November 18 Demand Letter and November 19 Press Release: The Doctrine of the Law of the Case.
“ ‘The doctrine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) The doctrine “precludes a party from obtaining appellate review of the same issue more than once in a single action.” (Katz v. Los Gatos– Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 62; see Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434 [“The rule of ‘law of the case’ generally precludes multiple appellate review of the same issue in a single case.”].) “The law of the case may apply even where the appeal is from a decision short of a full trial, including a judgment on a demurrer, a nonsuit order or denial of an anti-SLAPP motion.” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 356.)
In the prior appeal, Dickinson I, the California Court of Appeal held that Plaintiff Dickinson’s defamation claims premised on the November 18 demand letter and November 19 press release are not barred under the anti-SLAPP statute. (See Dickinson v. Cosby (2017) 17 Cal.App.5th 655 (Dickinson I). 660.) That determination became law of the case, which, in effect, precluded Dedendant Cosby from relitigating the issue. As a result, the California Court of Appeal did not consider Cosby’s arguments related to those claims, and instead limited the review to his arguments related to the November 20 and 21 press releases, which were not at issue in Dickinson I.
Plaintiff’s Challenged Claim Arises From Statutorily-Defined Protected Activity. However, Plaintiff Showed a Probability of Prevailing.
See § 425.16, subd. (b)(1); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–1056.)
The California Court of Appeal focused, therefore, on the second prong of the analysis: whether Dickinson has shown of probability of prevailing on her claims. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To show a probability of prevailing, the opposing party must demonstrate the claim is legally sufficient and supported by a sufficient prima facie showing of evidence to sustain a favorable judgment if the evidence it has submitted is credited. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ [Citations.]” (Taus v. Loftus (2007) 40 Cal.4th 683.
An otherwise defamatory statement is actionable only if it is “of and concerning” the plaintiff. “The ‘of and concerning’ or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt.” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1044.) To satisfy the requirement, the plaintiff must show the statement expressly mentions her or refers to her by reasonable implication. (Id. at p. 1046.) The plaintiff must also show the statement was understood by at least one third person to have concerned her. (Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1231; see Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1147 [“For publication to occur the defamatory matter must be communicated to a third party who understands the defamatory meaning and its applicability to the plaintiff.”].) A statement may be actionable if it refers to a group to which the plaintiff belongs, but only if the group is sufficiently small and its members easily ascertainable. (Blatty, supra, 42 Cal.3d at p. 1046.) Where the statement refers to a large group—typically any group numbering more than 25 members— courts consistently hold that plaintiffs cannot show the 27 statements were of and concerning them. (Ibid.)
To determine whether the allegedly defamatory statements are of and concerning Plaintiff Dickinson, the California Court of Appeal considered the totality of the circumstances. (See D.A.R.E. America v. Rolling Stone Magazine, (2000) 101 F.Supp.2d 1270, 1290 [applying California law].) This requires examination of the “nature and full content of the communication and . . . the knowledge and understanding of the audience to whom the publication was directed.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261 .)
“ ‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ [Citation.] Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation.]” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) Statements of opinion, however, do not enjoy blanket protection. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384– 385.)
Rather, “a statement that implies a false assertion of fact, even if couched as an opinion, can be actionable.” (McGarry, supra, 154 Cal.App.4th at p. 112, relying on Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18–19.) The dispositive question is not whether a statement is fact or opinion, but “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Franklin, supra, at p. 385; see Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696.)
“Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” (Milkovich, supra, 497 U.S. at pp. 18–19; see Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [“An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false”].) Courts also consider whether the statement was cautiously phrased in terms of the author’s impression. (Baker, supra, 42 Cal.3d at pp. 260– 261.) In considering the context of the statement, we look at the audience to whom the statement was directed (Baker, supra, 42 Cal.3d at p. 261), the forum in which the statement was made (see e.g. Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 699) and the author of the statement (see, e.g., Franklin, supra, 116 Cal.App.4th at p. 389).
The order was affirmed. Dickinson was awarded her costs on appeal.
See Dickenson v Cosby.
If you are faced with California’s Anti-SLAPP issues, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez!
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the California Court of Appeal.