This Motion for Summary Judgment is directed at the remaining causes of action in Plaintiff’s First Amended Complaint (FAC): libel per se, slander per se, fraud, negligence and negligent misrepresentation.

The Court first will address the defamation causes of action and negligence causes of action. For reasons set forth below, the Court finds that the alleged defamatory statements are not reasonably understood to be statements of fact and finds that Plaintiff executed a release applicable to the defamation and negligence she alleges against Defendant. Whether a statement declares or implies a provably false assertion of fact is a question of fact for the court, after considering the totality of the circumstances, unless the statement is susceptible to both an innocent or libelous meaning. [Franklin v. Dynamic Details (2004) 116 CA4th 375, 385; San Francisco Bay Guardian v. Superior Court (1993) 17 CA4th 655, 662]. The Court viewed the excerpt from the Ali G program which is the basis for Plaintiff’s action. No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G’s statements are similarly absurd. For example, prior to the reference to Plaintiff, while “interviewing” the author Gore Vidal, Ali G refers to the Constitution of the United States as having been written on two tablets, clearly intended to confuse the Constitution with the Ten Commandments. Altogether, the program is obviously a spoof of a serious interview program. No reasonable person could think otherwise.

A second and independent ground for negating the defamation and negligence causes of action is that Plaintiff executed a Release Agreement in 2006 which covered any defamatory or negligent conduct alleged against Defendant. The terms of that Release are broad, applying to any actions “whether known, or unknown, now or in the future, arising out of or related to the Program.”

Plaintiff seeks to evade the broad scope of the Release by pleading that she executed the Release in reliance on a fraudulent promise by Defendant not to include Plaintiff’s name when rebroadcasting the Program. One element of fraud is damages. Yet, Plaintiff attests in discovery responses that the damages all flow from a rebroadcast of the Program which Plaintiff knew about before executing the 2006 Release. Accordingly, no other damages flow from any subsequent rebroadcast in Finland or as a result of YouTube rebroadcasting of the Program. Moreover, negligent misrepresentation is actionable only as to past or existing facts, not future events. [Tarmann v. State Farm Mutual Automobile Insurance (1991) 2 CA4th 153, 158].

Plaintiff requests a continuance in order to complete further discovery. The Court denies the request because further discovery would not affect the reasons upon which the Court grants this Motion. The Court’s ruling relies on undisputed evidence, namely the content of the Program and the scope of the 2006 Release.

The Motion for Summary Judgment is granted.

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For a copy of the successful brief, see

http://www.sddglobal.com/Doe_v_HBO_SDDGS_Brief.pdf