Los Angeles- from www.onpointnews.com – A Los Angeles judge has ruled that KISS rocker Gene Simmons can proceed with an unusual lawsuit in which he is seeking a court order declaring he did not grind his groin into an ESPN makeup artist.

Victoria Jackson has described the preemptive suit that Simmons filed against her May 14 as a “legal humping.”

His “transparent goal in improperly seeking declaratory relief is to strip Jackson of her legal right to a jury trial on her assault and battery claims,” she argued in a demurrer to his complaint.

Simmons, also known as Gene Klein, maintains he could not have humped Jackson “during a fleeting hug” since he was wearing his KISS costume — “the equivalent of a suit of armor” — at the time. Even though she sued him May 27, he has persisted with his case, which seeks a judicial declaration that he did not assault her in a hallway of ESPN’s Los Angeles studios after appearing on “Sportscenter.”

“Plaintiff has pled an actual controversy between the parties that is the proper subject of a claim for declaratory relief,” Simmons said in a brief.

After a hearing Sept. 20, Los Angeles Superior Court Judge John Shepard Wiley sided with Simmons and overruled the demurrer. Jackson attorney Richard A. Kolber is considering an appeal.

“We disagree with the ruling and are considering our options,” he told On Point.

Celebrities including Bill O’Reilly, Burt Reynolds and Rob Lowe have filed preemptive suits in response to what they claimed were extortion attempts. Unusually, Simmons did not file any claims for damages against Jackson, requesting only declaratory relief.

According to the complaint, he sued “based on the unfounded demands of defendant Victoria Jackson that she would sue Plaintiff for an alleged assault that never occurred unless Plaintiff paid to her the outrageous sum of $185,000 for nonexistent injuries.” A lawyer for Jackson had allegedly set a May 14 deadline for the payment.

Jackson argued that declaratory relief “is not available … when there is no ongoing relationship between the parties, and no possibility of future conduct that needs to be controlled by the court.” Simmons’ “proper course,” she said in the demurrer, “is [to] cease his unsound legal and intimidation tactics and to defend against Jackson’s action.”

The standard, though, for overruling a demurrer — equivalent to a motion to dismiss — is low and Simmons was able to satisfy it. “Plaintiff’s Declaratory Action is necessary to prevent Defendant from resuming her unreasonable demands for money,” he said.

Simmons has accused Jackson of “shakedown tactics” but Jackson alleges in her assault complaint that he approached her, said “I like you” in “a lecherous and inappropriate manner,” and then “humped Plaintiff to the extent that she could feel his groin grinding into her. When he was done, Klein said[,] ‘Aw, that’s better! Now you can go.’”

Judge Wiley set a trial date of May 10, 2011 in Simmons’ suit.