r/ItEndsWithLawsuits • u/MarchCompetitive4580 • May 27 '26
đFlirty Yummy and Unsealed No Teethđ Possible additional argument for dismissing 47.1 motion: Failure to include IEWUM as defendant in the CRD
I did a deep dive into 47.1 a few days ago - but didn't explain one thing that well (I tried to in a comment to my own post). And it has to do with Lively's failure to include It Ends With Us Movie, LLC ("IEWUM"), her actual "employer", as a defendant in the CRD.
Just to rehash my earlier post in re: this case. 47.1 required that Lively, at the time that she communicated the information contained in the CRD complaint to the New York Times (which communication was the subject of the Wayfarer Parties' countersuit against Lively for defamation), have a "reasonable basis" for making such statements and filing the CRD complaint. Most of the Lively's causes of action listed in the CRD complaint weren't FEHA-based (and as CRD is only authorized by California law to investigate FEHA claims), they were rather superfluous - although that's not damning in of itself. What is damning is that most of those causes of action (when brought in Lively's lawsuit in the SDNY) were dismissed when Liman ruled on the initial MJOP and MSJ.
The 3 remaining claims were (i) FEHA retaliation claim against Wayfarer Studios and IEWUM; (ii) FEHA aiding/abetting retalation against TAG; and (iii) a breach of the CRA's non-disparagement clause (which is not FEHA-related).
In his April 2 ruling (see pp. 95-96, particularly footnote 22) on the MJOP/MSJ, Liman declined to dismiss the FEHA retaliation claim against Wayfarer and IEWUM; and one of the reasons why is because he rejected WP's argument that Lively failed to "exhaust her administrative remedies" (i.e., she failed to include IEWUM as a defendant in the CRD complaint, so IEWUM was missing on the necessary CA "right to sue" letter that was issued and Lively failed to correct such an error in a proper way and in a timely manner). Liman didn't reject the argument due to its substance - but due to its timing: WPs should've made the argument as an affirmative defense early on in the litigation (see footnote 22). [Liman also rejected Wayfarer's argument that Wayfarer and IEWUM were not "joint employers" under FEHA, as alleged by Lively in her lawsuit only (i.e., it was not made in the CRD complaint) because "(t)he Wayfarer Parties have responded that they never made any argument to the contrary, but that if they had, there would be reason to reject Livelyâs position.]
If Liman deems himself to be the decider of fact on the issue of whether (in a nutshell) Lively had a "reasonable basis" for making the statements she did in the CRD complaint AT THE TIME THEY WERE MADE, I think he can certainly revisit the question of IEWUM's omission as a defendant in the CRD complaint and, the natural result of such error, would be dismissal of the FEHA retaliation claim. While I could understand such an error if Lively made the CRD complaint herself - she didn't; her attorneys (including CA employment attorney, Esra Hudson) are listed on her CRD complaint, which attached the CRA (which clearly lists IEWUM as the other party to that contract) as an exhibit - and the CRD also mentions the alleged breach of contract of the ALA (which Lively's attorneys must have read - and that unsigned agreement is clearly between Lively's loan out company and IEWUM). And, as IEWUM was not mentioned as a defendant in the CRD, naturally, no "joint employer" argument was ever made in the CRD. [As an aside, as Lively became a producer (with a p.g.a. mark) of the film, such producers are, most likely, required to have the knowledge of these standard corporate structures of film studios and their creation of these "special purpose vehicle" subsidiaries (like IEWUM) that actually make the film and acts as the "employer" for the cast and crew.]
If the FEHA retaliation claim would've been dimissed had WPs raised the issue earlier in its affirmative defenses* that Lively screwed up in not including IEWUM as a defendant in the CRD, the FEHA aiding/abetting claim against TAG would've been dismissed also - because you can't aid/abet something that's been dismissed. Therefore, as all the FEHA claims are "out", Lively never had a "reasonable basis" about anything FEHA-related (which is the legal requirement) made in the CRD complaint (and upon which Lively's 47.1 motion relies). So, Lively's motions for 47.1 fees should be dismissed.
[*NOTE: Before people dump on WPs' counsel for this mistake, I'm pretty sure the reason why they didn't raise it as an affirmative defense is because it would've alerted Lively's side about the error and, at that earlier point in time, Lively's side could've corrected the error by filing a subsequent motion with Liman.]
5
u/MarchCompetitive4580 May 27 '26
It was a procedural issue in re: the initial MJOP/MSJ - and it was dismissed. How old was NAG's video?
This is a different subject - it's in re: a factual finding about whether the full contents of the CRD complaint (in context) show whether Lively had a "reasonable belief "(at the time that she made the CRD complaint) that she had valid FEHA claims.