5/9/26 Lively v. Wayfarer - long story long on CA Civ Code 47.1

Added: 2026-05-12

[00:00:01]So, it's official. As of May 7th, Judge Lyman signed the order that officially dismissed Lively's lawsuit from the federal district court. Now, this document here outlines that the claims are all dismissed except for one pending motion that the stipulating parties agreed to have the court review.

[00:00:25]In order to make this video as complete as possible, I think it's worth rewinding and recapping the facts. So in December of 2024, Lively filed a lawsuit against the Wayfair Studios individual defendants Baldoni, Heath, Sarowitz, Ael, Nathan, Tag PR, and then those parties filed their own lawsuit in January of 2025 against Lively claiming defamation.

[00:01:00]So there were two lawsuits happening at the same time. There was the lively action. There was the wayfair action.

[00:01:10]Together these were the consolidated action. When the parties agreed to settle this case, they settled everything in between. So everything going this way, everything going this way, and any rights to appeal on all of it. The only piece of any of this that they carved out for the judge to review is Lively's 47.1 motion. And let me tell you when that came into play. In response to Wayfair's complaint, Lively filed a motion to dismiss. And in that, she raised 47.1 as a potential basis by which the court could dismiss Wayfair's lawsuit.

[00:01:56]What California Civil Code 47.1 does is categorize a certain type of communication as privileged and says that if you are a prevailing defendant in a defamation lawsuit where such communication is the basis of that defamation lawsuit, then you are entitled to attorney's fees and damages as a result of having to defend against that defamation lawsuit. But the judge did not rule on the basis of civil code 47.1.

[00:02:34]In fact, it specifically said in its order that if Lively wants to pursue attorneys fees and costs under 47.1, then she needs to file a separate motion doing that. And that is exactly what they did. So the judge dismissed the Wayfair lawsuit not on the basis of 47.1 but invited Lively to refile a motion separate from that to seek fees and have a separate analysis about whether those fees apply. And they did. They filed that motion and it was fully briefed as of September 2025.

[00:03:16]One of the things that Lively's attorneys did in throughout this lawsuit, especially towards the end, was categorize WFAR's lawsuit as retaliatory as part of the retaliation that is allegedly illegal under FIHA.

[00:03:34]And they were trying to suggest and use as evidence the fact that they filed this lawsuit to constitute an act of adverse employment action, an act of retaliation in response to whatever the hell Lively ultimately was going to suggest her protected activity was. So they were saying that they filed this lawsuit in retaliation for her having made her protected activity. And so these issues have now been kind of tied together. And as recently as last week, Lively's attorneys suggested and pleaded with the court at that final pre-trial conference that the issues before the court under the 47.1 motion necessarily has the court decide whether or not the lawsuit that Wayfair filed against Lively was retaliatory. And the reason that they wanted to do that is because they wanted to be able to find a way to prove damages. And so if they were able to show that the lawsuit filed against her constituted retaliation under FIA and they were able to show that she was harmed, she suffered damages as a result of that retaliation. Then when she went to go get the fees and costs under 47.1, then she could point to those damages and say, "That's what entitles me to treble and punitive damages." It's a mental game of twister, that's for sure.

[00:05:16]Fast forward to May 7th, the same day the court dismissed her lawsuit.

[00:05:21]Lively's attorneys filed a letter requesting from the court to grant them the ability to file additional briefing, an additional five pages of briefing to support her motion for attorney's fees and costs under the 47.1 motion that they agreed to have before the court.

[00:05:43]But as the letter filed by Ellen Goff on the following day shows is that Lively doesn't outline by on what basis she is entitled to further briefing or what what reasoning she has to seek this type of relief from the court. She does not explain why anything after the dismissal of Wayfairer's lawsuit in June of 2025.

[00:06:09]What impact do any of the orders or anything that happened in the case have to do with her seeking attorney's fees for having to bring that motion to dismiss and defend against the lawsuit that ended in June of 2025 because remember the 47.1 attorney's fees and costs that are awarded to a prevailing defendant. So Lively was the defendant in the defamation lawsuit that Wayfairer brought against her. So, the only thing that she would be entitled to under 47.1 would be the the attorney's fees and costs that she incurred for having to defend specifically against the defamation claims that were brought against her that arose out of that quote unquote privileged communication.

[00:07:04]Now, there were a lot of attorneys fees being incurred by Lively at that time.

[00:07:09]She had her lawsuit filed December 31st.

[00:07:13]She had their lawsuit that she was defending against that had multiple claims, one of which was the defamation claim. And so there was stuff going on between the two cases. But she is not entitled to all of the attorneys fees that she incurred during that time.

[00:07:30]She's only entitled to the attorney's fees that relate to defending against that one specific claim.

[00:07:39]Now, in order to get those fees and costs, lawyers are going to have to submit invoices and have to defend the number that they're requesting. So, let's say just for purposes of round numbers, Lively had incurred a million dollars between the time that she engaged the law firms, filed her CRD, filed her federal court case, and then filed the motions to dismiss, fully briefed the motions to dismiss, argued the motions to dismiss, whatever. All of the fees incurred during that time was a million dollars. They're still going to have to line item and parse out the fees that were connected to the defense of the defamation claim specifically soaking wet. I don't see that being over $100,000.

[00:08:29]Now, to get things like trouble damages or punitive damages, you have to prove that you've actually been harmed, that you have incurred some damages beyond attorneys fees and costs, like you're somebody pegged your car as a result of the defamation lawsuit or you lost your job or whatever. You have to prove that you were harmed and that would be the basis or one of the basis by which a court could triple your damages and on top of that in its discretion put punitive damages to punish the other side. So, if we're reading the tea leaves here based off of how the judges ruled in this case historically, he's not going to award every kind of relief that the party is asking for. He might grant some of it if if it gets to the point where he deems that all of the elements of 47.1 have been met. In other words, I don't see a universe in which he's going to not only grant attorney's fees, cost, trouble damages, and punitive damages. I just don't see that happening. I don't think it's likely.

[00:09:48]What's particularly stunning about what's happened since the settlement publicity started is that Lively's attorneys are now trying to weaponize the joint statement that the parties agreed to put out earlier in the week and weaponize the stipulation that was put on the docket with respect to an element of the FIA retaliation claim.

[00:10:15]That was the stipulation to instruct the jury to accept or assume that a protected activity occurred.

[00:10:26]Not to stipulate to liability for FIHA or anything like that, but they suggest in this letter that they filed with the court on the 7th that the Wayfair parties or some of the Wayfair parties are admitting that she made a protected activity there to force. she had a reasonable basis to make her sexual harassment complaint. And that's how we meet the element of 47.1 because element two of 47.1 requires that the individual must have a reasonable basis to file the complaint of sexual harassment or assault. Even though we all remember that they stipulated for purposes of trial only, not for purposes of a 47.1 motion with respect to a dismissed lawsuit and the other action. Do you see the bootstrapping here? In order for 47.1 to apply at all, the communication in question, the statements about alleged sexual harassment, she has to prove that she said them without malice.

[00:11:40]Malice is a state of mind. It's either the intent to harm because you know the thing that you're saying is false or you're recklessly disregarding whether it will harm someone or whether it was false. And it has to be factual information about what she experienced, not opinion. She has to prove, not by pointing to other arguments unrelated to her. She has to prove that she had a reasonable basis to make the complaint.

[00:12:12]And finally, to get the extreme punitive damages, treble damages, she needs to prove what harm she incurred as a result of the defamation lawsuit brought against her.

[00:12:25]A problem is that it's unclear whether this statute has extr territorial application.

[00:12:35]Not to mention the potential constitutional challenges with 47.1.

[00:12:42]The judge should really just throw this out because the parties have waved their right to an appeal. So if he throws it out, then nobody can appeal and he won't ever have to deal with this ever again.

[00:12:53]In a sense, it suffers from the same problem that her FIA retaliation claim suffered from, which is that the underlying action, the alleged harassment, didn't occur in California, and the judge found that to be true. In any case, this requires an evidentiary hearing because we need a factfinder, whether it be the jury or the judge, to determine exactly what was Lively's state of mind when she made the statements that she did. And in order to get the punitive damages, Lively has to prove by clear and convincing evidence that she was harmed, which is the province of a jury. Somehow Lively thinks that she's automatically entitled to that because the statute outlines it as potential relief. But the law is very clear that she needs to prove malice with clear and convincing evidence which requires an evidentiary hearing aka a mini trial. On the papers alone, I don't think that Lively has presented enough evidence to meet the elements of 47.1.

[00:14:09]They point to Wayfair's allegations in their dismissed complaint to prove that Lively didn't act with malice. And with respect to whether she had a reasonable basis, they simply say that it's self-evident.

[00:14:24]That's not evidence.

[00:14:26]The only thing that she is is a prevailing defendant, but the rest of it she has provided no evidence. And at the time, she said that she would rely on expert reports to prove how she was damaged, which would be what the basis of her entitlement is to trouble and punitive damages. And actually, they asked for an evidentiary hearing to determine all of this. and they wanted it to happen before trial. Now that there is no trial, they want it to happen nonetheless.

[00:15:01]I could see the judge avoiding an evidentiary hearing that seems to be required here by ruling on the law by simply stating that there was insufficient evidence provided in the briefing to support a finding of a ruling in favor of Lively here under this motion or kick it because of extr territoriality. really he can do anything to get rid of this motion and not worry that the parties are going to appeal. But he's already ruled in the dispositive motion that it is a question for the jury, a test of credibility as to whether or not Lively had a reasonable basis to bring her harassment complaints with respect to the FIA retaliation claim. That's already something that he's decided, which means that he is now the one that has to determine the credibility of the witness to determine whether she had a reasonable basis. That means he needs to have an evidentiary hearing where he hears her testimony to determine whether she had a reasonable basis and Wayfair will be able to provide their alternative defense or rather their basis for why it's not reasonable. It's almost like we backdoored into this whole case all over again. If you've made it this far, props to you. This is a long video and it's very confusing, but if I had to make a prediction as to what's going to happen, I could see the judge certifying this question to the California courts where there are novel or uncertain questions of state law.

[00:16:43]Federal courts can certify the question to the state court. It's like a call friend. Watch this case get sent to the California Supreme Court. The California Supreme Court then answers the question and then sends it back to the federal court for the federal court to finalize.

[00:17:03]On second thought, that feels like something that he probably wouldn't want to deal with either. I guess I just really don't see this court wanting to rule on this. We shall see.