Monday, December 17, 2001
Toy Maker’s Libel Suit Against Law Firm No SLAPP, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
A libel suit by the manufacturer of the Barbie doll against a prominent law firm has been reinstated by this district’s Court of Appeal, which said the suit should not have been dismissed under the anti-SLAPP law.
Div. Two ruled Thursday that Mattel, Inc. will probably prevail on at least one of its claims against Luce, Forward, Hamilton & Scripps and former partner James B. Hicks. Hicks has since moved to Ervin, Cohen & Jessup.
The toy maker claims that it was defamed by Hicks in an article in the firm’s newsletter and on a tabloid television program, in connection with an intellectual property suit. Todd concluded that the comments on the television program, “EXTRA,” were covered by the statutory fair reportage privilege but that similar statements in the newsletter were not.
Hicks and Luce Forward represented Collegiate Doll Company and its principals, Harry and Claudene Christian, in three intellectual property suits with Mattel. Claudene Christian designed a cheerleader doll while a student at USC in 1990, then formed Collegiate, along with her father, to design and market similar dolls across the country.
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 and $500,000 in sanctions against Hicks for bringing what U.S. District Judge Nora Manella ruled was a “sham” suit that lacked factual foundation.
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 settlement did not resolve Mattel’s defamation suit against Luce Forward, Hicks, Collegiate, and the Christians, however.
The defamation complaint was filed after Hicks and Claudene Christian appeared on “EXTRA.” Mattel charged that the defendants had misrepresented the nature of the prior proceedings, including a dispute arising after U.S. Customs seized a shipment of Collegiate dolls pending a determination as to whether they infringed Mattel’s copyrights.
The toy maker also claims that Hicks and the Christians falsely accused it of trying to drive Collegiate out of business, in part because it planned to market its own “University Barbie.”
Los Angeles Superior Court Judge Mel Red Recana granted a special motion by Hicks and Luce Forward to strike under Code of Civil Procedure Sec. 425.16. The statute provides that when a defendant shows that a lawsuit regarding a public issue threatens its rights of free speech and to petition, it is entitled to have the suit stricken and to recover attorney fees unless the plaintiff can demonstrate a probability of prevailing on the merits.
Todd, writing for the Court of Appeal, said the motion should have been denied.
There was, the justice said, substantial evidence that Hicks falsely accused Mattel of a “ruthless” effort to drive the much smaller company out of business. In fact, Todd said, Mattel had consistently agreed that Collegiate could market its dolls so long as it did so in a way that would prevent confusion that might cause consumers to think they were part of, or related to, the Barbie line.
There was also, the justice said, substantial proof that Hicks’ accusation regarding the “University Barbie” and his claim that Mattel agreed to dismiss all of its claims against Collegiate a month before the first suit would have gone to trial—implying that Mattel recognized its infringement claims to be meritless—were false.
“Although the resolution of the lawsuit was by settlement, it cannot reasonably be disputed that the conclusion of the lawsuit was in Mattel’s favor and not CDC’s, as [Hicks’] statement implies,” Todd said.
The justice went on to reject the contention that the statements were privileged under Civil Code Sec. 47(b) as a “fair and true report” of a judicial proceeding.
The privilege, she said, applies only if the defendant is reporting for or to a “public journal.” While EXTRA qualifies, she said, the privilege doesn’t apply to the newsletter article because Hicks is an attorney, not a journalist, and the newsletter is not a public journal.
While the newsletter—and the firm’s website, on which the article also appeared—are available to the general public, Todd reasoned, “their obvious purpose was not to inform the public in a fair and true manner about its government, but to advertise the firm’s litigation prowess for the purpose of improving its image to solicit business.”
The purpose of the privilege, the jurist elaborated, is to protect the ability of the news media to fully and accurately report judicial proceedings. Applying it to a law firm’s “slanted” account “would be a travesty,” she said.
The appeal was argued by Adrian M. Pruetz of Quinn Emanuel Urquhart Oliver & Hedges for Mattel, Rex S. Heinke of Greines, Martin, Stein & Richland for Luce Forward, and James E. Curry of White O’Connor Curry Gatti & Alvanzado for Hicks.
The case is Mattel, Inc v. Luce, Forward, Hamilton and Scripps, B143260.
Copyright 2001, Metropolitan News Company