Complaint
Sanctions Motion
Demurrer
Jackson Case
For a more professional take, read Mary Elizabeth Williams of Salon's: Bill Cosby Hits Back at His Accusers
A woman recently sued Bill Cosby, alleging that he sexually battered her when she was fifteen years old (around 1974). I’ve also learned that the statute of limitations (how long you have to file a complaint after you are injured by someone) will protect Bill Cosby from being sued for what he allegedly did to over twenty women at least one as young as fifteen over forty plus years even if their claims turn out to be true. I wanted to know more about this issue, so I did the Google/Internet thing and read.
I’m no expert. I probably made some (many?) errors. But you’ll get a sense of what I found and you can read for yourself the documents I consulted. Let’s start. The complaint was filed on December 2, 2014, in Superior Court for the County of Los Angeles. It alleges that William Henry Cosby, Jr. (aka Bill Cosby) took the plaintiff to the Playboy Mansion when she was fifteen with a friend of hers (who was sixteen), told these girls to lie and say they were actually nineteen. He had initially met them in a park. They went to his Tennis Club, a house, got drinks, played Billiards, went to the Playboy Mansion and while they were there, he ended up alone in a bedroom and sexually molested the fifteen year old. Read the actual complaint. If I've mischaracterized anything in the above summary, I apologize. And let me emphasize these are allegations. I’m not saying what happened, just what I’m reading.
So all of this happened forty years ago and under normal circumstances, I understand this would be barred by the statute of limitations issue I referenced earlier. She waited too long to sue and so Cosby can automatically win by crying “statute of limitations.” But the complaint alleges that Cosby’s acts constitute “childhood sexual abuse” under California Code of Civil Procedure §340.1(e) (I’m echoing the language of the complaint here) and she only discovered her lifelong psychological injuries and trauma were caused by Cosby’s molestation of her within the last three years. This seems to trigger something called the “delayed discovery rule” and if true, it means that the statute of limitations does not protect Bill Cosby from having to defend himself in this woman’s lawsuit.
Thus, if Bill Cosby did what was alleged and she proves it, he has to answer … at least monetarily … for his actions. But Bill Cosby hired a very skilled and aggressive attorney named Martin Singer. From what I’ve read, Martin Singer is the attorney that stars (and others in the entertainment industry) call when they want action. He’s been written up in the New York Times (on May 21, 2011) and called “Guard Dog to the Stars, Legally Speaking.”
And he almost immediately struck back at Marc Strecker (the plaintiff’s attorney) with a motion for sanctions and demurrer. The complaint was filed on December 2, 2014. Only two days later, he filed a sanctions motion and demurrer on December 4, 2014. If you want a hint at how expensive Martin Singer is as an attorney, the sanctions motion tells us that Cosby has already racked up or soon will rack up over $33,000 in attorney fees. As for the demurrer, as far as I can tell, when you demurrer to a complaint, you're saying that the complaint sucks and even if everything in it is true, the plaintiff still loses.
Before I get into the statute of limitations issue, several other issues struck me or were raised by the sanctions motion/demurrer. First, Martin Singer has set the sanctions motion for March 12, 2015. This may be the earliest date he could calendar the motion (I used to work for a California attorney, so while I’m no expert, I know a little about calendaring motions). But here’s something interesting.
He scheduled the demurrer for November 3, 2015. This is almost a year out and strikes me as unusual. So I typed “when should a demurrer be calendared California” into Google and found something called the California Rules of Court, Rule 3.1320. This rule states that demurrers "must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter. For good cause shown, the court may order the hearing held on an earlier or later day on notice prescribed by the court.”
I’m going out on a limb here, but it seems like Martin Singer intentionally set the demurrer way out past the sanctions hearing. My first thought is he may think the sanction motion has more legs. Plus, by separating these two motions which both ask the Court to dismiss the complaint, he get to chances to argue these issues before the Court. So if he loses the sanctions motion, he get to later argue the demurrer. Maybe I’m wrong, but that’s one thought.
The other thought is the demurrer is a slam dunk to win the motion, but it’s not exactly a knock-out blow (Martin Singer argues that it is, but I in all my hubris, disagree). But let me say why I feel that way based on what I’ve read. Not claiming to be a lawyer, just laying out my thoughts. Go read one of the legal blogs to get the real analysis. Oh and finally, until the Court rules on the demurrer, Bill Cosby doesn’t have to answer the complaint and deny the allegations.
The demurrer says that when you want to claim that California Code of Civil Procedure §340.1(e) exception to the statute of limitations and you are over the age of 26, you have to file certificate of merits from the attorney and a licensed health care professional saying the complaint has merit. The plaintiff is over 26, because the complaint says that she was 15 in 1974, so she’s got to be in her 50s now (someone else can work the math). And the demurrer points out that Marc Strecker didn’t file either of the required certificates of merit. There’s also another requirement. When you sue someone under this exception, you have to sue them as a “John Doe” defendant until the Court looks at the certificates of merit and determines that you can sue them by their real name (Bill Cosby in this case). Marc Strecker skipped the “John Doe” step. Martin Singer cites a case called Jackson in which a woman representing herself did this same thing. He claims it means that the plaintiff can’t fix the failure to include certificates of merit, etc. I read the case too. I disagree with Martin Singer partly because in that case the woman acted as her own attorney and also because she was very, very specific about when she found out about her injury (the woman in the Jackson case, not the plaintiff in this case) and the Court ruled the statute of limitations had expired since the date she filed her complaint and the certificate was needed to toll the statute. Against Bill Cosby, the plaintiff was much vaguer only saying she found out in the last three years. So the statute has not necessarily, as a matter of law passed. Also, I think if the lawyer screwed up (as opposed to the woman who represented herself), the Court will give the plaintiff a chance to fix her complaint.
This won’t mean that the plaintiff will win. She still must prove her case and that she only learned that Bill Cosby’s sexual battery is the reason for her lifelong troubles within the last three years. And this brings us back to Martin Singer’s motion for sanctions.
If you remember, a demurrer means that even if everything in the complaint is true, the plaintiff still loses. With a demurrer, you really don’t get to argue the facts. But with this sanctions motion, Martin Singer isn’t handicapped in the same way. He can bring in any facts he feels will show this complaint lacks legal merit. Now in the sanctions motion, he isn’t arguing that Bill Cosby didn’t sexually batter the plaintiff or conceding that point.
Instead, he argues that the plaintiff tried to sell her story to the tabloids almost a decade ago. Apparently, this is something that Marc Strecker conceded in a telephone conversation to Martin Singer. I don’t know if that constitutes evidence for sanctions or prove that the attempt-to-sell-story is true. But I think it goes back to the statute of limitations issue. If you were trying to sell the story ten years ago, then you couldn’t have just learned that Bill Cosby’s acts harmed you within the last three years. I think it makes plaintiff’s claim more difficult.
But does it mean she cannot under any circumstances prove she only learned that Bill Cosby’s actions harmed her in the last three years? I don’t know. It may require an amended pleading or some sort of explanation ... if true.
I think Marc Strecker gets sanctions for using Bill Cosby’s name without getting permission from the Court and not filing the certificates of merit. But I could be wrong. I think the Court will punt the tabloid issue as premature and not factually determined. I think the Court will grant the demurrer whenever it gets heard, but will let the Plaintiff amend the complaint.
In other word, the case goes forward ultimately to be determined on the facts. A few last points.
Martin Singer is smart. You may notice so far Bill Cosby has said nothing. There is no declaration from him. And in the sanctions motion, Martin Singer only attached his responses to Marc Strecker’s letters, but he leaves out the correspondence from Marc Strecker, which I imagine graphically describe the allegations against Bill Cosby. By doing this, those letters don’t become part of the public record.
So far plaintiff’s attorney has not responded to either of these motions. When he does, I imagine you’ll see his letters to Bill Cosby’s attorney. My prediction for the ultimate conclusion is that it will go away in some sort of settlement unless Martin Singer can dismiss it with his sanctions motion. Because Bill Cosby will not want to sit down for a three hour deposition. I could be wrong.
Tue Dec 09, 2014 at 1:37 PM PT: The attorney for plaintiff has filed a first amended complaint. The complaint no longer identified Bill Cosby by name. Instead, it identifies the defendant as Doe 1. By filing a first amended complaint, the demurrer (but not the sanctions motion) will ordinarily come off calendar. No certificates of merit were attached to this amended complaint (at least to the copy I downloaded).
First Amended Complaint
An article that addresses the filing of the first amended complaint,
Bill Cosby's alleged victim removes his name from lawsuit over filing error