The holes in Ellen Kardashian's defamation lawsuit against the Kardashian clan

Last week, Ellen Kardashian, the widow of famed attorney Robert Kardashian and step-mother of celebutantes Kim, Khloe and Kourtney Kardashian, sued Bunim-Murray Productions, Ryan Seacrest Productions and various members of the Kardashian family, including the three Kardashian daughters and their mother, Kris Jenner, for defamation and other claims.  On its face, the Complaint is weak.

The bulk of the Complaint targets statements purportedly made during an episode of "Keeping Up With The Kardashians," which Ellen alleges, without supporting detail, was "orchestrated" and "carefully scripted" by the defendant production companies. 

The lawsuit mainly complains about the following allegedly false statements: 

• That Ellen bad-mouthed several members of the Kardashian family.  Ellen's response:  I didn't say those things ... my late husband did.  So Ellen may well believe those statements are true, but she wants it to be clear that she did not say them.  It is possible to bring a defamation claim for misattributing a quote, but it is not clear how Ellen was or could have been damaged by this alleged misattribution when she does not disavow the underlying statement. 
• That Ellen married Robert in his home as he was dying, and they were only married for a few weeks.  In the Complaint itself, Ellen alleges that they were married in Robert's home 10 days after Robert was diagnosed with esophageal cancer and just a few weeks before his death.  It seems that the Complaint alone would support a winning substantial truth argument -- i.e., that it is substantially true Ellen married Robert in his home as he was dying, and that he died shortly after their marriage.
• That Ellen married Robert when he was in his pajamas.  First, it is not remotely clear that such a statement is defamatory toward Ellen -- maybe toward Robert for not dressing up a little more -- but then Ellen goes on to insist that Robert was not in his pajamas, but was actually in a "'Tommy Bahama' style shirt." I see, so maybe this case should be called the "Pajama vs. Tommy Bahama" lawsuit. That has a nice, melodic ring!
• That Ellen was sued and attempted to evade service.  Ellen complains that Kris Jenner wanted to "press charges" against her.  A lay person might easily confuse a civil suit with the concept of "pressing charges" in the criminal sense, and the Kardashian/Jenner clan did, in fact, sue Ellen.  Ellen sought permission from the court to countersue, but withdrew that effort in favor of filing this new lawsuit two days later.  Also, calling Ellen a "slippery snake" for supposedly not wanting to be served is a matter of opinion.

The defamation claim is weak because -- although I don't know the underlying facts -- the Complaint itself suggests that all of the statements were either substantially true or protected opinion.   Moreover, Ellen, who is almost certainly at least a limited purpose public figure, will have to prove that the defendants acted with actual malice (i.e., knowledge of falsity or reckless disregard for the truth).  That will be especially difficult for Ellen to show against the producers because, among other things, they could most likely reasonably rely on the Kardashians as witnesses to the underlying events, many of which happened years ago.

The other claims in the Complaint are also weak.  Ellen alleges the public disclosure of private facts, but then asserts that the underlying "facts" are false.  Which is it?  Are they facts or are they false?  I've seen this before:  you can't base a defamation claim and publication of private facts claim on the same underlying allegations.  They are mutually exclusive.

The intentional infliction of emotional distress claim is a virtual throw-away.  A plaintiff cannot evade the strictures of a defamation claim by restyling it as a claim for intentional infliction of emotional distress.  Remember the movie The People vs. Larry Flynt?  That's what that whole Supreme Court scene was all about.  Here's the Supreme Court decision in case you want to check.

And, finally, a claim for "conspiracy to defame"?  No such thing.  Conspiracy is not an independent claim in California.