosby had allegedly drugged and raped her
after they had dinner together in 1982. Id. 4. Ms. Dickinson was
specifically asked during that 2014 interview to explain why her 2014 rape
allegation did not appear in her 2002 autobiography published twelve years
earlier. Her response was that Mr. Cosby and his legal team pressured her
publisher, HarperCollins, to remove those allegations and that the publisher
ultimately succumbed to that pressure. AA 000095 4, 5; AA 000112
AA 000123; AA 000015 21, 22.
On December 8, 2014, Ms. Dickinson repeated her allegations of
supposed rape in a nationally televised interview with Nancy Grace of
CNN, where she stated as follows:
I am protesting because of the unresolved issues due to rape
from Bill Cosby . . . I will say this, I sobbed all weekend. Not
just for me, but for whats going on for women everywhere[.]

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AA 000096 7; AA 000125 AA 000149.

At no time between 1982 and 2014 did Ms. Dickinson report sexual
assault allegations to law enforcement or file a civil action based on her
new allegations.
B.

The November 18 Letter and the Statement

On November 18, 2014, Mr. Cosbys then-attorney, Martin D.

Singer wrote a confidential pre-litigation demand letter to an executive

producer of Good Morning America (GMA) concerning a segment the
program was planning to run about Ms. Dickinsons accusations as
previously broadcast on Entertainment Tonight (the November 18
Letter). AA 000097 11; AA 000173 AA 000175. That letter was
prominently captioned CONFIDENTIAL LEGAL NOTICE and
PUBLICATION OR DISSEMINATION IS PROHIBITED. Id. In that
letter, Attorney Singer identified himself as Mr. Cosbys litigation counsel
and stated that Ms. Dickinsons rape story was fabricated and an
outrageous and defamatory lie. Id. He pointed out that Ms. Dickinson
confirmed, both in her Autobiography and in her 2002 interview with the
New York Observer, that Mr. Cosby blew her off when she refused to
sleep with him on the same occasion in Lake Tahoe when and where she
now claims the rape occurred. Id. Attorney Singer also advised GMA that
Ms. Dickinsons allegations about Mr. Cosby and the alleged pressuring of
her publisher were fabricated, and advised GMA to contact that publisher
before broadcasting that story. Id. Attorney Singer specifically warned
GMA that it would otherwise be exposed to very substantial liability. Id.
The next day, Attorney Singer issued the Statement to the press,
echoing the contents in the November 18 Letter. The Statement read as
follows:

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STATEMENT OF MARTIN D. SINGER

ATTORNEY FOR BILL COSBY
Janice Dickinsons story accusing Bill Cosby of rape is a
lie. There is a glaring contradiction between what she is
claiming now for the first time and what she wrote in her own
book and what she told the media back in 2002. Ms.
Dickinson did an interview with the New York Observer in
September 2002 entitled Interview With a Vamp
completely contradicting her new story about Mr.
Cosby. That interview a dozen years ago said she didnt
want to go to bed with him and he blew her off. Her
publisher Harper Collins can confirm that no attorney
representing Mr. Cosby tried to kill the alleged rape story
(since there was no such story) or tried to prevent her from
saying whatever she wanted about Bill Cosby in her
book. The only story she gave 12 years ago to the media and
in her autobiography was that she refused to sleep with Mr.
Cosby and he blew her off. Documentary proof and Ms.
Dickinsons own words show that her new story about
something she now claims happened back in 1982 is a
fabricated lie.
AA 000098 13; AA 000177. Accordingly, the Statement has essentially
three parts. First, Attorney Singer states that Ms. Dickinsons new
accusations are a lie. Second, he explains why: because she previously
described her alleged 1982 encounter in her Autobiography and to the New
York Observer, and both accounts were that he blew her off, not that he
raped her. Third, Attorney Singer explains that people seeking the truth
should contact HarperCollins to confirm that no one affiliated with Mr.
Cosby asserted any pressure in an attempt to keep rape allegations out of
the Autobiography.
C.

Ms. Dickinson Retracts Her Claim that Mr. Cosby Pressured

HarperCollins
Faced with the possibility that HarperCollins would deny her

accusation and that, in fact, it was not a true statement, Ms. Dickinson,

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through her lawyers, ultimately issued a public retraction of her claim that
Mr. Cosby influenced the content published in the Autobiography.
AA 000054 3-4.
D.

Ms. Dickinsons Reputation and Brand

Ms. Dickinson claims that the Statement branded her a liar and that

being branded as such entitles her to monetary damages. In reality,

however, falsehoods are an integral part of her pre-existing brand.
In her quest to remain in the public eye, Ms. Dickinson actively
cultivates a reputation for outrageous behavior that includes substance
abuse, mental lapses, and not being truthful. One of her fellow rehab
patients has been quoted in the media as saying no one in therapy believed
her real life stories. She was branded as a pathological liar. AA 000099
16.b; AA 000187 AA 000191. A journalist described Ms. Dickinson as
[t]he worlds first supermodel, a photographer, a parent, a giant liar to all
her clients, emotionally unstable, 75% silicon and 15% botox, and a crazy
(w)itch. AA 000099 16.a; AA 000179 AA 000185. Ms. Dickinson
also publicly admits that her alcoholism and drug abuse led to humiliation
of myself, losing clients, lying to people, lying to myself. AA 000099
16.c; AA 000193 AA 000199. She also admits to having a mental
illness and substance abuse memory lapses, and claims that she came
from a house where she lied because her dad was a pedophile. AA
000099 AA 000100 16.d; AA 000203 AA 000205. In 2007 she
stated: I was the wildest model ever. Famous people wanted to sleep with
me . . . . People ask me what it was like . . . but I dont remember. We were
all so high. AA 000100 16.e; AA 000209 AA 000219.

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V.
PROCEDURAL HISTORY
On May 20, 2015, Ms. Dickinson filed a Complaint against Mr.
Cosby, asserting causes of action sounding in defamation, false light, and
intentional infliction of emotional distress. AA 000012 AA 000034. All
of the causes of action were predicated upon the November 18 Letter and
the Statement. AA 000017 AA 000018 32-36. Both were written and
disseminated by Attorney Singer, and both denied the truth of Ms.
Dickinsons public allegations of sexual assault against Mr. Cosby.
AA 000097 AA 000098 1114; AA 000173 AA 000177.
On June 19, 2015, Mr. Cosby filed a demurrer and an anti-SLAPP
motion seeking to strike Ms. Dickinsons Complaint in its entirety under
Cal. Code Civ. Proc. Section 425.16(b)(1), which directs a court to strike a
cause of action against a person arising from any act of that person in
furtherance of the persons right of petition or free speech under the United
States Constitution or the California Constitution in connection with a
public issue[.] Mr. Cosby argued before the trial court that Ms. Dickinson
could not establish any probability of prevailing on any of her three causes
of action because both the November 18 Letter and the Statement are
protected statements or writings under subsections (e)(1)-(4). AA 000056
AA 000068.
The trial court issued a tentative ruling granting Mr. Cosbys antiSLAPP special motion as to all causes of action to the extent they are
based on the November 18 Letter but denied the motion as to all causes of
action to the extent they are based on the Statement. AA 001604
AA 001605. After oral argument, the trial court directed that its tentative
stands (AA 001629 at 33), holding that: (1) all three causes of action, with

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respect to both the November 18 Letter and the Statement, were subject to
being stricken pursuant to 425.16(b)(1) because both arise from an act in
furtherance of Mr. Cosbys right of free speech; (2) the November 18 Letter
was protected by the litigation privilege, and Ms. Dickinson therefore could
not demonstrate the probability of success on any cause of action arising
therefrom; and (3) Ms. Dickinson could potentially demonstrate the
probability of success on her causes of action arising from the Statement.
AA 001623 AA 001624 at 8, 13, 14. The instant appeal ensued.
VI.
THE ORDER DENYING THE SPECIAL MOTION BASED ON THE
STATEMENT SHOULD BE REVERSED AND THE ENTIRE
ACTION SHOULD BE DISMISSED
A.

Standard of Review
Code of Civil Procedure 425.16(b)(1) directs a court to grant a

motion to strike a cause of action against a person arising from any act of
that person in furtherance of the persons right of petition or free speech
under the United States Constitution or the California Constitution in
connection with a public issue . . . unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will
prevail on the claim. The statute was enacted so that courts could dismiss
at an early stage nonmeritorious litigation meant to chill the valid exercise
of the constitutional rights of freedom of speech and petition in connection
with a public issue. Sipple v. Found. For Natl Progress, 71 Cal. App. 4th
226, 235 (1999). See also Navellier v. Sletten, 29 Cal. 4th 82, 8889 (2002)
(plaintiff must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment (quoting Wilson v. Parker, Covert & Chidester, 28
Cal. 4th 811, 821 (2002)).

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20

An act in furtherance of a persons right of petition or free speech

. . . in connection with a public issue is defined to include any written or
oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest[.] Cal. Civ. Proc.
Code 425.16(e)(3). It is also defined to include any other conduct in
furtherance of the exercise of the constitutional right of . . . free speech in
connection with a public issue or an issue of public interest. Cal. Civ.
Proc. Code 425.16(e)(4).
A public forum traditionally has been defined as a place that is
open to the public where information is freely exchanged. Nygard, Inc. v.
Uusi-Kerttula, 159 Cal. App. 4th 1027, 1036 (2008) (citing Clark v.
Burleigh, 4 Cal. 4th 474, 482 (1992)). Newspapers and magazines are
public fora within the meaning of section 425.15(e)(3). Nygard, 159 Cal.
App. 4th at 1038; Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th
468, 47677 (2000) (same). Websites that are accessible to the public free
of charge, and where members of the public may read the views and
information posted and post their own opinions, are also public fora for
purposes of subsection (e)(3). Ampex Corp. v. Cargle, 128 Cal. App. 4th
1569, 1576 (2005).
The term public interest, as used in the anti-SLAPP statute, is not
limited to governmental matters[,] but is broadly construed. Hailstone
v. Martinez, 169 Cal. App. 4th 728, 737 (2008). An issue of public
interest within the meaning of section 425.16(e)(3) is any issue in which
the public is interested. In other words, the issue need not be significant
to be protected by the anti-SLAPP statuteit is enough that it is one in
which the public takes an interest. Nygard, Inc., 159 Cal. App. 4th at 1042
(emphasis in original). See also Sipple, 71 Cal. App. 4th at 23839
(statements about nationally known political consultants former wives
involved issue of public interest); Ingels, 129 Cal. App. 4th at 106264 (age

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21

discrimination lawsuit between radio station call-in host and caller who was
publicly ridiculed on air was matter of public interest).
B.

The Trial Court Correctly Held that Ms. Dickinsons Claims

Arise from Protected Activity Under the Anti-SLAPP Statute
Consistent with this public interest principle, California courts have

described three non-exclusive and sometimes overlapping categories of

statements that have been given anti-SLAPP protection under section
425.16(e)(3). Cross v. Cooper, 197 Cal. App. 4th 357, 373 & n.7 (2011).
These include statements that concern (1) a person or entity in the public
eye[,] (2) conduct that could directly affect a large number of people
beyond the direct participants, or (3) a topic of widespread, public
interest. Id. (citing and quoting Rivero v. Am. Fedn of State, County, and
Mun. Emps., AFL-CIO, 105 Cal. App. 4th 913, 924 (2003)).
The trial court correctly held that the Statement falls within all three
categories. First, the trial court correctly deemed it undisputed that both
Ms. Dickinson and Mr. Cosby are celebrities and that the Statement
therefore come[s] within the first general category of acts falling within
CCP 425.16(e)(4). The subject of the statement or activity precipitating the
claims was a person or entity in the public eye. AA 001622 at 7.
The trial court also correctly held that the Statement involve[s] a
topic of widespread public interest, namely, the public interest to know
whether Ms. Dickinsons allegations are true, especially in the climate
when numerous women were coming forward with similar allegations.
Thus, . . . [the Statement] come[s] within the general category of acts
falling within CCP 425.16(e)(4). The statements or activities precipitating
[the] claim involve the topic of widespread public interest. AA 001622
AA 001623 at 7-8.
Finally, the trial court correctly held that [b]ecause all three of
plaintiffs causes of action arise from the . . . Statement, they all arise out of

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an act of [Mr. Cosbys] furtherance of his right of free speech.

Accordingly, all three [of] plaintiffs causes of action are subject to being
stricken pursuant to 425.16(b)(1). AA 001623 at 8. The trial court then
correctly held that the burden shifted to Ms. Dickinson to demonstrate a
probability of prevailing on these claims. Id.
C.

The Statement Is Not Actionable Because It Contains Only

Privileged Opinion
1.

The Statement Expresses Opinion Based on Disclosed

Facts

The Statements assertion that Ms. Dickinsons rape allegations are

fabrications constitutes Attorney Singers opinion, and because it also
discloses the facts upon which that opinion is based, it cannot serve as the
basis for a defamation suit. A statement of opinion based on fully
disclosed facts can be punished only if the stated facts are themselves false
and demeaning. Franklin, 116 Cal. App. 4th at 387, quoting Yagman, 55
F.3d at 1439. [W]hen the facts underlying a statement of opinion are
disclosed, readers will understand they are getting the authors
interpretation of the facts presented and readers are free to accept or
reject the authors opinion based on their own independent evaluation of
the facts. Franklin, 116 Cal. App. 4th at 387, quoting Yagman, 55 F.3d at
1439 (and collecting cases). Accordingly, even extremely pejorative
statementsincluding [a]ccusations of criminal activityare not
actionable if the underlying facts are disclosed. Franklin, 116 Cal. App.
4th at 388, quoting Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1103 (N.D.
Cal. 1999).
Courts routinely apply this standard in protecting a declarants First
Amendment rights: as long as the facts underlying an opinion are
disclosed, it does not matter how pejorative or unreasonable the opinion
may be. For instance in Yagman, a renegade lawyer faced discipline for

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mounting a campaign of harassment against a federal judge in order to

manufacture a basis for the judges recusal in subsequent lawsuits. 55 F.3d
at 1434. Among other public statements about the judge, Yagman told the
Daily Journal that the judge has a penchant for sanctioning Jewish
lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of
anti-semitism. Id. at 1438. Judge Kozinski, writing for the Ninth Circuit,
explained that because there was no challenge as to whether those attorneys
had been sanctioned or whether they were Jewish, Yagman could not be
punished for the statement because he provided the factual basis for his
opinion: that the judge also had sanctioned two other Jewish lawyers. Id. at
1440.
The same is true for the Statement at issue here. Attorney Singer
expressed his opinion, Janice Dickinsons story accusing Bill Cosby of
rape is a lie. AA 000098 13; AA 000177. He then went on to disclose
the facts underlying that opinion:
Fact 1: There is a glaring contradiction between what she is
claiming now for the first time and what she wrote in
her own book and what she told the media back in
2002.
Fact 2: Ms. Dickinson did an interview with the New York
Observer in September 2002 entitled Interview With
a Vamp completely contradicting her new story
about Mr. Cosby. That interview a dozen years ago
said she didnt want to go to bed with him and he
blew her off.
Fact 3: Her publisher Harper Collins can confirm that no
attorney representing Mr. Cosby tried to kill the
alleged rape story . . . or tried to prevent her from
saying whatever she wanted about Bill Cosby in her
book.
Fact 4: The only story she gave 12 years ago to the media
and in her autobiography was that she refused to sleep
with Mr. Cosby and he blew her off.

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Id. These are statements of fact because [t]he words have specific, welldefined meanings and describe objectively verifiable matters. Yagman, 55
F.3d at 1438. Based on these facts, Attorney Singer restated his opinion,
Documentary proof and Ms. Dickinsons own words show that her new
story about something she now claims happened back in 1982 is a
fabricated lie. AA 000098 13; AA 000177 (emphasis in original).
Ms. Dickinson does not challenge any of the facts described in the
Statement. She does not claim that her Autobiography or the New York
Observer interview are other than as Attorney Singer described them. She
does not claim that HarperCollins would state that an attorney for Mr.
Cosby pressured the publisher to omit portions of Ms. Dickinsons
autobiographyin fact, Ms. Dickinson expressly retracted such claims.
See AA 000054 3-4. Instead, she takes issue only with Attorney
Singers opinion, that her new version of events is a fabricated lie.
AA 000018 36.a-b. This is not actionable.
The Third Circuits decision of Hill v. Cosby carefully applies this
doctrine in a similar case. Like Ms. Dickinson, a former actress made
public claims against Mr. Cosby on November 20, 2014, alleging
misconduct stemming from the 1980s that never before had been disclosed.
2016 WL 7229817, at *1. The following day, The Washington Post
published a statement given by Attorney Singer, addressing the numerous
accusers coming forward with decades-old claims. Id. Attorney Singer
stated that these allegations were unsubstantiated, fantastical stories that
have escalated far past the point of absurdity. Id. at *2. He explained,
[I]t is completely illogical that so many people would have said nothing,
done nothing, and made no reports to law enforcement or asserted civil
claims if they thought they had been assaulted over a span of so many
years. Id. He continued, There has never been a shortage of lawyers
willing to represent people with claims against rich, powerful men, so it

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makes no sense that not one of these new women . . . ever asserted a legal
claim back at the time they allege they had been sexually assaulted. Id.
Taking issue with this statement and two others made by Mr. Cosby and his
wife, Ms. Hill sued for defamation.
The district court dismissed the case in its entirety with prejudice,
and the Third Circuit affirmed, reasoning, [E]ven if Singers Statement
does imply Ms. Hill is a liar, it is still not actionable because it includes the
facts supporting that implication. Id. at *5 (modification in original).
Applying settled law, the court explained:
Responding to a media firestorm in which several women
(including Hill) had made public accusations of serious
wrongdoing against Cosby, Singer explained on his clients
behalf why he believed these accusations were nothing but
lies: (1) the alleged acts of abuse occurred 30, 40, or even 50
years ago; (2) it is completely illogical that so many people
would have said nothing, done nothing, and made no reports
to law enforcement or asserted civil claims if they thought
they had been assaulted over a span of so many years; and
(3) [l]awsuits are filed against people in the public eye every
day, and [t]here has never been a shortage of lawyers
willing to represent people with claims against rich, powerful
men, so it makes no sense that not one of these new women
who just came forward for the first time now ever asserted a
legal claim back at the time they allege they had been
sexually assaulted.
Id. (modifications in original). Accordingly, the court found that Attorney
Singers statement allowed the recipient to draw his or her own
conclusions on the basis of an independent evaluation of the facts, and no
defamation action could lie based on that statement. Id. (internal quotation
marks omitted).
As in Hill, the Statement Ms. Dickinson challenges here is an
opinion for which the underlying facts are disclosed: her prior statements
contradict her new allegations of rape, and her book publisher will confirm
that no attorney for Mr. Cosby ever sought to censor her Autobiography.

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26

The trial court erred in applying this well-settled doctrine. Instead of

reading Attorney Singers statement as an opinion supported by disclosed
facts, the trial court conflated the issue with the ultimate question of
whether a sexual assault had occurred. AA 001625 at 19 (the stated fact
asserted by defendant, that is, that Dickinson is lying about the rape, is
itself provable as false). In other words, the trial court concluded that the
only phrase in the Statement which is even potentially provable as false is
that Ms. Dickinson lied about being raped. Id. However, legal positions as
to allegations alone cannot form the basis for a defamation action. As a
matter of law, responding by calling your accuser a liar is not
defamatory. See Hill, 2016 WL 491728, at *5 (Attorney Singers
statements in Mr. Cosbys defense cannot reasonably be understood to
imply the existence of undisclosed defamatory facts because indeed [a]ny
attorney for any defendant must advance a position contrary to that of the
plaintiff (internal quotation marks omitted)); see also Restatement
(Second) of Torts 594 cmt. k (1977) (a defendant may publish in an
appropriate manner anything that he reasonably believes to be necessary to
defend his own reputation against the defamation of another, including the
statement that his accuser is an unmitigated liar.).
Taking a very common-sense approach to this question, the district
court in Hill reasoned, Plaintiff publicly claimed she was sexually abused
. . . by Defendant which is her position; and Defendant, through his
attorney, publicly denied those claims by saying the claims are
unsubstantiated and absurd which is his legal position. 2016 WL
491728, at *5. This sort of purely opinionated speech articulated by
Defendants attorney is protected and not actionable as defamatory speech
(id.) because the failure to vehemently deny such claims may later be
construed, interpreted as, or deemed an admission of those allegations.
Like in Hill, the trial court here held that Dickinson is either telling the

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27

truth or not telling the truth. The [Statement] presents the factual assertion
that the rape did not occur and that Dickinson is lying. Plaintiffs factual
position, on the other hand, is that the rape did occur and, thus, she is not
lying, contrary to what the [Statement] says about Dickinson. AA 001624
AA 001625 at 15-16. This is identical to the issue in Hill. The Statement
is purely opinionated speech articulated by Mr. Cosbys attorney, intended
to convey the message that Mr. Cosby denies the allegations made against
him. As discussed below, such a public denial of an equally public
allegation is protected speech as a matter of law.
2.

The Statement Is Privileged as Predictable Opinion

At common law, the self-defense privilege provides that an

individual is entitled to protect his reputation by publishing statements in
response to, or to refute injurious statements made by another. See, e.g.,
Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 155960 (4th Cir. 1994)
(permitting an uninhibited, robust, and wide-open public response to a
public attack, and collecting cases).
In California, a version of this defense is recognized under the
doctrine of predictable opinioni.e., a one-sided statement made by an
individual from [his] own perspective to paint [himself] in a better light.
Dreamstone Entmt Ltd. v. Maysalward Inc., No. 2:14-cv-02063CAS(SSx), 2014 WL 4181026, at * 6 (C.D. Cal. Aug. 18, 2014). [W]here
potentially defamatory statements are published in a . . . setting in which
the audience may anticipate efforts by the parties to persuade others to their
positions by use of epithets, fiery rhetoric or hyperbole, language which
generally might be considered as statements of fact may well assume the
character of statements of opinion. Ferlauto v. Hamsher, 74 Cal. App. 4th
1394, 140102 (1999) (internal citations and quotations omitted).
The trial court acknowledged the existence of the predictable
opinion doctrine, but then erroneously concluded that it only applies in the

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context of an actual litigation and where statements are made regarding the
merits of [that] litigation by one party to the lawsuit. AA 001625 at 18-19.
The trial court therefore further erred in its conclusion that the doctrine is
inapplicable here because the Statement was not made in connection with
any litigation between Mr. Cosby and Ms. Dickinson. Id. at 19. None of
the California authority relied upon by Ms. Dickinson imposes such a rule,
and the trial court cited no such authority. Id.
Rather, the Ninth Circuit and California Supreme Court decisions
establishing the doctrine encourage full consideration of the circumstances
in which statements are made, and provide that the doctrine may apply
whenever there is a heated public dispute. See Info. Control Corp. v.
Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (statements
are protected when made in public debate, heated labor dispute , or other
circumstances in which an audience may anticipate efforts by the parties to
persuade others to their positions. (quoting Gregory v. McDonnell
Douglas Corp., 17 Cal. 3d 596, 601 (1976)); Baker v. Los Angeles Herald
Examr, 42 Cal. 3d 254, 26061 (1986) (same).
Here, Singer issued the Statement in response to Ms. Dickinsons
accusations. It is a one-sided expression of opinion released in the same
public forum in which Ms. Dickinson chose to attack Mr. Cosby. The
response to decades-old allegations of sexual assault in the form of the
Statement was entirely predictable, can only be understood to constitute a
predictable opinion, and is therefore not actionable as defamation.
D.

The Statement Is Not Actionable Because Ms. Dickinson Cannot

Show That She Suffered Damages
1.

The Statement Is Substantially True

California law permits the defense of substantial truth and would

absolve a defendant even if she cannot justify every word of the alleged
defamatory matter; it is sufficient if the substance of the charge be proved

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true, irrespective of slight inaccuracy in the details. GetFugu, Inc. v.

Patton Boggs LLP, 220 Cal. App. 4th 141, 154 (2013) (quoting Masson v.
New Yorker Magazine, Inc., 501 U.S. 496, 51617 (1991) ) (quotation
marks omitted). The defense of substantial truth absolves a defendant
so long as the substance, the gist, the sting, of the libelous charge be
justified. Masson, 501 U.S. at 517 (internal quotation marks omitted). The
test for substantial truth is whether the statement would have had a
different effect on the mind of the reader from that which the pleaded truth
would have produced. Id. (internal quotations marks omitted).
The only inference that the trial court could have derived from the
Statement is that it includes, at best, an unprivileged assertion of fact, i.e.,
that Ms. Dickinson is a liar, and specifically with respect to what allegedly
happened in Lake Tahoe in 1982. That message, however, is substantially
trueby Ms. Dickinsons own multiple public admissions. First, the 2002
Autobiographys version of events is irreconcilable with her new 2014
allegations of rape. Either she lied in the Autobiography or she is lying
now. Second, Ms. Dickinson made up the story about Mr. Cosbys legal
representatives pressuring HarperCollins to omit allegations of rape from
the Autobiography, and she had to issue a public retraction of that story
after she went public with it. AA 000054 3-4.
Thus, Ms. Dickinsons allegation that the sting of the Statement
branded her as a liar is a hollow cry and is frankly nonsensical. By her own
conduct, reputation, and self-proclamations, Ms. Dickinsons provocative,
controversial and public life has created her brand as an indelible
spokesperson and a liar. Thus, when the Statement called out her
diametrically conflicting accusations to support Attorney Singers opinion
that Ms. Dickinson was not speaking truthfully, Ms. Dickinson was an
already known and self-proclaimed liar. In light of those statements, the
trial court erred when it speculated that a reasonable reader would not

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conclude that Ms. Dickinson had either lied in 2002 when she said that she
allegedly rejected Mr. Cosbys alleged advances, or that she was lying
when she offered her rape story.
Therefore, if the gist of the Statement is that Ms. Dickinson is a liar,
that conclusion is substantially (and, by her own admissions) true, and bars
Ms. Dickinsons defamation claim.
2.

Ms. Dickinson Cannot Prove Damages, Even Assuming

Arguendo that She Could Establish the Publication of a
Falsehood

In order to succeed on her defamation claim, Ms. Dickinson must

prove that the Statement was false and had a natural tendency to injure or
cause[d] special damage. Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1369
(2010) (citing Taus v. Loftus, 40 Cal. 4th 683,720 (2007)). Put another
way, the issue (assuming the Statement is false) is whether the false
statement exposes the plaintiff to hatred, contempt, ridicule, or obloquy,
or which causes him to be shunned or avoided, or which has a tendency to
injure him in his occupation. Brodeur v. Atlas Entmt, Inc., 248 Cal. App.
4th 665, 678 (2016) (citation omitted).
The trial court erred by concluding that Ms. Dickinson only lied
about trivial things that are made to entertain an audience and, as such,
was not impervious to a reputational harm for being accused of lying
about her rape allegations against Mr. Cosby. AA 001626 at 20-21.
The trial court was provided substantial evidence detailing the fact
that Ms. Dickinsons history of lying (and lying for pecuniary gain) was in
no way limited to trivial things. In her Autobiography, she admits that
she lied to police about her father beating her mother. AA 001429. She
admits that she lied to hospital workers about her fathers need for heart
medication, which led to him having a heart attack and dying. AA 001430
AA 001431. In her book CHECK, PLEASE!: DATING, MATING &

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EXTRICATING, Ms. Dickinson admits to lying to a fianc about her

intentions to convert to Judaism. AA 001439. She also admits to lying
about cheating on her boyfriend. AA 001443.
Long before Attorney Singers Statement, Ms. Dickinson had a
widespread reputation for outrageous behavior that included substance
abuse, mental lapses, and lying. She writes in her Autobiography that her
agent had trouble booking her for modeling jobs, telling her, People dont
trust you anymore. AA 001428. In her book EVERYTHING ABOUT ME IS
FAKE . . . AND IM PERFECT!, she discloses that the head of the Ford
modeling agency openly told people, Janice Dickinson is a liar.
AA 001436. Indeed, that is a reputation she actively cultivated and
commercially exploited, including appearing on a television show
captioned Recovering Celeb Addicts, Reformed Liars. AA 000179
AA 000205. Due in large part to Ms. Dickinsons own self-promotion
efforts, she established for herself a pervasive reputation as a liar. Any
claim that Ms. Dickinson has suffered damages either personally or
professionally as a result of the Statement would be baseless.
Given the facts of this case, the trial court erred when it concluded
that Ms. Dickinsons falsehoods are trivial, such that her reputation could
possibly be harmed. Under the factual history and circumstances cultivated
by Ms. Dickinson for Ms. Dickinson, she cannot establish the probability
that the Statement exposed her to hatred, contempt, ridicule, or obloquy,
or which causes h[er] to be shunned or avoided, or which has a tendency
to impact her employment. To the contrary, the Statement only potentially
expands her public persona and further advances her brand.

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E.

The Statement Is Not Actionable Against Mr. Cosby

1.

Mr. Cosby Did Not Publish the Statement and Cannot Be

Held Liable Based Upon an Agency Theory

The trial court concluded that the Statement was issued as a press
statement for purposes of this special motion to strike, [and thus,] the
element of publication is satisfied. AA 001624 at 14-15. However, the
trial court erred by finding that Mr. Cosby could potentially be found liable
for a Statement issued by Attorney Singer.
As a matter of law, Mr. Cosby cannot be held directly liable for
defamation absent some evidence that he furnished (or, at minimum, saw
and approved) the Statement. See Smith v. Maldonado, 72 Cal. App. 4th
637, 650 (1999) (no individual liability for highlighting and republishing an
allegedly defamatory newspaper article); Mitchell v. Superior Court, 37
Cal. 3d 268, 282 (1984) (requiring proof that allegedly defamatory article
included information provided by the defendant in order to impose liability
on the author).
The Complaint alleges that Mr. Cosby issued the Statement through
his authorized attorney and agent, presumably referring to Attorney
Singer, and further alleges that Mr. Cosbys failure to retract it constitutes
acceptance, endorsement and ratification. AA 000018 AA 000019
33, 35, 46. The Complaint, however, does not allege that Mr. Cosby
personally published the Statement, whether it be by writing it, furnishing it
to someone to distribute, or directing someone to utter its words. The
Statement was written and disseminated by Attorney Singer (see
AA 000098 13-14; AA 000177), and there is no allegation or evidence
that Mr. Cosby is responsible for its publication.
Moreover, [t]he First Amendment to the federal Constitution
provides that the individual states may define the appropriate standard of
liability for defamation, provided they do not impose liability without

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33

fault. Khawar v. Globe Intl, Inc., 19 Cal. 4th 254, 27374 (1998). Here,
Ms. Dickinson is a public figure, and the constitutionally-required level of
fault is actual malice, defined as knowing falsity or reckless disregard for
the truth. 1 Readers Digest Assn. v. Superior Court, 37 Cal. 3d 244, 256
(1984) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 28586
(1964)).
Because that showing of fault requires that the speakers state of
mind be proved by clear and convincing evidence, general agency rules do
not apply in the constitutional context. Masson v. New Yorker Magazine,
Inc., 832 F. Supp. 1350, 1370 (N.D. Cal. 1993. As one federal court has
explained, [T]he stringent standards required by the First Amendment
make application of agency theory inappropriate in the defamation
context. Murray v. Bailey, 613 F. Supp. 1276, 1281 (N.D. Cal. 1985). The
fact that Attorney Singer was acting generally on behalf of Mr. Cosby when
he issued the Statement does not make Mr. Cosby liable for the content of
Attorney Singers Statement. 2
1

A public figure is an individual who has achieve[d] such pervasive

fame or notoriety that he becomes a public figure for all purposes and in all
contexts, or one who voluntarily injects himself or is drawn into a
particular public controversy and thereby becomes a public figure for a
limited range of issues. See Gertz v. Robert Welch, Inc., 418 U.S. 323,
351 (1974). The trial court correctly found that Ms. Dickinson has done
both. As an internationally known fashion model, photographer and
author, the worlds first supermodel, the face of ad campaigns for many
products, and an individual with popularity and marketability on reality
television mad in publishing, (AA 000013 7-8), Ms. Dickinson is a
general purpose public figure. Having interjected herself into the
controversy surrounding Mr. Cosby with her highly publicized accusations
against him as a protest in support of women everywhere, she is a public
figure for the range of issues associated with that controversy as well.

Mr. Cosbys alleged failure to retract the Statement post-dates the

publication itself and is not publication in itself. Therefore, the failure to

47612.003-3515468

34

Even if the doctrine of respondeat superior were appropriate in the

First Amendment context (it is not), a principals vicarious liability turns
on whether the agent is liable. Restatement (Third) of Agency 7.03 &
cmt. b (2006). As a respected federal appellate judge and libel expert has
explained, in the context of defamation a principal can only be vicariously
liable if the person who actually utters the defamation is personally at
fault. Sack on Defamation 2.10, at 2-174 (4th ed. 2010).
For the reasons established before the trial court, Ms. Dickinson did
not and cannot prove that Attorney Singer issued the Statement with actual
malice. Even assuming such a finding were warranted (it is not), there can
still be no agency liability imputed to Mr. Cosbythe clientfor the
issuance of a statement by his lawyer. The Complaints effort to impute
liability to Mr. Cosby under a theory of respondeat superior fails as a
matter of law, and the trial court erred in its conclusion that Mr. Cosby can
potentially be held liable for a Statement that he did not write, publish, or
disseminate.
2.

Singer Did Not Issue the Statement with Actual Malice

The trial court correctly concluded that Ms. Dickinson is a

celebrity, shes a public figure who must demonstrate the defamatory
statement was made with malice, actual knowledge of falsehood or reckless
disregard for the truth. AA 001626 at 21. However, the trial court then
incorrectly concluded that Ms. Dickinson could potentially succeed on her
defamation claim given the possibility of demonstrating that Attorney
Singer acted with malice when he published the Statement and that Mr.

do so does not establish constitutionally required fault. See Sullivan, 376

U.S. at 286 (newspapers failure to retract upon plaintiffs demand was not
adequate evidence of malice for constitutional purposes).

47612.003-3515468

35

Cosby subsequently acted with malice by not issuing a public retraction

(thus, ratifying the Statement). AA 001626 at 21-23.
The trial court first erred in concluding that Attorney Singer acted
with the requisite degree of fault when he published the Statement. A
public figure alleging defamation must prove, by clear and convincing
evidence, that the speaker made the allegedly libelous statements with
actual malicethat is, with knowledge that they were false or with reckless
disregard of whether they were false or not. As the Supreme Court has
explained, that standard requires proof of a high degree of awareness of
[the statements] probable falsity[.] Garrison v. Louisiana, 379 U.S. 64,
74 (1964). Where the alleged defamatory statement is based on
documentary or other evidence, the actual malice standard cannot be
satisfied by speculation that the speaker may not have believed what he was
saying. See Dodds v. Am. Broad. Co., 145 F.3d 1053, 106162 (9th Cir.
1998) (actual malice not found simply because author could have done a
more thorough investigation in determining the facts); Franklin, 116 Cal.
App. 4th at 38788 (citing Yagman, 55 F.3d 1430 (9th Cir. 1995).
Far from knowing or recklessly disregarding the falsity in his
Statement, Attorney Singer had substantial factual bases to conclude that
Ms. Dickinsons 2014 interviews were a fabrication at the time he issued
the Statement. He knew that when Ms. Dickinson spoke of her experience
with Mr. Cosby in the Autobiography and the 2002 interview, she made no
mention of physical contact, assault or rape. According to Ms. Dickinson
herself, there was no such contactshe had dinner with Mr. Cosby and
then she declined an invitation into his hotel room. AA 000096 8;
AA 000151 AA 000160. Attorney Singer was also aware of the large
volume of prior reporting regarding Ms. Dickinson in which she was
persistently characterized as a liar, admitted to not being truthful, and
having herself cultivated that reputation for her own pecuniary gain. AA

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000098 16; AA 000179 AA 000185; AA 000187 AA 000191; AA

000193 AA 000199; AA 000203 AA 000205; AA 000209 AA
000219. Finally, Ms. Dickinson had retracted her claim about pressure
being brought upon her publisher, thereby admitting that she made a false
statement. AA 000054 3-4.
In sum, Attorney Singer had facts to support his belief that Ms.
Dickinsons story was a fabrication, and thus had no reason to believe that
in denying her accusations he was exposing himself or Mr. Cosby to
liability for making false statements. Moreover, Ms. Dickinson presented
no evidence to the trial court that Attorney Singer acted with reckless
disregard of truth or falsity. Thus, Ms. Dickinson cannot possibly establish
by clear and convincing evidence that the Statement was made with actual
malice, and the trial court erred in concluding that such a possibility (let
alone probability) exists.
3.

Even Assuming the Statement Was Defamatory And

Issued by Singer with Actual Malice, No Liability Can Be
Imputed to Mr. Cosby for Not Retracting the Statement

In order to potentially impute malice on Mr. Cosby, the Statement

must have first been issued with malice by Attorney Singer (which, for the
foregoing reasons, it was not). But, even assuming arguendo that the
Statement was issued by Attorney Singer with malice, malice cannot be
imputed to Mr. Cosby simply because the Statement was issued. Yet, the
trial court did precisely that when it held that Mr. Cosbys malice can be
inferred because he did not immediately take corrective action by fully
and publicly retracting the Statement. AA 001626 at 23. That conclusion
is not supported by any existing law. The single case relied upon by the
trial court (which was not cited in Ms. Dickinsons answering submission),
is inapposite. See id., citing Shumate v. Johnson Publg Co., 139 Cal. App.

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2d 121, 137 (1956) (holding a magazine editor liable for corporate

defendants publication).
With no evidence that Mr. Cosby himself issued the Statement, and
no law imputing a malicious state of mind on an individual simply for
failing to retract the statement of another, the trial court should have
granted Mr. Cosbys special motion to strike the defamation claim. See,
e.g., Young v. CBS Broad., Inc., 212 Cal. App. 4th 551, 56263 (2012)
(requiring that plaintiff establish a reasonable probability that she can
produce clear and convincing evidence showing that the statement was
made with actual malice); Rosenaur v. Seherer, 88 Cal. App. 4th 260, 270
(2001) (referring to a political foe as a thief and liar is constitutionally
protected).
F.

Ms. Dickinson Cannot Establish a Probability of Success on Her

False Light Claim Because It Is Duplicative of Her Defamation
Claim
Under California law, a plaintiff may not maintain both a defamation

action and a false light action for the same speech because the claims are
duplicative. See, e.g., Selleck v. Globe Intl, Inc., 166 Cal. App. 3d 1123,
1136 (1985) (a false light claim must be dismissed if it claims the same
harm as the defamation claim); See also Hill, 2016 WL 7229817, at * 6
(affirming dismissal of false light claim based on determination that the
subject statements were not defamatory).
Thus, assuming arguendo that the trial court correctly denied Mr.
Cosbys motion with respect to the defamation cause of action, the trial
court should have granted Mr. Cosbys motion with respect to the false
light cause of action as duplicative. Yet, the trial court apparently conflated
these principles, holding that the false light cause of action survived
because the defamation cause of action survived: [T]he defamation cause
of action which the court hereby incorporates by reference, plaintiff has

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demonstrated a probability of success on a false light claim, which the court

notes for the foregoing reasons, the court finds that plaintiff has
demonstrated a probability of prevailing on this cause of action false light
claim based on the Statement. AA 001627 at 25-26.
If this Court affirms the trial courts denial of Mr. Cosbys motion
with respect to the defamation cause of action, then Ms. Dickinsons false
light cause of action must be dismissed as duplicative. Alternatively, if this
Court reverses the trial courts denial of that motion and dismisses Ms.
Dickinsons defamation cause of action, the false light claimwhich
simply repeats all of the same allegationsshould also be dismissed on the
same grounds as the defamation claim. In either event, Ms. Dickinson
cannot demonstrate a probability of success on this cause of action.
G.

Ms. Dickinson Cannot Demonstrate Probability of Success on

Her Intentional Infliction of Emotional Distress Claim Because
It Is Based on the Same Facts as Her Defamation Claim
The analysis of Ms. Dickinsons emotional distress claim is the same

as that for the false light claimthis cause of action should be dismissed.
The constitutional protection afforded those who criticize public figures
does not depend on the label given the stated cause of action, Blatty v.
New York Times Co., 42 Cal. 3d 1033, 1042 (1986) (in bank), and applies
to actions for intentional infliction of emotional distress, as well. Hustler
Magazine v. Falwell, 485 U.S. 46, 56 (1988); Readers Digest Assn, 37
Cal. 3d at 265. The law thus recognizes that to allow an independent
cause of action for the intentional infliction of emotional distress, based on
the same acts which would not support a defamation action, would allow
plaintiffs to do indirectly that which they could not do directly. Flynn v.
Higham, 149 Cal. App. 3d 677, 682 (1983). See also Hill, 2016 WL
7229817, at * 6 (affirming dismissal of novel emotional distress claim
based on determination that the subject statements were not defamatory).

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Where, as here, a plaintiff asserts a cause of action for intentional

infliction of emotional distress based on allegedly defamatory statements,
[w]hether treated as an element of the prima facie case or as a matter of
defense, it must also appear that the defendants conduct was unprivileged.
Fletcher v. Western Natl Life Ins. Co., 10 Cal. App. 3d 376, 394 (1970);
see also Moyer v. Amador Valley Joint Union High School Dist., 225 Cal.
App. 3d 720, 726 (1990).
As above, if this Court affirms the trial courts denial of Mr. Cosbys
motion with respect to the defamation cause of action, then Ms.
Dickinsons emotional distress cause of action must be dismissed as
duplicative as it is based on the same predicate facts. Alternatively, if this
Court reverses the trial courts denial of that motion and dismisses Ms.
Dickinsons defamation cause of action, the emotional distress cause of
actionwhich simply repeats all of the same allegationsalso should be
dismissed on the same grounds as the defamation claim. In either event, for
the reasons previously articulated, the Statement is privileged as predictable
opinion or opinion based on disclosed true facts. Thus, it cannot support a
claim for emotional distress damages.

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VII.
CONCLUSION
For each of the foregoing reasons, Defendant and Appellant William
H. Cosby, Jr. respectfully requests that the Court reverse the trial court's
order denying his Special Motion to Strike as to the November 19, 2014
Statement and order the trial court to strike the First, Second, and Third
causes of action,

accordingly. ~

Dated: January 19, 20 17

LINERLLP

usa
Attorneys for Defendant/Appe
WILLIAM H. COSBY, JR.

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WORD COUNT
Counsel for Respondent William H. Cosby, Jr. certifies that the brief
contains 11,446 words, based on the "Word Count" feature of Microsoft
Word.
Dated: January 19, 2017

LINERLLP

Angela .. Agru
Attorneys for Defendant/Appell an
WILLIAM H. COSBY, JR.

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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of service, I was over 18 years of age and not a party to
this action. I am employed in the County of Los Angeles, State of
California. My business address is 1100 Glendon A venue, 14th Floor, Los
Angeles, CA 90024.3518.
On January 19, 2017, I served true copies of the following
document(s) described as DEFENDANT/APPELLANT WILLIAM H.
COSBY, JR.'S OPENING BRIEF on the interested parties in this action
as follows:

SEE ATTACHED SERVICE LIST

BY CMIECF NOTICE OF ELECTRONIC FILING: I
electronically filed the document(s) with the Clerk of the Court by using the
CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CMIECF system. Participants in the case who
are not registered CM/ECF users will be served by mail or by other means
permitted by the court rules.
BY FEDEX: I enclosed said document(s) in an envelope or
package provided by F edEx and addressed to the persons at the addresses
listed in the Service List. I placed the envelope or package for collection
and overnight delivery at an office or a regularly utilized drop box of
FedEx or delivered such document(s) to a courier or driver authorized by
FedEx to receive documents.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed on January 19,
2017, at Los Angeles, California.
( ~

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\./Lsa Law

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------

SERVICE LIST
Dickinson v Cosby et al., Case No. B271470
Lisa Bloom, Esq.
Jivaka Candappa, Esq.
Alan Goldstein, Esq.
The Bloom Firm
20700 Ventura Blvd., Suite 301
Woodland Hills, CA 91364
Telephone: (818) 914-7319
lisa@thebloomfirm.com
jivaka@thebloomfirm.com
alan@thebloomfirm.com

Attorneys for Appellee Janice

Dickinson

Andrew Brettler, Esq.

Lavely & Singer P.C.
2049 Century Park East, Suite 2400
Los Angeles, CA 90067
Telephone: (310) 556-3501
Facsimile: (310) 556-3615
abrettler@lavelysinger.com

Attorneys for Respondent

Martin Singer

Jeremy B. Rosen, Esq.

Felix Shafir, Esq.
Horvitz & Levy LLP
Business Arts Plaza
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505
Telephone: (818) 995-0800
Facsimile: (844) 497-6592
jrosen@horvitzlevy.com
fshafir@horvitzlevy.com

Attorneys for Respondent

Martin Singer

California Supreme Court

350 McAllister Street, Room 1295
San Francisco, CA 94102

(VIA CM/ECF)

Clerk to the Hon. Randolph M. Hammock

California Superior Court, County of Los
Angeles
111 N. Hill Street, Dept. 47
Los Angeles, CA 90012

(VIA FEDEX)

47612.003-3515468

(VIA CM/ECF)

(VIA CM/ECF)

(VIA CM/ECF)

44