Judge: Christopher K. Lui, Case: 24STCV23459, Date: 2024-11-14 Tentative Ruling
Case Number: 24STCV23459 Hearing Date: November 14, 2024 Dept: 76
Plaintiff alleges that Defendants published defamatory statements in the entertainment publication Variety about Plaintiff regarding his on-set behavior as director of the major motion picture Megalopolis.
Plaintiff moves for an order lifting the discovery stay imposed by Defendants’ filing of a Civ. Proc. Code, § 425.16 anti-SLAPP motion, for the purpose of conducting limited discovery, and continuing the hearing on the anti-SLAPP motion for twelve weeks to allow Plaintiff to complete the discovery and use the discovery responses in his opposition to the anti-SLAPP motion.
TENTATIVE RULING
Plaintiff Francis Ford Coppola’s motion to lift the Civ. Proc. Code, § 425.16(g) discovery stay to conduct limited discovery is GRANTED IN PART as set forth in the Court’s ruling. The hearing on Defendants’ anti-SLAPP motion is CONTINUED to February 14, 2024 at 8:30 a.m. Opposition and reply are due pursuant to code relative to the continued hearing date.
ANALYSIS
Motion to Lift Discovery Stay
Request For Judicial Notice
Plaintiff requests that the Court take judicial notice of the following:
1. Coppola’s Complaint filed in this action on September 11, 2024;
2. The Answer filed by Defendants Variety Media, LLC, Brent Lang, and Tatiana Siegel (collectively, “Defendants”) in this action on October 11, 2024;
Requests Nos. 1 – 3 are GRANTED per Evid. Code, § 452(d)(court records).
Discussion
Plaintiff alleges that Defendants published defamatory statements in the entertainment publication Variety about Plaintiff regarding his on-set behavior as director of the major motion picture Megalopolis. Plaintiff moves for an order lifting the discovery stay imposed by Defendants’ filing of a Civ. Proc. Code, § 425.16 anti-SLAPP motion, for the purpose of conducting limited discovery, and continuing the hearing on the anti-SLAPP motion for twelve weeks to allow Plaintiff to complete the discovery and use the discovery responses in his opposition to the anti-SLAPP motion.
Regarding the discovery stay, Civ. Proc. Code, § 425.16(g) provides:
(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.
(Civ. Proc. Code,
§ 425.16(g).)
Plaintiff’s
Complaint contains a single cause of action for libel. The anti-SLAPP motion filed
by Defendants argues that this cause of action is subject to being stricken pursuant
to Civ. Proc. Code, § 425.16(e)(3)(public forum and issue of public interest) and
Civ. Proc. Code, § 425.16(e)(4)(public issue or issue of public interest) as statements
published on the Variety website, regarding Plaintiff who is a renowned movie
director. For purposes of this motion only, the Court will accept this as true,
which triggers the higher constitutional standard of actual malice for libel causes
of action against public figures.
“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.” (Citation omitted.) 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—that is, with knowledge that it was false
or with reckless disregard of whether it was false. (Citations omitted.)
(Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 218 [bold emphasis added].)
“Though mere opinions are generally not actionable,”
a “statement … that implies a false assertion of fact is actionable.” (Issa,
supra, 31 Cal.App.5th at p. 702; see McGarry v. University of San Diego
(2007) 154 Cal.App.4th 97, 112 [64 Cal. Rptr. 3d 467] [“‘[s]imply couching such
statements in terms of opinion does not dispel these [false, defamatory] implications’”].)
“‘[I]t is not the literal truth or falsity of each word or detail used in a statement
which determines whether or not it is defamatory; rather, the determinative question
is whether the “gist or sting” of the statement is true or false, benign or defamatory,
in substance.’” (Issa, at p. 702; cf. Grenier v. Taylor (2015)
234 Cal.App.4th 471, 486 [183 Cal. Rptr. 3d 867] [“rhetorical hyperbole, vigorous
epithets, lusty and imaginative expressions of contempt and language used in a loose,
figurative sense will not support a defamation action”].)
“The ‘pertinent question’ is whether a ‘reasonable
fact finder’ could conclude that the statements ‘as a whole, or any of its parts,
directly made or sufficiently implied a false assertion of defamatory fact
that tended to injure’ plaintiff’s reputation.” (Issa, supra, 31 Cal.App.5th
at p. 703.) “We apply a ‘“totality of the circumstances”‘ test to determine whether
a statement is fact or opinion, and whether a statement declares or implies a provably
false factual assertion; that is, courts look to the words of the statement itself
and the context in which the statement was made.” (Ibid.) Under this test,
“‘“[f]irst, the language of the statement is examined. For words to be defamatory,
they must be understood in a defamatory sense. … [¶] Next, the context in which
the statement was made must be considered.”‘ [Citation.] Whether challenged statements
convey the requisite factual imputation is ordinarily a question of law for the
court.” (Ibid.) With this legal foundation in mind, we turn to the content
of the publications.
(Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 966-67 [bold emphasis added].)
Plaintiff seeks leave to conduct discovery in order to obtain the names of and communications with identified anonymous “sources” referenced in the article containing the defamatory statements at issue. Plaintiff argues that good cause exists for the requested discovery to help him establish the probability of prevailing on his claim. Specifically, Plaintiff requests that the discovery stay be lifted for the purpose of: (1) obtaining responses to (the already served) First Sets of Special Interrogatories, Requests for Production of Documents, and Form Interrogatories, (2) deposing Defendants, and (3) obtaining third-party discovery from the anonymous “sources.”
Defendants argue that the SLAPP motion raises purely legal issues that challenge the sufficiency of Plaintiff’s allegations in the Complaint, but do not involve any disputed factual issues. Defendants argue that the SLAPP motion argues that Plaintiff has not pled any actionable statement or implication, that Plaintiff has not alleged facts showing that Defendants published the article with constitutional actual malice, nor has he pled that he suffered special damages due to implied defamatory meanings.
However, on an anti-SLAPP motion, if the Court proceeds to the second prong of the analysis, the Plaintiff must demonstrate with evidence a probability of prevailing on the claim. As such, Plaintiff would be entitled to obtain evidence if he demonstrates good cause.
“ ‘ “ ‘The burden on the plaintiff is similar to the
standard used in determining motions for nonsuit, directed verdict, or summary judgment.’”
[Citation.]’ [Citation.] Thus, ‘The plaintiff need only establish that his or her
claim has “minimal merit” [citation] to avoid being stricken [pursuant to Code of
Civil Procedure section 425.16]. [Citation.]’” (Citation omitted3.) In determining
whether the plaintiff has made a prima facie evidentiary showing on the second prong
of the anti-SLAPP inquiry, we consider the pleadings and the evidence adduced
on the motion. (Code Civ. Proc., § 425.16, subd. (b)(2).) We neither weigh the
credibility nor compare the probative strength of competing evidence (Citation omitted]), and we disregard
declarations lacking in foundation or personal knowledge, or that are argumentative,
speculative, impermissible opinion, hearsay, or conclusory (Citation omitted).
(Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714 [bold emphasis added].)
Here, the statement that Plaintiff was “often inadvertently inserting himself into the shot and ruining it. . . .” (Complaint, ¶ 14) is susceptible to a defamatory meaning, because inadvertently ruining a shot in this manner suggests incompetence as a director. Indeed, this is pled at ¶ 14 of the Complaint. Plaintiff also pleads why the statement was false. (Complaint, ¶ 15.)
“A statement is defamatory when it tends ‘directly
to injure [a person] in respect to his office, profession, trade or business, either
by imputing to him general disqualification in those respects which the office …
peculiarly requires, or by imputing something with reference to his office … that
has a natural tendency to lessen its profits.’ (Civ. Code, § 46, subd. 3.) Statements
that contain such a charge directly, and without the need for explanatory matter,
are libelous per se. [Citation.] A statement can also be libelous per se if … a
listener could understand the defamatory meaning without the necessity of knowing
extrinsic explanatory matter.” (Citation omitted.) If the false statement is not
libelous per se, a plaintiff must prove special damages. (Citation omitted.)
(Balla v. Hall (2021) 59 Cal. App. 5th 652, 675-76.)
Thus, because Plaintiff pleads a statement that is defamatory per se, he need not plead and prove special damages.
Moreover, Plaintiff alleges at ¶ 17 that the statement in the article that Plaintiff “tried to kiss some of the topless extras” was false. Plaintiff disputes that he ever hugged or kissed an actress “who was topless.” (Coppola Declaration, ¶ 17.) Whether Plaintiff implicitly admits to hugging and kissing actresses/extras who were not topless still does not render the statements in the article true. Although Defendants published video purporting to show Plaintiff hugging and kissing women on the set, the video may not clearly show kissing (as opposed to maybe leaning in and whispering). In this regard, statements from sources that Plaintiff kissed women serve to supplement what is depicted in the video. Further, even if Plaintiff did kiss the women, whether or not they were uncomfortable and thus did not welcome hugging and/or kissing is something that can only be ascertained through witness statements.
Indeed, although not quoted in the Complaint, certain sentences published in the Variety article (attached as an Exhibit to the Complaint) could be found to be defamatory. For instance, the Variety article suggests that Plaintiff inadvertently inserted himself into the shot and ruined it because he “kept leaping up to hug and kiss several women.” This statement is attributed to a source, who said it was unusual. (Complaint, Exhibit, Variety article, Pages 2 – 3. The source is attributed as saying it was unusual to see a director touch an actor. (Id. at Page 3.)
Moreover:
The source said that after multiple takes, Coppola got on a microphone
and announced in earshot of everyone in
the room, “Sorry, if I come up
to you and kiss you. Just know it’s solely for my pleasure.”
(Id. at Page 3.)
This statement could be provably false: either Plaintiff said this or he didn’t. Moreover, it is capable of a defamatory meaning: that Plaintiff was engaging in inappropriate kissing for his personal pleasure, not any directorial purpose.
Moreover, the article attributes the following statement to an unidentified source:
However, sources dispute [Mariela Comitini’s] depiction of a “professional environment.” During the shooting of the nightclub scene, crew members looked at each other uncomfortably as Coppola kissed and embraced the background actors, but one source says no one publicly objected to his behavior or tried to stop it. That may have something to do with how much control Coppola was able to exert since there wasn’t an outside studio or streamer with its own HR department involved with the production.
(Complaint, Exhibit, Variety article, Page 4.)
Again this sets forth statements that could be provably false: either crew members were uncomfortable because Plaintiff was engaging in kissing and hugging which created a hostile/sexually harassing work environment, or not. This would tend to injure Plaintiff in his profession as a director. The fact that the statements were couched as opinions, i.e., being uncomfortable with Plaintiff’s behavior, does not immunize them from being defamatory:
To be libelous, a “ ‘statement must contain a provable falsehood …’ “ and,
to this end, “ ‘courts distinguish between statements of fact and statements of
opinion for purposes of defamation liability.’ “ (Citation omitted.)
Not all statements that appear to be opinions,
however, are immunized. (Citation omitted.)
“In Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17 [111 L.Ed.2d 1, 110 S.Ct.
2695] (Milkovich), the United States Supreme Court moved away from the notion that
defamatory statements categorized as opinion as opposed to fact enjoy wholesale
protection under the First Amendment. Significantly, the court recognized that ‘expressions
of “opinion” may often imply an assertion of objective fact.’ (Milkovich, at p.
18.) The court went on to explain: ‘If a speaker says, “In my opinion John Jones
is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones
told an untruth. Even if the speaker states the facts upon which he bases his opinion,
if those facts are either incorrect or incomplete, or if his assessment of them
is erroneous, the [*427] statement may still imply a false assertion of
fact. Simply couching such statements in terms of opinion does not dispel these
implications … .’ (Id. at pp. 18–19.)” (Citation omitted..)
“Thus a false statement of fact, whether expressly
stated or implied from an expression of opinion, is actionable. (Citation omitted.)
The key is not parsing whether a published statement is fact or opinion, but ‘whether
a reasonable fact finder could conclude the published statement declares or implies
a provably false assertion of fact.’ (Citation omitted.) For example, “an opinion
based on implied, undisclosed facts is actionable if the speaker has no factual
basis for the opinion” but “[a]n opinion is not actionable if it discloses all the
statements of fact on which the opinion is based and those statements are true.”
(Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [37 Cal.Rptr.3d
133 (Ruiz).)
To decide whether a statement expresses or implies
a provably false assertion of fact, courts use a totality of the circumstances test.
(Citation omitted.) “[A] court must put itself in the place of an average reader
and determine the natural and probable effect of the statement … .” (Citation omitted.)
Thus, a court considers both the language of the statement and the context in which
it is made. (Citation omitted.) “The contextual analysis requires that courts examine
the nature and full content of the particular communication, as well as the knowledge
and understanding of the audience targeted by the publication.” (Citation omitted.)
The “ ‘crucial question of whether challenged statements
convey the requisite factual imputation is ordinarily a question of law for the
court.’ “ (Citation omitted.) But if a statement is “ambiguous and cannot be characterized
as factual or nonfactual as a matter of law,” a jury must determine whether the
statement contains an actionable assertion of fact. (Citations omitted.)
(Bently Reserve
LP v. Papaliolios (2013) 218 Cal. App. 4th 418, 426-428 [bold emphasis added].)
In a libel suit, good cause for lifting the discovery stay may exist where the plaintiff is required to show actual malice, provided that it appears reasonably probable that Plaintiff can establish the prima facie elements of a defamation suit, such as false and defamatory publication. (Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1345-46, 1350-51.) As discussed above, it appears reasonably probable that Plaintiff can establish these prima facie elements.
In Lafayette Morehouse, Inc. v. Chronicle Publishing Co.,
a libel action, the court concluded good cause to lift the SLAPP statute’s discovery
ban exists “[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[.]” n9 The court noted plaintiff’s discovery
in a libel suit “is of prime import” because the defendant “will generally be the
principal, if not the only, source of evidence concerning such matters as whether
the defendant knew the statement published was false, or [*1162]
published the statement in reckless disregard of whether the matter was false
and defamatory, or acted negligently in failing to learn whether the matter published
was false and defamatory.” n10 The court’s opinion suggests it would have found
good cause to permit the plaintiff to engage in discovery on the issue of malice
prior to the hearing on defendant’s SLAPP motion had the plaintiff sought such permission.
The plaintiff, however, did not seek to have the discovery ban lifted so Lafayette’s
discussion of good cause for discovery in libel actions is dictum.
We are in general agreement, however, with the Lafayette
court’s analysis of good cause for lifting the ban on discovery while a SLAPP motion
is pending. Surely the fact evidence necessary to establish the plaintiff’s prima facie
case is in the hands of the defendant or a third party goes a long way toward showing
good cause for discovery. But it is not the only factor. The trial court should
consider whether the information the plaintiff
seeks to obtain through formal discovery proceedings is readily available from other
sources or can be obtained through informal discovery. n11 The court should
also consider the plaintiff’s need for discovery
in the context of the issues raised in the SLAPP motion. If, for example, the
defendant contends the plaintiff cannot establish a probability of success on the
merits because its complaint is legally deficient, n12 no amount of discovery will
cure that defect. In a libel case, unless
it appears on the face of the complaint the plaintiff will be required to establish
actual malice, or the defendant makes such a contention in its SLAPP motion,
there is no need for the plaintiff to engage in discovery on that issue in order
to show a reasonable probability of success on the merits. 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.
Turning to the cause before us, we conclude the trial
court abused its discretion in permitting Fashion 21 to depose GWC’s employees Lo
and Lee for six hours on the issue of malice before determining whether there
was a reasonable probability the court would ever reach that issue. Our conclusion
is based on the following considerations. GWC raised a meritorious challenge to
the pleadings, contending the complaint failed to state a cause of action for [*1163]
libel. In addition, there are serious
questions about the falsity of the statements GWC is alleged to have made with
respect to Fashion 21. These questions may be resolvable as a matter of law as they
were in the companion case of Fashion 21 v. Coalition for Humane Immigrant Rights
of Los Angeles. n13
(The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1161-1163 [bold emphasis and underlining added].)
In a defamation lawsuit, the Court must undertake a balancing of several factors against an assertion of the qualified journalist’s privilege:
Mitchell v. Superior Court, supra, 37
Cal. 3d 268, holds that there is a qualified journalist’s privilege in a civil action
to refuse to reveal confidential sources or information obtained from those sources
and that the scope of the privilege depends upon a weighing of five factors.
The first is the nature of the litigation and
whether the reporter is a party. “In general, disclosure is appropriate in civil
cases, especially when the reporter is a party to the litigation.” (37 Cal. 3d at
p. 279.) “A second consideration is the relevance of the information sought to plaintiff’s
cause of action. . . . [M]ere relevance is insufficient to compel discovery; disclosure
should be denied unless the information goes ‘to the heart of the plaintiff’s claim.’
“ ( Id. at p. 280.) Third, discovery should be denied unless the plaintiff
has exhausted all alternative sources of obtaining the needed information. Fourth,
the court should consider the importance of protecting confidentiality in the case
at hand. ( Id. at p. 282.) “Finally, the court may require the plaintiff
to make a prima facie showing that the alleged defamatory statements are false before
requiring disclosure.” ( Id. at p. 283.)
(Anti-Defamation League of B’Nai
B’Rith v. Superior Court (1998) 67 Cal.App.4th 1072, 1080.)
The Court addresses these factors:
1. The
nature of the litigation and whether the reporter is a party.
This
is a defamation lawsuit and the reporters are defendants. This favors disclosure
of the source. (Anti-Defamation League, supra, 67 Cal.App.4th
at 1080.
2. The
relevance of the information sought to plaintiff’s cause of action. . .
As
discussed above, whether there is an actual source of information quoted in the
article goes to the heart of Plaintiff’s claim, that is, the element of actual malice.
This
favors disclosure of the source.
3. Whether
plaintiff has exhausted all alternative sources of obtaining the needed information.
It
does not appear that Plaintiff can obtain the identity of the source other than
from Defendants who know the identity of the anonymous source.
This favors disclosure of the
source.
4.
The importance of protecting confidentiality in the case at hand.
In
this regard, the Court must undertake an analysis as set forth in Glassdoor,
Inc. v. Superior Court (2017) 9 Cal.App.5th 623:
[W] concluded that the plaintiff had to satisfy
two requirements to overcome the defendant’s constitutional right to preserve his
or her anonymity. First, if the defendant has not received notice of the attempt
to lift the shield of anonymity, the plaintiff must make reasonable efforts to provide
such notice. (Id. at p. 1171.) Second, the plaintiff must “make a prima
facie showing that a case for defamation exists” (ibid.; see id. at
p. 1172), by “setting forth evidence that a libelous statement has been made” (id.
at p. 1172, fn. omitted). We described the required quantum of evidence as “‘that
which will support a ruling in favor of [the plaintiff] if no controverting evidence
is presented. [Citations.] It may be slight evidence which creates a reasonable
inference of fact sought to be established but need not eliminate all contrary inferences.
[Citation.]’” (Id. at p. 1172, fn. 14, quoting Evans v. Paye (1995)
32 Cal.App.4th 265, 280, fn. 13 [37 Cal. Rptr. 2d 915].)
Although the present case does not sound in
libel, we see no reason to doubt that the same principles apply. In any action predicated
on anonymous [*635] speech, regardless of
legal theory, the plaintiff should not be able to discover the speaker’s identity
without first making a prima facie showing that the speech in question is actionable.
Here this means a prima facie showing that Doe’s review contained statements that
had the effect of disclosing confidential information, as defined by the nondisclosure
agreement. The showing must be sufficient to “support a ruling in favor of [MZ].”
(Citations omitted.)
. . .
In addition to the requirements laid out in
Krinsky, we believe it is necessary to require that a plaintiff seeking to
discover the identity of an anonymous speaker first clearly specify the statements
claimed to be actionable, state the actionable meanings assertedly conveyed by them,
and set forth, if necessary, evidence sufficient to sustain a finding that the statements
were capable of conveying those meanings. . . .
(Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 634-35 [bold emphasis added].)
Here, Plaintiff has not demonstrated that he has made a reasonable effort to notify the anonymous source of the attempt to lift the shield of anonymity. This seems feasible as notice can be given to every cast or crew member who was on the set of Megalopolis, and that individual knows he or she provided the statements to Variety. However, as discussed below, the Court is not ordering that the shield of anonymity be lifted at this time. As such, efforts to notify the anonymous source are not required at this time. The Court does note that if the source signed a non-disclosure agreement, this would favor disclosure, as the source knowingly breached such agreement, and thus was aware of the risk of speaking to Variety.
As discussed above, Plaintiff has made a prima facie case that a cause of action for libel exists, and the specific statements attributed to the anonymous source are capable of conveying a defamatory meaning. (Glassdoor, Inc., supra, 9 Cal.App.5th at 634-35.)
5. Whether plaintiff has made a prima facie showing that the alleged defamatory statements are false.
As discussed above, at least some of the statements attributed to the anonymous source may be proven false, and Plaintiff disputes the truth of those statements regarding hugging and kissing topless actresses.
17. These days, especially in Hollywood, making baseless allegations of sexual harassment can be devasting to the accused’s career. At no time on the set of Megalopolis did I ever hug or kiss an actress who was topless. The videotape publicized by Variety in its article of July 26, 2024, confirms that, despite Variety’s knowingly false statements to the contrary.
(Coppola Declaration, ¶ 17.)
Plaintiff also implicitly denies that he had created a hostile/sexually harassing work environment, indicating that he “attempted to motivate people and create a mood [that] was vivacious.” (Coppola Declaration, ¶ 13.)
Moreover,
Plaintiff disputes that his appearances in scenes ruined the day’s shoot, which
may be a provable false fact:
11. When shooting a motion picture, I often use multiple cameras. On my latest picture, Megalopolis, for the scene reported on by Variety, I used four cameras simultaneously. Three of the cameras were hand-held and the camera crews moved around the action to obtain a variety of perspectives. Because of the number of cameras and the length of the shots (up to 13 minutes per take), at various times I or some members of the camera crews and assistant directors appeared in some of the shots. That was to be expected and unavoidable. Those appearances most certainly did not “ruin” the shots. Over the years, I have often used what others consider “mistakes” in filming to achieve success artistically. Indeed, in my film Apocalypse Now, there is a scene in which I appear directing some of the ongoing action. That was not a “mistake,” and it did not “ruin” the scene. It became iconic.
(Coppola Declaration,
¶ 11.)
This favors disclosure of the source.
The Court finds that the above factors favor disclosure of the source.
b. [7:1105] Limits
on allowable discovery: If discovery is allowed,
it will be limited to the issues raised by the anti-SLAPP motion; i.e., matters that may help plaintiff
establish a “reasonable probability of prevailing” on the claim, rather than merely
matters to impeach defendant’s credibility. [See Sipple v. Foundation for Nat’l Progress (1999) 71 CA4th 226, 247, 83 CR2d 677, 690]
(Weil and Brown, Civil Procedure Before Trial, The Rutter Group, §7:1105.)
Here, the limited issue for which discovery will be allowed is the existence of the source(s) quoted in the article. To that end, the source(s) may be identified as “Source One, Source Two,” etc., with identity kept confidential at this stage. Plaintiff will be permitted to propound written discovery upon Defendants to ascertain whether the source actually exists, that the source actually worked on the set of Megalopolis such that the source would have witnessed the information the article attributes to the source, and the statements attributed to the source. For instance, Plaintiff may propound interrogatories which asks that the source describe certain things about the set: schedules, circumstances, events that occurred, names of persons in charge on set, specific things Plaintiff might have said on the set, i.e., things only a person who was on the set would know.
Although the discovery will be propounded upon Defendants, not the source(s), Defendants have an obligation to “make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.” (Civ. Proc. Code, § 2030.220(c).) If the responses to those limited written discovery requests are sufficient to prove that the source is an actual person who was a witness to the facts recited in the statements, and not a fabricated source, then Plaintiff will have the information he needs to address whether he can demonstrate actual malice on the part of Variety in order to oppose the anti-SLAPP motion. The Court notes that, if the discovery responses reveal that the source is a person who actually was on the set and witnessed the facts that form the basis for the source’s statements, then it is likely Plaintiff will not be able to demonstrate a reasonable probability of prevailing on his claim due to the absence of actual malice. After obtaining statements from the source, Defendants did not have an obligation to conduct a full-scale investigation by interviewing crew members to ascertain whether the source’s statement was accurate or false, i.e., whether or not the shots were ruined or whether or not there was a hostile/sexually harassing work environment. On the other hand, a fabricated source would suggest actual malice.
As such, the motion to lift the stay to conduct limited discovery is GRANTED IN PART as set forth in the Court’s ruling. The hearing on Defendants’ anti-SLAPP motion is CONTINUED to February 14, 2024 at 8:30 a.m. This will give Plaintiff sufficient time to conduct the limited discovery and prepare an opposition based on the discovery responses.
Opposition
and reply are due pursuant to code relative to the continued hearing date.