Metropolitan News-Enterprise


Monday, July 1, 2002


Page 3


Toymaker’s Suit Against Law Firm No SLAPP, Appeals Court Rules


By a MetNews Staff Writer


A Los Angeles Superior Court judge correctly denied a motion to strike a malicious prosecution suit by the manufacturer of the Barbie doll against a prominent law firm, the Court of Appeal for this district held Friday.

Justice J. Gary Hastings, writing for Div. Four, agreed with Judge Alexander Williams III that Mattel, Inc. will probably prevail in its suit against Luce, Forward, Hamilton & Scripps and former partner James B. Hicks.

Hicks now practices with Ervin, Cohen & Jessup.

The lawsuit is one of several arising from disputes between Mattel and Collegiate Doll Company, a former client of Hicks. Collegiate was formed by Claudene Christian, who designed a cheerleader doll while a student at USC in 1990, and her father Harry Christian to design and market similar dolls across the country.

Hicks and Luce Forward represented Collegiate and the Christians in three intellectual property suits with Mattel. The first suit was settled with Collegiate agreeing to pay Mattel $100,000 and change its marketing process.

The second suit, brought by Harry Christian—who did not sign the first settlement agreement—resulted in a summary judgment for Mattel. U.S. District Judge Nora Manella said that suit was a “sham” that lacked factual foundation.

Manella also ordered Hicks to pay $500,000 in Rule 11 sanctions. The Ninth U.S. Circuit Courts of Appeals, in a ruling this past April, agreed that the suit was frivolous but remanded to the District Court on the ground that the district judge appeared to have based the amount of the award in part on conduct not sanctionable under Rule 11.

The third suit was settled after the Christians substituted themselves in pro per. As part of that settlement, Collegiate assigned the rights to the original doll face and head designed by Claudene Christian to Mattel.

The malicious prosecution suit grew out of the second suit, and Mattel’s complaint largely tracked the findings made by Manella. Hicks and Luce Forward urged that the suit be stricken as a strategic lawsuit against public participation under Code of Civil Procedure Sec. 425.16.

Williams denied the motion, concluding that while a malicious prosecution suit targets the right to petition for redress of grievances and thus may be a SLAPP, Mattel had met its burden of showing that it would probably prevail if the case went to trial.

Hastings agreed.

“The findings made in connection with the Rule 11…sanctions, the appropriate subject of judicial notice requested of the trial court…are evidence that the underlying action was filed without probable cause,” the justice wrote. “Malice may be inferred from the lack of probable cause.”

Mattel is separately suing Hicks and Luce Forward for slander and libel, claiming the company was defamed—in an article in the firm’s newsletter and on a tabloid television program—by accusations it was trying to drive Collegiate out of business, in part because it planned to market its own “University Barbie.”

An anti-SLAPP motion in that case was granted by Los Angeles Superior Court Judge Mel Red Recana, but Div. Two of the Court of Appeal reversed last December, finding that Mattel would probably win that suit as well.

Attorneys on the latest appeal were Marc Marmaro and and Robert P. Baker of Jeffer, Mangels, Butler & Marmaro for Luce Forward; Lee S. Brenner, Carl R. Benedetti and James E. Curry of White, O’Connor, Curry, Giatti & Avanzado for Hicks; and Edith Ramirez, Michael T. Zeller and Adrian M. Pruetz of Quinn, Emanuel, Urquhart, Oliver & Hedges for Mattel.

The case is Mattel, Inc v. Luce, Forward, Hamilton and Scripps, B151826.


Copyright 2002, Metropolitan News Company