Back in March after being handed a loss on appeal, Olivia de Havilland’s lawyer said the two-time Oscar winner’s battle with FX over the depiction of her in Feud: Bette and Joan was “destined for a higher court.”
Well, today destiny came calling for the cabler and the Ryan Murphy co-created limited series as the nearly 102-year old filed a petition with the California Supreme Court to keep the legal feud alive.
“This Court should grant this petition, review and reverse the published Opinion, correct the legal standards applicable here, and reinstate the Ruling of the trial court, said the 38-page filing against the way the state’s anti-SLAPP laws and First Amendment protects were extended around Feud by California Court of Appeals 2nd Appellate District on March 26 (read it here).
If accepted by the Golden State’s highest court, today’s petition aims to see that matter return to the state of affairs set in motion by LA Superior Court Judge Holly Kendig last fall to permit de Havilland’s initial lawsuit of mid-2017 to go to a jury trial. It also paints the matter in very large terms in a media thick America 2018.
“The Court of Appeal opinion, if allowed to stand, will infringe on the Constitutional right to a trial by jury not only of Miss de Havilland, but for any person in a similar situation, whether a celebrity or not,” the actress’ lead attorney Suzelle Smith of L.A.’s Howarth & Smith in a statement Friday.
“This puts everyone at the mercy of the media and entertainment industry, which may find that false statements and fake news sell better than the truth,” the lawyer added, with a clear nod to the greater cultural and political temperament of our times. “No filmmaker, biographer or reporter with integrity can support the Court of Appeal decision. It rewards the unscrupulous and will put those who investigate and seek to tell the public the truth at an economic disadvantage.”
Now that is a slap of a different kind that could sting FX and Feud, both for its first season and future runs. Fox 21 Television told Deadline today that they would not be commenting on the petition.
While Feud debuted on March 5 2017, it was until June 30 last year, one day before her 101st birthday, that the Paris-based Gone with the Wind icon actually filed her initial defamation complaint. With the spotlight on de Havilland’s legacy, the paperwork centered in many ways on Catherine Zeta-Jones’ portrayal of her in the anthology series and that Oscar winner’s use of the term “bitch” to describe the actress’ sister Joan Fontaine.
Putting right to publicity also on the table, that remark plus the overall portrait of de Havilland in Feud in a late 1970s fake documentary and backstage at the 1963 Academy Awards damaged the Hold Back The Dawn actress’ “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity,” the duel Oscar winner alleged.
Not shying away from a dust-up with a centenarian, the John Landgraf led FX and EP Murphy fought back within weeks. Eventually, response was a Constitutional heavy defense that sought to stop the wide-ranging damages and injunction against the Susan Sarandon and Jessica Lange led eight-episode show of the fabled Hollywood war between Bette Davis and Joan Crawford. Battle lines were further drawn when SAG AFTRA filed a brief in support of de Havilland while the likes of the MPAA and Netflix backed FX and Murphy.
Having already been rebuffed in the lower court and wanting to avoid a trial, the cabler and the Glee producer’s Hail Mary move up the legal food chain went deep into the vernacular zone, so to speak In the March 20 hearing before the Appeals Court, it came up repeatedly that while de Havilland never called her sister a “bitch,” she had referred to Fontaine as a “dragon lady.” To the three-judge panel handling the matter, the duel insults seemed to require the splitting of some fine hairs.
“Is there something substantially different between calling someone a bitch and a dragon lady?” Judge Halim Dhacdina asked de Havilland’s attorney, clearly not finding much of a distinction in intent. “Bitch is a vulgarity,” Smith replied at the time. “In my household, if you say bitch, you get your mouth washed out.”
Less than a week later, de Havilland’s case appeared washed up when the Appeals Court decided that it didn’t seemingly matter what the actress actually said or did not say. The trio of judges tossed the matter when they said that De Havilland did not have “the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.” Within hours, Murphy put out a statement lauding the decision as “a great day for artistic expression.”
That is not how de Havilland herself saw the Appeals Court view of her case, as she made clear today in some flag flying of her own.
“I feel very strongly that I must ask the Supreme Court to hear the case, for my sake and for the sake of many others in the future,” the actress said in a statement after the petition was filed. “It is important that cases with merit be allowed to proceed to a jury trial,” the Dame of the British Empire and National Medal of Honor recipient declared. “My case is about FX publishing false statements about me and using my name without consent. I, and other individuals in like circumstances, should not be denied our Constitutional right to trial by jury.”
Whether the California Supreme Court takes the matter under consideration is now where this feud stays dead or flares up to fight another day for the not getting any younger de Havilland.
Howarth & Smith’s Zoe Tremayne is also working on the case for the actress with Suzelle Smith.