CA Appeal Ct. On Defamation Claims Against Bill Cosby

"However, … there is evidence that Cosby personally approved or authorized the statements before Singer issued them. Cosby had no ethical obligation to issue press releases containing known falsehoods, nor does it benefit our free and open society for him to do so," the appellate court said in affirming the trial court's refusal to dismiss Dickinson's defamation claims and awarding her costs on appeal. Dickinson v. Cosby, 37 Cal. App. 5^th 1138 (2019).

Just a day before the court of appeal issued its decision, Cosby's insurance company, AIG, settled a defamation claim with Dickinson. Dickinson's attorney, Lisa Bloom, declined to say how much money her client will receive but described it as "an epic amount."

Cosby, 82, was convicted of three counts of aggravated indecent assault last year and is serving a three-to-10-year sentence in Pennsylvania.

In the Dickinson suit, the Los Angeles Superior Court heard and decided Singer's and Cosby's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) motions simultaneously. The court granted Singer's motion in its entirety on the basis that Dickinson could not prove he acted with malice, which was a necessary element of her claims.

The superior court explained: "The only way plaintiff could prove by clear and convincing evidence that Singer and/or Cosby acted with the requisite malice against plaintiff (as a public figure) would be to show that Singer knew or acted in reckless disregard of whether the rape actually occurred, because the gist of his defamatory statements is that plaintiff is lying about a rape that never happened. Because Singer was not present during the alleged rape, the only way he could know would be that Cosby communicated to Singer that he did in fact rape Dickinson as she claims.

"However, evidence of this communication from Cosby to Singer comes within the attorney-client privilege (and only Cosby, as client, can waive the privilege), and any documents reflecting Singer's conclusions about Cosby's innocence come within the absolute attorney work product doctrine protecting writings reflecting 'an attorney's impression, conclusions, opinions or legal research or theories,' which writings are 'not discoverable under any circumstances.'"

The trial court then turned to Cosby's anti-SLAPP motion, which included considering whether Dickinson had established a probability of prevailing on the merits of her claims. The trial court rejected Cosby's argument that the press releases were not "of and concerning" Dickinson, though it found all but one statement in Singer's Nov. 21 press release to be nonactionable opinion. That statement was: "The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity," Singer said.

Finally, the trial court rejected Cosby's argument that Dickinson could not establish direct or vicarious liability with respect to any of her claims. The trial court explained: "The evidence before the court is that plaintiff has demonstrated a probability that she can prove that Cosby ratified two statements made by Singer on behalf of Cosby as his agent because Cosby approved the Nov. 18, 2014 press statement before it was publicly issued by Singer."

The court of appeal rejected Cosby's assertions that Singer's statements constituted nonactionable opinion. "Even if we were to accept Cosby's premise that a reasonable listener would understand the statements as Singer's opinion, we would nonetheless find them actionable," the appeals court said. "Cosby insists the statements are nonactionable because both press releases set forth a sufficient factual basis for any opinions expressed therein. We can dispense of this argument summarily as it relates to the November 20 press release, which provides no factual basis, whatsoever, for the statement referring to Dickinson."

As for the Nov. 21 press release, the appeals court said the statements contained in the release were actionable in part because "there is a strong implication that Singer's opinion is based on an undisclosed and provably false fact: Cosby did not rape Dickinson."

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Suzette Parmley is the Trenton Correspondent who covers the NJ Supreme Court, NJ Legislature and Business of Law for ALM. She can be reached at [email protected] or follow her on Twitter @SuzParmley.