Friday, December 21, 2001
Masry, Brockovich May Sue Lawyer Who Claimed They Were Intimate, Court of Appeal Rules
By a MetNews Staff Writer
Toxic torts lawyer and Thousand Oaks Mayor Edward L. Masry and his world-famous investigator Erin Brockovich can sue a lawyer who, while employed by Masry’s firm, claimed they were having a sexual relationship, this district’s Court of Appeal has ruled.
Justice Earl Johnson Jr., writing for Div. Seven, said the anti-SLAPP statute doesn’t protect an employee’s “gossiping to a fellow worker about the boss’s sexual conduct with another worker.” The unpublished opinion was filed Wednesday.
The appellate panel affirmed Los Angeles Superior Court Judge Mary Ann Murphy’s denial of a special motion to strike, brought by Kissandra Cohen. Masry and Brockovich filed suit against Cohen in April of last year, the same day Cohen filed a sexual harassment complaint against Masry with the Department of Fair Employment and Housing.
Cohen subsequently received a right-to-sue letter and has a suit pending in Superior Court. The suit was filed around the time the film “Erin Brockovich,” starring Julia Roberts as Brockovich and Albert Finney as Masry, hit movie screens.
Cohen is a former child prodigy whose plans to become both a lawyer and a physician were the subject of newspaper coverage when she graduated from Duke University as a 17-year-old in 1996. She graduated from Loyola Law School in 1999 and went to work for Masry.
She was fired in December 1999, two months before she was admitted to the State Bar.
Masry and Brockovich, both of whom are married, allege that about two weeks before Cohen was fired, she and a fellow employee were driving to a work assignment when Cohen commented that “Erin had had a sexual relationship with Mr. Masry.” Cohen denies making the statement.
Murphy ruled that the suit was not a strategic lawsuit against public participation because it was not directed at an act “in furtherance of the person’s right of petition or free speech” and did not involve a “public issue.”
Cohen argued on appeal—orders denying anti-SLAPP motions are appealable according to the statute—that the suit was a SLAPP because it was spawned by her sexual harassment complaint.
The theory doesn’t wash, Johnson wrote for the Court of Appeal.
“Showing B sued A because A threatened to sue B does not make B’s action a SLAPP suit,” the justice wrote. “To be a SLAPP suit, the plaintiff’s cause of action must arise from some act of the defendant in furtherance of her first amendment rights.
The alleged defamatory statement, Johnson noted, was made three months before Cohen notified Masry she was going to file a sexual harassment complaint.
The appeal was argued by Daniel Marino of Marino & Garson for Cohen and by Paul L. Steinman of Gaims, Weil, West & Epstein for Masry and Brockovich.
Copyright 2001, Metropolitan News Company