Judge Bruce G. Iwasaki, Case Number: 23STCV24374, Date: 2024-04-12 Tentative Ruling

Responding Party: Defendants Appo Jabarian (individually and at relevant times dba USA Armenian Life Magazine) and Hye Media Group, Inc.

Tentative Ruling: Plaintiff’s motion for leave to conduct discovery on Defendants’ Anti-SLAPP motion is granted in part.

This is a defamation action. Plaintiff Hovnan Derderian (Plaintiff) sued Defendant USA Armenian Life and its publisher, Defendant Appo Jabarian (Jabarian) (jointly, Defendants) for allegedly false statements made in Defendants’ publication regarding Plaintiff.

On February 7, 2024, Defendants filed a Special Motion to Strike the Complaint pursuant to Code of Civil Procedure section 425.16.

Thereafter, Plaintiff moved for leave to conduct discovery on Defendant’s Special Motion to Strike. Defendants oppose this motion.

The Court grants discovery as to Defendant Jabarian, and denies it as to the non-party declarants.

Plaintiff moves for leave to obtain discovery in opposition to Defendants’ special motion to strike (anti-SLAPP).

The filing of an anti-SLAPP motion stays discovery in an action. (Code Civ. Proc., § 425.16, subd. (g).) However, on noticed motion and “for good cause shown,” the court “may order that specified discovery be conducted notwithstanding” the statutory discovery stay. (Ibid.)

“ ‘[G]ood cause’ ” in this context requires the plaintiff show that, “ ‘the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.’ ” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692.) That is, “[i]f the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated.” (Layfayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.)

Plaintiff seeks discovery on the issue of falsity and actual malice, noting that the special motion to strike argues, among other things, that Plaintiff cannot establish that Defendants acted with actual malice. (Special Motion to Strike, pp. 8-12.)

“Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) “If the person defamed is a public figure, he must show, by clear and convincing evidence, that the defamatory statement was made with actual malice.” (Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 218.)

Before the Court can even reach the question of whether there is good cause to take limited discovery on the issue of Defendants’ actual malice, this Court must first determine if Plaintiff has demonstrated a prima facie case of falsity for the purposes of a defamation claim. That is, Plaintiff must first establish that Defendants made a provably false statement of fact about him.

Here, Plaintiff’s claims arise from multiple allegedly false statements made by Defendants in the October 14-20, 2022 issue of Armenian Life, purportedly defaming Plaintiff. (Compl., ¶ 12.)

In John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300 (Doe), the court granted a writ of mandate and reversed the trial court’s grant of discovery because the plaintiff had not established prima facie case of defamation. Relying on the holding in Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, the Doe Court explained “a libel plaintiff may not obtain special discovery under the anti-SLAPP statute without first making a prima facie showing of the elements of libel for which the material facts are available to the plaintiff.” (Id. at 1311–1312 [citing Paterno, at pp. 1349–1351 and The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162 [“Even if it looks as if the defendant's actual malice may be an issue in the case, if it appears from the SLAPP motion there are significant issues as to falsity or publication—issues which the plaintiff should be able to establish without discovery—the court should consider resolving those issues before permitting what may otherwise turn out to be unnecessary, expensive and burdensome discovery proceedings”].)

Defendants do not contest that Plaintiff has alleged that they made provably false statements about him. Plaintiff submits evidence that several factual statements made by Defendants about him were false. (Derderian Decl., ¶¶ 4-12.)[1] By not contesting this evidence, Defendants concede the point.

Because Plaintiff had provided sufficient evidence of a prima facie case for defamation, the Court may turn to whether Plaintiff has shown good cause for discovery.

Plaintiff has shown good cause for discovery of Defendant Jabarian with respect to Defendants’ alleged malice.

To prove actual malice, a Plaintiff must show that statements were made with “‘knowledge that [they were] false or with reckless disregard of whether [they were] false or not.’ ” (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256-257.) “ ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth,’ ” and the evidence must be clear and convincing. (Id. at pp. 252, 256; see Copp v. Paxton (1996) 45 Cal.App.4th 829, 846 [“burden of proof by clear and convincing evidence ‘requires a finding of high probability’; must ‘leave no substantial doubt’ ”].)

“Actual malice “ ‘is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 90.)

“[A]ctual malice can be proved by circumstantial evidence.” (Reader’s Digest, supra, 37 Cal.3d at p. 257.) Considerations such as “anger and hostility toward the plaintiff,” “reliance upon sources known to be unreliable [citations] or known to be biased against the plaintiff,” and “failure to investigate” may, “in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication.” (Id. at p. 258.) Such evidence is relevant “to the extent that it reflects on the subjective attitude of the publisher,” and failure to investigate, without more, generally is insufficient. (Ibid.)

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.’” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593 [quoting 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.)

First, Plaintiff seeks discovery written discovery and the deposition of Defendant Jabarian. Specifically, Plaintiff seeks documents and a deposition to determine the factual basis that Defendant Jabarian had to make several statements regarding Plaintiff.

Plaintiff seeks discovery from Defendant Jabarian on the following topics: (1.) whether Jabarian was aware of publicly available and widely known evidence refuting the veracity of the statements he made, (2.) what investigation he performed before making the statements, (3.) how reliable the information from his sources was, and (4.) what indicia of unreliability existed at the time he made the defamatory statements. (Mot., 3:17-21.) Plaintiff also seeks to identify the “numerous members of the Church” with whom Jabarian claims he spoke “over the years” as well as the substance of those discussions which purportedly support his statement that the Plaintiff has “complete control over the Western Diocese and nothing important is done in the Diocese without his approval.” (Mot., 4:5-8.)[2]

In arguing that there is no good cause for this discovery, Defendants rely on the holding in Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, where the U.S. Supreme Court held that the failure of a defendant to investigate before publishing, and any resulting ignorance of facts he could have uncovered through investigation, do not establish actual malice. “[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.” (Id. at p. 688.)

When a case involves the republication of a third party’s defamatory falsehoods,

“ ‘failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient.’ ” (Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 275–276.) Instead, there must be some showing of “purposeful avoidance of the truth” or a party’s inaction “was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the] charges.” (Harte–Hanks, at p. 692; Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1048; see also Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 277.)

There is good cause to allow discovery from Defendant Jabarian on the issue of actual malice because he is the primary source of such evidence. It is well established that libel defendants “will generally be the principal, if not the only, source of evidence” as to whether they “knew the statement published was false,” or published it “in reckless disregard of whether the matter was false and defamatory.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) Plaintiff’s discovery request of Jabarian seeks such direct evidence of actual malice.

Defendants’ reliance on Harte-Hanks Communications misses the mark. The insufficiency of lack of investigation alone to establish malice does not address the issue here. That case does not bar discovery of the extent of investigation Defendants undertook to verify the statements published about Plaintiff. For example, discovery may reveal that Defendant conducted a thorough investigation that revealed that the statements made about Plaintiff were false. Such discovery is certainly relevant to showing actual malice.

The Court grants Plaintiff’s motion to seek discovery from Defendant Jabarian, including taking his deposition on the topics requested.

Plaintiff has not shown good cause for discovery from three non-party declarants.

Additionally, Plaintiff seeks to take the deposition of three non-party declarants – Vosgan Mekhitarian, Petros Bagramyan, and Kevork Hallajian – who submitted declarations in support of the motion to strike and who made statements upon which Defendants published the allegedly false statements. The Court notes that all of the declaration are based primarily on hearsay statements, some decades old.

But for present purposes it does not matter that their statements would never be allowed in a court of law. The veracity of their statements is only tangentially related to showing whether Defendant Jabarian had actual malice in making the allegedly false statements. That is, what is relevant is what Defendant Jabarian was told and what he did to verify the accounts – information that can be obtained directly from Defendant Jabarian.

Plaintiff argues that discovery from the declarants is justified as it will provide circumstantial evidence of actual malice. However, it is unclear what specific facts Plaintiff expects to obtain from these declarants that will shed light on Defendants’ malicious intent. Instead, at least part of Plaintiff’s reason for obtaining discovery from these three is to test and negate the declarations. (Mot., 4:15-5:23.) While such discovery may be appropriate in the context of general civil discovery (see Code Civ. Proc., § 2017.010), this purpose cannot be a basis for discovery pertaining to an anti-SLAPP motion. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593 [citing Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 247].)

The Court denies the motion under section 425.16, subdivision (g) to obtain discovery from the three non-party declarants. This ruling does not foreclose their depositions if the case proceeds further.

Accordingly, Plaintiff’s motion for leave to conduct discovery to oppose the Anti-SLAPP motion is granted as to Defendant Jabarian, and otherwise denied.

At the hearing the Court will discuss with counsel the schedule for discovery and adjustments to the hearing on the motion to strike.

[1] Notably, Plaintiff also seeks to take discovery to obtain “evidence that in fact Jabarian’s statements were false . . ..” (Mot., 2:2-4; see also Mot., 4:12-14, 6:16-24.) As the opposition notes, the anti-SLAPP motion does not argue the defense of substantial truth as to most of the challenged statements (except with respect to reports in the publication regarding litigation between the Armenian Church and Petros Taglyan). Thus, discovery for the purposes of demonstrating the falsity cannot be a basis for granting this motion where it is not at issue in the anti-SLAPP motion and is within Plaintiff’s own personal knowledge. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1190 [“[D]iscovery should be limited to the issues raised in the special motion to strike.”].)

[2] From the motion, it is unclear what specific documents Plaintiff seeks as no specific document demand is provided.

Judge Bruce G. Iwasaki

Department 58