Texas appeals court holds that episode of Netflix docuseries Dirty Money is capable of being construed as defamatory of plaintiff Tonya Barina, great-niece and guardian of millionaire Charles Thrash, for portraying her as exploitative, abusive guardian who took advantage of her Alzheimer’s-ridden great uncle, affirming denial of motion to dismiss under Texas’ anti-SLAPP statute.
Plaintiff Tonya Barina, great-niece of Texas millionaire Charles Thrash and guardian of his estate, sued Netflix Inc. and various producers (Netflix Worldwide Entertainment LLC; Kyoko Miyake; Sarit G. Work; Samantha Knowles; Kate Gill; Jigsaw Productions LLC; Muddy Waters Productions LLC; and Alex Gibney) of the docuseries Dirty Money, as well as Thrash’s girlfriend, Laura Martinez; her daughter, Brittany; and their attorney, Philip Ross, for defamation, alleging that the episode “Guardians, Inc.,” which aired in March 2020, mischaracterized Barina as an exploitative, abusive guardian who sold off Thrash’s assets and used his estate for personal gain. The Netflix defendants moved to dismiss under the Texas Citizens Participation Act, the state’s anti-SLAPP statute, but the trial court denied their motion. On an interlocutory appeal, the Texas Fourth Court of Appeals affirmed the denial of the Netflix defendants’ motion and concluded that “Guardians, Inc.” is capable of being construed as defaming Barina.
Applying Texas law, the court employed a two-step analysis to Barina’s defamation claim and considered (1) whether, by examining its gist, the media at issue is reasonably capable of a defamatory meaning and (2) whether the media is reasonably capable of defaming Barina.
The court first explained that when a person of ordinary intelligence views the publication as a whole, the gist may be defamatory if the publication omits or unfairly juxtaposes facts or fails to place the details in the proper context, even if the individual statements are true or non-defamatory. Against this backdrop, the court took note of the dictionary meaning of the title of the series—“dirty money”—as “money earned in an illegal activity” as well as the title theme song, “Lie, Cheat, Steal,” by a group called Run the Jewels. The court also considered specific elements of “Guardians, Inc.,” which portrayed guardians as criminal exploiters. The episode included the unchallenged statement by Ross that Thrash had been exploited throughout his guardianship, and it featured favorable camera treatment for Martinez, her daughter and Ross. Meanwhile, the camera focuses on Barina fidgeting with her hands or cuts away from her speaking to show highlighted documents or statistics, suggesting that her statements are inconsistent. The court explained that the last shots of the episode leave the public to conclude that “guardians sell assets while friends and family try to stop them.” Lastly, the court noted that Barina received hate mail from viewers furious about her role in the guardianship. In light of these surrounding circumstances, the court found that an ordinary viewer could reasonably conclude from the episode that Barina is an exploitative guardian.
On the second step, whether the publication is reasonably capable of defaming Barina, Barina successfully demonstrated that the gist of “Guardians, Inc.” could be considered defamatory, by juxtaposing the history of the guardianship case with the episode’s portrayal. Specifically, in 2017, guardianship proceedings for Thrash (then 79 years old and suffering from Alzheimer’s disease) began after an anonymous person reported that Thrash’s girlfriend, Martinez, was mishandling his assets. Martinez, her daughter, and their lawyer, Ross, spent years contesting the guardianship. In 2019, the trial court presiding over the guardianship case sanctioned the trio, finding that (1) at no time was Martinez Thrash’s common-law wife, and she should not make any such claim, and (2) Martinez and Ross “engaged in a scheme to cause Thrash, a totally incapacitated individual without the capacity to contract or marry, to participate in a marriage ceremony”; wasted resources in the fraudulent marriage scheme because the marriage had to be annulled; tried, in bad faith and in violation of court orders, to have Thrash adopt Martinez’s two adult children; and wasted resources in an attempt to avoid sanctions for the failed marriage scheme.
Even though these findings were set forth in a court order, and the Netflix defendants had possession of that order, “Guardians, Inc.” did not report on any of these findings. The court pointed out that the episode featured Ross accusing Barina of bleeding Thrash’s estate of money, without explaining that the trial court allowed her to use estate funds to defend herself from improper legal attacks lodged by Ross and the Martinezes. The episode also failed to disclose Thrash’s Alzheimer’s diagnosis or the fact that the trial court found Ross and the Martinezes to be not credible. For all these reasons, the court held that it was misleading for the Netflix defendants to suggest that Barina was improperly controlling the assets of a capable person.
Lastly, the court considered the defenses of fair comment, official proceeding privilege and the third-party allegation rule. The court held that the Netflix defendants could not establish their entitlement to any of the defenses because (1) the fair comment privilege applies only where the gist of the publication fairly reports on a public proceeding, yet the gist of the episode unfairly defames Barina, (2) the episode went beyond merely reporting on the probate proceeding and could lead a reasonable viewer to believe that Barina committed guardianship abuse, and (3) the third-party allegation rule requires media outlets not take the additional step of adopting or endorsing allegations, but “Guardians, Inc.” edited accusations by the Martinezes and Ross in a manner suggesting their accusations have been confirmed.
Summary prepared by Tal Dickstein and Mary Jean Kim.