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COURT TO TOSS SUIT AGAINST JAY LENO A San Francisco Superior Court judge will throw out a lawsuit that accused comedian Jay Leno of defaming a woman. Judge James Warren said reasonable people, even having only flipped through Leno’s “Tonight Show” briefly, would not have concluded Leno was accusing the plaintiff of having sex with a dog. Ruling from the bench Thursday, Warren said he would grant an anti-SLAPP motion for the defense. Marilyn Drake became an unwitting target during a segment making fun of newspapers due to her appearance in a photo for a New York Times story about ovum donation headlined, “Are you my sperm donor? Few clinics offer answers.” Earlier in the segment, Leno had made fun of a quote in another story, one about prosthetic testicles for neutered dogs. Later, Leno displayed the New York Times story, where Drake was pictured sitting on a couch next to a dog. Judging by the Tonight Show’s Web site, Leno then imagined a dialogue between the woman and the dog: “Are you my sperm donor?” “No! I have fake testicles! How could I be your sperm donor?!” Benjamin Sheffner, a lawyer at NBC Universal, argued that while humor isn’t automatically immune from a defamation claim, the test is whether a reasonable person would have take a joke as fact. Bay Area solo Stanley Hilton, who represented Drake, argued the “Tonight Show” is a variety show. “It’s not just humor,” he added. “It’s not always going to be seen as a joke.” And it should be up to a jury to decide whether the audience could have taken Leno’s statement literally. The case, Drake v. Leno, 450905, was also an odd send-off for the law and motion judge, who planned to retire today. � Pam Smith

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