Netflix Inc. failed to obtain a lawsuit dismissal on appeal in Texas concerning a defamation suit that arose from a documentary on guardianship abuse of an infirmed millionaire.
The plaintiff also sued renowned documentarian Alex Gibney, his company New York-based Jigsaw Productions, San Antonio probate attorney Philip Ross and others associated with a Dirty Money episode titled “Guardian Inc.”
In 2017, guardianship proceedings began for Charles Thrash, a successful businessman who at 79 was suffering from Alzheimer’s disease. In 2018, Thrash’s great-niece, Tonya Barina, became guardian of his estate.
Thrash’s girlfriend, Laura Martinez, and her adult daughter contested guardianship with the help of their attorney, Ross.
Gibney and his associates, as part of their “Dirty Money” series for Netflix, prepared a documentary on the Thrash case. After it aired March 11, 2020, Barina became the target of hundreds of threats. She sued for defamation, and a Bexar County court denied the defendants’ motion for summary judgment.
Justice Patricia O’Connell Alvarez delivered the opinion on the defendants’ appeal. A three-judge panel concluded the episode maligns Barina as a guardian by leading viewers to believe she took advantage of a elderly but capable millionaire, wrongly sold his assets, and used his estate for personal gain.
“The official proceedings for Thrash’s guardianship do not support these conclusions,” Alvarez stated.
Netflix, the production companies and their associated defendants raised three defenses. They claimed statements in “Guardians Inc.” are protected as fair comment; that any comment related to probate court proceedings are protected under official proceedings privilege; and that they cannot be held liable for third party allegations—a reference to statements made by the Martinezes and their attorney.
In her analysis, Alvarez reasoned that the gist of the documentary portrayed Barina as an exploitative guardian. She noted how the thesis was guardianship abuse as a crime and an epidemic, that statements made by Barina’s accusers were portrayed in a more favorable light versus statements by Barina, and evidence supporting her and disadvantageous to her accusers was omitted.
For example, Laura Martinez arranged a sham marriage to Thrash after he was mentally incompetent and then Ross signed papers on Thrash’s behalf to have Martinez’s adult children adopted by Thrash, the opinion states.
Also, the trial court ordered that Ross and his clients reimburse Barina’s attorney fees that were related to sanctions they incurred from lying to the court about the sham marriage, in violation of a court order.
Referring to the fair comment defense, Alvarez said this ignores the crux of Barina’s claim.
“There is no actual evidence of Barina committing wrongdoing. Therefore, if the gist of the show unfairly defames her, the Media Appellants cannot avail themselves of the fair comment privilege,” the opinion states.
As to the official proceedings defense, Alvarez wrote, “An accurate portrayal of Thrash’s case in the probate court would not lead a reasonable viewer to conclude that she should be accused of exploitation.”
On the third party allegations defense, Alvarez emphasized how “Guardians Inc.” places Ross and the Martinezes in charge of Thrash’s story. The third party rule requires a media outlet not take the additional step of adopting or endorsing the allegations.
The episode edits their accounts together with statements that suggest their accusations of exploitation have been confirmed, Alvarez noted.
“‘Guardians, Inc.’ takes that one step further, and this adoption of the allegations disqualifies the Media Appellants from relying on the third party allegation rule as a defense,” Alvarez states.
Carl J. Kolb of Austin and Glenn Deadman of San Antonio represent Barina.
Rachel
F. Strom and Katherine M. Bolger of Davis Wright Tremaine in New York
and Laura Lee Prather of Haynes and Boone in Austin represent Netflix
and the other defendants.
Charlie asked Laura to marry him not the other way around. Correct the facts!
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