Charalambopoulos v. Grammer

• Decision Date: 29 January 2015
• Docket Number: Civil Action No. 3:14-CV-2424-D
• Parties: DIMITRI CHARALAMBOPOULOS, Plaintiff-counterdefendant, v. CAMILLE GRAMMER, Defendant-counterplaintiff.
• Court: U.S. District Court — Northern District of Texas

DIMITRI CHARALAMBOPOULOS, Plaintiff-counterdefendant, v. CAMILLE GRAMMER, Defendant-counterplaintiff.

Civil Action No. 3:14-CV-2424-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

January 29, 2015

MEMORANDUM OPINION AND ORDER

In this removed action brought against an American television personality by her former boyfriend—whom she has accused of assaulting and stalking her—the court must analyze and apply the Texas Citizens' Participation Act ("TCPA"), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (West Supp. 2014), an anti-SLAPP statute.¹ Plaintiff-counterdefendant Dimitri Charalambopoulos ("Charalambopoulos") sues defendant-counterplaintiff Camille Grammer ("Grammer") to recover on claims for defamation, defamation per se, malicious prosecution, negligence, gross negligence, fraud, and intentional infliction of emotional distress ("IIED"). Grammer moves to dismiss under the TCPA, to stay discovery, and for a hearing on her motion to dismiss. Charalambopoulos moves thecourt to permit discovery. Some of the issues presented are unsettled questions that require that the court make Erie-guesses.² For the reasons explained, the court dismisses Charalambopoulos' claims for negligence, gross negligence, fraud, and IIED; declines to dismiss his claim for malicious prosecution; holds that certain grounds for his claims for defamation and defamation per se should be dismissed and that others should not; and allows him to conduct specified and limited discovery as to the remaining grounds for his claims for defamation and defamation per se and file a supplemental response.

I

According to Charalambopoulos' state-court first amended petition ("amended petition"), he and Grammer were boyfriend and girlfriend for more than two years. Grammer is an American television personality and the former wife of actor Kelsey Grammer.

Grammer was diagnosed with a uterine tumor in 2013 and initially sought treatment near her home in California. With assistance from Charalambopoulos, she later sought a second opinion and treatment at M.D. Anderson Cancer Center ("M.D. Anderson") in Houston, where she underwent surgery in October 2013. Charalambopoulos had contacted a childhood friend to request that the friend use her connections to enable Grammer to obtain treatment at M.D. Anderson. Through these efforts, Grammer was admitted for treatment.

Charalambopoulos, who resides in Dallas, traveled to Houston to support and help Grammer during the initial part of her post-surgery recovery. Grammer, her mother, anassistant, and Charalambopoulos all stayed at the Hotel ZaZa. Charalambopoulos alleges that he provided comfort to Grammer and helped her with her catheter bag, medications, showering, and other needs.

Charalambopoulos asserts that, on the night of October 15, 2013, he fell asleep in Grammer's bed. At 1:51 a.m. on October 16, an incoming text message on his cell phone woke Grammer. The message was from the female childhood friend who had helped Charalambopoulos get Grammer admitted to M. D. Anderson. The text message read: "Sorry. Call me when you have some time tomorrow." Am. Pet. ¶ 9. After Grammer read the message, she became enraged, accused Charalambopoulos of being a liar and cheater, broke his cell phone, and threatened to call the police and inform them that he had assaulted her. Charalambopoulos told Grammer that he was leaving, gathered his belongings, and departed from the hotel.

According to Charalambopoulos, after he left, Grammer staged the hotel room to make it appear that he had assaulted her (the "Alleged Assault"), and she then went to the hotel lobby where she asked an employee to call the police. M. H. Vo ("Officer Vo"), a Houston Police Department ("HPD") officer, was dispatched to the scene. After interviewing Grammer and completing his initial investigation, Officer Vo departed. He did not summon medical help, issue a bulletin for Charalambopoulos to be arrested, or take any other action. Charalambopoulos alleges that, after Officer Vo departed, Grammer used makeup to create the appearance that an assault had occurred, and she requested that her mother take photographs.

After Grammer returned to California, she filed on October 29, 2013 a request for a domestic violence restraining order (the "Request for Restraining Order") in the Los Angeles County Superior Court based on the Alleged Assault. She attached to the request the photographs that she had allegedly staged. That same day, Grammer tweeted the following to more than 198,000 followers on her Twitter account: "Info will come out today that is jaw dropping. And women can't be silenced after being physically abused. Yes, it was horrible what happened to me two days out of the hospital. I was in fear for my life." Am. Pet. ¶ 15 (internal quotation marks omitted).

Once the Request for Restraining Order was filed, the story of the Alleged Assault "went viral" and was picked up by most major national celebrity media outlets, including Access Hollywood, Entertainment Tonight, Hollywood Gossip, TMZ, E-Online, and Radar Online. These media outlets released stories alleging that Charalambopoulos had assaulted Grammer, quoting Grammer's statements attached to the Request for Restraining Order and showing Charalambopoulos' face juxtaposed with the photographs Grammer filed in support of the Request for Restraining Order. On November 14, 2013, Grammer appeared on The Dr. Oz Show and stated that she had been "physically abused and assaulted." Id. ¶ 16.

On November 22, 2013 the HPD filed felony charges against Charalambopoulos for assault of a family member and impeding breath. As a result of the felony charges, a Harris County, Texas magistrate judge issued on November 25, 2013 an order for emergency protection (the "Protective Order") against Charalambopoulos. In response to Grammer's Request for Restraining Order, a California Commissioner on January 6, 2014 issued arestraining order against Charalambopoulos (the "Restraining Order"). These legal proceedings were covered by the major celebrity gossip websites, which reported that Charalambopoulos had been charged with a felony and that Grammer had obtained a restraining order against him.

Charalambopoulos alleges that in April 2014 Grammer released a false report that he and an unidentified woman had driven to Grammer's home and informed the security guard that they had an appointment with her. This "stalking story" (the "Alleged Stalking") was released to multiple websites, one of which (RadarOnline.com) quoted an unidentified law enforcement source as saying that "[Grammer] wanted to make sure who it was and had her security team pull the surveillance video at her gate. She viewed it and positively identified her ex as the man trying to gain access to her house, says the source." Am. Pet. ¶ 18 (internal quotation marks omitted). According to Charalambopoulos, the release of the story caused headlines to be posted "all over the internet" by various websites depicting him as a stalker. Id. He cites as an example that "Dailymail.co.uk published the following headline on or about Saturday, April 12, 2014 'Camille Grammer allegedly "in HIDING" after ex-boyfriend she has a restraining order against appears at her home.'" Id. No formal investigation was ever undertaken, however, and no legal action was initiated relating to these events.

On May 28, 2014 a Harris County, Texas grand jury issued a "no bill," dismissing all criminal charges stemming from Grammer's allegation that Charalambopoulos had assaulted her on October 16, 2013. Charalambopoulos then filed this lawsuit against Grammer in Texas state court, alleging claims for defamation, defamation per se, malicious prosecution,negligence, gross negligence, fraud, and IIED. Grammer removed the case to this court. She now moves to dismiss Charalambopoulos' amended petition under the TCPA, to stay discovery, and for a hearing on her motion to dismiss. Charalambopoulos moves under the TCPA to conduct discovery.

II

Grammer moves under the TCPA—an anti-SLAPP statute—to dismiss Charalambopoulos' lawsuit.

The TCPA is intended "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." § 27.002.³ "To promote these purposes, [the TCPA] creates an avenue at the early stage of litigation for dismissing unmeritorious suits that are based on the defendant's exercise of the rights of free speech, petition, or association as those rights are defined within the [statute]." In re Lipsky, 411 S.W.3d 530, 539 (Tex. App. 2013, orig. proceeding). "If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action." § 27.003(a). Once a motion to dismiss is filed, all discovery is suspended until the court rules on the motion to dismiss, unless the court on a showing of good cause allows specified and limited discovery relevant to themotion. §§ 27.003(c) and 27.006(b).

Under § 27.005(b) and (c), once a motion to dismiss is filed under § 27.003, unless "the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question," § 27.005(c),

a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.

§ 27.005(b). Under § 27.005(d), even if the party bringing the legal action makes the required prima facie showing under the clear and specific evidence standard, "th...