JOHN H

I. INTRODUCTION

Harlan Ellison, the Plaintiff in this case, happens to be an author with a history of championing First Amendment rights, winning the PEN award in 1990 for “Continuing Commitment to Artistic Freedom and the Battle Against Censorship” and in 1998 receiving the the “Defender of Liberty Award” from the Comic Book Legal Defense Fund in recognition of a fifty-year history promoting free speech.

It is therefore at least curious and at most distressing that Ellison would be compelled to bring legal action to correct false statements of fact about his alleged dishonesty and quasi-criminal behavior in connection with a decades old defamation case – the Fleisher matter – in which Ellison sought and obtained First Amendment protection for an interview that appeared in Defendants’ periodical, The Comics Journal.

There is a maddening circularity to this turn of events which Plaintiff readily acknowledges, but cannot escape from so long as the Defendants do not recognize the difference between non-actionable opinion and false statements of fact. Indeed, Ellison has tolerated insult, sharp opinion, invective and hyperbole from these Defendants over a 20 year period. Defendants even formed a hate group called the “Enemies of Ellison” and attempted to sell memberships. They printed pamphlets fomenting dislike and revilement of all things related to Ellison. He did not sue them. He did, however, have a heart attack and quadruple bypass during the period of that group’s peak activity. In response Ellison may have expressed some “non-actionable opinion” of his own regarding Defendants’ campaign against him during this lengthy feud.

But this year, Defendants upped the ante dramatically by using Ellison’s name to sell a new book of theirs about comics without Ellison’s authorization or knowledge

(referring to Ellison pejoratively on the cover as a “Famous Comics Dilletante”) – thus

trading on his name while diminishing him and including an interview Ellison never authorized to be published in book form or truncated fashion, and for which use he was never separately compensated.

Then, Defendants promoted and partially published (for promotional purposes) another book containing false and defamatory statements of fact about Ellison related to the Fleisher matter. He wrote to them in July 2006 and tried to come to some understanding, but was rebuffed in reckless fashion as set forth below.

Finally, in September 2006 – at the end of his preferred options with Defendants – Ellison sued them in California state court for defamation and statutory misappropriation of his rights to control the use of his name and likeness. Defendants removed the action to this Honorable Court on diversity grounds, and Plaintiff hereby vigorously opposes Defendants’ overexpansive and specious anti-SLAPP motion.

II. LEGAL ARGUMENT

A. The General Scope of the anti-SLAPP Statute

As this Court recently confirmed, the statutory scheme set forth at California Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute) was enacted in response to the California legislature’s concern about civil actions aimed at private citizens to deter or punish them for exercising their political or legal rights. See Thomas v. Los Angeles Times Communications, LLC, 189 F. Supp. 2d 1005 (C.D. Cal. 2002), cert. den. 537 U.S. 1172. The statute grew out of the concern that large private interest plaintiffs (such as real estate developers) were using meritless tort actions to deter or punish individual activists who opposed their views. Metcalf v. U-Haul Intern., Inc., 118 Cal. App. 4^th 1261 (2004). Thus, the statute’s purpose is to curb meritless lawsuits, not to prohibit bona fide claims. M.G. v.

Time Warner, Inc., 89 Cal. App. 4^th 623 (2001). As the Court is well aware, the meritless actions contemplated by C.C.P. section 425.16 are known as “Strategic Lawsuits Against Public Participation” or “SLAPP” suits.

This is not one of them.

Instead, this is a defamation action based on misstatements or distortions of fact by Defendants with a long history of demonstrated antipathy and outright malice toward this

particular Plaintiff, and an accompanying misappropriation claim for flagrant, taunting, unauthorized use of Plaintiff’s name under California’s “right of publicity” statute.

Assuming a defendant can meet its initial burden to show that the statute applies, the evidentiary standard plaintiff must then meet to survive an anti-SLAPP motion is low: the case must lack even minimal merit. Siam v. Kizilbash, 130 Cal. App. 4^th 1563 (2005); see also Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4^th 90 (2004).

As a California appellate panel recently made clear, an anti-SLAPP motion is not a vehicle for testing the strength of a plaintiff’s case, or the ability of a plaintiff, so early in the proceedings, to produce evidence supporting each theory of damages asserted in connection with the plaintiff’s claims; it is a vehicle for determining whether a plaintiff, through a showing of minimal merit, has stated and substantiated a legally sufficient claim. Wilbanks v. Wolk, 121 Cal. App. 4^th 883 (2004).

The burden of plaintiff who has brought suit subject to dismissal under an anti-SLAPP statute is much like that used in determining a motion for nonsuit or directed

verdict, which mandates dismissal when no reasonable jury could find for the plaintiff. Metabolife Intern., Inc. v. Wornick, 264 F. 3d 832 (2001).

An anti-SLAPP motion is not a substitute for a summary judgment motion. Lam v. Ngo, 91 Cal. App. 4^th 832 (2001). In reviewing a motion to strike pursuant to the anti-

SLAPP statute, the court cannot weigh the evidence, but instead must simply determine whether the respective party’s evidence is sufficient to meet its burden of proof. Padres L.P. v. Henderson, 114 Cal. App. 4^th 495 (2003); see also Fleishman v. Superior Court, 102 Cal. App. 4^th 350 (2002) (court must not compare probative strength of competing evidence or decide disputed questions of fact). To weigh the evidence at this stage of the proceedings would violate plaintiff’s right to a jury trial. Colt v. Freedom Communications, Inc., 109 Cal. App. 4^th 1551 (2003).

A trial court must accept as true all of the evidence favorable to the plaintiff. Nagel v.

Twin Laboratories, Inc., 109 Cal. App. 4^th 39 (2003) (cause of action is subject to motion to strike if it lacks even minimal merit); see also Walker v. Kiousis, 93 Cal. App. 4^th 1432 (2001). Any ambiguity in the anti-SLAPP statute must be resolved in favor of a resolution on the merits. Decker v. U.D. Registry, Inc., 105 Cal. App. 4^th 1382 (2003).

B. Contrary to Defendants’ Position That the anti-SLAPP Statute Has Nearly Unlimited Application, the Statute and Interpretive Case Law Impose Several Important Limitations Which Operate as a Bar to Defendants’ Motion.

The statute itself and an ever burgeoning body of common law work to impose important limitations on the scope and applicability of the anti-SLAPP statute generally and as to the instant case. These limitations will be discussed seriatum.

(Continued)

1. The Matters at Issue in Plaintiff’s Complaint Are Not Matters of “Public Interest” Within the Special Meaning of the Anti-SLAPP Statute, and Thus Plaintiff’s Complaint is not Properly Subject to Defendants’ Motion to Strike.

One must remember the origins of the anti-SLAPP statute and work outward in

order to properly address the threshold inquiry of whether a particular matter at issue in a

complaint or cause of action is, in fact, a matter of public interest.

In determining whether to grant a special motion to strike suit under the anti-SLAPP

statute, a court must first determine whether plaintiff’s causes of action arose from acts by defendants in furtherance of defendants’ rights of petition or free speech in connection with a public issue. Seelig v. Infinity Broadcasting Corp., 97 Cal. App. 4^th 798 (2002). Put another way, an anti-SLAPP motion must be denied if the trial court determines the cause of action did not arise from an act taken by the defendant in furtherance of the defendant’s right of petition or free speech in connection with a public issue. Santa Monica Rent Control Bd. v. Pearl Street, 109 Cal. App. 4^th (2003).

Neither “public interest” nor “public issue” is specifically defined under the anti-SLAPP statute. The contours of the definitions are left to the courts. In this regard, a recent

ruling from the Central District construing the statute stated that an issue is “public” for purposes of the anti-SLAPP statute if it impacts a broad segment of society or affects the community in a manner similar to that of a governmental agency. Troy Group v. Tilson, 364 F. Supp. 2d 1149 (2005) (case considered the question of whether an email correspondence about a plaintiff constituted a matter of public interest or not).

On this point, Defendants inappropriately strain their interpretation of the holding of Sipple v. Foundation for National Progress, 71 Cal. App. 4^th 226 (1999), by claiming it stands for the sweeping proposition that “where statements at issue are related to litigation” the moving parties need not separately show these statements concern an issue of public interest. It appears, however, that Sipple is limited to the facts of that case, and

holds: “Hence, the article, insofar as it discusses the statements made during deposition or at the hearing at the custody trial, falls within the ambit of section 425.16, subdivision (e)(1), and respondents need not separately show that these statements concern an issue of public interest.” Sipple at 238.

Also, it appears necessary to the holding in Sipple that the issue of “wife beating” –

which was the subject of the article in question – was an “important issue in society.” Id. The same cannot be said of whether Harlan Ellison wheedled out of his legal bills, enacted schemes to avoid paying them, refused to reimburse another party for their costs, or

“screwed” defendant Groth financially in a twenty-five year old, long resolved lawsuit. And in the case of Plaintiff’s misappropriation claim under California Civil Code section 3344, it

is an interview that Ellison never granted Defendants the right to publish in this format.

The statements by a publisher of an advertisement in a token collecting newsletter, stating that token collector had stolen a valuable collector’s item from the publisher, was held not involve a matter of “public interest,” and thus, token collector’s suit against publisher alleging claims of libel, slander, and intentional infliction of emotional distress was not subject to dismissal under anti-SLAPP statute. Weinberg v. Feisel, 110 Cal. App. 4^th 1122 (2003).

In another recent case, the statements by a labor union in documents distributed to

its members – concerning the alleged theft, extortion, nepotism, acceptance of bribes, and abusive treatment by a supervisor of eight janitors at a state university – was not held to relate to a “public issue,” and thus the supervisor’s complaint against the union alleging libel and other causes of action was not subject to dismissal under anti-SLAPP statute. Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO, 105

Cal. App. 4^th 913 (2003).

To satisfy the public issue requirement of provisions of anti-SLAPP statute in cases where an issue is not of interest to the public at large, but rather only to a limited but

definable portion of the public, such as private group, organization or community, the statements or conduct must, at a minimum, occur in the context of an ongoing controversy,

dispute, or discussion, such that it warrants protection by the statute that embodies the public policy of encouraging participation in matters of public significiance. Du Charme v.

International Broth. of Elec. Workers, Local 45, 110 Cal. App. 4^th 107 (2003).

Similarly, the anti-SLAPP statute does not apply to the instant case at all because obscure alleged out-of-court conduct by a party from a twenty-year old court case should not be deemed matters of “public interest” for purposes of the statute, and neither should a claim of misappropriation of publicity rights under California Civil Code section 3344.

2. An Anti-SLAPP Motion is Only Proper Against an Entire Complaint, or an Entire Cause Of Action; The Court Does Not Need to Parse Entire Cause of Action If it Finds That Any of the Specific Allegations Within That Cause of Action are Valid.

If a defendant who brings a special motion to strike demostrates that plaintiff’s claim arose from constitutionally protected activity within the ambit of the statute, the plaintiff

need only demonstrate a probability of prevailing on any part of a claim. Once the plaintiff

makes this showing, the trial court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it

has determined have merit. Mann v. Quality Old Time Service, Inc., 120 Cal. App. 4^th 90

(2004); see also, M.G. v. Time Warner, Inc., 89 Cal. App. 4^th 623 (2001).

This is important because to the extent Plaintiff can show any dispute of fact or the “minimal merit” mentioned above regarding any part of the defamation claim or the

misappropriation claim, the entire cause of action must remain and thus survive the anti-SLAPP motion.

C. Plaintiff Brought the Action Against Defendants to Properly Protect His Repuation from Untruthful Statements of Fact by Defendants About Plaintiff With History of Malice Toward Plaintiff, and Not to “Chill” Free Speech Rights of Defendants.

Defendants place in controversy the question of Plaintiff’s motivations in filing this lawsuit. While it appears that recent California Supreme Court decisions have nullified this requirement, some subsequent cases suggest that a plaintiff’s intent may be relevant. In either case, because Defendants put the question of Plaintiff’s motivations for filing the suit at issue, Plaintiff’s will rebut the claim of improper motive on its face.

The hallmark of a “SLAPP suit” is that it lacks merit, and is brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to

the point that the citizen party’s case will be weakened or abandoned, and of deterring future litigation. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F. 3d 963, cert. den. 530 U.S. 1203 (1999).

Here, the Plaintiff took a deliberate and measured decision to proceed, after having the following exchange of letter and phone call with Defendants, as set forth in the Declaration of Charles E. Petit, counsel to Plaintiff:

In light of the ... nature of the statements in the online publication, I sent a letter ... to Defendants [on Ellison’s behalf].

On 27 July 2006, I received a telephone call from Kenneth Norwick, identifying himself as defendants’ counsel. ... The conversation lasted approximately fifteen minutes. Norwick stated that: (a) Mr. Ellison is a public figure for all purposes, and therefore has no right or ability to control or object

to defendants’ statements about him. (b)The statements on pages 118 and 119 of the online publication are based on “the best of [Groth’s] recollection” of a twenty-year-old case, and that Groth’s responsibility to investigate or otherwise confirm factual statements required him to do no more than rely upon his memory of legal technicalities — even though Groth is not a lawyer. Norwick specified the “motion” slightly more specifically, claiming that it had something to do with Mr. Ellison “agreeing” to pay Fleisher’s attorney’s fees if Mr. Ellison was “brought back into the suit.” I requested that Norwick, in the interest of keeping the dispute from escalating, provide further details and documentation consistent with his statements and with the statements in the publication. However, Norwick explicitly refused to provide any documentation of those statements, claiming that it is “[Ellison’s] burden to prove falsity.”

(c) Norwick threatened that if Mr. Ellison attempted to take any further action regarding the statements in the publication, whether by lawsuit or otherwise, that he (Norwick) would “cause plenty of damage to Mr. Ellison’s First Amendment reputation,” especially if Mr. Ellison attempted to “get a prepublication injunction against a book.” When I pointed out that the work had already been published by placing it online, Norwick abruptly refused to

discuss that aspect of the matter further and changed the subject.

Petit Declaration ¶¶ 6, 7.

As expressed by the Plaintiff:

Mr. Groth also suggests that my hyperbolic analogy describing taking legal action against him to “whomp him upside the head” – which was made casually in an internet forum – is evidence of an improper motive on my part. There are many other cliché’s I could think of to describe this action against the Defendants including, without limitation, “putting my foot down,” or “drawing the line.” The fact of the matter is I wrote to the Defendants; I asked nicely if firmly, that they reconsider publishing this false and defamatory material, and stop trading on my name without authorization. I did not want it to come to this.

But since it did, I see nothing improper in seeking legal redress in the form of an injunction, damages, or both. If that constitutes “whomping” Defendants upside the head, then so be it. I would prefer not to be in this circumstance at all and tried to avoid it with my earlier correspondence. I certainly did not expect them to make a federal case out of it, but here we are. I would hope the Court can see that I am not trying to “chill” the exercise

of Defendants’ First Amendment rights or any other rights. Instead, I am simply trying to correct the record of my participation in the Fleisher lawsuit and to prevent the further unauthorized use and marring of my name on Fantagraphics’ publications, their “products.”

Given the history between the parties, it would seem not unreasonable to assert that Defendants were goading Plaintiff into filing just this sort of lawsuit by failing to address his reasonable and narrowly tailored objections to misstatements of fact, and the unauthorized and uncompensated use of his name.

D. The Defamation Claim Must Survive Defendants’ Motion.

1. Defendants’ Remarks Were False Statements of Fact and Have a Plainly Defamatory Meaning.

Defendants engage in an impermissible and gamesman-like parsing of the allegedly defamatory remarks. Their strategy seems to be to break the statements down into their smallest constitutent parts, so that any tiny portion – robbed of its context – has no

defamatory effect at all. Courts have roundly rejected this approach. Whether or not a challenged statement is fairly susceptible of a defamatory meaning is a question of law.

Dodds v. ABC, Inc., 145 F. 3d 1053, 1065 (9th Cir.1998), and the determination should be made "from the standpoint of the average reader, judging the statement not in isolation, but within the context in which it is made." Norse v. Henry Holt & Co., 991 F.2d 563, 567

(9th Cir.1993); see also Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 389, (2004) (Courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication is directed).

As the Court well knows, the First Amendment protects from liability "statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual." Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) quoting Hustler Magazine v. Falwell,

485 U.S. 46 (1988); see also Gregory v. McDonnell, 17 Cal. 3d 596, 600-01 (1976) ("An essential element of libel ... is that the publication in question must contain a false statement of fact.") Accordingly, statements of opinion are protected by the First Amendment unless they "imply a false assertion of fact." Milkovich, 497 U.S. at 19.

As a recent illustration of non-actionable opinion and overly vague statements, a television show participant failed to establish a probability that she would have prevailed on

her claims of slander, invasion of privacy, and intentional infliction of emotional distress asserted against broadcast corporation after radio program made derogatory comments about participant that included references to participant as “chicken butt,” “local loser,” and a “big skank,” and thus corporation was entitled to special motion to strike suit. The comments “local loser” and “chicken butt” were not actionable because they were unquestionably statements of speaker’s subjective judgment and fell into the realm of classic rhetorical hyperbole which could not reasonably interpreted as stating actual facts, and phrase “big skank” was not actionable because it was too vague to be capable of being proven true or false. Seelig v. Infinity Broadcasting Corp., 97 Cal. App. 4^th 798 (2002); see also, ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4^th 993 (2001).

Conversely, in a recent ruling denying a defendant’s anti-SLAPP motion, a California appellate panel stated that a reasonable jury could find that a former beneficiary of a decedent’s trust who said the trustee of that trust “came to help himself” – meaning he was there to milk the trust for whatever he could get – was defamatory, and not merely a statement of opinion or a mere insult. Gallagher v. Connell, 123 Cal. App. 4^th 1260

(2004).

To decide whether a statement is fact or opinion, a court must put itself in the place of an average reader and determine the natural and probable effect of the

statement, considering both the language and the context. Hofmann Co. v. E. I. Du Pont de Nemours & Co., 202 Cal. App. 3d 390, 397-98 (2001).

In this case, it should be plain that Defendants made statements of fact, not mere opinion, insult or hyperbole:

“Being a co-defendant with Ellison made me feel like I was in the Alamo: surrounded on all sides. It is little known that our relationship began to fray very early on. He was always coming up with schemes to wheedle out of paying his bills. One was so brilliantly Machievelian [sic] that it included both stiffing his lawyers and screwing me — at the same time! You just never knew what he was going to come up with next, which meant we had to watch our co-defendant as closely as we watched Fleisher.” (emphasis added).

The true facts are that Ellison was scrupulous in his payment of attorneys fees and other costs. Defendants’ claims that Ellison “stiffed” his lawyers, “screwed” his co-defendant, or “wheedled” out of any financial responsibility in connection with the case are not true or grossly mischaracterized. Because of space limitations, Plaintiff respectfully refers the Court to paragraphs 15 through 24 and Exhibits C through K of Plaintiff’s declaration for evidentiary support of this position, as well as to paragraphs 2 and 3 of the Lyons Declaration.

The other statement at issue reads:

“One of my favorite stories involves Ellison cutting a deal that required him to reimburse Fleisher if he lost a particular motion. The judge approved the arrangement and Ellison lost the motion but refused to reimburse Fleisher’s out of pocket expenses, as

agreed. Our lawyer started to realize what a loose canon he was when we learned that the judge was about to order U.S. Marshals to arrest Ellison for failing to obey a court

order. Naturally, Ellison coughed it up but only days before he was about to be arrested.” (emphasis added.)

The anti-SLAPP statute does not even apply to defamation actions based on false allegations of criminal conduct not made to law enforcement. Weinberg v. Feisel, 110 Cal. App. 4^th 1122 (2003). It is well known that contempt of court is quasi-criminal in nature, even if it arises from conduct in a civil case. See e.g., People v. Gonzalez, 12 Cal. 4^th 804 (1996). It is also well known that inability to comply with a court order is a valid defense in a contempt proceeding. See e.g., In re Cassil, 37 Cal. App. 4^th 1081 (1995).

Ellison arranged for payment of the reimbursement before he would have presented an “inability to comply” defense at the hearing on contempt and never would have let it get that far in any case. Thus, both the statement that Ellison blithely “refused” to comply with a court order, and that he was subject to arrest without further process – implying that he had been adjudicated as in contempt – are false. Moreover, they paint a completely inaccurate picture of the dire straits all defendants there found themselves in at that point. In particular, Ellison, who was commencing feverish efforts to find coverage for his defense and borrowing money to pay fees and costs as they came due, was not in a position to “cut deals” with the other side or sit back and “refuse” to obey court orders. See Ellison

Declaration at ¶¶ 25-27, and accompanying exhibits L and M. If Ellison did not pay for Fleisher’s reimbursement, it was because he was unable to comply and entitled to offer a legal excuse and seek a modification of the terms of the reimbursement order, and this was well known to Groth. In fact, Groth’s own declaration and evidence contradicts his statements in the offending publication. Groth acknowledges in his declaration that Ellison could not pay and the lawyers elected to advance the cost of the reimbursement. This is at odds even with his own defamatory statement that Ellison was simply refusing to pay and only decided capriciously to “cough it up” days before he was about to be arrested.

Groth knows there was nothing to “cough up” and no voluntary “refusal” on Ellison’s part, but he tells the story as to make Ellison look dishonest, clownish, and at least “quasi” criminal. Groth’s statement misrepresents the reason for the initial non-payment, the resolution of it, and the nature of Ellison’s relationship to the Court at that moment in time.

The truth is Ellison was scrambling to find money to defend the case and pay other costs, such as Fleisher’s reimbursement, while Fantagraphics was inflaming the situation as described by Pat Lyons:

In addition, Groth states that Groth “had to watch our co-defendant [Ellison] as closely as we watched [the plaintiff] Fleischer” – nothing could be further from the truth. Groth, Thompson and Fantagraphics continued

throughout the course of that litigation to hurl insults and antagonistic public

statements the way of the plaintiff, Fleischer, inflaming and excacerbating the

situation. I remember a judicial determination by the late Judge Broderick that the continuing, antagonistic conduct of Groth, Thompson and

Fantagraphics during the course of the litigation was or would be enough to

substantiate a showing of malice. Thus, contrary to Groth’s mischaracterization of the events, it was Ellison who provided stability and ultimately – convincing testimony – to stave off a verdict for the plaintiff.

Lyons Declaration ¶ 6.

2. Plaintiff Can Show Actual Malice Here; But at Least One Federal Trial Court Decision Holds That Such a Showing Should Not be Necessary For Plaintiff to Survive an anti-SLAPP Motion.

Evidence of actual malice, which exists when speaker entertained serious doubts as to truth of statement, is uniquely within control of defamation suit defendant and, therefore,

generally should not be tested on motion to dismiss under California’s anti-SLAPP statute. Metabolife Intern., Inc. v. Wornick, 72 F. Supp. 2d 1160 (1999), aff’d in part, rev. in part,

264 F. 3d 832 (emphasis added).

Generally stated, under California law, public figures must prove by clear and convincing evidence that an allegedly defamatory statement was made with knowledge of its falsity or in reckless disregard of its truth or falsity, a standard known as actual malice.

See Thomas v. Los Angeles Times Communications, LLC, 189 F. Supp. 2d 1005 (C.D. Cal. 2002), cert. den. 537 U.S. 1172.

The Plaintiff here is at least a limited purpose public figure (which does not mean the matter is a public issue under the anti-SLAPP statute, as discussed above) and probably a public figure. Given the history of antipathy between the parties as set forth at length in the declarations of both Groth and Ellison (although they differ sharply over the reasons for said antipathy) and Defendants’ admissions of at least reckless disregard for truth or falsity made through their authorized agent, Ken Norwick, that: “[T]he statements .

. . are based on ‘the best of [Groth’s] recollection’ of a twenty-year-old case, and that Groth’s responsibility to investigate or otherwise confirm factual statements required him to do no more than rely upon his memory of legal technicalities — even though Groth is not a lawyer,” and threatening that “if Mr. Ellison attempted to take any further action regarding the statements in the publication, whether by lawsuit or otherwise, that he (Norwick) would ‘cause plenty of damage to Mr. Ellison’s First Amendment reputation,’” the Plaintiff can show actual malice. See Petit Declaration at ¶¶ 6-7.

Further, given the prevalence of spelling and other grammatical errors in the text, which suggest neither proofreading or vetting had been done, this is a case where the Plaintiff can show by clear and convincing evidence the presence of actual malice. Perhaps

this is a case where Plaintiff can not only show a “reckless disregard” for truth or falsity, but even knowledge of falsity. For example, Groth went on at length under oath in his declaration explaining how Ellison’s alleged failure to pay certain temporary local counsel in New York alienated everybody and supported his position that this is a strategic lawsuit against public participation.

However, Ellison presents a letter from Groth during the same period wherein Groth revealed to Ellison: “On another front, I have heard twice from the old law firm in NYC who’s trying to squeeze more money out of us; I have put them off both times, and haven’t heard from Bob Eegan in two weeks. We seem to be low priority for which I am thankful. Frankly, I resent paying them more money for services I’m unsure we ever got.” See Exhibit G to the Declaration of Harlan Ellison (emphasis added).

In conflict with Groth’s self-serving account, Ellison’s declaration testimony further elucidates the true facts of that period:

For approximately the past 20 years, Mr. Groth has taken every opportunity to take shots at me and worse, even co-founding an organization called “The

Enemies of Ellison,” a hate group whose activities are for the most part published record. For example, an article in the periodical entitled Gauntlet from 1995 describes this group as engaging in a “six month campaign to annoy Harlan Ellison.”

I can assure the Court it was much more than mere annoyance. This small but virulent group, of which Groth was a prime mover, wrote letters to editors of publications I had written freelance reviews for, such as The Washington Post, and effectively caused the paper to stop hiring me. They

sent letters to Playboy, where I had been a contributor prior to their conduct, and effectively terminated that professional relationship.

Fortunately, I had some friends, too, and they formed a competing group called “Friends of Ellison” which helped. But around this time I suffered a heart attack, resulting in a quadruple bypass, and still maintain that the organized character assassination, perpetrated in large part by Groth, Thompson and Fantagraphics, was a major contributing factor to my ill health.

I finally sent them a cease and desist letter, but did not pursue litigation at that time. It is difficult even now for me to pursue litigation on defamation grounds because I have been recognized for my defense of First Amendment Rights, including winning the PEN award in 1990 for “Continuing

Commitment to Artistic Freedom and the Battle Against Censorship”; in 1998 I was the recipient of the coveted “Defender of Liberty Award” of the Comic Book Legal Defense Fund for my fifty-year efforts promoting free speech.

Yet, knowing misstatements of fact, made intentionally to harm another’s reputation, as described below, are not the sort of speech I have worked to protect.

As the Gauntlet article noted in relation to the Enemies of Ellison group and my 1995 cease and desist letter, “When we factor in the incessant

activities that Groth engaged in, when we tally those activities in the aggregate, we begin to understand the temptation Ellison must have felt to do something – anything! – to make this stop, to make this go away.” Indeed, I had hoped that it had gone away.

Unfortunately, the unpleasant discovery of the unauthorized use of my name on the cover of a 2006 publication – referring to me as a “comics dilettante” – and the false statements about my alleged misconduct in the Fleisher case, are forcing me finally to take action against these Defendants who have tested and tested the outer limits of First Amendment protection where I am concerned. I have done what I can over the years to avoid a direct legal confrontation with Groth, Thompson and Fantagraphics, even though I have found their activities harmful. But this year, given their unauthorized use of my name along with an insult on the cover of a book, and the publication of misstatements of fact about the nature of my alleged misconduct in the Fleisher case in yet another book, the Defendants have simply gone too far. Thus, I am compelled to take steps to protect my

reputation by correcting the published record of events in the Fleisher litigation and curtailing the unauthorized use of my name.

Ellison Declaration at ¶¶ 8-12.

Based on all the foregoing, Plaintiff – though not necessarily required to do so under Metabolife Intern., Inc. v. Wornick, 72 F. Supp. 2d 1160 (1999) – can and does demonstrate clear and convincing evidence at this very early stage of the proceeding that Groth had knowledge of the falsity of his statements of fact or, at a minimum, reckless disregard for the truth or falsity of those statements.

3. The “Litigation Privilege” is Inapplicable to Defendants’

Remarks Under the Language of the Statute.

The qualified privilege afforded defendants who might otherwise be subject to defamation actions for statements made concerning judicial proceedings does not apply in this case. In relevant part, California Civil Code section 47(d) is self-limiting to “fair and accurate” reports to a public journal of a judicial proceeding. As demonstrated in the attached declarations and exhibits, Defendants have not engaged in “fair and accurate” reporting of a judicial proceeding. And, in fact, the remarks directed at Ellison’s alleged failure to pay legal bills and enact schemes for getting out of them at Groth’s expense, does not come within the ambit of the statute at all, as those remarks are not “reports” of “a judicial proceeding.” See Cal. Civ. Code § 47(d).

(Continued)

E. The anti-SLAPP Statute Does Not Apply to Plaintiff’s Statutory Misappropriation Claims; Defendants’ Broad Assertions

of “Unconstitutionality” are Without Adequate Support.

Defendants have cited no cases reflecting that a court has granted an anti-SLAPP motion with respect to a statutory misappropriation claim under California Civil Code section 3344. This is because it is inherently inappropriate to do so where, as here, the claim intersects with a recognition by the California Legislature of a property right, or quasi-property right, of the Plaintiff – the substantive right to exclusively profit from the use of their name and likeness for use on or in products. See Cal. Civil Code § 3344.

All of the authority cited by Defendants either (a) relates to a common law claim for

misappropriation of name and likeness and not the statutory variety relied upon by Plaintiff here, or (b) does not stand for the stated proposition.

For example, Defendants attempt to mislead the Court through their citation to Dora v. Frontline Video, Inc., 15 Cal. App. 4^th 526 (1993), claiming that case stands for the proposition that California courts similarly have held that “the public interest in the subject matter . . . give[s] rise to a constitutional protection against liability” in common law misappropriation claims. In reality, the court there only exempted defendants from liability under section 3344 (d) – having nothing to do with the quote in Defendants’ brief. That quote applies to a completely different cause of action brought by the plaintiff in that case: private disclosure of public facts. Thus Defendants’ citations cannot be trusted.

Plaintiff invites the Court to consider the Jury Instructions drafted by the California Judicial Council for use in an action brought under Civil Code section 3344:

1803 - Appropriation of Name or Likeness

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] used [name of plaintiff]'s name, likeness, or identity without [his/her] permission;

2. That [name of defendant] gained a commercial benefit [or some other advantage] by using [name of plaintiff]'s name, likeness, or identity;

3. That [name of plaintiff] was harmed; [and]

4. That [name of defendant]'s conduct was a substantial factor in causing [name of

plaintiff]'s harm; [and]

[5. That the privacy interests of [name of plaintiff] outweigh the public interest served by [name of defendant]'s use of [his/her] name, likeness, or identity.

In deciding whether [name of plaintiff]'s privacy interest outweighs the public's interest, you should consider where the information was used, the extent of the use, the public interest

served by the use, and the seriousness of the interference with [name of plaintiff]'s privacy.]

1-1800 CACI 1803

Plaintiff should be allowed to make his case on each of these elements to the jury, including the last one. The Defendants have produced no evidence that Plaintiff consented to the use of either the underlying interview in book form in 2006, or that he authorized the use of his name in connection with this book. It is certainly not allowed under the “news and public affairs” exception as urged by Defendants. Fantagraphics sells books about comics. This is a classic example of one of their “products.” It is offered for sale, for profit, and to court a general readership.

Perhaps the best one can do in opposing a motion to strike claims under a statute for which there is applicable precedent cited by the moving party is to argue by analogy to similar causes of action that have been held outside the scope of the anti-SLAPP statute:

The list of ingredients on dietary supplement manufacturer’s product labels and online site constituted commcercial speech only, and thus was not protected by the anti-SLAPP statute in consumer’s action against manufacturer for unfair competition, false advertising, and consumer protection violations; the list of ingredients on the labels and online site was not participation in the public dialogue on weight management issues, but

was designed to further manufacturer’s private interest of increasing sales for its products. Nagel v. Twin Laboratories, Inc., 109 Cal. App. 4^th 39 (2003).

The advertising of a manufacturer’s dietary supplements on its labels, and to the public, for the purpose of selling that product, was not an issue of public interest, as would subject consumer’s false advertising claim to special motion to strike under anti-SLAPP statute. Scott v. Metabolife Intern., Inc., 115 Cal. App. 4^th 404 (2004).

Moreover, it is important to note that the Plaintiff did not consent to either the use of the interview in book form, or the use of his name in connection with the sale of such a book, and Defendants have produced no evidence of such consent. According to Plaintiff:

As admitted by Mr. Groth in his declaration, Fantagraphics released a book earlier this year which, unbeknownst to me, featured my name on the cover, along with a slur, referring to me as a “Famous Comics Dilettante,” thus denigrating and dismissing my work in the genre that goes back to the 1960’s.

When I sat for the interview in question some 26 years ago, I never envisioned, nor would I have authorized, inclusion of the interview in book

form. I was told by Mr. Groth that the interview would be carried in his nascent “Comics Journal” a periodical. Had he informed me that one of the intended uses of the interview would be to include it in a for-profit book publication 26 years after the fact, and that he would include my name on the cover of the book to help sell it, and include an insult next to my name in

the process, I never would have agreed to it. I have granted to the Defendants no right to use the interview in the form they have most recently used it. The use of my name on the cover of the book is unauthorized and

uncompensated.

Ellison Declaration at ¶¶ 28, 29.

For all of the reasons stated in this section, therefore, the Court should not summarily dismiss this important and well founded claim of Ellison’s on the broad, vague claims of “unconstitutionality” by Defendants.

III. CONCLUSION

For all the foregoing reasons, as well as those presented at the hearing of this matter, Plaintiff opposes Defendants’ anti-SLAPP motion, and respectfully requests that the Court deny the motion and allow the case to proceed.

Respectfully submitted, Law Offices of John H. Carmichael

DATE: December 11, 2006 _____________________________

John H. Carmichael, Esq.