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Date: 07-27-2019

Case Style:

Janice Dickinson v. William H. Cosby, Jr.

Case Number: B291701

Judge: Bigelow, P.J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Lisa Bloom, Franklin L. Ferguson, Jr. and Alan Goldstein

Defendant's Attorney: Alan A. Greenberg, Wayne R. Gross and Sarah Kelly-Kilgore

Description:





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.

Outcome: The order is affirmed. Dickinson is awarded her costs on
appeal.

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