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Cease and Desist Form Slanderous Statements - DOC by ute13758

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Cease and Desist Form Slanderous Statements document sample

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									 1   Law Offices of John H. Carmichael
     John H. Carmichael, Esq. (196416)
 2   269 South Beverly Drive, Ste. 395
     Beverly Hills, California 90212
 3   Telephone: (310) 367-5432
     Facsimile: (310) 792-8625
 4
     Attorney for Plaintiffs
 5   Hammett Packaging, Inc. and
     Affiliated Packaging Specialties, Inc.
 6

 7
                       SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8
                              FOR THE COUNTY OF LOS ANGELES
 9

10   HARLAN ELLISON, an individual,      )               CASE NO.
                                         )
11                                       )
                  Plaintiff,             )
12                                       )               COMPLAINT FOR:
     v.                                  )
13                                       )               1. DEFAMATION
     FANTAGRAPHICS, INC., a corporation, )
14   GARY GROTH, an individual, KIM      )               2. VIOLATION OF RIGHT OF
     THOMPSON, an individual, and DOES )                    PUBLICITY
15   1 through 20, inclusive,            )
                                         )               DEMAND FOR JURY TRIAL
16                Defendants.            )
     ________________________________ )                  [Cal. Civil Code § 3344]
17

18
            Harlan Ellison alleges as follows against defendants Fantagraphics, Inc.
19
     (“Fantagraphics”), Gary Groth (“Groth”), Kim Thompson (“Thompson”) and DOES 1
20
     through 20:
21
                                          General Allegations
22

23          1.      Harlan Ellison, a Los Angeles resident, is a famous author, screenwriter,
24
     commentator and public speaker. He is the winner of countless literary awards and known
25
     publicly as the writer of some of the best loved original Star Trek and Outer Limits
26
     episodes. In addition to his lifelong devotion to literary craft, Ellison is a well-known fearless
27
     champion of artist’s rights who, at great cost to himself, has pursued several intellectual
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                                                     1
 1   property and related matters through the Courts in an effort to elevate his profession and

 2   safeguard other artists. Ellison has also mentored and discovered many young writers that
 3
     have gone on to acclaim and successful careers in their own right. This action arises from
 4
     a well-intentioned attempt on Ellison’s part, over twenty five years ago, to magnamously
 5
     assist a then-struggling writer with his own career, defendant Gary Groth. Unfortunately,
 6
     Groth revealed himself to be a scheming pathological liar and little more than an
 7

 8   obsessively vindictive and petty man trying to be a mover and shaker. The phrase “no

 9   deed goes unpunished” speaks volumes in this instance.
10
              2.   Defendants Groth and Kim Thompson are Washington residents and
11
     principals of the corporate defendant Fantagraphics, Inc., a Washington corporation which
12
     does business in Los Angeles County, California. Fantagraphics is a tiny but hostile
13
     publishing outfit which both men, Groth and Thompson, run out of their shared home in
14

15   Seattle. The primary focus of Fantagraphics is the publication of magazines, books and

16   other materials related to the comic book industry, referred to simply as “comics” in the
17   field.
18
              3.   Ellison alleges that Groth, Thompson and Fantagraphics defamed him in a
19
     book entitled Comics As Art (We Told You So) which they have not yet officially “released”
20
     but which they have posted on their website and distributed at various public venues. Groth
21

22   and Thompson are co-authors. The defendants promote the release of Comics As Art on

23   their website and announce a “December 2006” date for the formal release of the book.

24   Ellison further alleges that the defendants have violated California’s “right of publicity”
25
     statute, Civil Code section 3344, by wrongfully using Ellison’s name in connection with
26
     another Fantagraphics publication entitled The Comics Journal Library 6: The Writers. As
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     part of their effort to sell Comics Journal 6, defendants wantonly trade on Ellison’s name on
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                                                  2
                                                                     COMPLAINT
 1   the book’s cover (along with an included insult to Ellison) without Ellison’s permission.

 2   Defendants’ tortious conduct is motivated by clear and indisputable malice toward Ellison,
 3
     as explained by the following context:
 4
            4.     In 1980, Groth, an admirer of Ellison, asked him if he would sit for an
 5
     interview on the state of the art of comics. Ellison, by then an established author and
 6
     screenwriter, was very public about his lifelong interest in comics and wanted to help the
 7

 8   young Groth with his nascent effort to publish material in the field. Thus, Ellison accepted

 9   Groth’s invitation and the interview appeared in the 1980 Winter edition of a Fantagraphics
10   magazine known as “The Comics Journal.” This lengthy interview contained a free ranging
11
     discussion of various comic artists, writers, publishers, and general cultural, political and
12
     artistic commentary. The interview was characteristically candid, and Ellison provided
13
     Groth with a long, controversial and gripping piece.
14

15          5.     Unfortunately for all concerned one of the subjects of Ellison’s critique, a

16   writer and comics contributor named Mike Fleisher, was offended by Ellison’s colorful

17   analysis of the origins of his art. Even though Ellison’s comments were fundamentally
18
     positive regarding Fleisher’s work, Fleisher objected to Ellison’s opinion that his work had
19
     to be the product of a twisted mind. Specifically, for example, Ellison suggested one would
20
     have to be “derange-o” and/or “bugfuck” to write like Fleisher.
21
            6.     These offhanded if provocative remarks were quite clearly non-actionable
22

23   “opinions” about Fleisher’s writing and its laudable literary origins, and not slanderous

24   statements suggesting the speaker’s actual knowledge of Fleisher’s mental state. But there
25   was no reasoning with or apologizing to the temperamental Fleisher; he was determined to
26
     sue and in fact he did. He named Ellison, Fantagraphics and Groth. The lawsuit proved to
27
     be long and tortuous, and generated significant legal fees and costs. The case ultimately
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                                                  3
                                                                     COMPLAINT
 1   concluded in a jury trial in New York and the defense won.

 2          7.     Immediately after the jury exited the courtroom, a giddy young Groth went up
 3
     to an older, tough looking male juror and, in sycophantic fashion, thanked him. The juror
 4
     looked at Groth and said words to the effect that, “If it wasn’t for Mr. Ellison, we would have
 5
     found against you.” Groth’s fragile ego could not take that public rebuke, made in front of
 6
     others including Ellison. Groth had already lied to and stolen from Ellison during the
 7

 8   litigation, as explained below in paragraph 10, and to have it made plain in the courtroom

 9   hallway that it was Ellison’s contribution that had saved Groth from a large damage award
10   proved too much for the immature and now furious Groth to bear.
11
            8.    Since that time, for approximately the past 20 years, Groth has taken every
12
     opportunity to take shots at Ellison, even co-founding the puerile but nonetheless
13
     aggressive organization called “The Enemies of Ellison,” a hate group whose activities are
14

15   for the most part published record. This group operated primarily to vex and harass Harlan

16   Ellison, and to cause him extreme financial and reputational damage. In most regards

17   Groth has been cowardly about his “hell hath no fury like a woman scorned” routine with
18
     Ellison, and Ellison has tried simply to avoid the distaste of Groth’s infantile vendetta.
19
     Recently, however, Groth has gone too far in his obsession and, even though Ellison has
20
     better things to do, he elects by this action finally to prosecute Groth’s defamation, a
21

22   feature of Groth’s ongoing harassment, as well as other violations of law. The defamatory

23   statements at issue, which are contained in the incomplete promotional release of the

24   Comics As Art publication, concern Ellison’s conduct in his co-defense of the Fleisher
25
     lawsuit with Groth and Fantagraphics.
26
27

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                                                   4
                                                                      COMPLAINT
 1                                  The Defamatory Statements

 2          9.     Groth’s First Big Lie: “Being a co-defendant with Ellison made me feel like I

 3   was in the Alamo: surrounded on all sides. It is little known that our relationship began to

 4   fray very early on. He was always coming up with schemes to wheedle out of paying his

 5   bills. One was so brilliantly Machievelian [sic] that it included both stiffing his lawyers and

 6   screwing me — at the same time! You just never knew what he was going to come up with

 7   next, which meant we had to watch our co-defendant as closely as we watched Fleisher.”

 8          10.     The true facts are that Ellison was scrupulous in his payment of attorneys

 9   fees and other costs, covering more than his fair share of the litigation expenses. At some

10   point in the case, Groth invoked the “duty to defend” clause in an insurance policy and the

11   insurance company began to pay, at least in part, for the defense. However, Groth did not

12   reveal this fact to Ellison and Groth continued to receive and happily spend checks from

13   Ellison for his own selfish purposes. Groth even used money Ellison paid for legal services

14   to fund a secret tropical vacation for himself and his partner Thompson. Given Groth’s

15   outright thievery and dishonesty, his claims that Ellison “stiffed” his lawyers, “screwed” his

16   co-defendant, or “wheedled” out of any responsibility in connection with the case is

17   preposterous, reprehensible and defamatory.

18          11.    Because of Ellison’s proud record of vindicating artist’s rights, it is important
19   to his reputation that he not be seen as a “wheedler” out of the fees and costs that were

20   necessary to fund such efforts. Groth’s false statements in this regard go right to the heart

21   of Ellison’s professional reputation with a demonstrated intent to “hit him where he lives.”

22          12.    Groth’s Second Big Lie: “One of my favorite stories involves Ellison cutting

23   a deal that required him to reimburse Fleisher if he lost a particular motion. The judge

24   approved the arrangement and Ellison lost the motion but refused to reimburse Fleisher’s

25   out of pocket expenses, as agreed. Our lawyer started to realize what a loose canon he

26   was when we learned that the judge was about to order U.S. Marshals to arrest Ellison for
27   failing to obey a court order. Naturally, Ellison coughed it up but only days before he was

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                                                   5
                                                                      COMPLAINT
 1   about to be arrested.”

 2
            13.     This is a grotesque and ludicrous fabrication, a florid lie. Groth creates from
 3

 4   whole-cloth paranoid fantasies about imagined Ellison misconduct in the case. He does so

 5   to damage Ellison in a greedy attempt to make his book about the “history of

 6   Fantagraphics” more interesting at Ellison’s expense.
 7
            14.       Groth has systematically, obsessively and repeatedly traduced Ellison’s
 8
     character, achievement, motivation and notable perception by a general readership. These
 9
     defamatory remarks demonstrate a fecklessness clearly intended to trash Ellison’s fifty
10

11   year long honorable and distinguished career. Groth’s redundant theme is that Mr. Ellison

12   has done almost nothing of unambiguous virtue, even referring in the offending publication

13   to the initial interview with Ellison as seeming now “somewhat jejune.” All appeals to
14
     defendants to cease and desist, to retract and correct – such as a written request on or
15
     about July 24, 2006 – were met with arrogance, insult, threats, or silence.To the extent
16
     there are other defamatory statements in portions of Comics As Art not yet made available
17

18   to the public, Ellison will amend the complaint as appropriate to include those statements in

19   this action.

20                                         Doe Allegations
21           15.      Plaintiff is ignorant of the true names and capacities of Defendants sued
22
     herein as Does 1 through 20, inclusive, and therefore sues said Defendants by such
23
     fictitious names. Plaintiff will amend this Complaint to allege the true names and capacities
24
     of such fictitiously named Defendants when the same have been ascertained.
25

26          16.       Plaintiff is informed and believes and based thereon alleges that each of

27   the fictitiously named Defendants is responsible in some manner for the occurrences, acts

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                                                    6
                                                                      COMPLAINT
     and omissions alleged herein and that Plaintiff’s damages were proximately caused by

 1   their conduct. For convenience, each reference to a named Defendant herein shall refer to

 2   the Doe Defendants and each of them.
 3
                                  FIRST CAUSE OF ACTION
 4
            (Against Fantagraphics, Groth, Thompson, and DOES 1-20 for Defamation)
 5
            17.     Plaintiff repeats, realleges and incorporates by reference Paragraphs 1
 6

 7   through 16, inclusive, of this Complaint as if fully set forth herein.

 8
            18.    Defendants published the aforesaid false and defamatory Statements of and
 9
     concerning Plaintiff to numerous third parties, including publishing and disseminating the
10
     Statements through the Fantagraphics website on the worldwide internet. Defendants
11
     have shared the Statements in published form at conventions and other public gatherings,
12
     at least one of which was in California. They have indicated a December 2006 release date
13
     for the book and Plaintiff reasonably concludes that Defendants will release the book in as
14
     wide a distribution method as possible, including distribution into Los Angeles and other
15
     parts of California. Defendants intended the Statements to be published, disseminated,
16
     printed or circulated, or caused to be published, disseminated, printed or circulated in
17
     California, and elsewhere throughout the world. Plaintiff is informed and believes and
18
     based thereon alleges that Defendants knew the Statements were false and/or had no
19
     reasonable grounds for believing them to be true. The Statements were initially published
20
     and publicly disseminated by Defendants sometime within the past year on their website
21
     and published and publicly disseminated continuously thereafter throughout the world over
22
     the internet and at various conferences.
23
            19.    Persons who read the Statements and/or heard the Statements repeated
24
     reasonably understood the references therein to pertain and refer to Plaintiff. As alleged
25
     herein, the Statements published throughout the world are fabricated, false, malicious and
26
     defamatory statements of fact, not opinion, of and concerning Plaintiff.
27

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                                                    7
                                                                      COMPLAINT
            20.    The promotional excerpt from the book including the Statements was/were

 1   intended by Defendants to be read, and was read, by persons who accessed the book

 2   excerpt on the Fantagraphics website in the City and County of Los Angeles, State of

 3   California. The book excerpt including the Statements was/were intended by Defendants to

 4   be read, and was read, by persons who attended public conferences, including one in

 5   California.

 6          21.    The Statements made by Groth and published in the book, as co-authored by

 7   Thompson and published by Fantagraphics, are libelous and defamatory on their face in

 8   that the Statements maliciously and recklessly portray Plaintiff as having polluted ethical

 9   standards and as having behaved treacherously and/or flagrantly in the defense of the

10   Fleisher matter. Each of the aforesaid statements set forth in the book excerpts are false.

11          22.    The Statements clearly expose Plaintiff to contempt, ridicule, hatred and

12   obloquy, and/or cause Plaintiff to be shunned or avoided, and have a tendency to injure

13   Plaintiff in his occupation and career. Plaintiff is informed and believes and based thereon

14   alleges that Defendant intentionally portrayed Plaintiff in this manner knowing that the

15   depiction was false, or without any reasonable grounds for believing it to be true.

16          23.    The Statements were unprivileged, and were intended by Defendants to

17   directly injure Plaintiff with respect to his personal and professional reputation, character,

18   trade and business, including Plaintiff as a world renowned author and concomitant
19   reputation as a champion of artist’s rights. Plaintiff is informed and believes and based

20   thereon alleges that Defendant knew, or recklessly disregarded the fact that, the

21   Statements were likely to damage the reputation, standing and career of Plaintiff and

22   cause damage to his standing in the public mind and in the arts and media industries.

23          24.    The Statements are susceptible of a defamatory meaning on their face in

24   that each of the Statements has a direct tendency to injure Plaintiff with respect to his

25   personal and professional reputation, character and business. Plaintiff is informed and

26   believes and based thereon alleges that the Statements were made by defendants and
27   caused by them to be published over the internet with actual malice, with the knowledge

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                                                   8
                                                                      COMPLAINT
     that the Statements were false, or with a reckless disregard for the truth.

 1          25.       As a direct and proximate result of the above-described conduct by

 2   Defendants, Plaintiff has suffered general and special damages in an amount not presently

 3   known to Plaintiff but which will be proved at trial, including damage to Plaintiff’s reputation

 4   and standing in the community, as well as shame, vilification, mortification, censure,

 5   embarrassment, humiliation, and damage to the value of Plaintiff’s name, likeness and

 6   goodwill. Although the full nature, extent and amount of these damages are currently

 7   unknown, this Complaint will be amended at or before trial to insert such information if

 8   such amendment is deemed necessary by the Court.

 9          26.       Plaintiff is informed and believes and based thereon alleges that the

10   aforesaid acts of Defendant were done intentionally or with a conscious disregard of

11   Plaintiff’s rights, and with an intent to vex, ostracize, injure, cripple commercially and

12   antagonize Plaintiff, such as to constitute oppression, fraud or malice thus entitling Plaintiff

13   to exemplary and punitive damages in an amount appropriate to punish or set an example

14   of Defendants, and to deter such conduct in the future, which amount will be proved at trial.

15                                SECOND CAUSE OF ACTION

16     (Against Fantagraphics, Groth, Thompson, and DOES 1-20 for Violation of Ellison’s

17                    Right of Publicity Pursuant to California Civil Code Section 3344)

18              27.    Plaintiff repeats, realleges and incorporates by reference Paragraphs 1
19   through 16, inclusive, of this Complaint as if fully set forth herein.

20              28.    Defendants, without Plaintiff’s authorization, knowingly used and continue

21   to use Plaintiff’s name on the cover of, and in the contents of, a Fantagraphics commercial

22   publication entitled The Comics Journal Library 6: The Writers, the focus of which is

23   apparently an array of views, essays or other commentary by well-known writers on the

24   subject of comics. The use of Plaintiff’s name aids Fantagraphics in the sale of this

25   product.

26
27

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                                                    9
                                                                       COMPLAINT
             29.     In addition to the unauthorized use of Plaintiff’s name, Defendants

 1   gratuitously insult Plaintiff by describing him as a “Famous Comics Dilettante” on the cover

 2   of the book. This swipe at Plaintiff is consistent with the malice shown to him for the past

 3   20 years by Groth and Thompson often through Fantagraphics. To use Plaintiff’s name

 4   without his consent is one thing, but to do so in conjunction with a slur warrants severe

 5   consequence under California Civil Code section 3344.

 6           30.     As a direct and proximate result of the above-described conduct by

 7   Defendants, Plaintiff has suffered general and special damages in an amount not presently

 8   known to Plaintiff but which will be proved at trial, in accordance with the compensatory

 9   damages authorized by statute.

10           31.      Plaintiff is informed and believes and based thereon alleges that the

11   aforesaid acts of Defendants were done intentionally or with a conscious disregard of

12   Plaintiff’s rights, and within intent to vex, injure or annoy Plaintiff, such as to constitute

13   oppression, fraud or malice thus entitling Plaintiff to exemplary and punitive damages in an

14   amount appropriate to punish or set an example of Defendants, and to deter such conduct

15   in the future, which amount will be proved at trial. Punitive damages are further authorized

16   by Section 3344 itself.

17           32.      As provided by Section 3344, Plaintiff also seeks attorney fees and costs

18   for the prosecution of this claim.
19

20                                        PRAYER FOR RELIEF

21            WHEREFORE, Plaintiff Harlan Ellison prays for judgment against Defendants

22   Gary Groth, Kim Thompson and Fantagraphics, Inc. as follows:

23                               ON THE FIRST CAUSE OF ACTION

24           1.    For general damages against Defendants in an amount to be established in

25   accordance with proof at trial, together with interest thereon at the legal rate;

26           2.     For punitive damages pursuant to Civil Code section 3294 in an amount
27   appropriate to punish or set an example of Defendants and to deter such conduct in the

28
                                                   10
                                                                       COMPLAINT
     future. The exact amount of such damages shall be subject to proof at the time of trial.

 1            3.     For an injunction prohibiting dissemination of the defamatory statements in

 2   any form, and for the destruction of any materials containing the defamatory statements.

 3                              ON THE SECOND CAUSE OF ACTION

 4            4.    For general damages against Defendants in an amount to be established in

 5   accordance with proof at trial, together with interest thereon at the legal rate;

 6            5.    For punitive damages pursuant to Civil Code sections 3294 and 3344 in an

 7   amount appropriate to punish or set an example of Defendants and to deter such conduct

 8   in the future. The exact amount of such damages shall be subject to proof at the time of

 9   trial.

10            6.    For attorneys fees and costs, as provided in Civil Code section 3344

11            7.    For an injunction prohibiting dissemination of The Comics Journal Library 6:

12   The Writers and ordering the destruction of any remaining volumes of that title.

13                                  ON ALL CAUSES OF ACTION

14            8.    For costs of suit incurred;

15            9.    For interest at the statutory rate; and

16            10.   For such other and further relief as the Court may deem just and proper.

17

18   Respectfully submitted,
19   DATED: September 5, 2006                                   Law Offices of John H. Carmichael
                                                                John H. Carmichael
20

21

22                                                             By: _____________________
                                                               Attorney for the Plaintiff
23
                                                               Harlan Ellison
24

25

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27

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                                                    11
                                                                     COMPLAINT

								
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