Judge Blaine K. Bowman, Case Number: 37-2023-00055437-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00055437-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Breach of Contract/Warranty Discovery Hearing 37-2023-00055437-CU-BC-CTL BIRNIE VS GROS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion for leave to conduct discovery is DENIED.

As Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903 explains, [o]nce a special motion to strike under Code of Civil Procedure section 425.16 is filed, discovery is stayed until notice of entry of the order on the motion (§ 425.16, subd. (g)), unless 'for good cause shown' a request for specified discovery is made. (Ibid.; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1189–1190, 121 Cal.Rptr.2d 794.) Blanchard, 123 Cal.App.4th at 922. Specifically, pursuant to CCP § 425.16(g): (g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568 explains, Section 425.16, subdivision (g) allows the court to permit specified discovery 'for good cause shown' on noticed motion. Decisions that have considered what constitutes such a showing of good cause have described it as a showing 'that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.' (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 868.) The showing should include some explanation of 'what additional facts [plaintiff] expects to uncover ....' (Sipple, supra, 71 Cal.App.4th at p. 247; see also Nicosia v. De Rooy (N.D.Cal. 1999) 72 F.Supp.2d 1093, 1111.) Only in these circumstances is the discretion under section 425.16, subdivision (g) to be 'liberally exercise[d].' (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 868.) 1-800 Contacts, 107 Cal.App.4th at 593.

The operative complaint alleges four causes of action against Gros for breach of contract, money had and received, slander and intentional infliction of emotional distress. Gros' CCP § 425.16 special motion to strike seeks to strike allegations which Gros contends are protected by the litigation privilege, as well as all causes of action dependent thereon [ROA 11, 12]. Addressing the second prong of the CCP § 425.16 analysis [see, Navellier v. Sletten (2002) 29 Cal.4th 82, 88] Gros argues that Plaintiff cannot establish a probability of prevailing because the allegations underlying Plaintiff's causes of action are Calendar No.: Event ID: TENTATIVE RULINGS

3100679 13 CASE NUMBER: CASE TITLE: BIRNIE VS GROS [IMAGED] 37-2023-00055437-CU-BC-CTL barred by the litigation privilege.

Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768 describes the litigation privilege.

Under subdivision (b) of Civil Code section 47 (section 47), the litigation privilege protects any 'publication or broadcast ... made ... [i]n any ... judicial proceeding.' The privilege is absolute and precludes a claimant from establishing a probability of prevailing on the merits of his claim. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926, 120 Cal.Rptr.2d 576 (Kashian).) The litigation privilege generally applies to 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 (Silberg).) The privilege pertains not only to statements made during a trial, but also to steps taken before trial and statements made 'to achieve the objects of the litigation, even though the [statement] is made outside of the courtroom and no function of the court or its officers is invoked.' (Albertson v. Raboff (1956) 46 Cal.2d 375, 381, 295 P.2d 405.) The privilege is intended to 'afford litigants and witnesses ... the utmost freedom of access to the courts without fear of being harassed subsequently.... [¶] [with] protracted and costly lawsuits.' (Silberg, supra, 50 Cal.3d at pp. 213–214, 266 Cal.Rptr. 638, 786 P.2d 365, citations omitted.) Argentieri, (2017) 8 Cal.App.5th at 780–781.

As specified in Plaintiff's moving memorandum of points and authorities, Plaintiff seeks 'leave to discover and establish facts proving liability based on unprivileged statements made previously [sic] to the RO Hearing.' Plaintiff states that 'Plaintiff will show the complaint does not base liability on privileged statements by discovering evidence of unprivileged slanderous statements.' However, Gros' CCP § 425.16 motion does not seek to strike allegations of unprivileged statements. Rather, Gros' motion seeks to strike allegations based on privileged statements, i.e., Gros' alleged statements made as part of the Temporary Restraining Order and restraining order proceedings. Gros does not challenge any allegations of unprivileged statements. As such, Plaintiff fails to establish how discovery relating to unprivileged statements is necessary to meet Plaintiff's burden of establishing a prima facie case based on the privileged statements at issue on Gros' CCP § 425.16 motion. Given the scope of Gros' CCP § 425.16 motion, the court also finds Plaintiff fails to establish how discovery relating to unprivileged statements is necessary to negate application of the litigation privilege. Plaintiff also fails to establish how the discovery Plaintiff seeks – the depositions of Gros and third-party Joe Holland, and identification of witnesses referenced by Gros – is necessary to either establishing Plaintiff's prima facie case as to the statements Gros' contends are privileged, or to negating application of the litigation privilege. Absent such a showing, the court finds Plaintiff fails to meet Plaintiff's burden of establishing good cause for the discovery Plaintiff seeks. See, Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 247; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1052.

The court is not persuaded by Plaintiff's reply argument that Plaintiff is entitled to discover facts related to a showing of a public issue or an issue of public interest. Gros brings her CCP § 425.16 special motion to strike under subsection (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'] and not under the subsections requiring a showing of a public issue or an issue of public interest [(e)(3), (e)(4)].

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to Calendar No.: Event ID: TENTATIVE RULINGS

3100679 13 CASE NUMBER: CASE TITLE: BIRNIE VS GROS [IMAGED] 37-2023-00055437-CU-BC-CTL appear.

Calendar No.: Event ID: TENTATIVE RULINGS

3100679 13