Erin Bates v. PC Cast aka Phyllis Cast

Erin Bates sued PC Cast aka Phyllis Cast, Kristin Cast and St. Martins Press on libel and slander theories claiming:



1. Plaintiff is a resident of Tulsa County, Oklahoma.



2. Defendant P.C. Cast, aka Phyllis Cast, (hereinafter "Defendant P.C. Cast”) is an individual and a resident of Tulsa County, Oklahoma



3. Defendant Kristin Cast is an individual and a resident of Tulsa County, Oklahoma.



4. Defendant St. Martin's Press, LLC is a limited liability company, organized under the laws of New York State, doing business in Tulsa County, Oklahoma.



5. The injuries complained of herein took place in Tulsa County, Oklahoma.



6. This Court has jurisdiction and venue is proper in Tulsa County, Oklahoma.



STATEMENT OF FACTS



7. Paragraphs 1-6 are incorporated herein by reference.



8. Plaintiff, a twenty-five year old female, met Defendant P.C. Cast as a student at South Intermediate High School in Broken Arrow, where Defendant P.C. Cast was a teacher. Plaintiff and Defendant P.C. Cast maintained a friendship through the years and most recently, Plaintiff became Defendant P.C. Cast's personal assistant. However, Plaintiff Erin Bates no longer works for Defendant P.C. Cast.



9. While Plaintiff worked as Defendant P.C. Cast's personal assistant, Defendant

P.C. Cast and her daughter, Defendant Kristin Cast, co-authored a book series entitled the

House of Night series. As part of the House of Night series Defendant P.C. Cast and

Defendant Kristin Cast authored ten novels, namely Marked, Betrayed, Chosen,

Untamed, Hunted, Tempted, Burned, Awakened, Destined and Hidden. The House of

Night series is published by Defendant St. Martin's Press, LLC.



10. As described on the House of Night website, "House of Night is a. ..book series that follows 16-year-old Zoey Redbird, who gets "Marked” by a vampyre tracker and begins to undergo the "Change” into an actual vampyre. She has to leave her family in Tulsa and move into the House of Night, a boarding school for other fledglings like her. It is within the school's walls that the heart of the action takes place as Zoey meets new friends, finds love, comes to terms with how her life will be different now and begins to realize her awesome new powers.”



11. The House of Night series is set in Tulsa and references numerous Tulsa and Oklahoma landmarks and features, such as Utica Square, Union High School, Broken Arrow High School, Andolini's Pizzeria, South Intermediate High School, ONEOK Plaza, Queenie's, the Mayo Hotel, St. John's Hospital, the Tulsa World, Fox 23 News and many others.



12. Defendants P.C. Cast and Kristin Cast wrote Plaintiff Erin Bates into each of the House of Night novels, using her real name.



13. Plaintiff Erin Bates was included in the most recent House of Night novel, Hidden, published in October 2012 by St. Martin's Press, LLC.



14. In Hidden, Defendants P.C. Cast and Kristin Cast objectionably depict Plaintiff as shallow, materialistic, promiscuous and heartless, for example, Defendants P.C. Cast and Kristin Cast write:



a. Plaintiff Erin Bates is "easily manipulated;”



b. Plaintiff Erin Bates "always lookisi annoyed;”



c. Plaintiff Erin Bates is "heartless;”



d. Plaintiff Erin Bates is "sarcastic, gossipy and mean;”



e. Plaintiff Erin Bates is "iflunny usually at other people's expense;”



f. Plaintiff Erin Bates is "jcjool because she excluded others to make herself seem better than everyone else;”



g. Plaintiff Erin Bates is capable of "shutitingi out sadness and pain by freezing her feelings;”



h. Plaintiff Erin Bates is like a "bubbling, beautiful mountain stream.. .clear and even kinda pretty. But the second

Iyoul got to close to it jyoul could smell it. It stunk like chemicals and something else, something rotting. The water looked good, but under the surface it was dirty, polluted;”



i. Plaintiff Erin Bates "looks like she used to pretty, blond, popular, perfect. You know, typical. But the truth is that under the surface, there's something rotting;”



j. Plaintiff Erin Bates is "cold;'"unemotional,”"detached” and "flippant;”



k. Plaintiff Erin Bates is a "traitorous, skanky ho;”



I. That Plaintiff Erin Bates has an affinity for money and materialistic things; and



m. That Plaintiff Erin Bates is promiscuous — Defendants P.C. Cast and Kristin Cast write Plaintiff Erin Rates into a sex scene where she strips down to her "little lace thong” and then is eventually naked in a water fountain with a male character.



15. All of the above statements are false and unfairly portray Plaintiff Erin Bates as shallow, materialistic, promiscuous and heartless.



16. Hidden was published and distributed by St. Martin's Press to the public in the United States and internationally containing all of the false and unfair statements set forth above and more.



17. The statements contained in Hidden, along with other negative and untrue statements concerning Plaintiff Erin Rates, were repeated and continue to be repeated by Defendants P.C. Cast and Kristin Cast.



18. In November 2011, Defendant P.C. Cast made a public announcement during promotion of the House of Night series that Erin Bates is a real person who lives in Tulsa.



19. Based upon information and belief, it is common knowledge of the community at which the House of Night series is directed that Erin Bates, as written into the series, is a real person, namely Plaintiff Erin Bates.



20. Defendant P.C. Cast, Defendant Kristin Cast and Defendant St. Martin's Press, LCC, repeatedly use Plaintiff Erin Bates' name as pail of the House of Night series without her permission and continue to so use it for advertising, sales and promotional purposes.



CAUSES OF ACTION



I. DEFAMATION



(AS TO ALL DEFENDANTS)



21. Paragraphs 1-20 are incorporated herein by reference.



22. Defendants knowingly and intentionally, or with reckless disregard for their truth, made false and defamatory

statements concerning Plaintiff Erin Bates. Such statements negatively affected and continue to affect Plaintiff's professional and personal reputation.



23. These statements were made and published to numerous third parties, both nationally and internationally.



24. These statements were made negligently and with reckless disregard for the truth thereof and published to the general public.



25. These statements had a direct and significant adverse reflection on Plaintiff Erin Bates' professional and personal reputation.



26. As a direct result of these actions by Defendants, Plaintiff Erin Bates has suffered real and actual damages in excess of $75,000.00.



II. INVASION OF PRIVACY - RIGHT OF PUBLICITY



(AS TO ALL DEFENDANTS)



27. Paragraphs 1-26 are incorporated herein by reference.



28. Defendants wrongfully appropriated, and continue to wrongfully appropriate, Plaintiff's name without her knowledge or consent in violation of both the common law and 12 O.S. § 1449.



29. Such appropriation is made wholly for Defendants' own commercial benefit, with no benefit whatsoever accruing to Plaintiff Erin Bates.



30. As a direct result of these actions by Defendants, Plaintiff Erin Bates has suffered real and actual damages in excess of $75,000.00.



III. INVASION OF PRIVACY - FALSE LIGHT



(AS TO ALL DEFENDANTS)



31. Paragraphs 1-30 are incorporated herein by reference.



32. Defendants' portrayal of Plaintiff in House of Night and most recently Hidden depicts Plaintiff Erin Bates in a false light by making untrue statements about Plaintiff and her actions and character.



33. Defendants' portrayal of Plaintiff Erin Bates in House of Night and most recently Hidden made Plaintiff Erin Bates appear before the public in an objectionable false light, otherwise than as she is. By Defendants actions, Plaintiff Erin Bates was given unreasonable and highly objectionable publicity that attributed to her characteristics, conduct or beliefs that are false, and so placed the Plaintiff Erin Bates before the public in a false position.



34. The false light in which Defendants portrayed Plaintiff Erin Bates was highly offensive and would be considered highly offensive by any reasonable person.



35. In publishing false statements about the Plaintiff Erin Bates, Defendants knew such statements were false, or acted with reckless disregard as to the falsity of the publicized matter and the false light in which Plaintiff Erin Bates would be placed thereby.



36. As a direct result of these actions by Defendants, Plaintiff Erin Bates has suffered real and actual damages in excess of $75,000.00.



IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS



(AS TO ALL DEFENDANTS)



37. Paragraphs 1-36 are incorporated herein by reference.



38. Defendants actions in the setting in which they occurred were so extreme and outrageous as to go beyond all possible bounds of decency and would be considered atrocious and utterly intolerable in a civilized society.



39. Defendants intentionally andJor recklessly caused severe emotional distress to Plaintiff Erin Bates beyond that which a reasonable person could be expected to endure.



40. As a result of Defendants' actions, Plaintiff Erin Bates sustained real and actual damages in excess of $75,000.00.



V. PUNITIVE DAMAGES



(AS TO ALL DEFENDANTS)



41. Paragraphs 140 are incorporated herein by reference.



42. The intentional, wanton and reckless conduct of Defendants in disregard of Plaintiff Erin Rates and others is, and was, conducted with full knowledge, in that Defendants' knew, or should have known, of the severe adverse consequences of their actions. That such actions and or inactions were not only detrimental to Plaintiff Erin Bates, but the public in general.



WHEREFORE, based on the foregoing, Plaintiff prays that this Court grant the relief sought including, but not limited to, actual damages in excess of Seventy-Five Thousand Dollars ($75,000.00), with interest accruing from date of filing of suit, punitive damages in excess of Seventy-Five Thousand Dollars ($75,000.00), reasonable attorneys fees, and all other relief deemed appropriate by this Court.



Defendants appeared and filed a motion to dismiss asserting:



The Defendants P.C. Cast, aka Phyllis Cast, Kristin Cast, and St. Martin's Press, LLC ("SMP”) (collectively "Defendants”) move this Court to dismiss the Petition in its entirety (including the Plaintiffs defamation, false light, intentional infliction of emotional distress, and right of publicity claims) because such claims are defective as a matter of law. The purportedly actionable statements are not made about or directed at the Plaintiff. They are made about a fictional vampyre trainee in a fantasy novel. Moreover, even if the statements were "of and concerning” the Plaintiff, they are still not actionable because they are neither defamatory nor false statements of fact. They are merely opinionative or evaluative descriptions about the fictional character and are not capable of being proven false. The right of publicity claim is defective because Plaintiff has not and cannot allege that her name has any intrinsic value from which Defendants benefitted by using it for one of the fictional characters. See Petition attached

hereto as Exhibit 1



Plaintiff's claims derive from the novel Hidden, published in October 2012 by SMP

Hidden is the tenth novel in the House of Night series written by Defendants P C and Kristin

Cast. See Petition ¶J9, 12 and 13.



House of Night is a book series that follows 16-year-old Zoey Redbird, who gets "[M]arked” by a vamp[y]re tracker and begins to undergo the "{C]hange” into an actual vampyre. She has to leave her family in Tulsa and move into the House of Night, a boarding school for other fledglings like her. It is within the school's walls that the heart of the action takes place as Zoey meets new friends, finds love, comes to terms with how her life will be different now and begins to realize her awesome new powers.



See Petition ¶10 (quoting from the House of Night website).



Until recently, Plaintiff worked as Defendant P.C. Cast's personal assistant. See Petition

¶9. In each of the ten novels in the series, there is a minor character (another fledgling classmate of Zoey Redbird) who has the name "Erin Bates,” the same name as Plaintiff. The Plaintiff never complained that her name was used occasionally in any of the nine previously published books in the series.



There is no dispute that this book about young vampyres and fledglings is pure fantasy. In fact, Hidden contains a clear statement at the beginning of the book which states:



This is a work of fiction. All of the characters, events, and organizations

portrayed in this novel are either products of the authors' imaginations or are used

fictitiously. 1



To state the obvious, the character "Erin Bates” is a high school—aged vampyre fledgling and Plaintiff is not. Nevertheless, Plaintiff complains that depictions of the character as 'shallow, materialistic, promiscuous and heartless” somehow defame the Plaintiff. See Petition ¶14. She claims that these specific statements describing the character "Erin Bates” actually depict Plaintiff as:



A. "easily manipulated;” (Ex. 2, p. 72)



B. "always looked annoyed;” (p. 87)



C. "heartless;” (p. 88)



D. "sarcastic, gossipy and mean;” (p. 88)



E. "funny, usually at other people's expense;” (p. 88)



F. "cool because she excluded others to make herself seem better than everyone else;” (p. 90)



G. capable of "shutting out sadness and pain by freezing her feelings;” (p. 90)



H. like a "bubbling, beautiful mountain stream... clear and even kind of pretty. But the second [you] got close to it [you] could smell it. It stunk like chemicals and something else, something rotting. The water looked good, but under the surface it was dirty, polluted;” (pp. 169-175)



I. "looks like she used to—pretty, blonde, popular, perfect. You know, typical. But the truth is that under the surface, there is something rotting;”



J. "cold,”"unemotional,”"detached,” and "flippant;” (p. 175)



K. a "traitorous, skanky ho;”2 (p. 205)



L. has an affinity for money and materialistic things; and



M. is promiscuous because the character is in a scene where she strips down to her "little lacy thong” and then is eventually naked in a water fountain with a male character (p. 113-115).



These statements are, as a matter of law, simply not actionable because they are about a fictional character in a fantasy novel and not about Plaintiff. In addition, even if the statements were about Plaintiff, they are not false and defamatory statements of fact. They are merely the author's opinionative or evaluative comments about the character that cannot be proven to be false.



Plaintiffs misappropriation—of—name claim is defective because she does not allege that her name has any intrinsic value from which Defendants benefitted by using the name for one of the characters.



A petition may generally be dismissed for lack of any cognizable legal theory or for insufficient facts under a cognizable legal theory. Miller v. Miller, 1998 OK 24, ¶15, 956 P.2d 887, 894. As the court noted in RUde v. Oklahoma City University, 2000 OK CIV APP 66, ¶6 n.7, 6 P.3d 509, 512 (citing Jacampo v. Hasbro, Inc., 929 F.Supp. 562, 567 (D. R.I. 1996)), "[1]ike a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.” Plaintiffs claims fail to state a claim upon which relief may be granted.





I. THE PLAINTIFF IS NOT ENTITLED TO RECOVER ON HER DEFAMATION CLAIM.



In order to recover for defamation, the Plaintiff must allege and prove (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication.. Peterson v. Grisham, 594 F.3d 723 (10th Cir. 2010) (applying Oklahoma law); Hussain v. Palmer Communications, 60 F. App'x. 747 (10th Cir. 2003) (same); Springer v. Richardson Law Firm, 2010 OK CIV APP 72, 239 P.3d 473; Trice v. Burress, 2006 OK CIV APP 79, 137 P.3d 1253; Mitchell v. Grffin Television, L.L.C., 2002 OK CIV APP 115, 60 P.3d 1058. Defendants are entitled to dismissal of Plaintiff's defamation claim as a matter of law because Plaintiff cannot demonstrate, in the context of the book Hidden as a whole (1) that any of the statements about which she complains are "of and concerning her;” (2) that any of those statements are demonstrably false; or (3) that any of those statements are defamatory.



A. THE ALLEGED STATEMENTS ABOUT THE FICTIONAL CHARACTER ARE NOT OF AND CONCERNING THE PLAINTIFF.



A plaintiff cannot recover for allegedly defamatory statements unless they are about her, or in common parlance, are "of and concerning” her. Drake v. Park Newspapers of N.E. Okia., Inc., 1984 OK 50, 683 P.2d 1347. The "of and concerning” element in defamation actions requires that the allegedly defamatory statement refer to the plaintiff. McCullough v. Cities Service Co., 1984 OK 1, 676 P.2d 833; Layman v. Readers Digest Association, 1965 OK 162, 412 P.2d 192. In this case, the purportedly defamatory statements set forth in the Petition (at ¶14) are statements about the fictional character, a young fledgling vampyre who is a student at the House of Night school.



There is no dispute that Hidden is a purely fictional novel about the imaginative, fantasy world surrounding a school for young vampyres. The character "Erin Bates” is a wholly fictional character. This book is not the type of realistic fiction such as an historical novel or a screenplay for a television detective show. Such "realistic” fictional accounts that use a real person's name might theoretically give rise to situations where readers believe that the statements made about the character in the story were actually made about a real person. However, in a fantasy novel about vampyres that no reasonable reader could believe was true, statements about the vampyre characters in the book are not of and concerning a real person. Hidden is such a fantasy.3



At bottom, Plaintiffs case is grounded in the allegation that she bears the same name as a character in the book. However, as a matter of law, mere similarity or identity of names is insufficient to establish that a work of fiction (let alone a fantasy novel) is of and concerning a real person. Aguilar v. Universal City Studios, Inc., 174 Cal. App. 3d 384, 388 (Cal. Ct. App. 1985). The case of Middlebrooks v. Curtis Publishing Company, 413 F.2d 141(4th Cir. 1969), is instructive. The Saturday Evening Post published an article of fiction that used the names of actual streets and places in Columbia, South Carolina. The protagonists in the story—Esco Brooks and Earl Edge—were teenagers who committed thefts to support their "desperate concern [for] the upkeep of their automobiles.” Id. at 142. The plaintiff, Esco Middlebrooks, grew up in Columbia and was a close childhood friend of William Price Fox, the author of the Post story. Although the article was "an obvious work of fiction,” Id. at 143, Middlebrooks took umbrage at Fox's use of the name Esco Brooks in the article and sued for libel.4 Middlebrook's claim failed, however, because the "Esco Brooks” character in the fictional article could not reasonably be understood to portray the plaintiff. Of particular significance to the court were the "marked dissimilarities between the fictional character and the plaintiff.” Id. at 143. Among other things, the plaintiff and the character were of different ages; the plaintiff and the character had different employment; and the story did not "parallel the plaintiffs life in any significant manner.” Id.

In the present case, Plaintiff alleges she is a twenty—five year old professional woman previously employed as P.C. Cast's personal assistant (Petition ¶8). In Hidden, the fictional character "Erin Bates” is a teenage fledgling vampyre who is a student at the House of Night, and there is no allegation that the story line in the book parallels the life of Plaintiff in any significant manner.5 The court in Middlebrooks correctly observed that an author's "use of actual place names and geographical settings does not militate against the common understanding of fiction as fiction only. Authors of necessity must rely on their own background and experiences in writing fiction.” Id. at 143 •6



The failure of Plaintiff to allege successfully that the character "Erin” in Hidden is "of and concerning” her can be seen from another perspective. It is a paradox of a libel—in—fiction claim that the plaintiff who asserts an identification with the fictional character denies that significant aspects of such character are true. Welch v. Penguin Books USA, Inc., 1991 N.Y. Misc. LEXIS 225, *3 (N.Y. Sup. Ct. Ap. 3 1991). Thus, the "of and concerning” standard is met in fictional works only when the congruence of the plaintiff and the fictional character is "so complete that the defamatory material becomes a plausible aspect of the real life plaintiff or

suggestive of the plaintiff in significant ways. Identification alone is insufficient.” Id. at *7•7 As Welch says:



The biggest hurdle for the plaintiff however, must be the task of overcoming a fictional work's presumption that all the material is untrue. In order for the reader to believe its contents are truthful and, as claimed in this case, libelous, the presumption of invention must be overcome. Even if the plaintiff proves that he is the prototype for the character, the assumption that everything else, is not true - meaning the defamatory aspects - still exists. Given the obvious and implied constitutional repercussions of a libel-in-fiction claim as well as the accepted fact that writers create their fictional works based on their own experiences, it must be a requirement of an action for defamation that the reader be totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction at all. Id. at *9.40 (emphasis added).



As a matter of law, no reasonable reader of this fantasy book about vampyre apprentices

in which the "Erin Bates” character is a vampyre could be "totally convinced that the book in all its aspects as far as the plaintiff is concerned is not fiction.” Id. at *3• Plaintiff should not be permitted to cherry—pick statements in the book about which to complain—alleging that the negative description of the "Erin Bates” character as "shallow, materialistic, promiscuous and heartless” (Petition ¶15) is "of and concerning” Plaintiff, yet wholly ignoring whether the reasonable reader would understand the description of "Erin Bates” as a fledgling teenage vampyre that attends school at the House of Night to be "of and concerning” Plaintiff. She cannot have it both ways.

The statements in Hidden about which Plaintiff complains are not "of and concerning” her. Thus, the defamation claim should be dismissed.



B. THE PLAINTIFF CANNOT DEMONSTRATE THAT ANY OF THE

PURPORTED STATEMENTS ARE SUBSTANTIALLY FALSE

STATEMENTS OF FACT. JUDGMENTAL OR OPINIONATIVE

STATEMENTS ARE NOT ACTIONABLE.



Even if the statements about which Plaintiff complains were "of and concerning” her, as opposed to being of and concerning a fictional character in a fantasy novel, Plaintiff still fails to state a claim because none of the statements are demonstrably false statements of fact.



"Under the First Amendment, there is no such thing as a false idea.” Gertz v. Robert

Welch, Inc., 418 U.S. 323, 341(1974). Accord: Hustler Magazine v. Faiwell, 485 U.S. 46, 51

(1988) ("The First Amendment recognizes no such thing as a 'false' idea.”); Gaylord

Entertainment Company v. Thompson, 1998 OK 30, 958 P.2d 128. As a result, statements which

are judgmental, opinionative, or predictive in nature are not actionable as defamation because

they are not verifiable as being either true or false. Milkovich v. Lorain Journal Co., 497 U.S. 1

(1990); Rinsley v. Brandt, 700 F.2d 1304 (10th Cir. 1983); Tilton v. Capital Cities/ABC Inc., 905

F. Supp. 1514 (N.D. Okla. 1995), aff'd, 95 F.3d 32(10th Cir. 1996), cert. denied, 519 U.S. 1110

(1997); Metcalf v. KFOR-TV, 828 F. Supp. 1515 (W.D. Okla. 1992); Magnusson v. New York

Times, 2004 OK 53, ¶14, 98 P.3d 1070, 1076; Herbert v. Oklahoma Christian Coalition, 1999

OK 90, 992 P.2d 322; Price v. Walters, 1996 OK 63, 918 P.2d 1370; Miskovsky v. Oklahoma

Pub. Co., 1982 OK 8, 654 P.2d 587, cert. denied, 459 U.S. 923 (1982). See RESTATEMENT

(SECOND) OF TORTS, § 566.



In Rinsley, for example, a book which bitterly criticized the treatment of patients in mental institutions contained a passage about the plaintiff which said: "What does it take to put a stop to such a man? How many more children must die?” The plaintiff contended that the passage accused him of killing one patient in particular and threatening the death of others, and thereby defamed him. The court disagreed, holding that the rhetorical questions, although harsh

or severe, were expressions of criticism and not actionable. 700 F.2d at 1309-1310. 2 Similarly, in Metcalf the court held that statements which impliedly questioned whether the plaintiff was qualified to do surgery, or whether his and other outpatient clinics were monitored closely enough, or which said that a professional association to which he belonged was a "sham” were non-actionable opinion. 828 F. Supp. at 1529-1532.



Cases from Oklahoma courts have reached the same result. In Magnusson, the court determined that news reports about patients' complaints about "botched” surgeries were opinionative and non-actionable because such opinions could not reasonably be interpreted as stating actual facts about the doctor. Magnusson v. New York Times, 2004 OK 53, ¶14, 98

P.3d at 1076.



In Herbert, a voter's guide which purportedly relied on a legislator's voting record to say he supported or opposed certain issues, and listed the legislator as supporting abortion—on— demand, decriminalization of sodomy and bestiality, and minors' access to pornography, was considered not to be actionable because the statements were judgmental. Similarly, in Price, statements that the plaintiff, a former U.S. Attorney and at the time a gubernatorial candidate, had "gouged consumers” in violation of federal law while serving as trustee of trusts which had interests in oil-producing properties were not actionable because they were "opinionative and not factual in nature.” Price at 1376.

In Miskovsky, statements made in newspaper articles and editorials describing the plaintiff, a candidate for U.S. Senate, and his campaign tactics in terms such as "hatchet man,” who engaged in "gutter theatrics” and "scurrilous defamation,” whose words were "despicable and stupid,” and who "has sunk to a new low in Oklahoma political

rhetoric—and for him that takes some doing,” were all considered non-actionable opinion. See also Jurkowski v. Crawley, 1981 OK 110, ¶13 and n.2, 637 P.2d 56, 61 (distinguishing the "deliberate factual lie” from "ideas and belief'); Tanner v. Western Pub. Co, 1984 OK CIV APP 22, ¶J14, 15, 682 P.2d 239, 242 (newspaper advertisement describing police chief as "egotistical” and 'judge, jury and executioner” held to be "opinionative comment . . . which is not defaming.”).



If statements would be understood by the viewer or reader as expressing the speaker's opinion, then they are not statements of fact and they are not actionable because they cannot be proved to be either true or false. Whether a statement is one of opinion or fact is a question of law for the court. Oilman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en bane), cert. denied, 471 U.S. 1127 (1985); Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶19, 958 P.2d 128; Price v. Walters, 1996 OK 63, ¶35, 918 P.2d 1370 (citing Oilman). It is critical that this court determine, in advance of trial, whether statements are not actionable because they are opinionative, evaluative, or judgmental in order to avoid the unconstitutional risk that a jury find liability for opinion with which it might disagree. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128 (factual report of proponents' and opponents' views of political controversy was not actionable; district court should have granted motion to dismiss).



Even if this Court believes that the author's characterizations of the "Erin Bates” fictional vampyre character—”easily manipulated,”"always looks annoyed,”"heartless,”"sarcastic, gossipy and ean,”"cold,”"unemotional,”"detached,”"flippant,” and so on—may actually be of and concerning Plaintiff, it must determine, as a matter of law, whether such statements satisfy the requisite falsity element. For the reasons stated above, such judgmental, evaluative statements are not actionable because they cannot be proved to be either true or false.



* * *

Motion to dismiss granted