Judge: Ashfaq G. Chowdhury, Case: 24NNCV01328, Date: 2024-10-25 Tentative Ruling
Case Number: ¿24NNCV01328 Hearing Date: October 25, 2024 Dept: E
Hearing Date: 10/25/2024 –
8:30am
Case No.¿24NNCV01328
Trial Date: UNSET
Case Name: DAN SCHNEIDER, an individual, v. WARNER
BROTHERS DISCOVERY, INC., a Delaware corporation; MAXINE PRODUCTIONS, a
California corporation; SONY PICTURES TELEVISION INC., a Delaware corporation;
MARY ROBERTSON, an individual; EMMA SCHWARTZ, an individual; and Does 1-50
inclusive
[TENTATIVE RULING ON¿DEFENDANTS’ SPECIAL
MOTION TO STRIKE]¿
PROCEDURAL
Moving Party: Defendants – Warner Bros. Discovery,
Inc.; Maxine Productions; Sony Pictures Television Inc.; Mary Robertson; and
Emma Schwartz
Responding Party: Plaintiff, Dan Schneider
Moving Papers: Notice/Motion; Pamela Deutsch
Declaration; Emma Schwartz Declaration; Michael J. Grygiel Declaration; Notice
of Lodging (filed 7/3/2024); Request for Judicial Notice; Proposed Order; Proof
of Service; Notice of Lodging (filed 9/20/2024)
Opposing Papers: Opposition; Doug Bania Declaration; Request
for Judicial Notice; John Vaccaro Declaration
Reply Papers: Reply; Proposed Order; Defendants’
Evidentiary Objections to John Vaccaro Declaration; Proposed Order Granting
Defendants’ Evidentiary Objections to John Vacarro Declaration; Defendants’
Opposition to Plaintiff’s Request for Judicial Notice; Emma Schwartz Reply
Declaration; Pamela Deutsch Reply Declaration; Defendants’ Evidentiary
Objections to Doug Bania Declaration
Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b), CRC 3.1300(a)): Ok
Correct Address: (CCP § 1013, § 1013a, § 1013b): Ok
RELIEF REQUESTED¿
“Defendants Warner Bros. Discovery,
Inc., Maxine Productions, Sony Pictures Television Inc., Mary Robertson, and
Emma Schwartz, will and hereby do move pursuant to Cal. Civ. Proc. Code §
425.16(b) to strike in its entirety the Complaint filed by Plaintiff, Dan
Schneider, and to dismiss the Complaint with prejudice. Defendants’ Motion is
made pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc. Code §
425.16, on the grounds that the Complaint’s single cause of action for
defamation is based solely upon Defendants’ acts in furtherance of their rights
of free speech in connection with a public issue and Plaintiff cannot
demonstrate a probability that he will prevail on the merits of his claim.
This motion is made following a conference among counsel
which took place on June 17, 2024, pursuant to the Court’s directive entered on
June 10, 2024.
The Complaint is based solely upon Defendants’ acts in
furtherance of their First Amendment rights because its defamation claim
challenges Defendants’ publication of a five-part documentary, preceded by a
Trailer (collectively, the “Documentary”), that investigated the extent to
which various inappropriate and abusive conduct took place on the sets of
children’s television shows created and produced by Plaintiff for Nickelodeon.
Plaintiff will not be able to show a probability of
prevailing on his defamation claim for the following reasons:
·
The Complaint fails to
identify any statement about Plaintiff that is defamatory on its face, and its
cause of action sounding in defamation per se is therefore defective as a
matter of law;
·
The Documentary, which
is the basis for the Complaint and is judicially noticeable, does not state,
either expressly or by reasonable or clear implication, anything actionable in
defamation about Plaintiff, and does not support that Defendants intended any
defamatory implication about Plaintiff;
·
The Complaint fails to
sufficiently plead any facts that would support the allegation that the
Documentary was published with actual malice — i.e., with knowledge that the
disputed statements and implications were false or with reckless disregard as
to whether they were true, and that Defendants intended to communicate the
purported implications — much less facts that could satisfy the “clear and
convincing” standard applicable, as a matter of law, to defamation actions
brought by public figures; and
·
Plaintiff has
insufficiently pled that he suffered any special damages, and the Complaint
does not adequately allege entitlement to other damages because Plaintiff
failed to demand a correction as required by California Civil Code § 48a.
Accordingly, the Complaint should be dismissed with
prejudice.
Defendants also seek an award of attorneys’ fees against
Plaintiff pursuant to Cal. Civ. Proc. Code §425.16(c). Defendants will submit a
supporting declaration and motion for attorneys’ fees should the instant Motion
be granted.
This Motion is based on this Notice, the attached
Memorandum of Points and Authorities, and the concurrently filed Declarations
of Emma Schwartz, Pamela Deutsch, and Michael J. Grygiel, the documents
attached thereto, Request for Judicial Notice, and such further judicially
noticeable evidence or argument as may be presented at the hearing on this
motion.”
(Def. Mot. p. 2-3.)
BACKGROUND
Plaintiff,
Dan Schneider, filed the instant action on 5/1/2024 against Defendants - Warner
Bros. Discovery, Inc.; Maxine Productions; Sony Pictures Television Inc.; Mary
Robertson; and Emma Schwartz.
The caption of the Complaint lists a single cause of
action titled, “Defamation Per Se Under Civ. Code §§ 44-46 and California
Common Law.”
“This action arises out of the recent television
docuseries Quiet on Set: The Dark Side of Kids TV (“Quiet on Set”) in
which Defendants falsely state or imply that Schneider—a well-known television
producer, creator and/or writer responsible for some of history’s most beloved
children’s television shows—sexually abused the children who worked on his
television shows. These statements are fabrications.” (Compl. ¶ 1.)
Plaintiff alleges that “the voiceovers and graphics in
Quiet on Set and its trailer, juxtaposed or edited with the visual depictions,
are purposefully and intentionally defamatory in that they falsely and
repeatedly state or imply that Schneider is a child sexual abuser and committed
crimes in this regard—and have been interpreted as such by countless average,
ordinary or reasonable viewers.” (Compl. ¶ 18.)
Plaintiff alleges that Episode 1 falsely and
intentionally states and/or implies that Schneider sexually abused children who
worked on his shows. (See Compl. p. 9.)
Plaintiff alleges that Episode 2 states and/or implies
that, like Convicted Felons Jason Handy and Brian Peck, Schneider too was a child
sexual abuser. (See Compl. p. 11.)
Plaintiff alleges that Episode 5 falsely states and/or
implies that Schneider is a convicted child molester and/or allowed them on
set. (See Compl. p. 14.)
Plaintiff alleges that the Trailer and Quiet on Set,
as set forth above, knowingly and intentionally go out of their way to state or
implicate that Schneider sexually abused children on his shows, committed
crimes, and is the same as or equivalent to convicted child molesters. (Compl.
¶ 47.)
SPECIAL MOTION TO STRIKE
A
cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim. (CCP § 425.16(b)(1).)
Consideration of a section 425.16 motion to strike
involves a two-step process. “First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action is one arising
from protected activity. The moving defendant’s burden is to demonstrate that
the act or acts of which the plaintiff complains were taken ‘in furtherance of
the [defendant]’s right of petition or free speech under the Unites States or
California Constitution in connection with a public issue,’ as defined in the
statutes. (§425.16 subd. (b)(1). If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability
of prevailing on the claim.” (Equilon Enterprises, LLC v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)
ANALYSIS
Defamation
Per Se Under Civ. Code §§ 44-46 and California Common Law
First Prong
“[A]
special motion to strike under section 425.16 involves a two-step process.
First, the moving defendant must make a prima facie showing ‘that the act or
acts of which the plaintiff complains were taken “in furtherance of the
[defendant]’s right of petition or free speech . . . .’” [Citation.]” (City
of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.) If the defendant
carries this burden, the plaintiff must then demonstrate its claims have at
least “‘minimal merit.’” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384-385.)
Under CCP §425.16(e), an act in furtherance of a
person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue includes:
(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.
(CCP § 425.16(e).)
Plaintiff’s
Complaint brings a cause of action for “Defamation Per Se Under Civ. Code §§
44-46 And California Common Law.” Plaintiff’s Complaint is based on the alleged
statements and implications arising from the television docuseries Quiet on
Set: Dark Side of Kids TV (Quiet on Set) and the trailer for Quiet
on Set.
Here, Defendants
made a prima facie showing that the act or acts of which Plaintiff complains were
taken in furtherance of the Defendants’ right of petition or free speech.
As Plaintiff’s
Opposition to Defendants’ motion concedes:
Schneider does not contest step one of the
anti-SLAPP analysis, which requires the defendant to establish that the
challenged claim arises from activity protected by Code of Civil Procedure
section 425.16. Monster Energy Co., 7 Cal. 5th at 788. Accordingly, Schneider
declines to address Section IIIB of the Motion, which concerns only that first
prong.
(Pl. Oppo. p. 3, fn. 2.)
Second Prong
With
respect to the second prong:
If the defendant makes the required
showing, the burden shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success. We have described this second
step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not
weigh evidence or resolve conflicting factual claims. Its 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. It accepts
the plaintiff's evidence as true, and 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.’ ”
(Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)
Here, Plaintiff
did not meet his burden in establishing that his claim for defamation per se
has minimal merit.
Plaintiff filed a
cause of action labeled “Defamation Per Se Under Civ. Code §§ 44-46 and
California Common Law.” This action is based on Defendants’ docuseries, Quiet
on Set, and the trailer for Quiet on Set, allegedly making publicly
defamatory statements and implications of fact with respect to Schneider
(Plaintiff), including that Schneider committed crimes of child sexual abuse,
or otherwise committed child sexual abuse, with respect to children who worked
on his shows, similar or equivalent to crimes committed by named convicted
child molesters. (See Compl ¶ 60.)
Defamation is effected by either libel or
slander. (See Civil Code ¶ 44.)
“Libel is a false and unprivileged
publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which
has a tendency to injure him in his occupation.” (Civil Code § 45.)
Further, under Civil Code § 46:
Slander is a false and unprivileged
publication, orally uttered, and also communications by radio or any mechanical
or other means which:
1. Charges any person with crime, or
with having been indicted, convicted, or punished for crime;
2. Imputes in him the present
existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in
respect to his office, profession, trade or business, either by imputing to him
general disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his office,
profession, trade, or business that has a natural tendency to lessen its
profits;
4. Imputes to him impotence or a want
of chastity; or
5. Which, by natural consequence,
causes actual damage.
(Civil Code § 46.)
The tort of defamation involves (a) a
publication that is (b) false, (c) defamatory, and (d) unprivileged, and that
(e) has a natural tendency to injure or that causes special damage. (Taus v.
Loftus (2007) 40 Cal.4th 683, 720.)
As can be seen from both the statutory and
common law definitions of defamation, the alleged defamation must be false.
Problematic with Plaintiff’s Opposition is
that Plaintiff does not come forward with any evidence that the alleged
defamatory statements are false.
“To establish a probability of prevailing,
the plaintiff must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.” (Soukup
v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 291.)
Here, Plaintiff did not even come forward
with his own affidavit or declaration stating that the alleged defamatory
statements and implications were false. Therefore, since Plaintiff did not come
forward with evidence that the alleged statements or implications were false,
Plaintiff cannot meet the prima facie showing for a cause of action for
defamation because a cause of action for defamation must show that the alleged
defamation was false.
“As to the second step inquiry, a
plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on
its complaint, even if verified; instead, its proof must be made upon competent
admissible evidence.’” (Sweetwater Union High School Dist. v. Gilbane
Building Co. (2019) 6 Cal.5th 931, 940 quoting San Diegans for Open
Government v. San Diego State University Research Foundation (2017) 13
Cal.App.5th 76, 95.)
“Although not mentioned in the SLAPP Act,
the Code of Civil Procedure also allows a court to consider, in lieu of an
affidavit, certain written declarations. To qualify as an alternative to an
affidavit, a declaration must be signed and recite that the person making it
certifies it to be true under penalty of perjury. The document must reflect the
date and place of execution, if signed in California, or recite that it is
executed “under the laws of the State of California.”” (Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941.)
A large portion of Plaintiff’s Opposition
arguesthat defamation can be implied, that the trailer and documentary state or
imply Schneider sexually abused children who worked on his show and that
Schneider was a child sexual abuser, and how the ordinary viewer understands
the trailer and documentary to be defamatory.
The Court notes that even if all of the aforementioned arguments by Plaintiff are
true, this is beside the point.
Plaintiff still had the burden to come
forward with evidence to set forth the prima facie case for defamation.
Plaintiff here did not submit any evidence as to the falsity of the
alleged defamation.
Plaintiff came forward with the
declaration of Doug Bania; however, this declaration pertains only to damages/harm
to Plaintiff. This declaration did not come forward with evidence that the
alleged defamation is false.
Plaintiff also came forward with the
declaration of John Vaccaro, who is a digital media executive. This declaration
also did not come forward with evidence that the alleged defamation is false.
Thus, Plaintiff did not show a probability
that Plaintiff will prevail on the merits.
TENTATIVE RULING
Defendants’
motion to strike the Complaint pursuant to CCP § 425.16 is GRANTED. Plaintiff
did not meet his burden in showing a probability of prevailing on the merits of
the defamation cause of action.
Defendants’ notice page to this motion
stated, “Defendants also seek an award of attorneys’ fees against Plaintiff
pursuant to Cal. Civ. Proc. Code §425.16(c). Defendants will submit a
supporting declaration and motion for attorneys’ fees should the instant Motion
be granted.” (Def. Not. p. 3.)
Therefore, based on page 3 of Defendants’
notice, based on the motion not containing an argument with respect to
attorneys’ fees, and based on there being no declarations with respect to
attorneys’ fees, the Court will assume Defendants are not seeking attorneys’
fees at this hearing.
““In general, the party prevailing on a
special motion to strike may seek an attorney fees award through three
different avenues: simultaneously with litigating the special motion to strike,
by a subsequent noticed motion, or as part of a cost memorandum at the
conclusion of the litigation. [Citations.]” (Martin v. Inland Empire
Utilities Agency (2011) 198 Cal.App.4th 611, 631 quoting Melbostad v.
Fisher (2008) 165 Cal.App.4th 987, 992.)
Defendants’ requests for judicial notice
with the moving papers are DENIED.
Plaintiff’s requests for judicial notice
with the opposing papers are DENIED.
Defendants’ evidentiary objections to the
John Vaccaro Declaration are OVERRULED.
Defendants’ evidentiary objections to the
Doug Bania Declaration are OVERRULED.