Case Number: 20STCV48299    Hearing Date: January 5, 2022    Dept: 36

 

 

 

Superior Court of California

County of Los Angeles

Department 36

 

 

CHRIS NELSON, Plaintiff,             v. NOEL WELLS and DOES 1-10, Defendants.

Case No.:        20STCV48299 Hearing Date: 1/5/2022 [TENTATIVE] RULING RE: Defendant’s SPECIAL MOTION TO STRIKE (ANTI-SLAPP) COMPLAINT

 

As set forth below, the court GRANTS Defendant’s special motion to strike in its entirety. Because the court strikes the entire complaint, the court also takes off calendar Defendant’s demurrer scheduled for a hearing on 1/6/2022.

 

Background

This is a defamation action.

On 12/17/2020, Plaintiff Chris Nelson (“Plaintiff”) filed his complaint against Defendant Noel Wells (“Defendant”) and Does 1-10 for: (1) defamation per se; (2) defamation per quod; (3) false light; (4) intentional infliction of emotional distress; (5) intentional interference with prospective economic relations; (6) negligent interference with prospective economic relations; and (7) injunctive relief.

Plaintiff alleges in pertinent part as follows. Plaintiff “is a well-established record producer, musician, and businessman.” (Complaint ¶ 7.) Plaintiff owns and operates a recording studio, which “numerous well-known artists and musician” have used while working with Plaintiff. (Complaint ¶ 8.) In or about 2020, Defendant contacted a music artist manager who had a working, professional relationship with Plaintiff. (Complaint ¶ 10.) Defendant falsely told that third-party manager that Defendant made an “incredibly predatory move” and exhibited predatory behavior toward young females including young female musicians. (Ibid.) Plaintiff alleges that Defendant made other unspecified defamatory comments. (Complaint ¶ 11.)

On 7/30/2021, Defendant filed the instant special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16

On 10/29/2021, Plaintiff opposed.

On 11/4/2021, Defendant filed a reply.

Legal Standard

In determining whether to grant or deny a Code of Civil Procedure section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150 (Shekhter).) First, the court must decide whether the moving party has met the threshold burden of showing that the plaintiff’s cause of action arises from the moving party’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in section 425.16, subdivision (e): 

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Code Civ. Proc., § 425.16(e)(1), paragraph breaks added.)

If the defendant meets this initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim by presenting facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Shekhter, supra, 89 Cal.App.4th at pp. 150-151.) In making its determination on this prong, the trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646.) The court does not “weigh evidence or resolve conflicting factual claims.” (Ibid.) The court’s inquiry “is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment” accepting the plaintiff’s evidence as true. (Ibid.) “The court evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Ibid.; Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

 

Discussion

            The incident that led to this case is straightforward. Defendant emailed a third-party music group called Big Thief, advising Big Thief not to use Plaintiff’s recording studio because Plaintiff has engaged in predatory behavior with Defendant by trying to change the terms of their agreement. Plaintiff alleges that this communication was defamatory and an attempt to interfere with Plaintiff’s business.

Defendant now moves to strike Plaintiff’s complaint pursuant to Code of Civil Procedure section 425.16. The court GRANTS Defendant’s motion in its entirety.

 

Timeliness of the Motion

A special motion to strike a cause of action may be filed within 60 days of the service of the complaint, or as otherwise ordered in the court’s discretion. (Code Civ. Proc. § 425.16, subd. (f); Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787.) “[T]he court has the discretion to deny [an anti-SLAPP] motion filed after the 60-day deadline without considering the merits of the motion.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682.)

            Here, Plaintiff never filed proof of service of the complaint on Defendant. Therefore, the court is unable to determine whether Defendant timely filed this motion. For purposes of assessing timeliness, assuming that the complaint was served reasonably after the complaint’s filing on 12/17/2020, then this motion’s filing on 7/30/2021 is untimely. Nevertheless, Plaintiff does not oppose on this basis. In any event, the court finds it in the interest of justice to consider this motion even if untimely.

 

First Prong: Protected Activity

Defendant seeks to invoke the catchall provision, i.e., Code of Civil Procedure section 425.16, subdivision (e)(4), i.e., “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” This provision requires Defendant to satisfy two requirements: (1) the statement made was “in connection with a public issue or an issue of public interest;” and (2) statement made was “in furtherance of the exercise . . . of the constitutional right of free speech.”

Defendant argues that her email with Big Thief satisfies the catchall provision for two separate reasons.

First, Defendant argues that her email to Big Thief furthers the creation of artistic speech and falls within the core protections of the First Amendment.

Generally, artistic and literary expression are protected by the First Amendment. (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1106 (Symmonds).) “Courts have held that acts that ‘advance or assist’ the creation and performance of artistic works are acts in furtherance of the right of free speech for anti-SLAPP purposes.” (Ibid.)

Defendant primarily relies on Symmonds to establish prong one. In Symmonds, a musical group terminated the employment of the drummer. When the drummer sued alleging FEHA claims, the musical group filed a special motion to strike. The Court of Appeal held that “[a] singer’s selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech.” (Ibid.) The court finds Symmonds instructive. Plaintiff identifies that Symmonds involved the act of not hiring a musician, while this case involves the act of speaking falsely about a music producer. The action here is more removed from the “advance[ment] or assist[ance]” of the creation of music. However, though more attenuated, it is still linked to the exercise of free speech rights. It is irrelevant that Plaintiff correctly shows that Symmonds involves different facts. The key is the underlying legal principles and purposes, which similarly apply here. Further, for the purposes of this discussion, it is irrelevant when Defendant made the alleged defamatory comments to Big Thief, i.e., whether her comments were unsolicited, because the comments would have the same effect in the advancement or assistance of the creation of music regardless of the circumstances when given.

Accordingly, Defendant meets the first prong on this basis and the burden shifts to Defendant for the second prong.

The court does not need to examine Defendant’s alternative argument to satisfy the first prong. However, the court does so as follows for the purposes of an appeal.

Alternatively, Defendant argues that her email to Big Thief concerns an issue of public interest.

The SLAPP statute does not define “public interest,” though courts have broadly construed this requirement. (Lee v. Silveira (2016) 6 Cal.App.5th 527, 540; see also Code Civ. Proc., § 425.16, subd. (a) [“[I]t is in the public interest to encourage continued participation in matters of public significance . . . To this end, this section shall be construed broadly.”].)

Defendant argues that her email implicates an issue of the public interest for three reasons: (1) Defendant’s statements concerned Plaintiff, who is a person in the public eye; (2) Defendant’s statements were made in the context of an ongoing discussion; and (3) Defendant’s statements focuses on the public interest of protecting other music artists. The court disagrees.

First, Plaintiff’s complaint does not establish that he is a person in the public eye simply because of his work associations. Based on Plaintiff’s complaint, Plaintiff here is not so well-known that any lawsuit involving him is a matter of widespread public interest. (See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254 (Jackson) [celebrity couple]; see also World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1573 [fact that plaintiff is “a large powerful corporation” does not make all information about it a matter of widespread public interest].) Additionally, Defendant’s email was a private email to one musical group. It is unclear why Defendant’s statements would affect a substantial number of people.

Second, Defendant cannot genuinely claim that the email was made in the context of an ongoing discussion. Big Thief posted on Instagram on July 17, 2020 that started this “discussion.” (Wells Decl. Ex. A.) Defendant sent an email on July 16, 2020, i.e., preceding this Instagram post. (Wells Decl. Ex. B.)

Third, Defendant cannot implicate the “public interest” under the SLAPP statute simply because her email bore some relationship to the issue of protecting other musicians from predatory behavior. The email here, though not commercial speech, had a commercial context—essentially, an instruction to Big Thief not to hire Plaintiff—and was private never entering the public sphere. (Murray v. Tran (2020) 55 Cal.App.5th 10, 34.)

Accordingly, Defendant does not satisfy her burden on this alternative basis.

 

Second Prong: Probability of Prevailing

Plaintiff has the burden of showing a probability of prevailing on the merits. Plaintiff has two defamation claims, one privacy claim, one emotional distress claim, two interference claims, and one injunctive relief claim. The court addresses each category of claims.

But before doing so, the court disagrees with Defendant’s argument that the common interest privilege bars Plaintiff’s claims. Civil Code section 47, subdivision (c) provides, in pertinent part: “A privileged publication or broadcast is one made . . . In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information . . . .” Here, Plaintiff makes a minimal merit showing for the purposes of this motion that Plaintiff acted with actual malice. The court acknowledges that Defendant could have proffered more evidence to establish actual malice. However, for the purposes of this motion, there is enough evidence for Plaintiff to make a minimal merit showing because: (1) Defendant contacted Big Thief unsolicited (compare Wells Decl. Ex. 1 [dated July 17, 2020] with. 2 [dated July 16, 2020]; and (2) there is evidence that Defendant had existing animus toward Plaintiff, suggesting Defendant made those statements knowing they were false or in reckless disregard of their falsity in order to injure Plaintiff. (Hunter Decl. Ex. 1-3).

Nevertheless, for each of Plaintiff’s claims, Plaintiff fails to proffer any evidence to make a prima facie showing on the elements of his claims. Notably, Plaintiff fails to offer his own declaration, and instead the only filings are the memorandum of points and authorities and his counsel’s declaration, i.e., the Hunter Declaration. Plaintiff cannot rely on his counsel’s declaration or an unsupported memorandum of points and authorities. Accordingly, Plaintiff cannot make a minimal merit showing.

Defamation (First and Second Causes of Action)

The elements of any defamation claim are: (1) intentional publication of a statement of fact (2) that is false, (3) unprivileged, (4) has a natural tendency to injure or which causes special damage. (Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179.)

Plaintiff does not proffer any evidence that Defendant’s defamatory statements are actually false. The court does not need to consider Defendant’s alternative argument that Defendant’s statements are opinions.

Accordingly, the court grants Defendant’s motion as to the first and second causes of action.

False Light (Third Cause of Action)

“False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” (Jackson, supra, 10 Cal.App.5th at p. 1264.)

Plaintiff’s false light claim is premised on the same defamatory statement. As similarly set forth above, Plaintiff offers no evidence to show that Defendant’s statement about his conduct is actually false. Plaintiff is unable to make a minimal merit showing for his false light claim.

Accordingly, the court grants Defendant’s motion as to the third cause of action.

Intentional Infliction of Emotional Distress (Fourth Cause of Action)

The elements of an intentional infliction of emotional distress claim are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering of severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

Plaintiff does not proffer any evidence that Defendant’s defamatory statements actually caused severe or extreme emotional distress. Plaintiff is unable to make a minimal merit showing for his intentional infliction of emotional distress claim. The court does not need to consider Defendant’s alternative argument that the email was not “extreme and outrageous conduct.”

Accordingly, the court grants Defendant’s motion as to the fourth cause of action.

Interference with Prospective Economic Relations (Fifth and Sixth Causes of Action)

The elements for the tort of intentional interference with prospective economic relations are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134 [29 Cal.4th 1134, 1153, citing Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521–522.)

The elements for the tort of negligent interference with prospective economic relations are: “(1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)

Plaintiff does not proffer any evidence that Defendant’s defamatory statements actually disrupted an existing business relationship that caused Plaintiff harm. Plaintiff is unable to make a minimal merit showing for his interference claims. The court does not need to consider Defendant’s alternative argument that the email was not “extreme and outrageous conduct.”

Accordingly, the court grants Defendant’s motion as to the fifth and sixth causes of action.

Injunctive Relief (Seventh Cause of Action)

“Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) “[S]ection 425.16 applies only to a cause of action, not to a remedy.” (Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187.)

Plaintiff included a cause of action for injunctive relief in the complaint, which is not recognized as a cause of action in California. Plaintiff does not otherwise address this issue. Further, Plaintiff’s claim for injunctive relief is premised on other claims, all of which the court dismissed.

Accordingly, the court grants Defendant’s motion as to the seventh cause of action.

Conclusion

The court GRANTS Defendant’s special motion to strike in its entirety.

To the extent that Defendant desires attorney fees, Defendant is to file a noticed motion pursuant to statutory requirements.

            In light of the court’s granting of Defendant’s special motion to strike, the court also takes off calendar Defendant’s demurrer, which Defendant separately filed on 7/30/2021 and is scheduled for a hearing on 1/6/2022.

            Defendant is ordered to give notice of this ruling unless waived.

 

Dated: January 5, 2022                                                           ____________________________

Gregory Alarcon

Superior Court Judge

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