Janice Dickinson v. William H. Cosby, Jr.

Los Angeles, California personal injury lawyer represented Plaintiff who claimed defendant drugged and raped her.



In 2014, plaintiff Janice Dickinson publicly alleged that

defendant William Cosby drugged and raped her in 1982. Cosby

responded by issuing a demand letter and several press releases

through his attorney, which expressed or implied that Dickinson

was lying. Dickinson filed a complaint against Cosby for

defamation and related causes of action, which Cosby moved to

strike under Code of Civil Procedure section 425.16 (the antiSLAPP

statute).

1 The trial court granted Cosby�s motion in part,

which we subsequently reversed in Dickinson v. Cosby (2017)

17 Cal.App.5th 655 (Dickinson I). We concluded that none of

Dickinson�s claims were barred by the anti-SLAPP statute.

On remand, Cosby filed a second anti-SLAPP motion

seeking to strike claims newly asserted in Dickinson�s first

amended complaint. The trial court granted the motion in

substantial part, but refused to strike Dickinson�s claims

premised on two allegedly defamatory statements appearing in

press releases issued by Cosby�s attorney.

Cosby contends the trial court erred in declining to grant

his motion in full. He argues that Dickinson cannot show he is

directly or vicariously liable for his attorney�s statements. He

also argues the allegedly defamatory statements were his

attorney�s nonactionable opinions and did not refer, directly or

indirectly, to Dickinson. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

During a nationally televised Entertainment Tonight



1 All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

2 We take some of the background facts from our prior

opinion in this case, Dickinson I, supra, 17 Cal.App.5th 655.

3

interview that aired on November 18, 2014, Dickinson, a

successful model and television personality, accused Cosby, a

successful comedian and actor, of drugging and raping her in

1982. After the interview went public, Cosby�s attorney, Martin

Singer, sent a demand letter to the executive producer of Good

Morning America, with similar letters to other media outlets.

The body of the letter states, among other things, �We are writing

regarding the planned Good Morning America segment

interviewing Janice Dickinson regarding the false and outlandish

claims she made about Mr. Cosby in an Entertainment

Tonight interview, asserting that he raped her in 1982 (the

�Story�). That Story is fabricated and is an outrageous

defamatory lie.�

The next day, November 19, 2014, Singer issued a press

release, with the heading,

�STATEMENT OF MARTIN D. SINGER

ATTORNEY FOR BILL COSBY�

The body of the press release asserts, among other things,

�Janice Dickinson�s story accusing Bill Cosby of rape is a lie,� and

�Documentary proof and Ms. Dickinson�s own words show that

her new story about something she now claims happened back in

1982 is a fabricated lie.�

Around this time, several other women, including Linda

Traitz, also accused Cosby of sexual misconduct. In response to

Traitz�s allegations, on November 20, 2014, Singer issued a press

release, which was headed,

�STATEMENT BY MARTIN D. SINGER

ATTORNEY FOR BILL COSBY

REGARDING LINDA JOY TRAITZ�

The statement reads, in its entirety, as follows:

4

�Ms. Traitz is the latest example of people coming out of the

woodwork with fabricated or unsubstantiated stories about my

client.

�Linda Joy Traitz is making ridiculous claims and suddenly

seems to have a lot to say about a fleeting incident she says

happened with my client more than 40 years ago, but she hasn�t

mentioned either her 3 1/2 year incarceration or her extensive

criminal record with charges spanning from the 1980�s through

2008.

�For the first time, she is claiming that in approximately 1970,

my client supposedly drove her to the beach and had a briefcase

filled with drugs and offered her pills to relax, which she says she

turned down and demanded to be taken home after Mr. Cosby

came on to her. There was no briefcase of drugs, and this is an

absurd fabrication.

�Ms. Traitz�s long criminal record for numerous offenses

including charges for criminal fraud, possession of Oxycodone,

cocaine possession, marijuana possession, and possession of drug

paraphernalia, speaks for itself.

�As the old saying goes, �consider the source.� �

On November 21, 2014, Singer issued a third press release,

which was headed,

�STATEMENT BY MARTIN D. SINGER

ATTORNEY FOR BILL COSBY�

The statement reads, in its entirety, as follows:

�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.

�These brand new claims about alleged decades-old events are

5

becoming increasingly ridiculous, and 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.

�Lawsuits are filed against people in the public eye every day.

There 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.

�This situation is an unprecedented example of the media�s

breakneck rush to run stories without any corroboration or

adherence to traditional journalistic standards. Over and over

again, we have refuted these new unsubstantiated stories with

documentary evidence, only to have a new uncorroborated story

crop up out of the woodwork. When will it end?�

Demands for Retraction

On February 2, 2015, Dickinson�s counsel, Lisa Bloom, sent

several Cosby attorneys, including Singer, a letter seeking

retraction of both the November 18 demand letter and November

19 press release. Bloom argued that Singer�s statements on

behalf of Cosby had defamed Dickinson and harmed her

reputation, and she demanded Cosby �immediately publicly

correct the record to restore [Dickinson�s] reputation.�

On December 24, 2015, Bloom sent additional letters to

Cosby�s attorneys, as well as Singer�s attorney, demanding

retraction of the November 20 and 21 press releases.

Neither Cosby nor Singer retracted the statements.

6

Dickinson�s Original Complaint

On May 20, 2015, Dickinson filed a complaint against

Cosby for defamation and related causes of action.

3 Her

complaint alleged that Cosby had drugged and raped her, which

she disclosed publicly in 2014. �In retaliation, Cosby, through an

attorney, publicly branded her a liar and called her rape

disclosure a lie with the intent and effect of revictimizing her and

destroying the professional reputation she�s spent decades

building.�

Dickinson�s complaint alleged that Singer�s November 18

demand letter and November 19 press release were defamatory.

She also alleged that Cosby �issued� and �published� both

statements, through his attorney, which were republished by

thousands of media entities worldwide as Cosby �foresaw and

intended.�

Dickinson pleaded that Cosby�s refusal to retract the

statements after having been provided with evidence confirming

that her claims were not fabricated �constitutes actual malice.�

She also argued that failure to retract �constitutes [Cosby�s]

acceptance, endorsement and ratification� of Singer�s statements.

Dickinson did not assert any claims based on the November

20 and 21 press releases.



3 In addition to defamation, the original complaint and

operative first amended complaint stated causes of action for

false light and intentional infliction of emotional distress. The

trial court ultimately struck Dickinson�s intentional infliction of

emotional distress claim and sustained a demurrer to her false

light claim. Dickinson does not challenge those orders on appeal,

so we need not discuss the causes of action further.

7

Cosby�s First Anti-SLAPP Motion

On June 22, 2015, Cosby filed an anti-SLAPP motion

seeking to strike Dickinson�s entire complaint. Among other

things, Cosby argued that Dickinson could not prevail on her

defamation claims because the allegedly defamatory statements

were protected by the litigation privilege and were nonactionable

opinions.

Cosby also put forth a series of arguments based on the fact

that the statements had been made by Singer, rather than Cosby

himself. Cosby argued that he could not be held liable for

Singer�s conduct without evidence that he furnished or approved

the statements, and a failure to retract is not sufficient. He

further argued that since Dickinson is a public figure, she could

only prevail on her defamation cause of action if she established

actual malice. He claimed that Singer had not acted with actual

malice; and that, even if he had, Singer�s malice could not be

imputed to him as Singer�s principal via respondeat superior.

As Cosby�s anti-SLAPP motion had put Singer�s malice into

question, Dickinson moved to lift the automatic discovery stay

(� 425.16, subd. (g)) to depose Cosby and Singer on the issue.

After considerable litigation, the trial court indicated that, prior

to allowing such discovery, it would first determine whether

Dickinson had a reasonable probability of establishing the

elements of her defamation action other than actual malice.

On March 8, 2016, in an apparent bid to entirely remove

the malice issue from consideration, Cosby filed a supplemental

brief in the trial court stating he was no longer �pursuing on this

Special Motion to Strike the arguments advanced in the opening

brief regarding agency and actual malice.�

8

Dickinson�s First Amended Complaint

While Cosby�s original anti-SLAPP motion was pending,

Dickinson filed a first amended complaint (FAC), which added

Singer as a defendant. In addition, the FAC newly alleged that

Cosby is liable for defamatory statements contained in the

November 20 and 21 press releases. It also added explicit

allegations that Cosby is both directly and vicariously liable for

publishing the demand letter and press releases. The trial court

struck the FAC on procedural grounds.

Order and Appeal on Cosby�s First Anti-SLAPP

Motion

The trial court in part granted Cosby�s original anti-SLAPP

motion. It found the November 18 demand letter was subject to

the litigation privilege, which defeated all of Dickinson�s claims

based on the letter. However, the court determined Dickinson

showed a probability of prevailing on her claims premised on the

November 19 press release.

Cosby and Dickinson filed cross appeals to the court�s

order, which we resolved in Dickinson I, supra, 17 Cal.App.5th

655. On appeal, Cosby briefed the issues of malice and agency on

the merits. We declined to address the arguments, however,

given he had withdrawn them before the trial court. (Id. at

p. 675.) We noted that Cosby did not argue that his anti-SLAPP

motion should be reconsidered after Dickinson was permitted to

conduct limited discovery. (Id. at p. 673, fn. 6.)

As to the remaining issues, we concluded Dickinson made a

sufficient showing of probability of success of prevailing on the

merits of all her defamation claims, and the trial court erred in

finding the litigation privilege defeated her claims related to the

November 18 demand letter. (Dickinson I, supra, 17 Cal.App.5th

9

at pp. 681, 685.) We also concluded the trial court erred in

striking the FAC. (Id. at p. 676.) As a result, the FAC became

operative when this court issued a remittitur.

Cosby�s Second Anti-SLAPP Motion

On May 15, 2018, Cosby filed a new anti-SLAPP motion

seeking to strike the FAC. With respect to the first prong of the

anti-SLAPP procedure, Cosby argued the demand letter and

press releases were protected speech in connection with a public

issue. As to the second prong�whether Dickinson can

demonstrate a probability of prevailing on her claims�Cosby

argued that Dickinson could not establish he was directly or

vicariously liable for any of Singer�s statements, because the

requisite evidence to establish such liability, if it exists, is

protected by the attorney-client privilege. Cosby further argued

Dickinson could not prevail on her claims premised on the

November 20 and 21 press releases because they did not concern

her and were nonactionable statements of opinion.

Singer�s Anti-SLAPP Motion

The same day Cosby filed his second anti-SLAPP motion,

Singer filed his own anti-SLAPP motion. Singer asserted, among

other things, that Dickinson could not show a probability of

prevailing on her claims because she could not demonstrate that

he acted with actual malice.

Singer filed a declaration in support of his motion in which

he described his investigation of Dickinson�s allegations and the

basis for the various statements in the demand letter and press

releases. Singer explained that he personally believed Dickinson

had fabricated her allegations about Cosby based on his review of

her autobiography, his Internet research, and his personal

experiences dealing with her on a prior case.

10

Singer further explained that, on �November 18, 2014�

before issuing a statement or responding to any inquiries from

the media about Ms. Dickinson�s allegations to Entertainment

Tonight�I discussed her allegations to Entertainment Tonight

directly with Mr. Cosby and with his transactional attorney, Mr.

Schmitt. Because Mr. Cosby has declined to waive the attorneyclient

privilege, I believe that I am prevented by law from

disclosing the substance of those conversations with Messrs.

Cosby and Schmitt.�

Singer also said he had �been practicing law for more than

40 years. It is my general practice to ensure that any

correspondence or press statement that I issue on behalf of a

client is approved by the client before it is transmitted to the

intended recipient or recipients, which includes confirming with

the client the veracity of the correspondence�s or statement�s

substance.� Singer did not indicate whether he deviated from

this general practice with regards to the demand letter and press

releases.

Dickinson�s Opposition to Cosby�s Second Anti-SLAPP

Motion

In opposition to Cosby�s motion, Dickinson focused on

showing a probability of prevailing on the merits of her claims.

She asserted that Cosby is vicariously liable for Singer�s actions,

whom she could prove acted with malice. Alternatively, she

asserted Cosby authorized and ratified Singer�s statements

accusing her of lying about Cosby raping her, despite knowing

the allegations were true. Dickinson further argued the

November 20 and 21 press releases referred to her and contained

multiple, provably false factual assertions that caused her injury.

11

In support of her opposition, Dickinson submitted her own

declaration in which she asserted Cosby drugged and raped her

in 1982. According to Dickinson, sometime that same year, she

told a friend what Cosby had done. She also privately disclosed

the incident to three people in 1999 and 2001, and pushed to have

it included in her autobiography.

Dickinson also supported her opposition with excerpts from

Singer�s deposition. During his deposition, Singer testified that,

on November 18, 2014, he learned about Dickinson�s

Entertainment Tonight interview from Cosby�s publicist, David

Brokaw. Singer and Brokaw proceeded to have multiple phone

calls that afternoon. Cosby participated in at least one of those

calls. Singer also believed Cosby�s transactional lawyer may have

been on one of the calls with Brokaw and Cosby. Singer said he

did not have discretion to independently respond to media

inquiries regarding Dickinson�s allegations.

Singer explained that he intended the November 20 press

release to refer only to Traitz. However, he conceded that

Dickinson would have been an �earlier example� of someone

�coming out of the woodwork� to accuse Cosby of sexual assault.

Singer also said he intended to refer to Dickinson in the

November 21 press release when he wrote, �The new neverbefore-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 his representation of Cosby ended in 2015,

sometime after he received Dickinson�s February 2015 request for

retraction.

12

Trial Court Order

The trial court heard and decided Singer�s and Cosby�s antiSLAPP

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 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.� CCP � 2018.030 (Bold emphasis added). Thus,

Dickinson cannot obtain this information in discovery . . . .�

The court then turned to Cosby�s anti-SLAPP motion,

which it granted in part and denied in part. The court began by

noting the limited scope of the motion: �By way of this motion,

Cosby is only challenging whether the November 20, 2014 and

November 21, 2014 press statements are actionable, as the Court

of Appeal has already directed this trial court that Cosby�s anti-

13

SLAPP motion as to the November 18 and November 19, 2014

Press Statements are to be denied.�

The court determined that all the allegedly defamatory

statements in the November 20 and 21 press releases were

protected acts in furtherance of Cosby�s constitutional right of

free speech. It then considered the second prong of the antiSLAPP

analysis: whether Dickinson had established a

probability of prevailing on the merits of her claims.

The court rejected Cosby�s argument that the press releases

were not �of and concerning� Dickinson. The court explained that

the statements were �issued as a series of Press Statements

within 1�2 days of the November 18 and November 19, 2014

Press Statements which specifically referred to Plaintiff by name.

There is a clear implication that Singer is referring to persons

such as Dickinson who, only 1�2 days prior, he stated was lying

about Cosby raping her.�

The court then considered whether the press releases

contained provably false factual assertions. With respect to the

November 20 press release, the court found all the statements

were nonactionable opinion, with one exception: �Ms. Traitz is

the latest example of people coming out of the woodwork with

unsubstantiated or fabricated stories about my client.�

Similarly, the court found all but one statement in the

November 21 press release to be nonactionable opinion: �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.�

14

Finally, the court rejected Cosby�s argument that Dickinson

could not establish direct or vicarious liability with respect to any

of her claims. The court explained:

�[T]he 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 November 18, 2014 Press Statement

before it was publicly issued by Singer. As discussed above re:

Defendant Singer�s anti-SLAPP motion, Singer stated in his

declaration that he ran the November 18, 2014 Press Release by

Cosby and his attorney for approval before publishing that Press

Statement. . . .

�The Court also notes that this is clear and convincing

evidence that Cosby acted with malice in approving the

November 18 (and, by implication, November 19), 2014 Press

Statements issued by Singer. The fact that the Court found that

Plaintiff has not established a probability that she can prove by

clear and convincing evidence that Singer acted with malice does

not automatically let Cosby off the hook. Because Cosby is one of

only two people who was involved in the incident, he necessarily

knows whether the statement that Dickinson lied about the rape

because the rape never happened is true or false. Dickinson has

submitted evidence that the rape occurred. . . .

�While there is no evidence that Singer asked Cosby to

specifically approve the November 20 and 21, 2014 Press

Statements, as with the November 19, 2014, Cosby may be found

by the jury to have implicitly approved any Press Statements

whereby Singer denied on Cosby�s behalf Plaintiff�s accusation

that Cosby had raped her. This would constitute Cosby�s

ratification of the November 20 and 21, 2014 Press Statements

15

which furthered this position taken by Cosby.�

Cosby timely appealed.

DISCUSSION

I. We Decline to Consider Cosby�s Arguments Related

to the November 18 Demand Letter and November 19

Press Release

Dickinson urges us to disregard Cosby�s arguments that

she failed to show a probability of prevailing on her claims

premised on the November 18 demand letter and November 19

press release. She contends this court determined that issue in

her favor in Dickinson I, and Cosby is improperly seeking a

second bite at the apple by challenging those claims in his latest

anti-SLAPP motion. We agree.

� �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

16

336, 356.)

In Dickinson I, we held that 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 I, supra, 17 Cal.App.5th at p. 660.) That

determination became law of the case, which, in effect, precludes

Cosby from relitigating the issue. As a result, we will not

consider Cosby�s arguments related to those claims, and will

instead limit our review to his arguments related to the

November 20 and 21 press releases, which were not at issue in

Dickinson I.

Cosby maintains his arguments related to the November 18

demand letter and November 19 press release are proper because

they are premised on new allegations in the FAC. Specifically, he

argues the FAC alleges he is both directly and vicariously liable

for such statements, whereas the original complaint asserted only

that he is vicariously liable for them.

We do not read the original complaint so narrowly.

It repeatedly alleged that Cosby �published� and �issued� the

allegedly defamatory statements through his attorney, which

were then republished worldwide as Cosby �foresaw and

intended.� The clear implication of such allegations is that Cosby

personally took a responsible part in the publication of the

statements, for which he would be directly liable.

(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)

151 Cal.App.4th 688, 712 [�One who takes a responsible part in a

publication of defamatory material may be held liable for the

publication.�].) The original complaint further alleged that Cosby

ratified the allegedly defamatory statements, which would also

potentially expose him to direct liability. (See Rest.3d Agency,

17

� 7.03 [�A principal is subject to direct liability to a third party

harmed by an agent�s conduct when . . . the principal ratifies the

agent�s conduct . . . .�].) Thus, we reject Cosby�s contention that

the FAC�s claims related to the November 18 demand letter and

November 19 press release are meaningfully different from those

in the original complaint.

Cosby also perfunctorily argues that we should reconsider

his challenge to Dickinson�s claims now that Singer has been

�absolved� of liability. Once again, we are not persuaded. Cosby

was free to argue in his first anti-SLAPP motion that Dickinson

could not establish Singer�s liability. In fact, he did make that

argument, but ultimately abandoned it in an apparent bid to

avoid discovery on the malice issue. Cosby chose not to pursue

that argument in his first anti-SLAPP motion. He must live with

that choice now.

II. The Trial Court Properly Denied Cosby�s AntiSLAPP

Motion

A. The Anti-SLAPP Statute

The Legislature enacted the anti-SLAPP statute to address

the societal ills caused by meritless lawsuits filed to chill the

exercise of First Amendment rights. (� 425.16, subd. (a).) The

statute accomplishes this end by providing a special procedure for

striking meritless, chilling claims at an early stage of litigation.

(See � 425.16, subd. (b)(1); Rusheen v. Cohen (2006) 37 Cal.4th

1048, 1055�1056.)

The anti-SLAPP statute establishes a two-step procedure to

determine whether a claim should be stricken. In the first step,

the court decides whether the movant has made a threshold

showing that a challenged claim arises from statutorily-defined

18

protected activity.4 (Rusheen v. Cohen, supra, 37 Cal.4th at

p. 1056.) Here, the parties agree, as do we, that Dickinson�s

defamation claims arise from protected activities. We focus,

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,



4 The anti-SLAPP statute specifies four categories of

protected activity: �(1) any written or oral statement or writing

made before a legislative, executive, or judicial proceeding, or any

other official proceeding authorized by law, (2) any written or oral

statement or writing made in connection with an issue under

consideration or review by a legislative, executive, or judicial

body, or any other official proceeding authorized by law, (3) 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, or (4) any other conduct in furtherance of the exercise of

the constitutional right of petition or the constitutional right of

free speech in connection with a public issue or an issue of public

interest.� (� 425.16, subd. (e).)

19

713�714.) We accept as true the evidence favorable to the

plaintiff. Further, a plaintiff must establish only that the

challenged claims have minimal merit to defeat an anti-SLAPP

motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39

Cal.4th 260, 291.)

We review the denial of an anti-SLAPP motion de novo.

(Park v. Board of Trustees of California State University (2017)

2 Cal.5th 1057, 1067.)

B. Defamation

�Defamation is the intentional publication of a statement of

fact that is false, unprivileged, and has a natural tendency to

injure or that causes special damage.� (Grenier v. Taylor (2015)

234 Cal.App.4th 471, 486.) If the person defamed is a public

figure, like Dickinson, she must show, by clear and convincing

evidence, that the defamatory statement was made with actual

malice�that is, with knowledge that it was false or with reckless

disregard of whether it was false. (Reader�s Digest Assn. v.

Superior Court (1984) 37 Cal.3d 244, 256; New York Times Co. v.

Sullivan (1964) 376 U.S. 254, 285�286 (Sullivan).) In evaluating

whether a plaintiff has made a prima facie showing of facts

sufficient to sustain a favorable judgment, �we bear in mind the

higher clear and convincing standard of proof.� (Robertson v.

Rodriguez (1995) 36 Cal.App.4th 347, 358.)

C. There Is Sufficient Evidence Showing Cosby

Is Directly Liable for the Allegedly Defamatory

Statements Contained In the November 20 and 21

Press Releases

Cosby contends Dickinson failed to show a probability of

prevailing on her claims because she cannot prove he is directly

liable for any of the allegedly defamatory statements contained in

20

the press releases. He argues there is no evidence that he played

a responsible part in their publication, nor could Dickinson

obtain such evidence because it would be protected by the

attorney-client privilege. We disagree.

1. There Is Sufficient Evidence Showing Cosby

Approved or Authorized the Statements

�One who takes a responsible part in a publication of

defamatory material may be held liable for the publication.�

(Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151

Cal.App.4th at p. 712.) Here, there is sufficient evidence that

Cosby took a responsible part in publishing each of the allegedly

defamatory statements by approving or authorizing them prior to

publication.

Singer stated in his declaration that he has been practicing

law for 40 years, and it is his general practice to discuss the

contents of all correspondences and press statements with a

client and receive approval before transmitting them to the

intended recipients. He further testified at deposition that he did

not have discretion to independently respond to media inquiries

regarding Dickinson�s disclosure. From this evidence, the fact

finder could reasonably infer that Singer sought and received

Cosby�s approval or authorization of the press releases before

they were issued. (See Evid. Code, � 1105 [�evidence of habit or

custom is admissible to prove conduct on a specified occasion in

conformity with the habit or custom�].) Further supporting such

an inference, the evidence shows Cosby continued to employ

Singer and declined to issue retractions after Singer published

the various statements, which Cosby knew to contain falsehoods.

A trier of fact could reasonably find such behavior inconsistent

with a claim that Singer was acting without Cosby�s approval or

21

authorization. Although far from overwhelming, this evidence is

sufficient to meet the minimal burden of proof required to survive

an anti-SLAPP statute.

Cosby contends Singer�s testimony regarding his general

practices is insufficient to prove he approved or authorized the

allegedly defamatory statements, because there is no evidence

that Singer �applied those practices in the course of representing

[Cosby] or in making the Singer Statements.� Evidence Code

section 1105, however, provides that �evidence of habit or custom

is admissible to prove conduct on a specified occasion in

conformity with the habit or custom.� Thus, the fact finder could

properly infer that Singer acted in conformance with his general

practices when issuing these specific press releases. If so, Singer

would have sought and received Cosby�s approval or

authorization before issuing the various statements. Cosby does

not acknowledge Evidence Code section 1105 in his briefing, let

alone explain why it does not apply to this case.

Cosby additionally asserts that Dickinson cannot rely on

evidence of Singer�s general practices because it would require

the trier of fact to draw an inference about the contents of

privileged conversations.5 Assuming for the sake of argument

that such an inference is improper, we are not convinced it would

be necessary in this case. Singer testified that, around the time

he issued the press releases, he had at least one conversation

with Cosby in the presence of a third party, David Brokaw. If

Cosby approved or otherwise authorized Singer�s statements

during that conversation�which would have been reasonable

given Brokaw was Cosby�s publicist and first alerted Singer to



5 Cosby does not contend that Singer�s declaration itself

contains privileged information.

22

Dickinson�s disclosure�the communication may not be

privileged.6 It is possible, therefore, that Dickinson could prove

Cosby played a responsible part in the publication of the

allegedly defamatory statements without having to prove�

through either direct or indirect evidence�the contents of a

privileged communication.

For similar reasons, we find no merit to Cosby�s brief

suggestion that Dickinson�s use of evidence of Singer�s general

practices is improper because it would require Cosby to waive the

attorney-client privilege to defend himself. Cosby overlooks that

he could potentially defend himself by producing evidence of nonprivileged

communications in which he explicitly disapproved the

statements or otherwise forbade Singer from issuing them.

Cosby could also potentially produce evidence that Singer never

sought his approval or authorization, and acted entirely on his

own. The attorney-client privilege protects confidential

communications between attorneys and their clients. (Roberts v.

City of Palmdale (1993) 5 Cal.4th 363, 371; see also Evid. Code,

� 954.) Thus, revealing that a particular communication did not

occur would not necessarily result in a waiver of the privilege.



6 Cosby does not contest that Brokaw�s presence would break

the attorney-client privilege. Instead, he contends that Singer�s

declaration conclusively establishes that Brokaw was not present

during any of the discussions between Cosby and Singer

regarding Dickinson�s allegations. Singer�s declaration, however,

states only that he discussed the allegations �directly with

Mr. Cosby and with his transactional attorney . . . .� It does not

specify whether other people, such as Brokaw, were present

during those conversations.

23

2. There Is Sufficient Evidence Showing Cosby

Ratified the Allegedly Defamatory Statements

Even if Dickinson could not prove Cosby approved or

authorized the press releases before Singer issued them, she

produced sufficient evidence showing Cosby ratified the

statements after the fact. �Ratification is the voluntary election

by a person to adopt in some manner as his own an act which was

purportedly done on his behalf by another person, the effect of

which, as to some or all persons, is to treat the act as if originally

authorized by him. [Citations.] A purported agent�s act may be

adopted expressly or it may be adopted by implication based on

conduct of the purported principal from which an intention to

consent to or adopt the act may be fairly inferred, including

conduct which is �inconsistent with any reasonable intention on

his part, other than that he intended approving and adopting it.� �

(Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) �[T]he effect of a

ratification is that the authority which is given to the purported

agent relates back to the time when he performed the act.� (Ibid.;

see C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094,

1111 [�the ratification relates back to the time the tortious act

occurred�]; Rest.3d Agency, � 4.02 [�ratification retroactively

creates the effects of actual authority�].) A principal�s failure to

discharge an agent after learning of his wrongful acts may be

evidence of ratification. (Delfino v. Agilent Technologies, Inc.

(2006) 145 Cal.App.4th 790, 810; Murillo v. Rite Stuff Foods, Inc.

(1998) 65 Cal.App.4th 833, 852.)

Here, Dickinson presented evidence that Cosby drugged

and raped her in 1982. Assuming this evidence is true�as we

must for purposes of an anti-SLAPP motion�it follows that

Cosby knew the press releases, which implied Dickinson was

24

lying, contained falsehoods. Given Singer was Cosby�s attorney

and represented himself as such in the press releases, it is

reasonable to infer that Cosby also expected the statements

contained therein would be attributed to him. Nonetheless, the

evidence shows Cosby did not immediately terminate the agency

relationship with Singer after he issued the press releases; nor

did Cosby issue a retraction or clarification.

A fact finder could reasonably conclude such actions were

inconsistent with any reasonable intention on Cosby�s part, other

than to approve and adopt Singer�s statements as his own. If so,

the effect is as if Cosby had approved or authorized the

statements at the time Singer issued them. Cosby would

therefore be responsible for their publication and subject to direct

liability for defamation. (See Rest.3d Agency, � 7.03 [�A principal

is subject to direct liability to a third party harmed by an agent�s

conduct when . . . the principal ratifies the agent�s

conduct . . . .�].)

Cosby suggests the legal principle of ratification has no

application to this case because it applies only if there is no preexisting

agency relationship. He is wrong. Although it is true

that ratification may result in the creation of an agency

relationship where none previously existed, it also works to

authorize an existing agent�s otherwise unauthorized act.

(Rakestraw v. Rodrigues, supra, 8 Cal.3d at p. 73.)

We are also not persuaded by Cosby�s contention that postpublication

conduct can never be sufficient to show a defendant

played a responsible part in the publication of defamatory

material. In support, Cosby relies on a federal case in which a

district court noted the lack of authority to support the plaintiffs�

argument �that a publisher may be liable for defamation because

25

it fails to retract a statement upon which grave doubt is cast after

publication.� (D.A.R.E. America v. Rolling Stone Magazine

(C.D.Cal. 2000) 101 F.Supp.2d 1270, 1287.) The lack of authority

for such a proposition is irrelevant given Cosby is Singer�s

principal, not his publisher, and the evidence shows Cosby knew

the statements were false at the time they were published.

Cosby�s reliance on Sullivan, supra, 376 U.S. 254, is also

misplaced. In that case, the United States Supreme Court held a

newspaper publisher�s failure to retract an article upon demand

was not sufficient to show the publisher acted with malice. (Id.

at p. 286.) Here, Dickinson is not relying on evidence of Cosby�s

failure to retract to show he acted with malice. Rather, she is

using it to show Cosby ratified the statements and is therefore

responsible for their publication.

Equally misguided is Cosby�s argument that Dickinson

failed to produce evidence of �confirmatory conduct,� which he

suggests is necessary to prove ratification. Cosby overlooks that

a principal may ratify an agent�s act through either

� �confirmatory conduct� � or � �conduct inconsistent with

disapproval.� � (Gates v. Bank of America (1953) 120 Cal.App.2d

571, 576.) As discussed above, a fact finder could reasonably find

Cosby�s retention of Singer as his attorney and refusal to issue

retractions are inconsistent with disapproval of the allegedly

defamatory statements.7



7 Because we find Dickinson showed a probability of

prevailing under a direct liability theory, we need not consider

whether she might also prevail under a vicarious liability theory.

26

D. Dickinson Produced Sufficient Evidence Showing

the November 20 and 21 Press Releases Were of and

Concerning Her

Cosby maintains Dickinson cannot prevail on her claims

premised on the November 20 and 21 press releases because

neither press release was �of and concerning her.� We disagree.

1. Applicable Law

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

(Blatty).) 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 Dickinson, we must consider the totality of

the circumstances. (See D.A.R.E. America v. Rolling Stone

Magazine, supra, 101 F.Supp.2d at p. 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 (Baker).)

2. Application

Dickinson�s claims premised on the November 20 and 21

press releases are considerably weaker than her claims premised

on the demand letter and November 19 press release, which

referred to her directly. In fact, it is not clear why she chose to

add the claims to her FAC, especially given the relative strength

of her existing claims. Nonetheless, and although far from a

certainty, we think a reasonable trier of fact could conclude the

allegedly defamatory statements contained in each refers to

Dickinson by reasonable implication.

The first allegedly defamatory statement��Ms. Traitz is

the latest example of people coming out of the woodwork with

fabricated or unsubstantiated stories about my client��appears

in the November 20 press release. Singer issued the press

release in the immediate wake of numerous women publicly

accusing Cosby of sexual misconduct, which was a topic of

considerable public interest. The press release itself was

concerned primarily with discrediting one such woman�s recent

allegation that Cosby offered her drugs and made sexual

advances on her decades ago. In this context, it is reasonable to

read the reference to �stories about my client� to refer specifically

28

to accusations of Cosby�s sexual misconduct. Further, the phrase

�coming out of the woodwork� suggests the accusers had not

previously made their disclosures public. Thus, the statement

could be reasonably interpreted as referring specifically to the

women who recently publicly accused Cosby of sexual

misconduct, and implying that their accusations were false.

Dickinson undoubtedly fits that description, a point even

Singer acknowledged during his deposition. Just two days before

Singer issued the November 20 press release, she went on

national television to accuse Cosby of drugging and raping her.

The next day, Singer issued the November 19 press release,

which explicitly called Dickinson�s �story� that Cosby raped her a

�fabricated lie.� Given this timeline of events, the significant

publicity surrounding Dickinson�s allegations and Cosby�s

response, and the similarities in language with the November 19

press release, we think a reasonable fact finder could conclude

that Dickinson was one of the earlier �example[s] of people

coming out of the woodwork� with �fabricated� �stories about

[Cosby]� to which the November 20 statement implicitly referred.

For the same reasons, we think a reasonable trier of fact

could conclude the allegedly defamatory statement in the

November 21 press release��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��is also of and concerning Dickinson. Indeed,

the statement includes additional details that further delineate

the group and point even more directly to Dickinson.

29

We acknowledge that the record does not disclose the

precise number of women who had recently accused Cosby of

sexual misconduct.8 Still, we do not think the group is

necessarily so large, or its boundaries so amorphous, that its

members could not be readily ascertained. This is particularly

true given the public nature of the women�s disclosures and the

significant attention they received. The bar to survive an antiSLAPP

motion is low, and we think Dickinson has met it here.

We are not persuaded by Cosby�s contention that Dickinson

failed to produce any evidence showing a third party actually

understood the allegedly defamatory statements to refer to her.

In support of his argument, Cosby relies on a Ninth Circuit case

applying California law, in which the plaintiffs alleged the

defendant made defamatory statements referring to their

business. (SDV/ACCI, Inc. v. AT&T Corp. (9th Cir. 2008) 522

F.3d 955.) The Ninth Circuit affirmed summary judgment

against the plaintiffs on the basis that they failed to produce

evidence showing a third party actually understood the

statements to refer to them as individuals. The court explained

that under California law, �[t]o proceed with their suit as

individuals, the [plaintiffs] must show not only that the

statement could reasonably be understood as referring to them as



8 Dickinson represents that only eight women fit the

description of persons �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 . . . .� The only support

she provides for that number, however, is an unsourced

statement in one of her trial briefs, which is not evidence.

(See In re Zeth S. (2003) 31 Cal.4th 396, 413�414, fn. 11 [�It is

axiomatic that the unsworn statements of counsel are not

evidence.�].)

30

individuals, but also that some third party understood the

statement in this way.� (Id. at p. 959, citing De Witt v. Wright

(1881) 57 Cal. 576, 578 [�it is essential not only that it should

have been written concerning the plaintiff, but also that it was so

understood by at least some one third person�].)

Cosby contends that Dickinson likewise failed to produce

any evidence showing a third party actually understood the

allegedly defamatory statements to refer to her. He overlooks,

however, that such evidence need not be direct. Indeed, the

SDV/ACCI court specifically noted it was not �impugn[ing] the

common law rule that circumstantial evidence may be used to

prove that defamatory material was published to a third party

who reasonably understood it to refer to the plaintiffs,� and a

plaintiff need not present testimony from a third party regarding

what that person heard and understood. (SDV/ACCI, supra, 522

F.3d at p. 961.) Here, the allegedly defamatory statements

referred to Dickinson by reasonable implication, the press

releases in which they appeared were widely disseminated, the

topic of Cosby�s alleged sexual misconduct was of considerable

public interest, and Dickinson, who is herself a well-known public

figure, had just days earlier accused Cosby of sexual misconduct

during a nationally televised interview. For purposes of an antiSLAPP

motion, we think this is sufficient circumstantial evidence

to show at least one third party heard the allegedly defamatory

statements and actually understood them to refer to Dickinson.

E. Dickinson Produced Sufficient Evidence Showing

the November 20 and 21 Press Releases Contain

Actionable Assertions of Fact

Cosby maintains Dickinson cannot prevail on her claims

premised on the November 20 and 21 press releases because

31

neither press release contains an actionable assertion of fact.

Instead, Cosby argues, they merely express Singer�s opinion, for

which he adequately disclosed all the facts upon which he relied.

We disagree.

1. Applicable Law

� �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 (McGarry).) Statements of

opinion, however, do not enjoy blanket protection. (Franklin v.

Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384�

385 (Franklin).) 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

(Milkovich).) 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.)

To make this determination, we apply a totality of the

circumstances test. First, we examine the language of the

statement itself, to determine whether the words could be

understood in a defamatory sense. Second, we examine the

context in which the statement was made. (Franklin, supra, 116

Cal.App.4th at p. 385.)

32

In considering the language of the statement, we look at

whether the purported opinion discloses the facts on which it is

based and does not imply there are other, unstated facts which

support the opinion. �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�].) We 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).

2. Application

After considering the totality of the circumstances, we

think a reasonable fact finder could conclude the allegedly

defamatory statements in the November 20 and 21 press releases

imply provably false assertions of fact. The clear implication of

both statements, which Cosby does not directly contest, is that all

the women who recently accused him of sexual misconduct were

lying. Neither statement is phrased cautiously in terms of

opinion. They do not include language such as, �I think,� or �I

believe.� Rather, both statements are expressed in unconditional,

33

matter-of fact terms. They express factual assertions regarding

the veracity of the accusations, not opinion.

The context in which the statements were made further

supports our conclusion that a reasonable listener would

understand the statements as assertions of fact, rather than

opinion. As we explained in Dickinson I, �[t]he rape allegations

against Cosby were a subject of national attention and much

public speculation. It would perhaps be unactionable opinion if

an unrelated individual, with no actual knowledge of the rape,

chatting in a public forum, were to say, �Dickinson lied about the

rape; after all, she told a different story in her book.� That may

be unactionable opinion because it is based on disclosed facts and

the speaker would not be presumed to be basing the opinion on

anything else.� (Dickinson I, supra, 17 Cal.App.5th at p. 689.)

However, �[w]hen a man is publicly accused of raping a woman

and responds with a public statement claiming the accusation

itself is false, it is reasonable that a member of the public hearing

the statement would not think the denial means, �I�m neither

affirming nor denying that I raped her, but look at all this

evidence challenging her credibility.� That the speaker making

the denial is himself the accused rapist strongly implies that the

denial includes a denial of the rape itself. Here, the speaker was

the accused�s attorney, speaking with presumed agency. We see

no reason the result should be different.� (Id. at pp. 689�690,

fn. 17.)

The same analysis applies equally to the allegedly

defamatory statements at issue in this appeal. Indeed, given the

circumstances, we think a reasonable listener would understand

the November 20 and 21 press releases as Cosby�s implicit

denials of the accusations, rather than the opinions of his

34

attorney. At the very least, they�re reasonably susceptible to that

interpretation, which is sufficient to survive an anti-SLAPP

motion.

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. 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.9

With respect to the November 21 press release, Cosby

asserts it discloses three facts underlying Singer�s opinion:

(1) the alleged acts occurred many years earlier; (2) it is �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;� and (3) �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.�

There are three reasons why Singer�s disclosure is

insufficient. First, because Singer represented himself as Cosby�s

attorney, a listener might reasonably assume he previously

discussed the allegations and responses with Cosby, who would



9 Cosby suggests it is sufficient that Singer disclosed in the

press release the factual basis for his statement implying Traitz

lied about Cosby. Whether Traitz lied, however, has no bearing

on whether Dickinson did so. That Singer may have disclosed the

factual basis for his opinion of Traitz, therefore, is irrelevant.

35

know for certain whether they were true. Therefore, there is a

strong implication that Singer�s opinion is based on an

undisclosed and provably false fact: Cosby did not rape

Dickinson.

Second, the press release does not disclose all the facts on

which Singer purportedly based his opinion. Singer�s declaration

admits that he reached his opinion about Dickinson based on

several other facts, including his prior experiences with her, his

research into her credibility, and statements she made in her

autobiography. None of these facts are contained in the press

release, making it impossible for the readers to judge for

themselves whether the facts support the opinion.

Third, Dickinson�s evidence shows that one of the

purported facts�that she �said nothing [and did] nothing��is

itself false. Dickinson stated in her declaration that she

previously disclosed to several friends that Cosby raped her and

she pressed to have the incident included in her autobiography.

An opinion based on a provably false fact is itself potentially

actionable.10



10 We are aware that a federal court found, in connection with

a lawsuit brought by another plaintiff, that the November 21

press release adequately disclosed the factual basis for Singer�s

opinion. (See Hill v. Cosby (3d Cir. 2016) 665 Fed.Appx. 169,

175�176.) We are not bound by the intermediate federal court�s

decision. (People v. Williams (1997) 16 Cal.4th 153, 190.) Nor

are we persuaded by it. As we discussed at length in Dickinson I,

the federal court opinion does �not give sufficient weight to the

fact that Singer was making the statements as Cosby�s agent.�

(Dickinson I, supra, 17 Cal.App.5th at pp. 689�690, fn. 17.) Nor

does it explicitly address whether the press release implied

undisclosed facts, whether it disclosed all the facts upon which

the opinion was based, or whether the stated facts were true.

36

We reject Cosby�s contention that the statements are not

actionable because they represent zealous advocacy by his

attorney, who had an ethical duty to voice a defense of his client.

Cosby contends that in a �free and open society, our justice

system should and does provide wide latitude for defense

attorneys to make such statements.� However, as discussed

above, 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 order is affirmed. Dickinson is awarded her costs on

appeal.