One of Bill Cosby’s accusers can continue with her defamation suit, the California state court of appeals said in an opinion late last year, holding that the trial court erred when it used the state’s anti-SLAPP law to partially strike Janice Dickinson’s complaint against the entertainer. Dickinson had based one of her claims on statements reacting to Dickinson’s claims that Cosby’s lawyers made in letters to media outlets.

The case could be a caution flag – at least under California law – for lawyers who label accusations against their clients as “lies.”

“Fabricated” and “an outrageous … lie”

Immediately after Dickinson went public on Entertainment Tonight with her claims that Cosby drugged and raped her in 1982, Cosby’s lawyer, Martin Singer, sent demand letters to Good Morning America and several other media outlets calling her assertions “fabricated and … an outrageous defamatory lie,” and explicitly threatening to sue them if they disseminated Dickinson’s claims further. The next day, Singer also issued a press release calling Dickinson’s accusations against Cosby “a lie.”

Dickinson sued for defamation based on the statements in the demand letter and the press release; Cosby responded with a motion to strike the complaint, under California’s anti-SLAPP law.

The trial court issued a divided opinion. It found the statements in the demand letter to be protected by the absolute litigation privilege; but the trial court rejected Cosby’s argument that the press release statements merely expressed a protected opinion, and held that Dickinson had shown a probability of prevailing on her defamation claim as to the press release. Both sides appealed.

The state court of appeals unanimously agreed that the trial court had gotten it right as to the press release, but reversed as to the demand letter, holding that the litigation privilege did not shield Singer’s statements on behalf of Cosby.

Litigation privileged?

California law, like that in other jurisdictions, extends an absolute privilege to statements made in connection with judicial proceedings. (California’s privilege is codified here.) The privilege is broad, and includes pre-litigation statements made in furtherance of the objects of the litigation.

A demand letter can qualify for the litigation privilege — but only when it relates “to litigation that is contemplated in good faith and [is] under serious consideration.” “Even a threat to commence litigation will be insufficient to trigger application of the privilege if it is actually made as a means of inducing settlement of a claim, and not in good faith contemplation of a lawsuit,” noted the court of appeals, citing a key 2007 state supreme court case.

Here, the court of appeals said, the letter was sent only to media outlets that had not yet run the story of Dickinson’s rape accusations, but indicated that they planned to; and when some of the news outlets ignored the demand letter and ran the story anyway, Cosby never followed through on the litigation threat in Singer’s demand letter, and never sued.

The court ruled that this evidence supported a prima facie inference that the demand letter was sent without good faith contemplation of seriously-considered litigation; rather, said the court of appeals, the 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.” Thus, the letters were merely “hollow threats of litigation” that did not qualify for the absolute litigation privilege.

Results may vary

The court of appeals noted and rejected the applicability of federal court decisions arising out of other claims against Cosby, including other statements that Singer made on his behalf; those cases were decided under Michigan and Pennsylvania law.

The point that the outcome in a defamation case is extremely dependent on particular state-law wrinkles is important. California’s strong authority on the litigation privilege and especially the high bar for showing that pre-litigation communications are serious threats of litigation, not settlement “bluffs,” spelled the difference here.

The law in your own jurisdiction may differ. In my home state of Ohio, for instance, similar authority appears lacking. But for cases under California law, the Dickinson ruling is instructive on the limits on privilege when it comes to calling the other side a liar.