In the season five finale of the “Real Housewives of Beverly Hills,” producers conspicuously referred to a notorious dog bite incident involving Kim Richards’ beloved pit bull, Kingsley. The following blurb was positioned next to Kyle Richards’ image before the closing credits on last Tuesday’s episode: “Kim’s dog bit Kyle’s daughter, Alexia, requiring surgery. Kyle and Kim have not spoken since the incident.” Part one of the three-part reunion airs tonight.
It doesn’t take a Mensa member to appreciate the fact Bravo deliberately portrayed Kim’s dog on the season finale in a negative light to challenge Ellen Catherine Rozario’s (“Kay”) claims against Kim Richards and Evolution Film & Tape, Inc. (“Evolution”). Plaintiff filed a lawsuit in federal court in Los Angeles on December 12, 2014 (case number 2:14-cv-09540) and Evolution – the company that produces the ‘Real Housewives’ – filed a motion to dismiss Plaintiff’s complaint on March 13, 2015.
I ravenously devoured every last crumb of Plaintiff’s Amended Memorandum of Points And Authorities In Opposition To Defendant’s Motion To Dismiss Complaint (“opposition”) to bring All About the Tea posters newly exposed facts and legal arguments. A hearing is scheduled for April 6 in California federal court. Note: All page numbers cited herein refer to Plaintiff’s opposition unless otherwise indicated.
Who Is Kingsley
The crux of Kay’s argument is that Evolution and Kim represented to the public in several broadcasts that Kingsley was fun and not vicious, and she reasonably relied on said representation when making the decision to be around Kingsley. “Defendant Richards furthered the scheme of deception with Defendant Evolution of portraying the dog as gentle and not vicious by making representations to Plaintiff the dog was a ‘sweet, cuddly dog’ and ‘lovable,’” noted the Plaintiff on pg. 2.
The architecture of a legal document is of critical importance. When a fragile fact is underlined at the outset, judges may be leery of everything that comes thereafter. The reason this fact is feeble is because those who watched the episodes featuring Kingsley viewed the dog’s temperament as nasty when he attacked the trainer and aggressively interacted with Kim’s children. “Sweet” and “lovable” are probably the least precise words one could use to describe Kim’s dog based on the footage that aired.
No Neutral Witness, No Case
One startling admission in Kay’s opposition is that the only witnesses to the attack were Kim and Kay. “Hearing the screams, Ms. Harris [Plaintiff’s daughter] rushed into the room” (pg. 2). This statement turns the case into a “She Said, She Said” situation in which Kim could argue Kay provoked the dog, which is a defense to California’s Dog Bite Statute. Look out for a big battle of the witnesses.
California courts have denied recovery to victims who provoke a dog, negligently cause an attack, or assume the risk of a dog attack. In cases where a dog owner has told the victim to stay away from the dog, but the person advances towards the dog and is bitten, the dog owner is usually not held responsible because it is deemed that the victim unnecessarily provoked the dog in spite of being told not to.
A jury who is charged with determining the credibility of a witness here will look to see whether Kay and Kim’s testimony at trial is inconsistent with their past testimony or statements; whether Kay and Kim appeared to recall events accurately; and whose testimony (Kay or Kim’s) was consistent with other evidence in the case.
You might be wondering whether the dog bite was caught on camera. Remember, in order to be admissible in a court of law, video evidence has to undergo a strict handling procedure. The party seeking to admit such proof must illustrate the name of whoever handles the evidence to show it was preserved in its original form and not tampered with in any way. Said party must also demonstrate that the video was stored in a climate-controlled place to ensure that it was not altered in any way. If the handling procedure is not followed, the videotape may not be admissible.
According to Kay, “On March 19, 2014, Plaintiff, her daughter Harris and her granddaughter were invited to spend the night by Defendant Richards at her residence. Some RHOBH [Plaintiff’s abbreviation for “The Real Housewives of Beverly Hills”] segments with the dog were filmed in Defendant Richards’ residence” (pgs. 1-2).
Plaintiff does not say filming occurred on the next day, March 20, when Kim’s dog allegedly attacked her but such evidence would prove invaluable for it would demonstrate precisely what happened in Kim’s boudoir when Plaintiff was injured.
Dog Trainer Talks to TMZ
Kay posits that the dog trainer, David Utter, has smoking gun evidence. I don’t quite see it that way. Kay claims Utter’s statements in a TMZ interview establish some of the elements of intentional misrepresentation and conspiracy committed by Evolution. Utter allegedly told TMZ (pg. 6),
“Behind the scenes I was hired by Bravo to fix the dog’s aggression. In front of the camera the public was told I was working with the animal based on chewing sunglasses and shoes. They really failed to show how the dog, unprovoked, attacked me and came to rip my face off and I had no choice but to defend myself.”
Utter has not been deposed or subject to cross-examination. His statements do not buttress Plaintiff’s claim that she reasonably relied on a conspiracy devised by Evolution and Kim to intentionally misrepresent the dangers posed by Kingsley, which is an element Plaintiff must prove to win her case.
If Evolution’s motion to dismiss is not granted, Kay says she will seek copies of all contracts between Kim and Evolution during discovery. That could be a treasure trove of information we would love to review. What do you think is provided for in those contracts?
Kay opines that the contract between Kim and Evolution requires Kim to not disclose events contained in the program, in the making of the program, and to not reveal information concerning or relating to the program (pg. 20). However, Evolution asserts that this is pretense as Kim’s activity at the time of the alleged bite was personal in nature and not related to her employment with Evolution.
How many times did Kyle Richards intone, “Where’s Kim?” Apparently Kim can be late and evade court processes. On pg. 23, Kay claims Kim avoided being served with legal papers, as “ten attempts at service of the complaint were made upon Defendant Richards. Defendant Richards was served on March 2, 2015.” Though not relevant to Evolution’s Motion to Dismiss, Plaintiff is certainly attempting to show Kim shirks responsibility and displays a discourtesy and disrespect for legal proceedings.
Defendant’s Motion to Dismiss
Plaintiff has a weak case against Evolution based on the documentary evidence and facts presented thus far. Still, that does not mean Evolution will prevail on April 6. Generally speaking, the arguments raised in a motion to dismiss must be issues that the court can address without needing any evidence that doesn’t already appear in the complaint and the motion itself.
We know based on Plaintiff’s opposition that Evolution has moved for dismissal of the intentional misrepresentation claim (including conspiracy) under Rule 12(b)(6). Defendant must meet a high burden to warrant dismissing Plaintiff’s complaint under the well-established rules governing FRCP 12(b)(6) motion to dismiss.
“A complaint should not be dismissed unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9 Cir. 1994). This is difficult even for Evolution since legal precedent provides that material allegations in Plaintiff’s First Amended Complaint must be taken as true and construed in the light most favorable to Plaintiff.
Evolution should emphasize the flaws in Plaintiff’s conspiracy case and the “reliance” element of intentional misrepresentation (pg. 14). Reliance is not justifiable if another person of similar intelligence, education, or experience would not have relied on the alleged representation. Would you have trusted the depiction ostensibly made by Evolution and Kim that Kingsley was “fun” and “sweet” when deciding to come into contact with the dog that eventually mauled you?
Grab your gavel, join the conversation, and let us know what you think about the latest twists and turns in this RHOBH dog bite saga.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.