Charalambopoulos v. Grammer

Filing 208

MEMORANDUM OPINION AND ORDER granting in part, denying in part #139 Motion for Summary Judgment filed by Camille Grammer. (Ordered by Judge Sidney A Fitzwater on 2/15/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIMITRI CHARALAMBOPOULOS,

§
§
Plaintiff-counterdefendant, §
§ Civil Action No. 3:14-CV-2424-D
VS.
§
§
CAMILLE GRAMMER,
§
§
Defendant-counterplaintiff. §
MEMORANDUM OPINION
AND ORDER
Plaintiff-counterdefendant Dimitri Charalambopoulos (“Charalambopoulos”) sues
defendant-counterplaintiff Camille Grammer (“Grammer”) for defamation and related claims
arising from her accusations that he assaulted her and tried to gain entry to her neighborhood
in violation of a protective order. Grammer moves for partial summary judgment. For the
reasons that follow, the court grants the motion in part and denies it in part.
I
Because this case is the subject of several prior memorandum opinions and orders,
see, e.g., Charalambopoulos v. Grammer, 2015 WL 2451182 (N.D. Tex. May 22, 2015)
(Fitzwater, J.) (“Charalambopoulos II”); Charalambopoulos v. Grammer, 2015 WL 390664
(N.D. Tex. Jan. 29, 2015) (Fitzwater, J.) (“Charalambopoulos I”), the court will recount only
the background facts and procedural history that are pertinent to this decision.1
1

In deciding Grammer’s motion for partial summary judgment, the court views the
evidence in the light most favorable to Charalambopoulos as the summary judgment
nonmovant and draws all reasonable inferences in his favor. See, e.g., Owens v.

In October 2013 Grammer, an American television personality and the former wife
of actor Kelsey Grammer, was diagnosed with cancer and traveled to M.D. Anderson
hospital in Houston for surgery. After her surgery, Grammer and Charalambopoulos, who
was then her boyfriend, stayed at the Hotel ZaZa in Houston while Grammer recovered.
According to Charalambopoulos, early in the morning of October 16, 2013, Grammer
awakened him to confront him about a text message he had received from a female friend
who had helped arrange Grammer’s treatment at M.D. Anderson. Grammer yelled at him,
broke his cell phone, and began to strike him. Charalambopoulos then called Grammer a
“fame whore,” at which point she became “violently enraged,” threatening “to call the police
and say that [Charalambopoulos had] abused her.”

P. Br. 1 (quoting P. App. 2).

Charalambopoulos contends that he gathered his belongings and departed without physically
assaulting Grammer.
After Charalambopoulos left, Grammer told a hotel employee that “her boyfriend had
just assaulted her” (the “Alleged Assault”), and the hotel employee called the police. Id. at
2 (quoting P. App. 70). After Houston Police Department (“HPD”) Officer Matthew Vo
(“Officer Vo”) arrived at the scene, Grammer told him that Charalambopoulos had pulled her
hair, gotten on top of her, pinned her down, and pushed her nose upward, making her head
tilt back.

Mercedes-Benz USA, LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.)
(citing U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex.
2006) (Fitzwater, J.)).
-2-

After Grammer returned to California, she filed on October 29, 2013 a request for a
domestic violence restraining order (the “Request for Restraining Order”) in the Los Angeles
County Superior Court based on the Alleged Assault. Before Grammer filed the Request for
Restraining Order, however, she tweeted to more than 198,000 followers on her Twitter
account the following tweets: “Info will come out today that is jaw dropping. And women
can’t be silenced after being physically abused!” “Yes, it was horrible what happened to me
two days out of the hospital,” and “I was in fear for my life.” P. App. 224-25. Grammer’s
tweets attracted the attention of multiple media outlets that reported on the Alleged Assault
and Request for Restraining Order. Grammer also appeared on The Dr. Oz Show, where she
told the host and viewers that she had been “physically abused and assaulted.” P. Br. 3
(citation omitted). After conducting a contested hearing on January 6, 2014, the California
Superior Court entered a Restraining Order After Hearing (“Order of Protection”) based on
“a preponderance of the evidence.” D. App. 343, 349.
In Texas, the HPD assigned Officer Bertha Massie (“Officer Massie”) to investigate
the Alleged Assault.

During the investigation, Grammer gave Officer Massie three

statements. Officer Massie called Grammer and took her first statement on October 29,
2013. Two days later, Grammer called Officer Massie and gave a second statement. Officer
Massie took Grammer’s third statement a few weeks later. Charalambopoulos contends that
Grammer’s third statement was supplied by Grammer in writing and was unsolicited by
Officer Massie. On November 22, 2013 Charalambopoulos was charged with third degree
felony assault of a family member by impeding breath. A Harris County magistrate judge
-3-

entered a protection order against him. Charalambopoulos was detained, fingerprinted, and
photographed before being released on bond.
In April 2014 Grammer accused Charalambopoulos of trying to gain access to her
residence, in violation of court orders. According to Grammer, on April 7, 2014 a male and
female drove up to her secured neighborhood guardhouse and informed the security guard
that the female had an appointment with Grammer.

Based on a photograph of

Charalambopoulos that was posted inside the guardhouse, the security guard identified the
male driver as Charalambopoulos. The security guard contacted Grammer to ask whether
she was expecting an appointment. He informed Scott MacLean (“MacLean”), Grammer’s
assistant, and Grammer that the male driver was Charalambopoulos. Grammer alleges that,
after learning this information, she called Jen Heger (“Heger”) of RadarOnline.com
(“RadarOnline”) to find out whether any photographers employed by RadarOnline had seen
Charalambopoulos in the Los Angeles area, and she told Heger what the guard had told her
about the incident at the guardhouse (the “Alleged Stalking”).2 Charalambopoulos contends
that “[o]nce again, the media reported [Grammer]’s allegations against Charalambopoulos.”
P. Br. 5. When Grammer reviewed the surveillance video eight days later, however, she
determined that the male driver was not Charalambopoulos.
On May 28, 2014 a Harris County, Texas grand jury issued a “no bill,” dismissing all
criminal charges stemming from Grammer’s allegation that Charalambopoulos had assaulted

2

Grammer contends that she also sent text messages to various friends about the
Alleged Stalking.
-4-

her on October 16, 2013. Charalambopoulos then filed this lawsuit against Grammer in
Texas state court, alleging claims for defamation, defamation per se, malicious prosecution,
negligence, gross negligence/malice, fraud, and intentional infliction of emotional distress
(“IIED”). Grammer removed the case to this court, answered, and asserted counterclaims
for assault, battery, IIED, defamation, and defamation per se.3
Grammer moved to dismiss Charalambopoulos’ amended petition under the Texas
Citizens’ Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011
(West 2015), an anti-SLAPP statute.4 The court dismissed Charalambopoulos’ claims for
negligence, gross negligence, fraud, and IIED. Regarding Charalambopoulos’ claims for
defamation and defamation per se, the court held:
to the extent these claims are based on statements that Grammer
made in the Request for Restraining Order, they are dismissed
because such statements are absolutely privileged. To the extent
these claims are based on statements that Grammer made to
Officer Vo, they are not dismissed. To the extent they are based
on Grammer’s statements to third parties that do not pertain to
any judicial or official proceeding—such as the tweets to her
Twitter followers, her statements on The Dr. Oz Show, her
statement to the Hotel ZaZa employee, and her statements to
doctors at M.D. Anderson—they are not dismissed. To the

3

Grammer later amended her answer to only assert claims for assault, battery, and
defamation per se.
4

SLAPP is an acronym for strategic lawsuit against public participation. See, e.g., In
re Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App. 2013, orig. proceeding) (“Chapter 27, also
known as the Texas Citizens’ Participation Act, is ‘considered to be anti-SLAPP legislation.
SLAPP stands for Strategic Lawsuit Against Public Participation, and approximately
twenty-seven states have enacted anti-SLAPP legislation.’” (quoting Jennings v. WallBuilder
Presentations, Inc., 378 S.W.3d 519, 521 & n.1 (Tex. App. 2012, pet. denied))).
-5-

extent these claims are based on Grammer’s allegedly making
defamatory statements to the Los Angeles County Sheriff’s
Department regarding the Alleged Stalking, or making
defamatory statements to the media pertaining to the Request for
Restraining Order, or making defamatory statements to the
media pertaining to the report of the Alleged Stalking to the Los
Angeles County Sheriff’s Department, the court defers a final
decision and permits Charalambopoulos to conduct specified
and limited discovery.
Charalambopoulos I, 2015 WL 390664, at *28. In Charalambopoulos II the court dismissed
Charalambopoulos’ defamation and defamation per se claims to the extent they were based
on Grammer’s publishing the contents of her Request for Restraining Order to the media and
reporting (through her assistant) the Alleged Stalking to the Los Angeles County Sheriff’s
Department.
After obtaining leave of court, Charalambopoulos filed on December 28, 2015 a
second amended complaint in which he asserts claims for defamation and defamation per se
based on Grammer’s publication of allegedly defamatory statements to 25 different
individuals or entities,5 malicious prosecution, negligence, and gross negligence/malice.

5

Charalambopoulos alleges that Grammer published defamatory statements to the
following on the dates shown in parentheses: (1) Hotel ZaZa Employee (10/16/2013); (2)
M.D. Anderson physicians and staff (10/16/2013); (3) HPD Officer Vo (10/16/2013); (4)
HPD Officer Massie (10/29/2013 and 10/31/2013); (5) tweets to 198,000 plus followers
(10/28/2013); (6) “Dr. Oz Show” (11/14/2013); (7) Jen Heger of RadarOnline
(10/28/2013-10/29/2013); (8) Dr. Estella Sneider of LA Talk Radio (4/8/2014); (9) Eric
Mitchell of Hollywood Life; (10) Tina Majerie (between 4/8/2014 and 4/14/2014); (11) Larry
(10/27/2013, between 4/8/2014 and 4/14/2014); (12) Carter Lay (between 4/8/2014 and
4/14/2014); (13) Taylor Armstrong (between 4/8/2014 and 4/14/2014); (14) Kyara (between
4/8/2014 and 4/14/2014); (15) Jeremy Larner (between 4/8/2014 and 4/14/2014); (16) Perry
Maura (between 4/8/2014 and 4/14/2014); (17) Amy Charalambopoulos (10/25/2013); (18)
Laura Berrios (10/22/2013); (19) Sergio Rico (10/27/2013); (20) Nicki of All Things Real
-6-

Grammer now moves for partial summary judgment on the following claims and
defenses: Charalambopoulos’ claims for negligence and gross negligence/malice; Grammer’s
defense of collateral estoppel; Charalambopoulos’ claim for malicious prosecution; certain
of Charalambopoulos’ claims for defamation and defamation per se; Charalambopoulos’
claim for exemplary damages (to the extent based on his defamation and defamation per se
claims); and Charalambopoulos’ claim for damages to finances caused by the necessity to
hire California counsel. Charalambopoulos opposes Grammer’s motion.
II
When a summary judgment movant will not have the burden of proof on a claim at
trial, she can obtain summary judgment by pointing the court to the absence of evidence on
any essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Once she does so, the nonmovant must go beyond his pleadings and designate
specific facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s
failure to produce proof as to any essential element renders all other facts immaterial. See
TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater,

Housewives (10/28/2013); (21) Kyle Umansky; (22) Tina Lay; (23) Dedra Dakota Whitt;
(24) Rose Colona; and (25) Thea Johnston.
-7-

J.). Summary judgment is mandatory where the nonmovant fails to meet this burden. Little,
37 F.3d at 1076.
To be entitled to summary judgment on a claim or defense for which a party will have
the burden of proof at trial, the party “must establish ‘beyond peradventure all of the essential
elements of the claim or defense.’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878
F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986)). This means that the moving party must demonstrate that
there are no genuine and material fact disputes and that she is entitled to summary judgment
as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003).
“The court has noted that the ‘beyond peradventure’ standard is ‘heavy.’” Carolina Cas. Ins.
Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont’l
Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23,
2007) (Fitzwater, J.)).
III
The court begins with Grammer’s motion for summary judgment on
Charalambopoulos’ negligence and gross negligence claims.
A
Charalambopoulos bases his negligence claim on allegations that Grammer owed him
a duty not to contact Heger and inform her that the security guard at her neighborhood
guardhouse had said that Charalambopoulos had attempted to gain access to her residence,
until Grammer could confirm the truth of this statement. Charalambopoulos also maintains
-8-

that Grammer owed him a duty to contact Heger on April 15, 2014 and inform her that
Grammer’s prior statement about Charalambopoulos’ trying to gain access to Grammer’s
residence was false. Charalambopoulos alleges that Grammer breached these duties; that
Grammer’s breach proximately caused Heger to write a news story about the Alleged
Stalking and not to later write a retraction story; and that Grammer’s actions were done with
malicious intent to cause injury to Charalambopoulos.

In support of his gross

negligence/malice claim, Charalambopoulos alleges that
[c]ontacting Jen Heger and accusing [Charalambopoulos] of
attempting to gain access to [Grammer’s] residence with
knowledge that such conduct could severely damage [him] and
cause [him] to be incarcerated for violating court ordered
restraining order prior to viewing the surveillance video that
[Grammer] had actual knowledge existed constitutes gross
negligence/malice under Texas law.
2d Am. Compl. ¶ 28.
Grammer moves for summary judgment on these claims, contending that, under Texas
law, a person owes no independent duty to another not to defame or maliciously prosecute
that person by accusing him of criminal wrongdoing; that relief for a plaintiff alleging such
harms resides in defamation and malicious prosecution causes of action; that
Charalambopoulos’ claim that Grammer owed him a duty not to contact Heger and tell her
that Grammer had been informed that Charalambopoulos had attempted to gain access to her
neighborhood does not exist independently of a claim that Grammer allegedly defamed
Charalambopoulos to Heger; that, under Texas case law, a negligence claim cannot be
brought for that alleged wrong; that although Charalambopoulos does not include the April
-9-

2014 statement to Heger in his defamation cause of action, he cannot avoid this rule of Texas
law by electing not to assert a defamation claim based on this statement; and that there is no
evidence that Grammer’s statements to Heger proximately caused any damage to
Charalambopoulos related to the publication of the RadarOnline articles themselves.
Grammer moves for summary judgment on Charalambopoulos’ gross negligence/malice
claim on the additional ground that there is no genuine dispute that Grammer lacked actual
awareness of the true facts when she contacted Heger and informed her of what the security
guard had told her, because the evidence shows that Grammer honestly believed that
Charalambopoulos had attempted to gain access to Grammer’s neighborhood, and she was
unaware at the time she contacted Heger that the information from the security guard was
inaccurate. Regarding Charalambopoulos’ allegation that Grammer did not correct her prior
statement to Heger after Grammer saw the surveillance video, Grammer contends that there
is no duty to correct a statement that was truthful; that Grammer’s statement to Heger was
and is true; that even if a duty to correct her prior statement existed, Grammer owed that duty
to Heger, not to Charalambopoulous; and that, in any event, there is uncontroverted evidence
that she called Heger “not too long after” reviewing the surveillance video on April 15, 2014
to inform her that it was not Charalambopoulos on the video. D. Br. 13 (quoting D. App.
53).
Charalambopoulos responds by pointing to the three Erie guesses the court made in
Charalambopoulos I, 2015 WL 390664 at *6, 15, 22; arguing that, in In re Lipsky, 460
S.W.3d 579, 586-91 (Tex. 2015), the Supreme Court of Texas answered one of these
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questions and reached the opposite result6; and requesting
against this backdrop[,] that . . . this Court . . . reconsider the
reasoning underlying one of its other Erie-guesses and find that
Grammer owed Charalambopoulos a duty not to contact Heger
and inform her that Charalambopoulos tried to access her
residence until Grammer could confirm the truth of this
statement and that Grammer owed Charalambopoulos a duty to
inform Heger that Grammer’s belief about Charalambopoulos
trying to access Grammer’s residence was false.
P. Br. 25-26.
B
1
In Charalambopoulos I the court dismissed Charalambopoulos’ negligence and gross
negligence claims based on Grammer’s alleged breach of a duty “to not fabricate an assault
and stalking allegations that never occurred.” Charalambopoulos I, 2015 WL 390664, at *22
(quoting Am. Pet. ¶ 27). The court explained:
To support his contention that he has a viable negligence claim,
Charalambopoulos relies on Mitre v. Brooks Fashion Stores,
Inc., 840 S.W.2d 612 (Tex. App. 1992, writ denied), overruled
on other grounds, Cain v. Hearst Corp., 878 S.W.2d 577, 579
(Tex. 1994). Although Mitre supports Charalambopoulos’
position, it is inconsistent with Oliphant v. Richards, 167
S.W.3d 513 (Tex. App. 2005, pet. denied). . . . The Supreme
Court of Texas has not addressed this question. As the court
explains above, because the Supreme Court of Texas has not

6

In In re Lipsky the Supreme Court of Texas held that the TCPA “does not impose an
elevated evidentiary standard or categorically reject circumstantial evidence,” and it
disapproved of “those cases that interpret the TCPA to require direct evidence of each
essential element of the underlying claim to avoid dismissal.” In re Lipsky, 460 S.W.3d at
591.
- 11 -

decided this question, this court must make an Erie-guess about
how it would rule. The court predicts that the Supreme Court of
Texas would follow similar reasoning to that of Oliphant and
hold that a plaintiff “cannot maintain a negligence claim based
solely on a duty not to defame,” Oliphant, 167 S.W.3d at 518,
and that “[t]hough a defamation claim not involving a public
figure contains a negligence liability standard, that is a
component of the defamation claim itself, not a separate claim,”
id.
Charalambopoulos I, 2015 WL 390664, at *22. Charalambopoulos provides the court with
no basis, other than the fact that the Supreme Court of Texas disagreed with this court’s Erie
guess on a different, unrelated question of Texas law, for departing from the prediction the
court made in Charalambopoulos I. Accordingly, the court declines to do so. The court
holds, for the reasons explained in Charalambopoulos I, that Charalambopoulos cannot
maintain a negligence or gross negligence/malice claim based solely on a duty not to defame.
Accordingly, the court grants Grammer’s motion for summary judgment on this claim.
2
Regarding Charalambopoulos’ negligence claim based on Grammer’s alleged failure
to contact Heger on or about April 15, 2014 and inform her that Grammer’s claims about
Charalambopoulos’ trying to gain access to Grammer’s residence were false, Grammer has
adduced undisputed evidence that her statement to Heger that “the security guard at my
community said that [Charalambopoulos] drove up and was trying to gain access to my—get
in through the guard gate to get in,” 2d Am. Compl. ¶ 17, was true. Thus even assuming
arguendo that Grammer owed Charalambopoulos a duty to correct prior statements that she
later determined were false, Charalambopoulos has adduced no evidence that Grammer’s
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statement to Heger was false. Accordingly, Grammer’s motion for summary judgment on
this ground of Charalambopoulos’ negligence claim is granted.
3
Finally, Grammer is entitled to summary judgment dismissing Charalambopoulos’
gross negligence/malice claim for the additional reason that Charalambopoulos has failed to
produce evidence that would enable a reasonable trier of fact to find that Grammer had an
actual awareness of the risks involved in making her statement to Heger without first
watching the surveillance video, but that she decided to proceed in conscious indifference
to the rights, safety, or welfare of others anyway. Under Texas law, “Gross Negligence”
means an act or omission:
(A) which when viewed objectively from the standpoint of the
actor at the time of its occurrence involves an extreme degree of
risk, considering the probability and magnitude of the potential
harm to others; and
(B) of which the actor has actual, subjective awareness of the
risk involved, but nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of others.
Tex. Civ. Prac. & Rem. Code Ann. § 41.001 (11)(A)-(B) (West 2015); see also U-Haul Int’l,
Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012) (explaining gross negligence elements).
Grammer has introduced undisputed evidence that she honestly believed Charalambopoulos
had attempted to gain access to her neighborhood, and that she was unaware that the
information from the security guard was inaccurate at the time she contacted Heger.
Grammer points to the absence of evidence that she was actually aware “of the risks involved
but decided to proceed in conscious indifference to the rights, safety, or welfare of others
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anyway,” D. Br. 12, and Charalambopoulos has not produced any evidence in response.
Accordingly, for this additional reason, Grammer is entitled to summary judgment dismissing
Charalambopoulos’ gross negligence/malice claim.
IV
Grammer moves for summary judgment on her affirmative defense of collateral
estoppel, contending that because the California Superior Court found, in issuing the Order
of Protection, that there was “overwhelming evidence that there was physical violence in that
hotel room, that [Grammer] was subjected to at the hands of [Charalambopoulos],” D. Br.
14 n.9 (quoting D. App. 376), Charalambopoulos is precluded under the doctrine of collateral
estoppel from relitigating the issue of whether he committed physical violence against
Grammer in the Hotel ZaZa hotel room on October 16, 2013.
A
Under California law,7 collateral estoppel applies when (1) the issue sought to be
precluded from relitigation is identical to one decided in a former proceeding; (2) the issue
was actually litigated in the former proceeding; (3) the issue was necessarily decided in the
former proceeding; (4) the decision in the former proceeding is final and based on the merits;
and (5) the party against whom preclusion is sought is the same as, or in privity with, the
party to the former proceeding. Lucido v. Superior Court, 795 P.2d 1223, 1225 (Cal. 1990).

7

“To determine the preclusive effect of a state court judgment in a federal action,
federal courts must apply the law of the state from which the judgment emerged.” Black v.
N. Panola Sch. Dist., 461 F.3d 584, 588 (5th Cir. 2006) (citation and internal quotation marks
omitted).
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“The party asserting collateral estoppel bears the burden of establishing these requirements.”
Id.
Because collateral estoppel is an affirmative defense, see Fed. R. Civ. P. 8(c)(1),8 to
be entitled to summary judgment on this defense, Grammer must meet the heavy burden of
establishing all of the essential elements of this defense beyond peradventure.
B
1
Grammer contends that the issue of whether Charalambopoulos committed physical
violence against Grammer in the Hotel ZaZa hotel room on October 16, 2013 was “actually
litigated” in the California Superior Court. According to Grammer, this is
because both Grammer and [Charalambopoulos] were
represented by counsel, both submitted opposing declarations
contesting whether [Charalambopoulos] engaged in an act of
abuse on October 16, 2013, and the California Superior Court
issued the restraining order only after conducting a contested
hearing on the matter and determining that [Charalambopoulos]
subjected Grammer to physical violence.
D. Br. 15 (footnotes omitted). In a footnote, Grammer contends that it is irrelevant that the
California Superior Court did not hear live testimony from Grammer and Charalambopoulos
because Charalambopoulos “had an adequate opportunity to—and did—litigate the precluded
issue.” Id. at 15 n.13.

8

Collateral estoppel is also an affirmative defense under California law. See, e.g.,
Fairmont Ins. Co. v. Superior Court, 991 P.2d 156, 158 (Cal. 2000) (referring to collateral
estoppel as affirmative defense).
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Charalambopoulos responds that this issue was not “actually litigated” in the
California Superior Court because he had no opportunity to obtain, much less introduce,
material evidence from third-party witnesses refuting Grammer’s physical assault allegations.
According to Charalambopoulos:
[t]he criminal charges Grammer procured against
Charalambopoulos were pending when the hearing in California
took place. Because he was prohibited from contacting
witnesses until resolution of the criminal matter,
Charalambopoulos could not secure declarations from witnesses,
while Grammer could and did. This made the California
proceeding entirely one-sided. Without the ability to obtain
declarations from witnesses other than himself,
Charalambopoulos never had a chance to fully and fairly tell his
side of the story.
P. Br. 9 (brackets, internal quotation marks, footnotes, and citations omitted).
Charalambopoulos maintains that, in contrast, now that there are no criminal charges pending
against him, he has engaged in discovery in this lawsuit and has obtained evidence
contradicting Grammer’s physical assault allegations, including proof from the Hotel Zaza
employee who saw Grammer immediately after the Alleged Assault; Officer Vo, who
interviewed Grammer immediately after the Alleged Assault; and the physician who
examined Grammer hours after her alleged physical assault.
In reply, Grammer argues that whether the “actually litigated” test is met depends on
the opportunities available to the litigant, not the degree to which a litigant actually uses
them; that Charalambopoulos has failed to cite any authority from Texas or California under
which he was precluded from contacting third-party witnesses due to the pending criminal

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investigation of his conduct; that the Texas restraining orders prohibited Charalambopoulos
from contacting Grammer and members of her family or household, but did not, in any way,
prevent Charalambopoulos from contacting third-party witnesses, including the third-party
witnesses who Charalambopoulos contends could have offered favorable evidence; and that
under Cal. Fam. Code § 210, Charalambopoulos was entitled to use all of the discovery tools
available under the California Code of Civil Procedure, and he therefore had the opportunity
to conduct discovery, take depositions, subpoena third-party witnesses to produce documents
and sit for depositions, and contact third-party witnesses and obtain declarations to support
his case. In sum, Grammer contends that Charalambopoulos
should not be permitted to create the basis to relitigate an issue
previously decided against him in a different tribunal because
he, with the aid of three sets of counsel, made a conscious
decision to for[]go tools available to him in the first forum.
Such an outcome would contravene the policies that the doctrine
of collateral estoppel is intended to prevent and would
encourage a non-prevailing party to file a separate, subsequent
action following an unfavorable outcome, contending he could
have done things differently the first time.
D. Reply 9.
2
Under California law, to determine for preclusion purposes whether an issue was
“actually litigated,” “the court in the subsequent action cannot rely exclusively on the
findings in the underlying action but must ‘carefully scrutinize’ the pleadings and proof.”
Douglas R. Ring, Inc. v. Marina Admiralty Co., 2009 WL 2038021, at *9 (Cal. Ct. App. July
15, 2009) (citation omitted).
- 17 -

This scrutiny includes looking behind the findings at the
evidence presented to determine what was actually decided.
The party asserting collateral estoppel must prove the issue was
raised, actually submitted for determination and determined and
that contrary evidence on the issue was not restricted. Further,
the court must examine whether the party subject to collateral
estoppel had a full and fair opportunity to litigate the issue.
Id. (emphasis added) (citations omitted); see also Antiques Off Fair Oaks, LLC v. Galapagos
Holdings, LLC, 2015 WL 9412804, at *10 (Cal. Ct. App. Dec. 22, 2015) (“The [collateral
estoppel] bar is asserted against a party who had a full and fair opportunity to litigate the
issue in the first case but lost.”); Union Pac. R.R. Co. v. Santa Fe Pac. Pipelines, Inc., 180
Cal.Rptr.3d 173, 209 (Cal. Ct. App. 2014) (“The purpose of issue preclusion is ‘to prevent
a party from repeatedly litigating an issue in order to secure a different result’ when it had
a full and fair opportunity to do so previously.” (emphasis added) (citation omitted)).9
During the January 6, 2014 hearing before the California Superior Court,
Charalambopoulos’ counsel stated to the court:

9

Some California courts describe the “full and fair opportunity to litigate” as a policy
consideration that the court must weigh after determining that the requirements outlined in
Lucido are satisfied. See, e.g., Arellano v. Progressive W. Ins. Co., 2013 WL 1261758, at
*20 (Cal. Ct. App. Mar. 28, 2013) (“Even if the minimal requirements for application of
collateral estoppel are satisfied, courts will not apply the doctrine if considerations of policy
or fairness outweigh the doctrine’s purposes as applied in a particular case, or if the party to
be estopped had no full and fair opportunity to litigate the issue in the prior proceeding.”
(citation omitted)); Ersheid v. Fernando, 2010 WL 4911352, at *5 (Cal. Ct. App. Dec. 3,
2010) (same). Because Grammer and Charalambopoulos both address whether
Charalambopoulos had a “full and fair opportunity to litigate” in the context of the “actually
litigated” factor, the court will do so as well.
- 18 -

given the pending criminal proceeding, [Charalambopoulos] has
a very difficult time obtaining his own declarations from
witnesses because he is prohibited from contacting them until
resolution of the matter. He has a right to confront his accuser.
And if this court is going to find that it has jurisdiction over him,
then he should have the ability to come in and testify. And
hopefully, if possible, this court would stay the matter until the
criminal pending is resolved in Texas so that he can actually
have his own witnesses come testify because right [now] he has
no ability to do that. This proceeding is entirely one-sided at
this juncture.
P. App. 318-19 (emphasis added). The court expresses no view on the factual accuracy of
Charalambopoulos’ counsel’s statements during the January 6, 2014 hearing.10 It is enough
for purposes of deciding this summary judgment motion that counsel, speaking to the
California Superior Court in his capacity as an officer of the court, represented that
Charalambopoulos had been prohibited from contacting witnesses while the criminal
proceedings in Texas were pending, and, on that basis, expressed the hope that the California
court would stay the proceedings until the conclusion of Charalambopoulos’ Texas criminal
trial, and contended that the California proceeding was entirely one-sided. Although
argument of counsel generally is not considered summary judgment evidence, in this instance
Charalambopoulos’ counsel based his argument on what appears to be a factual
representation that he made to the California court in his capacity as an officer of the court.11
10

As stated above, “the ‘beyond peradventure’ standard is ‘heavy.’” Carolina Cas. Ins.
Co., 603 F.Supp.2d at 923-24 (quoting Cont’l Cas. Co., 2007 WL 2403656, at *10). The
court expresses no view on whether Grammer will be able to prevail on her collateral
estoppel defense at trial under the preponderance of the evidence standard.
11

See, e.g., People v. Mroczko, 672 P.2d 835, 851 (Cal. 1983) (“[A]ttorneys are
officers of the court, and ‘”when they address the judge solemnly upon a matter before the
- 19 -

Moreover, “the papers of a party opposing summary judgment are usually held to a less
exacting standard than those of the moving party.” Lodge Hall Music, Inc. v. Waco Wrangler
Club, Inc., 831 F.2d 77, 80 (5th Cir. 1987). Finally, the heavy burden of proof with respect
to Grammer’s affirmative defense is on Grammer, not on Charalambopoulos.
Accordingly, accepting Charalambopoulos’ counsel’s factual statements as true and
drawing all reasonable inferences in Charalambopoulos’ favor, as the court must, the court
concludes that Grammer has not established “beyond peradventure” that the question whether
Charalambopoulos subjected Grammer to physical violence on October 16, 2013 was
“actually litigated” in the California proceedings, or that Charalambopoulos had a “full and
fair opportunity” to litigate the issue. See, e.g., Smith v. Exxon Mobil Oil Corp., 64
Cal.Rptr.3d 69, 79 (Cal. Ct. App. 2007) (“Mobil’s fortuitous inability, through no fault of its
own, to produce evidence on these crucial issues makes it impossible to say that the prior trial
provided it a full and fair opportunity to present a defense.”). Because there is a genuine
issue of material fact concerning whether the parties “actually litigated” the issue of whether
Charalambopoulos committed physical violence against Grammer on October 16, 2013,
Grammer is not entitled to summary judgment on her affirmative defense of collateral
estoppel.12

court, their declarations are virtually made under oath.”’” (citation omitted)), disapproved
on other grounds in People v. Doolin 198 P.3d 11, 36 n.22 (Cal. 2009)
12

Because Grammer is not entitled to summary judgment on the affirmative defense
of collateral estoppel, the court does not address Grammer’s arguments premised on her
having successfully established this affirmative defense.
- 20 -

V
Grammer moves for partial summary judgment on Charalambopoulos’ defamation
claim to the extent this claim is based on Grammer’s statements to Officer Massie on October
29, 2013 and October 31, 2013.
A
Grammer contends that her statements to Officer Massie on October 29 and 31, 2013
were made after the HPD began its investigation into the Alleged Assault, after she made an
initial report to Officer Vo, and in response to questions Officer Massie posed while
soliciting further statements from Grammer.

Accordingly, she maintains that these

statements were made during the course of a judicial proceeding, are absolutely privileged,
and that she is entitled to summary judgment to the extent Charalambopoulos’ defamation
claim is based on these statements.
In response, Charalambopoulos admits that Grammer’s statement to Officer Massie
on October 29, 2013 is privileged because the evidence attached to Grammer’s motion
establishes that, after an investigation had begun, authorities solicited that particular
statement. But Charalambopoulos maintains that Grammer’s October 31, 2013 statement to
Officer Massie is not privileged, and that his defamation claim may proceed on that basis,
because no evidence establishes that Officer Massie solicited the statement.
Grammer replies that, once an investigation begins and the police begin soliciting
statements, the absolute privilege shields all statements made after that time in the course of
the investigation, whether or not solicited. She relies on a transcript of Officer Massie’s
- 21 -

audio recording of the October 31, 2013 telephone call during which Officer Massie asked
Grammer a question, and she alleges that this evidence establishes that her statement was
solicited.
B
“Privileges applicable to defamation are of two classes—absolute and conditional or
qualified.” Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987). “An
absolutely privileged communication is one for which, by reason of the occasion upon which
it was made, no remedy exists in a civil action for libel or slander.” Reagan v. Guardian Life
Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942). This is true even if the communication was false
and made or published with express malice. Id.; Perdue, Brackett, Flores, Utt & Burns v.
Linebarger, Goggan, Blair, Sampson & Meeks, L.L.P., 291 S.W.3d 448, 451 (Tex. App.
2009, no pet.). When the absolute privilege applies to a communication, it functions “as an
immunity” because it is based on the actor’s personal position or status and not on the actor’s
motivation. Hurlbut, 749 S.W.2d at 768; Jenevein v. Friedman, 114 S.W.3d 743, 745-46
(Tex. App. 2003, no pet.) (“The law allows absolute privilege or immunity for a
communication because of the occasion in which it is made.”). That is, the “absolute
privilege is not a defense. Rather, absolutely privileged communications are not actionable.”
CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849 (Tex. App. 1991, writ denied); see
also Reagan, 166 S.W.2d at 912 (noting that communications subject to the privilege “cannot
constitute the basis of a civil action”).
The immunity conferred by the absolute privilege attaches “only to a limited and
- 22 -

select number of situations.” Hurlbut, 749 S.W.2d at 768. Relevant here, the absolute
privilege applies to “testimonial statements made in the course of judicial proceedings (and
particular statements preliminary to such proceedings) and to testimonial statements made
in the course of ‘quasi-judicial’ proceedings.” Cuba v. Pylant, 814 F.3d 701, 715 (5th Cir.
2016) (citing Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015)). But initial
communications to a “public officer . . . who is authorized or privileged to take action” are
subject only to a qualified privilege, not absolute immunity. Hurlbut, 749 S.W.2d at 768
(citation omitted).
Texas law makes a distinction between straightforward reporting
of alleged crimes and (once an investigation begins and a
judicial proceeding is contemplated) statements made to
investigators as a cooperating witness or made in pretrial
proceedings.
The rule is, therefore, that an initial
communication to police regarding alleged wrongdoing receives
only a conditional privilege that is waived if the communication
was made maliciously to defame or to procure a wrongful
prosecution. Once the police or prosecuting authority begins an
investigation and solicits further statements, the absolute
privilege obtains and shields subsequent statements, even if
malicious and false.
Cuba, 814 F.3d at 715-16. The question whether an alleged defamatory communication is
related to a proposed or existing judicial or quasi-judicial proceeding, and is therefore
absolutely privileged, is one of law to be determined by the court. Perdue, 291 S.W.3d at
453; Russell v. Clark, 620 S.W.2d 865, 870 (Tex. Civ. App. 1981, writ ref’d n.r.e.).
C
Charalambopoulos does not dispute that Grammer’s statement to Officer Massie on

- 23 -

October 31, 2013 is related to a contemplated judicial proceeding. Instead, he contends that
there is no evidence that Officer Massie solicited the statement. In her reply, Grammer relies
on Cuba to argue that “[o]nce an investigation begins and the police begin soliciting
statements, the absolute privilege shields all statements made after that time in the course of
the litigation, whether solicited or not.” D. Reply 22 (emphasis added). The Cuba court did
not address the precise question whether a statement to the police during the course of an
investigation must be solicited in order to be shielded by the absolute privilege. But in
summarizing Texas law, the court stated that, “[o]nce the police or prosecuting authority
begins an investigation and solicits further statements, the absolute privilege obtains and
shields subsequent statements, even if malicious and false.” Cuba, 814 F.3d at 715-16
(emphasis added). This conclusion suggests that the absolute privilege only applies to
statements made after the police or prosecuting authority begins an investigation and solicits
further statements. Because Grammer has pointed to no Texas or Fifth Circuit authority that
holds otherwise, the court will assume for purposes of deciding Grammer’s summary
judgment motion that such a statement must have been solicited. This conclusion is subject
to reconsideration at trial based on developments in Texas law and in this court’s
understanding of the underlying principles on which the privilege is based.
Because there is a fact issue regarding whether Officer Massie solicited Grammer’s
statements on October 31, 2013,13 the court concludes that Grammer has not established

13

In Shell Oil Co. the Supreme Court of Texas declined to decide whether the
“plaintiff has the burden to negate absolute privilege as part of proving its cause of action for
- 24 -

beyond peradventure that her statements to Officer Massie on October 31, 2013 are
absolutely privileged and, accordingly, denies Grammer’s motion for summary judgment on
this ground.14
VI
Grammer moves for partial summary judgment on Charalambopoulos’ defamation
claim to the extent this claim is based the following tweets to Grammer’s 198,000 followers:
“Info will come out today that is jaw dropping. And women can’t be silenced after being
physically abused!” “Yes, it was horrible what happened to me two days out of the hospital,”
and “I was in fear for my life.” 2d Am. Compl. ¶ 9.
A
Grammer first contends that she is entitled to partial summary judgment on the ground
that her tweets, which “bear some relationship to” the Request for Restraining order, are
absolutely privileged.
defamation, or whether absolute privilege is an affirmative defense where the elements must
be proved by a defendant asserting it.” Shell Oil Co., 464 S.W.3d at 654. Because the Fifth
Circuit in Cuba treated the absolute privilege as an affirmative defense on which the
defendant had the burden of proof, this court will do the same. See Cuba, 814 F.3d at 714
(“But the [defendants] have not borne their burden as to the absolute-privilege defense
regarding Julia’s initial police report and any prior statements. Finally, the [defendants] have
not met their burden to make out an absolute-privilege defense for any statements to SMU.”)
14

Grammer filed, without leave of court, an appendix in support of her summary
judgment reply in which she cites evidence that she contends establishes that Officer Massie
solicited her statements on October 31, 2013. D. Reply 22-23; D. Reply App. 2. Because
Grammer did not first obtain leave of court to file the appendix, the court has not considered
it in deciding the summary judgment motion. See Dethrow v. Parkland Health Hosp. Sys.,
204 F.R.D. 102, 104 (N.D. Tex. 2001) (Fitzwater, J.) (holding that party may not file
summary judgment reply appendix without first obtaining leave of court).
- 25 -

1
Under Texas law, the absolute privilege afforded to publications made in the course
of judicial proceedings extends to communications “preliminary to a proposed judicial
proceeding . . . if it has some relation to the proceeding.” James v. Brown, 637 S.W.2d 914,
917 (Tex. 1982) (per curiam) (quoting Restatement (Second) of Torts § 588 (1981)); see also
Allstate Ins. Co. v. Plambeck, 2012 WL 2130982, at *5 (N.D. Tex. Jan. 4, 2012) (Kaplan, J.)
(“Even out-of-court statements are privileged if the statements bear some relationship to
pending or contemplated litigation.” (citations omitted)), rec. adopted, 2012 WL 2130912
(N.D. Tex. June 12, 2012) (Lynn, J.); Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 238
(Tex. App. 2000, pet. denied) (“The privilege also applies to out-of-court communications
if the communication bears some relationship to the proceeding and is in furtherance of the
attorney’s representation.”). “The privilege extends to statements made by parties, their
attorneys, and witnesses, and attaches to all aspects of the legal proceeding.” Allstate Ins.
Co., 2012 WL 230982, at *5 (citations omitted). Whether a communication is related to a
proposed or existing judicial proceeding is a question of law. Daystar Residential, Inc. v.
Collmer, 176 S.W.3d 24, 28 (Tex. App. 2004, pet. denied); Thomas v. Bracey, 940 S.W.2d
340, 343 (Tex. App. 1997, no writ). When deciding the issue, the “court must consider the
entire communication in its context, and must extend the privilege to any statement that bears
some relation to an existing or proposed judicial proceeding.” Russell, 620 S.W.2d at 870.
All doubt should be resolved in favor of the communication’s relation to the proceeding. Id.

- 26 -

2
In Charalambopoulos I the court held that statements that Grammer had made “in her
Request for Restraining Order, which was filed in the Los Angeles County Superior Court
on October 29, 2013, are absolutely privileged.” Charalambopoulos I, 2015 WL 390664,
at *25. Grammer now seeks to extend this privilege to her tweets, which preceded the filing
of the Request for Restraining Order, on the basis that these statements “bear some
relationship” to the Request for Restraining Order and, accordingly, are also absolutely
privileged. D. Br. 24.
Charalambopoulos responds that Grammer’s tweets contained slanderous statements
implicitly accusing him of physically abusing Grammer, and they are not protected by
immunity because they were not
statements about motions on file with the court; statements made
in an affidavit on file with the court; statements in a pleading on
file with the court; statements summarizing allegations in a
pleading on file with the court; or statements describing
allegations in a pleading on file with the court.
P. Br. 22 (footnotes omitted). Charalambopoulous also contends that, because Grammer’s
statements were not statements made by an attorney in furtherance of the client’s interest, her
statements are not entitled to absolute immunity.
Grammer replies that Texas courts have extended the absolute privilege to out-ofcourt statements that bear “some relationship” to documents that have been filed with a court,
D. Reply 12; that the privilege applies to communications preliminary to a proposed judicial
proceeding if they have some relation to that proceeding; that the privilege applies to
- 27 -

communications made prior to a contemplated judicial proceeding even if made by a nonattorney; that if communications are made by a non-attorney, Texas courts do not require that
the statement be made “in furtherance” of the attorney’s representation; that Texas courts
interpret the “bear some relationship” inquiry broadly and do not require that the
communications explicitly refer to litigation or a legal proceeding; and that, in any event,
Grammer’s tweets “reference information that was to be imminently released in the Request
for Restraining Order filed less than twenty-four hours later . . . and illuminate Grammer’s
rationale for seeking the restraining order in a judicial proceeding,” id. at 18.
3
Where, as here, the court is exercising diversity jurisdiction, it is Erie15-bound to apply
the law as would a Texas court. See, e.g., Allstate Ins. Co. v. Shelby, 672 F. Supp. 956, 958
(N.D. Tex. 1987) (Fitzwater, J.). The Supreme Court of Texas has not yet addressed whether
the judicial proceedings privilege extends to out-of-court statements by a non-attorney.
When there is no binding decision of the Supreme Court of Texas on the question, this court
must make an “Erie-guess,” i.e., a prediction of how that court would resolve the issue if
presented with the same case. See, e.g., Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229
(5th Cir. 2010) (citing Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948,
954 (5th Cir. 2009)). In doing so, this court is not required to be prescient. Instead, “‘[w]hen
confronted with an unsettled issue of state law, a federal court sitting in diversity must make

15

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
- 28 -

its best effort to predict how the state courts would decide the issue.’” Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 750 (5th Cir. 1995) (quoting DeWeerth v. Baldinger, 38 F.3d 1266,
1273 (2d Cir. 1994)). Erie and its progeny require no more of a federal court than that it
conscientiously satisfy its duty to predict how the state court would decide a question. Id.
A Texas court of appeals has held specifically that the privilege does not extend “to
out-of-court communications by non-attorneys.” HMC Hotel Props. II Ltd. P’ship v.
Keystone-Tex. Prop. Holding Corp., 2011 WL 5869608, at *15 (Tex. App. Nov. 23, 2011)
(mem. op.), rev’d on other grounds, 439 S.W.3d 910 (Tex. 2014). In HMC the court noted
that the extension of the privilege to out-of-court statements was based on the adoption of
§ 586 of the Restatement (Second) of Torts, which applies only to communications by
attorneys. See id. It also noted that the adoption of § 586 was based on a “public policy
rationale in favor of attorneys as officers of the court.”

Id.

Based on these two

considerations, the court held that the privilege for out-of-court statements applied only to
attorneys. See id.
No Texas court of appeals has reached a different decision. At least one federal
district court has made an Erie prediction like the one this court is making today. In EEOC
v. Simbaki, Ltd., 2013 WL 2368338, at *4 (S.D. Tex. May 29, 2013), vacated and remanded
on other grounds, 767 F.3d 475 (5th Cir. 2014), the court predicted under Erie that “the
privilege for communications in connection with a judicial proceeding does not apply to outof-court statements by a non-lawyer.” Id. at *4. In Allstate Ins. Co., 2012 WL 2130982, at
*4-5, a member of this court applied the privilege to out-of-court statements made by non- 29 -

attorneys, but the question whether the privilege applies in such circumstances does not
appear to have been raised, briefed, or squarely decided. See id. (applying privilege to
out-of-court statements made in a news release by Allstate’s vice president in charge of the
Special Investigation Unit, and to two news articles reporting comments by Allstate
spokesmen).
Based on the opinion of the court of appeals in HMC, and consistent with the Erie
prediction made in Simbaki, the court predicts that the Supreme Court of Texas will decline
to extend the judicial proceedings privilege to out-of-court statements by non-attorneys.
Accordingly, the court denies Grammer’s motion for summary judgment on the ground that
her tweets are absolutely privileged.16
B
Grammer next contends that her tweets cannot support Charalambopoulos’ defamation
claim because they do not contain objectively verifiable facts but are, instead, expressions
of her opinions.
1
To be actionable, a defamatory statement must assert an objectively verifiable fact
rather than an opinion. Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013); Carr v. Brasher,
776 S.W.2d 567, 570 (Tex. 1989) (“[A]ll assertions of opinion are protected by the [F]irst

16

In her reply brief, Grammer cites James and Shell Oil in support of her contention
that “the absolute privilege applie[s] to non-attorney’s statements prior to a proposed judicial
proceeding.” D. Reply 15. Neither case, however, expressly contradicts the authorities on
which this court relies to make its Erie prediction.
- 30 -

[A]mendment.”). The law, however, does not impose an “artificial dichotomy” between
“fact” and “opinion.” Bentley v. Bunton, 94 S.W.3d 561, 579-80 (Tex. 2002); see also
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990) (holding that there is no “wholesale
defamation exemption for anything that might be labeled ‘opinion’”). Rather, in determining
whether a statement is an actionable statement of fact, the court focuses on “a statement’s
verifiability and the entire context in which it was made.” Bentley, 94 S.W.3d at 581. In
other words, “a defamatory statement must be sufficiently factual to be susceptible of being
proved objectively true or false.” Thomas-Smith v. Mackin, 238 S.W.3d 503, 507 (Tex. App.
2007, no pet.). Therefore, a statement of opinion “can be actionable in defamation if it
expressly or impliedly asserts facts that can be objectively verified.” Palestine Herald-Press
Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex. App. 2008, pet. denied). On the other hand, a
statement of opinion is not actionable where it cannot be objectively verified. Gateway
Logistics Grp., Inc. v. Dangerous Goods Mgmt. Austl. Pty, Ltd., 2008 WL 1883914, at *10
(S.D. Tex. Apr. 25, 2008) (Rosenthal, J.). Whether a publication is an actionable statement
of fact is a question of law for the court. Bentley, 94 S.W.3d at 580.
2
Grammer contends that her statement that information will come out that is “jaw
dropping” is not an objectively verifiable fact but a subjective opinion and mere rhetoric
since whether information is “jaw dropping” to the reader is an individual judgment that
“rests solely in the eye of the beholder.” D. Br. 26 (citation omitted). She posits that the
same is true of her statement that women cannot be silenced after being physically abused,
- 31 -

because this statement, on its face, is not a statement of an objectively verifiable fact but is
rather a comment or opinion by the speaker as to the importance or necessity of speaking out
and to the harmfulness of women’s remaining silent in the face of physical abuse. As to her
tweet that what happened to her two days out of the hospital was “horrible,” Grammer
contends that this statement contains no objectively verifiable facts, the statement does not
accuse anyone of assaulting or physically abusing Grammer, and whether something is
“horrible” is a subjective opinion of the speaker and means different things to different
individuals. Finally, Grammer argues that her statement, “I was in fear for my life,” does not
contain objectively verifiable facts but is merely a subjective opinion describing Grammer’s
feelings. In sum, Grammer argues that all three tweets “convey Grammer’s subjective
feelings and opinions about an independent, privileged legal action she was entitled to pursue
to protect her safety.” Id. at 27.
Charalambopoulos responds that Grammer’s tweets implied false statements of fact;
that looking at the tweets in their entirety, a person of ordinary intelligence could perceive
these statements to mean that, two days after her surgery, Grammer had been subjected to
severe physical abuse; that Grammer’s assertion that she had been physically abused is
verifiable; and if, as Charalambopoulos contends, the Alleged Assault never happened, the
statements made in Grammer’s tweets are “verifiably false,” P. Br. 20.
3
When the court considers Grammer’s three tweets in their entire context, as Texas law
requires, see Bentley, 94 S.W.3d at 581, it concludes that the tweets impliedly assert that
- 32 -

Grammer had been the subject of physical abuse, a fact that can be objectively verified. She
stated that “[i]nfo will come out today that is jaw dropping,” that “women can’t be silenced
after being physically abused,” that what happened to her was “horrible,” and that she was
“in fear for [her] life.” 2d Am. Compl. ¶ 9. It requires only a small inferential leap to
conclude that Grammer is stating in the tweets that she had been the subject of physical
abuse. The court concludes, as a matter of law, that the tweets are not mere expressions of
opinion.
C
Finally, Grammer contends that she is entitled to summary judgment because the
tweets do not concern Charalambopoulos.
1
An essential element of defamation is publication of a defamatory statement
“concerning” the aggrieved party. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571
(Tex. 1998). A publication is “of and concerning” the aggrieved party “if persons who knew
and were acquainted with the [party] understood from viewing the publication that the
allegedly defamatory matter referred to the [party].” Allied Mktg. Grp., Inc. v. Paramount
Pictures Corp., 111 S.W.3d 168, 173 (Tex. App. 2003, pet. denied) (citing Newspapers Inc.
v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960)). It is not necessary that the aggrieved party
be specifically named in the publication, so long as it is clear to those who know and are
acquainted with the party that the defamatory statement is directed to him. Vice v. Kasprzak,
318 S.W.3d 1, 13 (Tex. App. 2009, pet. denied). “‘A defamatory communication is made
- 33 -

concerning the person to whom its recipient correctly, or mistakenly but reasonably,
understands that it was intended to refer.’” Houseman v. Publicaciones Paso del Norte, S.A.
DE C.V., 242 S.W.3d 518, 525 (Tex. App. 2007, no pet.) (quoting Restatement (Second) of
Torts § 564 (1977)). Whether an aggrieved party is referenced in a defamatory statement is
a question of law for the court. See Newspapers, Inc., 339 S.W.2d at 893.
2
Grammer contends that her tweets are not defamatory because they do not refer to
Charalambopoulos directly or indirectly and, in fact, do not refer to a specific person at all:
the first tweet alludes to “jaw dropping” information and states that women, in the plural,
cannot be silenced after physical abuse, and the second and third tweets refer to an incident
that was “horrible” for Grammer and left her “in fear for [her] life.” P. Br. 30.
Charalambopoulos responds that Grammer’s tweets concern Charalambopoulos
because they point to him and no one else, and he produces evidence that three different
people reasonably believed—before the Request for Restraining Order was filed—that
Grammer’s tweets referenced Charalambopoulos. Charalambopoulos points to evidence that
one of Grammer’s twitter followers (“@MickeyMouth1”) responded, “Dimitri?,” P. App.
226, to Grammer’s tweets; that another twitter follower (“@Lshuman73”) responded, “love
you Camille, he never deserved you, you are more then what you may appeared to some to
be lov from Mi,” id. at 227; and that, later that day, Heger sent Grammer a text message
asking, “what did he do to u?!,” id. at 232, and “was it D[i]mitri?,” id. at 242.
Grammer replies that the question whether a defamatory statement concerns the
- 34 -

plaintiff is an objective inquiry; that her tweets do not mention Charalambopoulos by name,
do not implicitly reference him, and do not refer to a specific person at all, but merely
reference some unspecified event; and that, accordingly, her tweets do not point to
Charalambopoulos and no one else.
3
The court concludes that Grammer is not entitled to summary judgment on
Charalambopoulos’ defamation claim on the basis that her tweets were not a publication “of
and concerning the plaintiff.” Houseman, 242 S.W.3d at 525. To prevail at trial on his
defamation claims based on Grammer’s tweets, Charalambopoulos must prove that
Grammer’s tweets were “specifically directed towards [hi]m.” Kaufman v. Islamic Soc’y of
Arlington, 291 S.W.3d 130, 144 (Tex. App. 2009, pet. denied). In other words, “it must
appear that [Charalambopoulos] is the person with reference to whom the statement was
made.” Id. (citing Newspapers, Inc., 339 S.W.2d at 893). As stated above, however, it is
also true that it is unnecessary for the individual referred to be named if those who knew and
were acquainted with Charalambopoulos understood from reading Grammer’s tweets that
they referred to him. See id. at 145 (citations omitted); Allied Mktg. Grp., Inc., 111 S.W.3d
at 173 ( holding that a publication is “of and concerning” the aggrieved party “if persons who
knew and were acquainted with the [party] understood from viewing the publication that the
allegedly defamatory matter referred to the [party].”). In Houseman, on which Grammer
relies in her reply, the court explained “that the appropriate inquiry is objective, not
subjective. ‘Thus, the question is not whether some actual readers were mislead, as they
- 35 -

inevitably will be, but whether the hypothetical reasonable reader could be.’” Houseman,
242 S.W.3d at 525 (quoting New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004)).
It is undisputed that Grammer, a reality TV star, publicly dated Charalambopoulos and
was dating him at the time of the Alleged Assault. And the court has already concluded that
Grammer’s tweets implied that Grammer had been the victim of physical abuse. In response
to Grammer’s summary judgment motion, Charalambopoulos has produced evidence that,
in response to Grammer’s tweets, at least three people responded with tweets that questioned
whether Charalambopoulos was the person who had abused Grammer. Viewing this
evidence in favor of Charalambopoulos as the summary judgment nonmovant, Allied Mktg.
Grp., Inc., 111 S.W.3d at 173, the court concludes that it is sufficient to show that at least
some of the readers of Grammer’s tweets reasonably understood the statements to refer to
Charalambopoulos, and, further, that a hypothetical reasonable reader of Grammer’s tweets
could have understood them to refer to Charalambopoulos. Accordingly, the court denies
Grammer’s motion for summary judgment on this ground.17 See, e.g., Backes v. Misko, 486
S.W.3d 7, 25-26 (Tex. App. 2015, pet. denied) (affirming, under Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(c), that plaintiff had established by clear and specific evidence that

17

Texas courts have held that “[q]uestions regarding defamation liability should be
submitted to a jury only where a publication is of ambiguous or doubtful import.” Kaufman,
291 S.W.3d at 144 (citation omitted). In denying Grammer’s motion for summary judgment
on Charalambopoulos’ defamation claims based on her tweets, the court does not suggest
that, at trial, the jury will decide whether Grammer’s tweets were “of and concerning
Charalambopoulos.” The court holds only that, viewing the evidence in favor of
Charalambopoulos, it cannot conclude as a matter of law that Grammer’s tweets do not
“concern” him.
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allegedly defamatory statements “concerned” her because several individuals who had read
the statements provided affidavits stating that they knew when reading the statements that
they referred to the plaintiff); Diaz v. Rankin, 777 S.W.2d 496, 499-500 (Tex. App. 1989, no
pet.) (reversing grant of summary judgment on basis that allegedly defamatory statement did
not refer to the plaintiffs where plaintiffs presented affidavit evidence demonstrating that a
least one person understood that defamatory statement referred to them).
VII
Grammer moves for summary judgment on Charalambopoulos’ defamation claims
based on Grammer’s statements to Eric Mitchell (“Mitchell”) of Hollywoodlife.com and on
The Dr. Oz Show, arguing that these statements are absolutely privileged. She contends that
her statements to Mitchell and Dr. Oz were statements solicited from her that pertain to her
assault allegations in the absolutely privileged Request for Restraining Order. She contends
that both statements were solicited following her filing of the Request for Restraining Order:
Mitchell requested a quotation after the Request for Restraining order was filed, and, after
her surgery, during an interview on The Dr. Oz Show after the Request for Restraining Order
was filed, she answered a question from Dr. Oz pertaining to how traumatic it was to be
assaulted.
The court has already made an Erie prediction that the Supreme Court of Texas will
not extend the absolute judicial proceedings privilege to out-of-court statements by nonattorneys. Accordingly, the court denies Grammer’s motion for summary judgment on the
basis of the absolute judicial proceedings privilege.
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VIII
Grammer moves for summary judgment on Charalambopoulos’ defamation claims
based on her various statements regarding the Alleged Stalking.
A
1
Grammer contends that her statements that she thought Charalambopoulos would “rob
[her] house,” “kill [her],” “finish where he left off,” “break into [her] house,” and “confront
[her],” 2d Am. Compl. ¶ 16, are statements about what she thought, believed, or feared, and
are not statements of objectively verifiable facts that can give rise to a defamation claim.
Charalambopoulos does not respond to Grammer’s motion on this ground.
2
As noted above, the question whether a publication is an actionable statement of fact
is a question of law for the court. Bentley, 94 S.W.3d at 580. Grammer contends that the
following are not statements of fact, but are, instead, expressions of opinion concerning why
she thought Charalambopoulos would have wanted to approach her neighborhood
guardhouse, and were based upon the definitive conclusion, provided to her by the security
guard, that Charalambopoulos was the driver of the vehicle that approached her
neighborhood guardhouse:
[1]

“I [sic] pretty sure that he was going to rob my house or
finish where he left off in Houston . . . Kill me.” April 8,
2014 text message to Tina Majerie;

[2]

“He lives in Texas so I think he knows I’m out of town
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and he’s [sic] was going to rob my house with his girl
pal.” April 8, 2014 text message to Larry;
[3]

“I think he was going to rob my house.” April 8, 2014
text message to Carter Lay;

[4]

“I believe he came to rob me.” “He would have called
me. I believe he was coming to Rob my house. He
knows my safes.” April 12, 2014 text messages to
Kyara;

[5]

“I think he was going to Rob me.” “Or kill me.” April
12, 2014 text messages to Kyle Umansky;

[6]

“ . . . I think he was going to rob my house or who knows
Manaus [sic] even kill me. . . .” April 8, 2014 Facebook
message to Tina Lay;

[7]

“He must know that I’m in Hawaii because of twitter and
wanted to break into my house??” “Or he wanted to
confront me.” April 7, 2014 text messages to Rose
Colona and Thea Johnston; and

[8]

“Was going to try to rob my home with this girl [. . .]
Creepy.” April 7, 2014 text message to Rose Colona.

D. Br. 32-33 (citations omitted).18
In Linan v. Strafco, Inc., 2006 WL 1766204 (Tex. App. 2006, no pet.) (mem. op.),
which Grammer cites in her brief, a Texas court of appeals held that statements from a
company’s security director to his superior that “I feel that [plaintiff] is the cause of the cash
problems at this store,” and “[i]t is my suspicion and belief that [plaintiff] was involved in

18

The dates Grammer lists for some of her text messages are different from the dates
shown in her appendix. Because the court is quoting from Grammer’s brief, the dates here
reflect those included in Grammer’s brief rather that the dates shown in the appendix.
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the attempted theft of the motor,” were not defamatory statements of fact but were, instead,
the security director’s opinion. Id. at *4-5. The court explained that the statements were “not
an accusation, but rather [the defendant’s] expression of his opinion or suspicion following
his investigation.” Id. at *6. “Therefore, looking at the surrounding circumstances, we
cannot conclude the statements were defamatory facts. Rather they were opinions that are
not actionable in this instance. A person of ordinary intelligence could not reasonably
understand the complained-of statements to have a defamatory meaning.” Id.
The court concludes that quoted statements 1 through 7, like the statements of opinion
in Linan, are not actionable. In each quoted statement, Grammer expresses speculation about
why Charalambopoulos might have approached her neighborhood guardhouse. The quoted
statements are not “sufficiently factual to be susceptible of being proved objectively true or
false.” Thomas-Smith, 238 S.W.3d at 507. Accordingly, to the extent Charalambopoulos
bases his defamation claim on statements 1 through 7, quoted above, the court grants
Grammer’s motion for summary judgment on this claim.
Statement 8, however, in which Grammer states to Rose Colona (“Colona”), “Was
going to try to rob my home with this girl [. . .] Creepy,” D. App. 88, is not a statement of
opinion or suspicion but, instead, accuses Charalambopoulos of intending to try to rob her
home. Even considered in its entire context, as Texas law requires, Bentley, 94 S.W.3d at
581, there is nothing in this text message that would signal to Colona that Grammer was

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merely expressing an opinion or her suspicion.19 Accordingly, the court denies Grammer’s
motion for summary judgment with respect to statement 8.
B
Grammer contends that she is entitled to summary judgment to the extent
Charalambopoulos bases his defamation claim on her statements to Mitchell because
Charalambopoulos has failed to allege the defamatory statements on which his defamation
claim is based. Grammer then contends:
Regarding Mitchell’s reporting of Grammer’s alleged oral
statement that Plaintiff hit her and Grammer waking up in the
middle of the night with a vision of being hit, Grammer
specifically denied that she ever used the word “hit” in the
interview with Mitchell.
D. Br. 37. Grammer contends that, to the extent Charalambopoulos seeks to demonstrate that
she published defamatory statements to Mitchell about Charalambopoulos’ hitting her, “there
is no evidence in the record disputing Grammer’s testimony that she did not publish
statements to Mitchell about Plaintiff hitting her,” id. and she is entitled to summary
judgment to the extent Charalambopoulos bases his defamation claims on alleged statements
to Mitchell that he hit Grammer.
Charalambopoulos does not respond to Grammer’s motion on this ground. Although

19

At 2:48 a.m., Grammer set a group text message, including Colona among the
recipients, in which she stated: “He must know that I’m in Hawaii because of twitter and
wanted to break into my house??” D. App. 86. Her 3:28 a.m. text message to a different
group, again including Colona, states: “Was going to try to rob my home with this girl [ . .
. ] Creepy,” id. at 88, without indicating that she was merely expressing an opinion or
suspicion about what Charalambopoulos was going to try to do.
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his failure to respond to this ground of Grammer’s motion does not permit the court to enter
a “default” summary judgment on this claim, see, e.g., Tutton v. Garland Indep. Sch. Dist.,
733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.), “[a] summary judgment
nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings,
which do not constitute summary judgment evidence,” Bookman v. Shubzda, 945 F. Supp.
999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929
F.2d 160, 165 (5th Cir. 1991)). Moreover,
[i]f a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . (2) consider
the fact undisputed for purposes of the motion [and] (3) grant
summary judgment if the motion and supporting
materials—including the facts considered undisputed—show
that the movant is entitled to it[.]
Rule 56(e)(2), (3). Accordingly, because Charalambopoulos has not raised a genuine issue
of material fact regarding whether Grammer published a defamatory statement to Mitchell
about Charalambopoulos’ hitting her, the court holds that Grammer is entitled to summary
judgment dismissing Charalambopoulos’ defamation claim to the extent he bases the claim
on Grammer’s allegedly publishing defamatory statements to Mitchell about
Charalambopoulos’ hitting her.
C
Grammer contends that she is entitled to summary judgment on Charalambopoulos’
defamation claims based on her statements to Colona, Thea Johnston (“Johnston”), and
Dedra Dakota Whitt (“Whitt”) because these statements were substantially true.

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1
On April 8, 2014 Grammer sent a text message to Colona and Johnston stating: “Hey
girls I just got a call from security in Malibu in Serra were I live and Dimitri tried to get
through the get w/ a woman who was Looking he for me.” D. App. 84 (grammatical and
other errors in original). Fifteen minutes later she wrote: “The security guard recognized him
and called us back.” Id. at 85. Two days later Grammer sent the following text messages to
Whitt: “Dimitri was catch on security cameras trying to get into Serra Retreat. . So Scary!,”
id. at 96; “Caugh on camera with a girl trying to get through guard gates,” id. at 97; “The
police are working w/ me,” id. at 98; and, in response to the question “How did u find out?”
id. at 99, “The security guard,” id. at 101, “Said it was him and a girl,” id. at 102
(grammatical and other errors in original). Grammer contends that she is entitled to summary
judgment based on the affirmative defense that these statements were substantially true:
“[w]hen read in context, the text messages state that [the security guard] told Grammer that
[Charalambopoulos] tried to access her secured neighborhood, which is a true statement
based on undisputed facts.” D. Br. 35. Charalambopoulos does not respond to Grammer’s
motion on this ground.
2
If the plaintiff is a private person or entity, truth is an affirmative defense to a
defamation claim; if the plaintiff is a public figure, falsity is a constitutionally required
element of a prima facie case for defamation. See Hearst Corp. v. Skeen, 159 S.W.3d 633,
636 n.1 (Tex. 2005) (“Proving falsity in a public-figure defamation case is the plaintiff’s
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burden of proof; in such a case, the defendant does not have the burden of proving substantial
truth as an affirmative defense.” (citing Bentley, 94 S.W.3d at 586-87)); Randall’s Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private
individuals, truth is an affirmative defense to slander.” (citation and footnote omitted)).
Grammer does not contend that Charalambopoulos is a public figure, and, in fact, she
acknowledges in her brief that she “bears the burden of proving the truth of the statements.”
D. Br. 34 n.20. Accordingly, to be entitled to summary judgment on Charalambopoulos’
defamation claims based on Grammer’s text messages to Colona, Johnston, and Whitt,
Grammer must establish, beyond peradventure, the substantial truth of these text messages.
A showing of the substantial truth of Grammer’s text messages will defeat
Charalambopoulos’ defamation claims based on these statements. See McIlvain v. Jacobs,
794 S.W.2d 14, 15-16 (Tex. 1990). “The test used in deciding whether the [statement] is
substantially true involves consideration of whether the alleged defamatory statement was
more damaging to [the plaintiff’s] reputation, in the mind of the average listener, than a
truthful statement would have been.” Id. at 16 (citation omitted); see also Neely, 418 S.W.3d
at 63 (“We have developed the substantial truth doctrine to determine the truth or falsity of
a broadcast: if a broadcast taken as a whole is more damaging to the plaintiff’s reputation
than a truthful broadcast would have been, the broadcast is not substantially true and is
actionable.” (citations omitted)). “This evaluation involves looking to the ‘gist’ of the
[statement].” McIlvain, 794 S.W.2d at 16.

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Assessing a broadcast’s gist is crucial. A broadcast with
specific statements that err in the details but that correctly
convey the gist of a story is substantially true. On the other
hand, a broadcast “can convey a false and defamatory meaning
by omitting or juxtaposing facts, even though all the story’s
individual statements considered in isolation were literally true
or non-defamatory.” We determine a broadcast’s gist or
meaning by examining how a person of ordinary intelligence
would view it. “If the evidence is disputed, falsity must be
determined by the finder of fact.”
Neely, 418 S.W.3d at 63-64 (citations omitted).
3
Grammer has not established beyond peradventure that her text messages to Colona
and Johnston on April 8, 2014 or to Whitt on April 10, 2014 were substantially true. In
evaluating the affirmative defense of “substantial truth,” the court evaluates the statements
from the point of view of an “average listener,” Id. at 64 n.16, to determine whether the
“gist” of the story is substantially true. Viewed from this standpoint, Grammer’s text
messages suggest that Charalambopoulos actually tried to get into her neighborhood and was
actually caught by the security guard and on camera. Grammer has not established under the
heavy “beyond peradventure” standard that these statements, taken as a whole, are not more
damaging to Charalambopoulos’ reputation than a truthful broadcast would have been—i.e.,
that the neighborhood security guard had told her that Charalambopoulos had tried to access
her secured neighborhood but that she had not, herself, verified whether this was true.
Accordingly, the court denies Grammer’s motion for summary judgment on this ground.

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IX
Grammer contends that, under the Texas Defamation Mitigation Act (“TDMA”), Tex.
Civ. Prac. & Rem. Code Ann. § 73.051-.062 (West Supp. 2016), Charalambopoulos is not
entitled to exemplary damages on his defamation claims.
A
Under the TDMA, a defamation plaintiff cannot recover exemplary damages unless
he serves a request for a correction, clarification, or retraction within 90 days of receiving
knowledge of the publication. Tex. Civ. Prac. & Rem. Code Ann. § 73.055(c) (“If not later
than the 90th day after receiving knowledge of the publication, the person does not request
a correction, clarification, or retraction, the person may not recover exemplary damages.”).
The Act further provides that, “[i]f a correction, clarification, or retraction is made in
accordance with this subchapter, regardless of whether the person claiming harm made a
request, a person may not recover exemplary damages unless the publication was made with
actual malice.” Id. § 73.059. If a defendant intends to rely on a timely and sufficient
correction, clarification, or retraction, she must inform the plaintiff of her intent to do so and
provide notice of the correction, clarification, or retraction. Id. § 73.058(a).
B
On July 17, 2014 Charalambopoulos’ attorney sent Grammer’s attorney a letter
pursuant to § 73.055 of the TDMA requesting that Grammer correct, clarify, or retract the
following statements:

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(1) to “[K]ristina [R]oyster the night manager at Hotel ZaZa,”
(2) to “Houston Police Office[r] M. H. Vo,” (3) to “Alycia
McKissack (Senior [] Patient Affairs Specialist at MD Anderson
Hospital),” (4) “in [the] Request for Restraining Order,” (5) “in
Twitter posts on October 28, 2013,” (6) to
“Hollywoodlife.com,” (7) “on Dr. Oz,” and (8) “to law
enforcement officers on or about April 2014 that Dimitri
Charalambopoulos ‘drove up to Camille’s home.’”
D. Br. 38 (alterations in original) (quoting D. App. 104-06). Grammer argues that
Charalambopoulos had knowledge of the first seven publications more than 90 days prior to
his July 17, 2014 letter and therefore cannot recover exemplary damages based on these
statements.20 She contends, further, that, to the extent Charalambopoulos added additional
allegedly defamatory statements when he filed his amended complaint on December 23,
2015, more than 90 days have passed since December 23, 2015, and because Grammer has
not received any request to correct, clarify, or retract any additional publications,
Charalambopoulos cannot recover exemplary damages based on those publications.21
20

Grammer contends that Charalambopoulos had knowledge of Grammer’s statements
to Kristina Royster, Officer Vo, and Alycia McKissack on December 13, 2013 or January
9, 2014; that Charalambopoulos saw the Twitter posts and the Hollywoodlife.com article on
October 29, 2013; and that Charalambopoulos had knowledge of Grammer’s statements on
The Dr. Oz Show in close proximity to its November 14, 2013 air date.
21

Grammer contends that the “additional publications” include:
publications to Doctor Ramirez, Officer Massie, Jen Heger of
RadarOnline, Dr. Estella Sneider, Tina Majerie, Larry, Carter
Lay, Taylor Armstrong, Kyara, Jeremy Larner, Perry Maura,
Amy Charalambopoulos, Laura Berrios, Sergio Rico, Nicki of
All Things Real Housewives, Kyle Umansky, Tina Lay, Dedra
Dakota Whitt, Rose Colona, and Thea Johnston.

D. Br. 40.
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Grammer maintains that even though she did not receive any request from
Charalambopoulos, she made a timely and sufficient correction of her statements related to
the Alleged Stalking to a number of people,22 and that Charalambopoulos did not challenge
the timeliness or sufficiency of the corrections. Finally, Grammer contends that her original
statements regarding the Alleged Assault were made without actual malice because she
honestly believed Charalambopoulos was the individual attempting to gain access to her
secured neighborhood when she made the statements, and, for this additional reason, under
Tex. Civ. Prac. & Rem. Code Ann. § 73.059, Charalambopoulos cannot recover exemplary
damages for any of the corrected statements.
Charalambopoulos does not respond to Grammer’s arguments on this point.
Accordingly, as explained above, see supra § VIII (B), because Charalambopoulos has failed
to raise a genuine issue of material fact on the question whether his request for exemplary
damages is barred under the TDMA,23 the court grants Grammer’s motion for partial
22

Grammer contends that she made a timely and sufficient correction of her statements
regarding the Alleged Stalking to: “Jen Heger, Dr. Estella Sneider, Tina Majerie, Carter Lay,
Taylor Armstrong, Kyara, Jeremy Larner, Perry Maura, Kyle Umansky, Tina Lay, Dedra
Dakota Whitt, and Rose Colona.” D. Br. 40.
23

As Grammer states in her reply, Charalambopoulos has failed to raise a genuine
issue of material fact that
(1) he knew of the eight publications for which he requested a
correction more than ninety days prior to making that request;
(2) more than ninety days passed since he knew about the
remaining publications on which he bases his defamation
claims, yet [Charalambopoulos] made no request for correction
of those statements; (3) that Grammer made a timely and
sufficient correction of her statements related to the [Alleged
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summary judgment on this ground.
X
Grammer moves for summary judgment on Charalambopoulos’ request for “damage
to finances caused by the necessity to hire . . . California counsel.” 2d Am. Compl. ¶ 31(d).
She contends that the fees Charalambopoulos paid his California counsel were related to
Grammer’s Request for Restraining Order; that the court has already dismissed
Charalambopoulos’ defamation claims to the extent they are based on statements made in the
Request for Restraining Order; and that Charalambopoulos cannot therefore prevail on any
defamation claim that can be tied to the necessity to hire California counsel. She also
contends that Charalambopoulos’ malicious prosecution claim is not based on the California
restraining order but is based solely on the Harris County criminal case; that
Charalambopoulos’ negligence claim deals solely with the Alleged Assault; and, therefore,
that these purported damages—i.e., the necessity to hire California counsel—cannot be
caused by any remaining claim in this litigation.
Charalambopoulos does not respond to these arguments. Accordingly, to the extent
Charalambopoulos seeks to recover as damages the fees paid to California counsel, the court
concludes that Charalambopoulos has not created a genuine issue of material fact that these
damages were caused by any of the remaining claims in this case. Accordingly, the court

Stalking] to a number of individuals; and (4) that the original
statements Grammer corrected were made without actual malice.
D. Reply 2.
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grants Grammer’s motion for summary judgment on this ground.
*

*

*

Accordingly, for the reasons explained, the court grants in part and denies in part
Grammer’s motion for partial summary judgment.
SO ORDERED.
February 15, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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