HBO and the producers of the defunct television series "Luck" again are asking a judge to toss allegations filed against them by a former American Humane Association official who claims she was wrongly fired for exposing horse abuse on the set.
This time, however, the network and Stewart Productions say Barbara Casey's allegations against them are not only short on facts supporting them, but also infringe on their First Amendment rights.
"The alleged acts by HBO and Stewart that form the basis of plaintiff's claims against them were unquestionably in furtherance of defendants' right of free speech because they were in aid of and incorporated into a broadcast in connection with a public issue," attorneys for the producers state in court papers filed Tuesday.
Casey, the former director of production in the AHA's film and television unit, alleges HBO and Stewart Productions aided in an alleged horse abuse cover-up months before the series starring Dustin Hoffman and Nick Nolte was canceled.
In a July hearing, attorney Jolene Konnersman, on behalf of the production defendants, argued that there was no such cause of action under state law and that Casey's grievances are solely with the AHA, a co-defendant in the case .
But Casey's attorney, David deRubertis, said the law allows his client to maintain her aiding and abetting claim even though HBO and Stewart Productions were not her employers.
Los Angeles Superior Court Judge Maureen Duffy-Lewis initially agreed with Konnersman and said she was dismissing the aiding and abetting allegation. However, after hearing arguments from deRubertis, she agreed to take the case under submission. She ultimately ruled that he could file an amended complaint "to provide further facts and supporting case law citations," according to a courtroom minute order.
The attorney filed an amended complaint with two aiding and abetting claims against the defendants, one involving alleged wrongful termination in violation of public policy and another maintaining violation of the state labor code.
But Konnersman states in her court papers that the free speech rights of her clients is clearly at issue.
"The causes of action against HBO and Stewart concern the production, contents and distribution of the HBO Original Series 'Luck,"' according to Konnersman's court papers. "As plaintiff effectively concedes ... everything the production defendants did that forms the basis of her claims was for, in the course of and in furtherance of the production of a television program."
The acts alleged in the current complaint involve horse racing scenes, the "core of the program's content," Konnersman's court papers state.
"In short, the animal actors in "Luck" were an essential element of both the drama and the excitement of 'Luck' and they were fundamental to the series' creativity," Konnersman's court papers state.
A second dismissal motion filed on behalf of HBO and Stewart Productions encompasses the previous defense arguments that Casey's allegations are not supported by law and are short on facts. A hearing on the motions is scheduled May 1.
In her suit filed Dec. 31, Case alleges horses used on the series -- which ran for one season and centered around characters at a thoroughbred racetrack -- were often drugged, and that many sick, underweight animals were routinely used.
"The production defendants intentionally misidentified horses so that the humane officers and/or animal safety representatives could not track their medical histories," the suit alleges.
A horse named Outlaw Yodeler was killed April 30, 2010; another, Marc's Shaddow, died March 29, 2011; and a third, Hometrader, was killed in the summer of 2011, the suit states.
"AHA told its representatives not to document (Hometrader's) death because he was killed during a summer hiatus from filming and therefore did not count," the suit states.
A fourth horse died in March, just before the series was canceled, according to the suit.
Casey says she worked for the AHA for 13 years and was fired in January 2012.
AHA's film and television unit is funded through entertainment industry grants and the organization's traditional end-of-film credit is, "No Animals Were Harmed," the suit states.