Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]I fundamentally don't understand what Burke is saying because it doesn't square with the law itself.

She keeps saying that the law was intended only to protect people who can't afford to defend themselves in defamation actions. Yet the law includes no provision restricting its application to indigent persons, and I have seen nothing from the legislative record indicating this was the intent of the law.

She also says that the law only applies if there has already been a finding of malice. Again, there is nothing in the law itself or the legislative record saying this, she seems to think it should just have been inferred. And if that's the case, it needs to be clear because in order to have a finding of malice, the judge or jury must actually take that question up. In Blake's case, the judge never considered one way or another whether the case against her was brought with malice. And why would he? 47.1 doesn't say that's required, and he clearly believed 47.1 could only be applied later. There also seems to be this assumption that had Blake gone to trial on her case and won, that would have decided this issue, but it wouldn't have because *that* case didn't address whether the defamation case against Blake was brought "with malice."

Burke is essentially arguing that the law should be amended or changed. Which is fine, maybe it is not workable as written and needs to be fixed. But in that case, her problem isn't with Blake but with the CA legislators who adopted the law without addressing these issues. But Burke is going on right wing podcasts closely associated with Bryan Freedman to make these arguments in interviews that attack Blake for ever having brought the 47.1 motion in the first place, something Burke championed when it happened.

It's nonsense. I can't take this person seriously.[/quote]

47.1 explicitly says “without malice.” [/quote]

It says the accusations must be made "without malice." It does not say the court is required to consider the question of malice in its determination of the defamation lawsuit.

The settlement of Blake case clearly indicates that the parties don't believe she brought the case with malice -- the joint settlement announcement said her complaints deserved to be heard. How can a complain made with malice deserve to be heard? It can't.

Burke has yet to say anything that, from a legal perspective, would support that Blake is not *legally entitled* to pursue relief under 47.1. If Burke wants to say that she doesn't think Blake is a good test case or that she personally doesn't think Blake deserves to recover, that's her right. But she's claiming a bunch of stuff about 47.1 that is simply not true based on the text or legislative history of the law, and she's doing so under the auspices of being the laws "architect." I think it's dishonest. All laws have many authors and get debated in legislative sessions and as a lawyer, Burke knows that interpretation of the intent of a law is based on the legislative record, not the opinions of one person who advocated for the law.[/quote]

I don’t fully understand what you’re saying and I’m not being sarcastic. Seems like we’re dealing with different definitions. Malice has to be addressed to apply 47.1. I think Judge Liman assumed it would be addressed a trial but they settled. That’s the problem. 47.1 makes no sense as a leftover claim from settlement and Blake can’t meet her burden b/c she settled her case. Also that throwaway statement was not an admission of no malice, that’s just how Blake’s team is spinning it. Blake’s concerns deserved to be heard could mean anything, including her right to create the 17 point list. It is not an admission that it was ok for her to use a sham lawsuit to get Jen Abel’s private texts, leak them to the nyt, and twist facts around the birthing scene, dance scene etc. they never said any of that was without malice.[/quote]

It doesn't make sense that 47.1 would require a verdict in favor of the accuser because 47.1 is explicitly written to apply to accusers who even just speak publicly about their allegations. Like the law is written to apply to someone who is harassed and later writes a statement on Facebook saying "I was harassed by Charvey Swinestein when I worked at Mirawax Films." If Swinestein sued such an accuser for defamation for making that statement, and the accuser won the defamation action, 47.1 would apply.

In a case like that, how would you determine malice? Especially if the defamation action was dismissed before trial in a similar manner to how Baldoni's defamation action was dismissed? How do you protect that accuser or compensate her for having to spend time and money and energy to defend a meritless defamation action brought because she told the truth?

Again, Burke's arguments don't make sense.[/quote]

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