Judge: Anne Richardson, Case: 23STCV24271, Date: 2024-05-08 Tentative Ruling

Case Number: 23STCV24271    Hearing Date: May 8, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiffs Dupont Clinic, PC (DuPont L.A.), and Consultants in Obstetric and Gynecologic Ultrasonography and Surgery, PLLC (DuPont D.C.) (collectively, DuPont) sue Defendants the City of Beverly Hills, Julian Gold (Beverly Hills’s Mayor), Nancy Hunt-Coffey (Beverly Hills’s City Manager), Keith Sterling (Beverly Hills’s Deputy City Manager), Laurence Wiener (sued as Weiner) (City Attorney), Mark Stainbrook (Chief of Police), and Does 1 through 10 pursuant to an October 5, 2023, Complaint.

The Complaint alleges claims of (1) Inducing Breach of Contract, (2) Intentional Interference with Contractual Relations, (3) Intentional Interference with Prospective Economic Relations, (4) Negligent Interference with Prospective Economic Relations, (5) False Promise, (6) Intentional Misrepresentation, and (7) Negligent Misrepresentation.

The Complaint’s claims arise from the following allegations.

In 2021, DuPont began planning to open a clinic providing reproductive healthcare, including abortion services, in California, specifically in the Los Angeles area. DuPont chose California as the site of its second office because of California’s official state stance protecting abortion rights. The City of Beverly Hills repeatedly, and very publicly, claimed to protect reproductive freedom. After the reversal of Roe v. Wade, the Beverly Hills City Hall was lit up in pink lights in protest. The Mayor issued a strongly worded press release and the City claimed that it had “a long history of supporting everyone’s right to equality and freedom of choice.” Given the City’s clear public stance on abortion, DuPont naturally believed that the City of Beverly Hills would support and protect DuPont’s clinic.

With this public support from the State of California and the City, DuPont identified what it thought was the perfect location: 8920 Wilshire Blvd., Suite 635, Beverly Hills, CA 90211 (the Building), Suite 635 (the Premises). Landlords DE BHMC, LLC (DE BHMC), Douglas Emmett Management, LLC (Douglas Emmett Management), and Douglas Emmett, Inc. (collectively Douglas Emmett) knew exactly what kind of clinic DuPont intended to open at the Premises and affirmatively told DuPont that Douglas Emmett supported its mission and would act to protect DuPont, its employees, and its patients.

However, based on the conduct of the City and the named officials, DuPont has been forced to cease construction, evacuate the Premises, and pursue legal action on behalf of a clinic that may never open. For example, the City of Beverly Hills and the named officials have acted to induce Douglas Emmett to break its lease to DuPont, turn other tenants against DuPont, and communicate and coordinate with anti-abortion groups protesting the clinic.

B. Motion Before the Court

On February 2, 2024, Defendants filed an anti-SLAPP motion against various allegations in DuPont’s Complaint.

On March 20, 2024, DuPont filed a motion to compel further discovery germane to Defendants’ anti-SLAPP motion. DuPont noted that the Defendants waived the usual stay on discovery by agreeing to exchange discovery with DuPont relevant to the anti-SLAPP motion, but refused to produce all responsive documents and pertinent written responses.

On April 16, 2024, Defendants filed an opposition to DuPont’s motion.

On April 22, 2024, DuPont filed a reply to Defendants’ opposition.

DuPont’s motion is now before the Court.

II. Motion to Compel Discovery During Anti-SLAPP Discovery Stay: GRANTED.

A. Legal Standard

The plaintiff can respond to the anti-SLAPP motion by filing a noticed motion asking the court to allow it to conduct discovery if discovery is necessary to oppose the anti-SLAPP motion. (Code Civ. Proc., § 425.16, subd. (g) [filing anti-SLAPP motion stays all discovery proceedings, unless on party’s noticed motion showing good cause, court orders that discovery be conducted]; Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1129 (Britts) [court does not have inherent power to allow discovery in absence of noticed motion]; Ruiz v. Harbor View Cmty. Assn. (2005) 134 Cal.App.4th 1456, 1475 [court can allow discovery limited to issues raised in anti-SLAPP motion].)

A motion to conduct discovery must be filed and served at least 16 court days before the hearing on the discovery motion. (Code Civ. Proc., §§ 425.16, subd. (g), 1005, subd. (b).)

The plaintiff cannot simply ask the court to deny the anti-SLAPP motion on the ground that it did not have an opportunity to obtain relevant evidence. (See, e.g., Lafayette Morehouse, Inc. v. Chronicle Publ’g (1995) 37 Cal.App.4th 855, 867 [court rejected plaintiff’s argument that it was unable to adequately defend anti-SLAPP motion because plaintiff never sought any discovery in case].)

Instead, the plaintiff must show good cause to conduct the discovery. (Code Civ. Proc., § 425.16, subd. (g). There is good cause if discovery is necessary to oppose the anti-SLAPP motion and is tailored to that end. (Britts, supra, 145 Cal.App.4th at p. 1125; see 1–800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593 [court will not allow discovery just to test defendant’s declarations].)

To determine if there is good cause, the court can consider: (1) whether evidence necessary to establish the plaintiff’s burden of proof is in the possession of the defendant or a third party; (2) whether the information the plaintiff seeks to obtain is readily available from other sources or can be obtained through informal discovery; and (3) whether the information the plaintiff seeks is necessary to respond to the issues raised in the anti-SLAPP motion, e.g., if the defendant claims that the plaintiff does not have a probability of prevailing on the merits because its complaint is legally deficient, no amount of discovery can cure that defect, making the discovery unnecessary. (Garment Workers Ctr. v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.)

If discovery cannot be completed before the hearing on the anti-SLAPP motion, the plaintiff should file a motion to continue the hearing. (See, e.g., Paul v. Friedman (2002) 95 Cal.App.4th 853, 860 [while defendant’s anti-SLAPP motion was pending, plaintiff filed motion to conduct discovery and to continue anti-SLAPP hearing].)

B. Analysis

1. Good Cause

The Court finds in favor of DuPont.

A review of Defendants February 2, 2024, anti-SLAPP motion shows that it challenges parts or all of paragraphs 2, 5, 25, 26, 28, 29, 30, 31, 37, 38, 39, 41, 44, 45, 47, 50, 52, 53-54, 58, 59, 60, 64, 71, 78, 88, and 93-116 of the Complaint. (2/2/24 Mot., p. 3.)

DuPont brings this motion “to obtain the limited categories of documents and information necessary to oppose the Anti-SLAPP Motion, as follows:

a. Production of all documents in standard ‘Electronically Stored Information’ or ‘ESI’ format, including native files with all accompanying metadata, attachments, and other related ESI;

b. Production of the City’s employee’s personal communications, including but not limited to, employee’s personal emails, text messages, messaging applications, social media accounts, and any other personal communications responsive to DuPont’s requests, as defined in the Request for Production of Documents, Set One, served on December 22, 2023:

c. The deposition of the City’s person most knowledgeable on the collection and review of personal communications, as set forth above;

d. Full and complete responses to DuPont’s Special Interrogatories Nos. 14, 16-19, 20-23; and

e. Full and complete responses to Request for Admissions Numbers 5-8, 15, and 16.

(3/20/24 Mot., p. 2.)

Defendants argue that this discovery is not proper for various reasons, principally because: (1) no good cause can exist where the City of Beverly Hills has served responses to the above discovery in a reasonably usable format, even if not in the “native files” format requested by DuPont; (2) no native file discovery is necessary where the TIFF images that were produced by the City of Beverly Hills amount to ESI and TIFF image production is favored in litigation; (3) City employees’ personal communications should not be discoverable because the “need” for that discovery is based on pure speculation as to whether responsive information actually exists; and (4) a PMQ deposition is not proper because it amounts to “discovery on discovery,” which is disfavored, irrelevant here, involves privileged communications, and speculative.

While these arguments have some merit, they do not eliminate the good cause supporting DuPont’s motion.

 Defendants here are being sued for making misrepresentations to DuPont and for interfering with DuPont’s ability to open and operate an abortion services clinic in Beverly Hills, California. (See, e.g., Complaint, ¶¶ 29, 37, 44, 47, 53-54.) For example, as briefly summarized in the third cause of action: “The conduct of Defendants the City, the Mayor, the City Manager, the Deputy City Manager, the City Attorney, and the Chief of Police in preventing DuPont from timely obtaining necessary permits, by attempting to threaten and harass Douglas Emmett’s other tenants, by causing Douglas Emmett to send the June 12 Letter to DuPont improperly attempting to rescind the Lease, and by colluding with anti-abortion extremists to put political pressure on Douglas Emmett and DuPont, was wrongful.” (Complaint, ¶ 78.)

The discovery requests here at issue are germane to the above allegations. Production of ESI that is relevant to Defendants’ anti-SLAPP motion is clearly within the scope of discovery, whether in native format or otherwise. (Code Civ. Proc., § 2017.010.)

Discovery as to Beverly Hills’ employee communications is relevant insofar as it is pertinent to demonstrating whether Defendants acted with an intent that belied the alleged representations made by Defendants to DuPont. While a privacy interest may arise in these communications, a party can waive its right to privacy by raising a claim or defense in a suit that puts the personal information at issue. (John B. Superior Court (2006) 38 Cal.4th 1177, 1199.) Here, the City of Beverly Hills has put the truth of its intent and conduct related to DuPont at issue by filing its anti-SLAPP motion. Admittedly, only the holder of the right to privacy can waive it; a party cannot waive a third party’s privacy rights. (See Boler v. Superior Court (1987) 201 Cal.App.3d 467, 472, fn. 1 [party did not waive third parties’ sexual privacy rights by not timely objecting to discovery demand because third parties were not notified and given opportunity to object].) However, it is not clear to what degree the employees’ personal rights would be affected here because Defendants do not sufficiently brief this issue, e.g., to what extent the employees were acting outside the scope of their employment in relation to communications involving DuPont. Moreover, the imposition of a protective order would be one way to manage any such privacy concerns, given the relevance of the documents.

The requested deposition of the City of Beverly Hills’ PMQ is also reasonable. Information as to how the City collected documents responding to DuPont’s discovery requests is relevant because the scope of the City’s search dictates what information will be released to DuPont, and thus, dictates the information that will help prove or disprove liability against Defendants. Second, to the extent that privileged communications arise in the discovery, Defendants may employ reasonable redactions to omit privileged information that is not germane to DuPont’s discovery, ensuring to explain those redactions in a privilege log or in conformity with any applicable protective order. Third, DuPont’s PMQ request is not based on speculation. The City of Beverly Hills’ own discovery responses indicate that its employees used “personal cell phone, personal email, and social medial account[s].” (Mot., Corpuz Decl., Ex. 7, Responses to SROG Nos. 1-11.) Under these circumstances, it is possible that discovery relating to the employees’ communications will lead to the discovery of admissible evidence relating to Defendants’ intent and conduct in relation to DuPont. Defendants’ arguments against this discovery are thus unavailing.

The special interrogatories and admission requests are also relevant. The discovery requests relate to Defendants’ intent/bias (SROG No. 14; RFA Nos. 8), the reasons for why a permit “hold” was placed on DuPont’s clinic permits (SROG Nos. 16-19; RFA Nos. 6), whether Defendants were in fact supportive of DuPont’s efforts to open an abortion clinic in Beverly Hills (SROG Nos. 20-23; RFA Nos. 5, 7), and admissions as to a protest against DuPont in the Building where the Premises are located (RFA Nos. 15-16). (Mot., Corpuz Decl., Exs. 4-5.) Defendants’ responses to this discovery were defective. The primary issue with these responses is that they are generalized statements of values generally—e.g., support of abortion rights—that do not address the specific questions raised by the discovery requests—e.g., if Defendants in fact made statements in support of DuPont’s efforts to state an abortion clinic. (See, e.g., Mot., Corpuz Decl., Ex. 7, Responses to SROG Nos. 1-11.)

The Court thus determines that good cause exists for production of the discovery at issue. Here, there is (1) evidence in the possession of Defendants or its employees, (2) evidence that cannot be reasonably obtained from other sources given the Defendants’ control of the information at issue, and (3) evidence that is relevant to opposing Defendants’ anti-SLAPP motion.

2. Other Issues

The Court finds insufficient merit to the argument that a separate statement is required for the instant motion insofar as it relates to Code of Civil Procedure section 425.16. Defendants have not provided sufficient authority to show that applicability of the separate statement rule to section 425, subdivision (g) motions. Even if it were required, the Court agrees that DuPont has presented a concise outline providing the necessary information in their moving papers, at pages 12-20. (Cal. Rules of Court, rule 3.1345.)

The Court also finds insufficient merit to the argument that the TIFF image production moots or undercuts the need for native format discovery. Defendants’ first set of production involved a PDF compilation of documents, which presumably did not contain the same metadata as would the native files from which the PDF was created. (Opp’n, Kessel Decl., ¶¶ 8-9; see Reply, p. 6 [making this argument].) Only Defendants’ second production involved TIFF images. (Opp’n, Kessel Decl., ¶¶ 13-14.) However, Defendants fail to sufficiently explain how TIFF image production contains all the exact information that a native format file would contain. Defendants argue that “all of the electronic files in the City’s supplemental production were produced in the industry standard TIFF+ format, which means that they are searchable and contained the metadata that was extracted from the native files,” and that “Plaintiffs have all of the information that they would have had if the City had produced its native email files.” (Opp’n, p. 1.) This representation, however, is not adequately supported by counsel’s declaration. Indeed, counsel’s declaration states that “[t]he City’s production in image format included practically everything that would have been included had the production been completed in native format.” (Opp’n, Kessel Decl., ¶ 17.) This representation admits that there is a possibility that a TIFF image may not capture all the data contained in the native format file from which the image was derived. Instead, Defendants’ issue with the format of discovery appears to be more one of convenience. Counsel’s declaration explains that the reason TIFF images were used was Defendants’ ability to bates stamp the TIFF image production. (Opp’n, Kessel Decl., ¶ 17.) However, as argued by DuPont in reply, Defendants did not object to the form of the production request—native format files—for which reason the TIFF production was not produced in conformity with DuPont’s production requests or with the Code of Civil Procedure. (Code Civ. Proc., § 2031.280, subd. (c).)

3. Disposition

For the reasons stated above, DuPont’s motion is GRANTED. 

III. Conclusion

Plaintiffs DuPont Clinic, PC and Consultants in Obstetric and Gynecologic Ultrasonography and Surgery, PLLC’s Motion for Order Compelling Discovery and a Continuance of Hearing and Briefing Schedule on Anti-SLAPP Motion Pursuant to CCP § 425.16(g) is GRANTED.

The hearing on Defendants’ June 14, 2024, anti-SLAPP motion is CONTINUED. The Court will discuss with counsel a mutually agreeable date for the continued hearing.

Defendant City of Beverly Hills is ORDERED to provide Code-compliant responses to Plaintiffs’ discovery within 30 days of this order.

If the City of Beverly Hills raises any privilege in response to this discovery, the privilege must be sufficiently elaborated in a privilege log pursuant to Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, fn. 6 or in any applicable protective order for this proceeding.

Plaintiffs DuPont Clinic, PC and Consultants in Obstetric and Gynecologic Ultrasonography and Surgery, PLLC are to file a proposed order, ideally in the form of the Model Protective Order located on the court’s website at: www.lacourt.org/division/civil/pdf/FormProtectiveOrder1Confidential _1.pdf