Judge: Colin Leis, Case: 23STCV22114, Date: 2024-08-22 Tentative Ruling
Case Number: 23STCV22114 Hearing Date: August 22, 2024 Dept: 74
Kiarostami
v. Mahdavi et al.
Defendants Pardis Mahdavi and Hachette Book Group, Inc.’s
Joined Special Motions to Strike Plaintiff’s First Amended Complaint (CCP §
425.16)
BACKGROUND
Plaintiff Ahmad Kiarostami
(“Plaintiff”) sued defendants Pardis Mahdavi (“Mahdavi”) and Hachette Book
Group, Inc. (“Hachette”) (together “Defendants”) on September 13, 2023, and
filed his operative first amended complaint (“FAC”) on September 19, 2023. The
FAC asserts a single cause of action for defamation.
Plaintiff and Mahdavi were married
from 2008 to 2012. After their divorce, Mahdavi wrote a book entitled This
Goes Out to the Underground: A Mother, Her Daughter, and How We All Rise Together
(“the Book”). Plaintiff is a central antagonist in the Book, which paints a
bleak picture of the marriage and Plaintiff’s treatment of their young daughter.
Among other things, Mahdavi describes her fear during their divorce that
Plaintiff would abscond, or had absconded, to Iran with their daughter. Mahdavi
also claims Plaintiff assaulted Mahdavi and took their daughter from Mahdavi against
Mahdavi’s will in April 2012.
Hachette published advance copies of
Mahdavi’s Book in December 2021 and distributed them among media outlets, book
reviewers, and social media influencers. Sometime in July or August 2022,
Plaintiff discovered the book would be published. It took him some time to
obtain a copy, and he did so in October 2022. He discovered at that time that
the book contained what he alleges are defamatory statements about him. Eleven
months after he obtained the book, in September 2023, he sued.
On November 1, 2023, Hachette
specially moved to strike Plaintiff’s FAC pursuant to Code of Civil Procedure
section 425.16, California’s “anti-SLAPP” law. On November 27, 2023, Mahdavi
filed a separate motion on the same basis. On December 19 and December 22,
2023, respectively, the parties filed “Joinders” in each other’s motions to
strike. The Court grants Defendants’ requests to join each other’s motions and
considers each motion jointly failed by both defendants.
EVIDENTIARY MATTERS
Judicial
Notice
Hachette
requests judicial notice of a number of publicly available articles, Web
postings, etc., related to the Book, to demonstrate information about the book
was available in the public realm. The Court grants the request to the extent
the material was published, but does not take notice of the truth of any of the
materials’ contents.
Evidentiary
Objections
Plaintiff’s
and Hachette’s objections are sustained in their entirety on the grounds cited.
Mahdavi asserted no objections.
LEGAL STANDARD
Code of
Civil Procedure section 425.16 permits a defendant to specially move to strike
a cause of action that arises from certain conduct privileged under the law. Under
section 425.16, a party may move to strike a cause of action that arises 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.
A
court must employ a two-step process to determine whether an action is a
strategic lawsuit against public participation. Courts first decide whether
moving parties have made a prima facie showing that the attacked claims arise
from a protected activity, including defendants’ right of petition or free speech.
(See e.g. Healy v. Tuscany Hills Landscape & Recreation Corp.,
(2006) 137 Cal.App.4th 1, 5; Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 278; Code Civ. Proc., § 425.16(e).) Moving parties have
the initial burden to demonstrate that a cause of action is subject to a
special motion to strike. (Martinez v. Metabolife Inter. Ins.
(2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino
(2001) 89 Cal.App.4th 294, 304.)
If the
defendant makes a threshold showing that the challenged cause of action is one
arising from protected activity, the burden shifts to the plaintiff to
establish a likelihood of prevailing on the complaint. (See § 425.16.)
If the plaintiff fails to do so, then the defendant who successfully
establishes the defendant has been subjected to a SLAPP may move to strike the
complaint.
DISCUSSION
First
Prong: Application of Section 425.16
In
determining whether to grant or deny an anti-SLAPP motion, the court engages in
a two-step process. (Park v. Board of Trustees of California State
University¿(2017) 2 Cal.5th 1057, 1061.) First, the court must decide
whether the moving party has met the threshold burden of showing that the
plaintiff’s cause of action arises from the moving party’s constitutional
rights of free speech or petition for redress of grievances. (See ibid.)
This burden may be met by showing the act underlying the plaintiff’s cause of
action fall within one of the four categories of conduct set forth in Code of
Civil Procedure Section 425.16, subdivision (e)
Defendants
published a book. Publication of a book falls squarely in the ambit of section
425.16, subdivisions (e)(3) and (e)(4). And “Plaintiff does not dispute that
the publication of the Book is conduct within the scope of CCP § 425.16(e)(4).”
(Opp., 5:22-24.) The first prong is satisfied.
Second
Prong: Likelihood of Prevailing
It falls to Plaintiff to prove
he has a legally sufficient claim and to prove with admissible evidence a
probability of prevailing on the claim. (De Havilland v. FX Networks, LLC¿(2018)
21 Cal.App.5th 845, 855.) The plaintiff’s proof must be made upon competent
admissible evidence. (Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 940.) The court “does not weigh evidence or
resolve conflicting factual claims.” (Ibid.) The 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” accepting
the plaintiff’s evidence as true. (Ibid.)
“The court 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.’” (Id.; see
also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
1. Statute of Limitations
Hachette contends the FAC is
time-barred on its face. Plaintiff sued in September 2023. But he alleges
Defendants initially defamed him “ ‘beginning around early 2022’ ” when
Defendants first circulated advance copies of the Book, or at the latest in “
‘the summer of 2022’ ”. (MPA, 15:17-24, quoting Compl., ¶¶ 5, 27.) A
defamation action must be filed within one year of its accrual. (See Code Civ.
Proc., § 340(c).) If Plaintiff’s claims accrued in or earlier than summer 2022,
then they were time-barred when he filed in September 2023.
a.
The Single Publication Rule
Hachette began distributing the Book
to select recipients in the final month of 2021. Hachette argues the
limitations period runs from the first distribution of the Book to select
groups. Hachette cites California’s
“single-publication rule”:
“No person shall have more than one cause of action
for damages for libel or slander or invasion of privacy or any other tort
founded upon any single publication or exhibition or utterance, such as any one
issue of a newspaper or book or magazine or any one presentation to an audience
or any one broadcast over radio or television or any one exhibition of a motion
picture.”
(Civ. Code,
§ 3452.3.)
The single-publication rule
expressly applies to book publication. (Ibid.) The statute displaces the
common law rule that characterized each sale of a book as a separate
publication, which “ ‘had the potential to subject the publishers of books and
newspapers to lawsuits stating hundreds, thousands, or even millions of causes
of action for a single issue of a periodical or edition of a book.’ ” (Hebrew
Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 892 (Hebrew
Academy), quoting Shively v. Bozanich (2003) 31 Cal.4th 1230,
1243-1244 (Shively).)
The
single publication rule prevents plaintiffs from litigating stale claims; if
not for the rule, a cause of action might be revived in perpetuity each time the
publisher sells a book, no matter how long ago the book was published. (See Christoff
v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 478 [“ ‘The statute of
limitations could be tolled indefinitely, perhaps forever, under [the common
law] approach.’ ”] (Christoff), quoting Shively, supra, 31
Cal.4th at p. 1244.)
Plaintiff contends an “advance copy”
does not trigger the single publication rule because it is not “ the ‘first
general distribution of the publication to the public.’ ” (Opp., 6:11, quoting Hebrew
Academy, supra, 42 Cal.4th at p. 891.) He cites Hebrew Academy
and Strick v. Superior Court (1983) 143 Cal.App.3d 916 (Strick).
Hachette cites Hebrew Academy, however, for a different rule: “ ‘written publications
that receive an extremely limited distribution’ ” do not trigger the rule.
In Hebrew Academy, the plaintiff/academy
and its founder, Rabbi Pinchas Lipner, sued a different community organization
and an affiliated individual, Richard N. Goldman, for statements Goldman made during
an oral history project. (Hebrew Academy, supra, 42 Cal.4th at
pp. 887-888.) Goldman made his statements during an interview “ ‘conducted
in 1992, copyrighted for publication, and published in 1993’ ”; not until
a researcher found a transcript of the interview in 2001 did Lipner discover the
statements and sue. (Id., at p. 889.) Relying on Shively,
supra, the Supreme Court ruled “the single-publication rule applie[d] in
[that] case, even though the transcript of the oral history at issue was
published with only limited circulation”, that is, to a relatively small group
of specialized libraries. (Id., at p. 893.)
In Strick, the parties
disputed the publication date of an allegedly defamatory magazine article. The
discussion focused on when precisely the magazines were delivered to newsstands
for distribution. Sustaining summary judgment on statute of limitations
grounds, the Court of Appeal ruled that “publication of an integrated issue of
a mass media writing occurs upon the first general distribution of the
material to the public”, and an action begins to run on “the earliest
date on which the allegedly defamatory information is ‘substantially and
effectively communicated to a meaningful mass of readers’ ... .” (Strick,
supra, 143 Cal.App.3d, at p. 922, emphasis added.)
Hachette
argues that before September 2022, advance copies of the Book were available
(1) through NetGalley, an online system that permits public access via
registration; (2) to people on a Hachette mailing list limited to readers with
1,000 or more followers on social media; and (3) to 50 winners of a giveaway
contest through Goodreads, which took public entries through a public website.
(MPA, 17:15-22.) According to Hachette, “resellers made the Book available
for purchase online, and by August 2022 at least one university library had a
copy available in its stacks[.]” (Id., 17:22-24.)
On
these facts, although Hachette’s first distribution of the Book was limited, it
still reached a meaningful portion of the public, and it was available for the
public to access by several means. Unless Plaintiff demonstrates a likelihood
that this is not the case, he cannot show a likelihood of overcoming Hachette’s
statute of limitations defense.
Plaintiff’s
testimony about the operation of NetGalley and Goodreads has been excluded
because it lacks foundation. He and a friend attest they searched high and low
for the book when they discovered it was going to be published in July 2022,
and it was not until October 2022 they were able to purchase a copy, which was
labeled “Not for Sale”. (Kiarostami Decl., ¶¶ 41-45.)
But
Hachette’s evidence in support of its motion, admitted into the record without
objection, shows the book was readily available before September 2022. The
Declaration of Zoë McKinney and judicially-noticed material demonstrate that
numerous scholars and critics received the book before its full release, and in
fact published an impressive volume of reviews. (McKinney Decl., ¶¶ 3-5 and
Exs. H-L.) In particular, and crucially, McKinney produces documentary evidence
that an Arizona library received the book as early as August 18, 2022. (Id.,
Ex. K.)
Defendant’s
evidence establishes the book was in reasonably wide circulation before
September 2022. Plaintiff has not shown a likelihood that he can overcome
Defendants’ statute of limitations defense.
b. The Discovery Rule
Plaintiff argues the discovery rule should
save him from the statute of limitations even if the single-publication rule
applies. It does not.
“[A] limitations period … runs from
the moment a claim accrues. [Citations.] Traditionally at common law, a ‘cause
of action accrues “when [it] is complete with all of its elements” – those
elements being wrongdoing, harm, and causation.’ [Citations.] This is the ‘last
element’ accrual rule: ordinarily, the statute of limitations runs from ‘the
occurrence of the last element essential to the cause of action.’ [Citations.]”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191-1192.)
But “[t]o align the actual
application of the limitations defense more closely with the policy goals
animating it, the courts and the Legislature have over time developed a handful
of equitable exceptions to and modifications of the usual rules governing
limitations periods.” (Aryeh, supra, 55 Cal.4th at p. 1192.) The
“‘most important’ [such doctrine] is the discovery rule.” (Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 397, citation omitted.) The discovery rule
“postpones accrual of a cause of action until the plaintiff discovers, or has
reason to discovery, the cause of action. [Citations.]” (Ibid.)
Plaintiff contends he did not
discover, and had no reason to discover, his cause of action until October
2022, when he was first able to purchase the book, so the statute did not begin
to run until then. But the discovery rule and the single-publication rule are
almost mutually exclusive. The discovery rule only applies concurrently with
the single-publication rule where an allegedly defamatory claim is made in an
inherently secretive manner. (Hebrew Academy, supra, at p. 878; Shively,
supra, at p. 1250.) The record here shows no secrecy inherent in the
Book’s distribution. Quite the contrary. The discovery rule does not apply.
Because plaintiff does not show a
likelihood of overcoming defendants’ statute of limitations defense, the court
need not reach defendants’ other contentions.
CONCLUSION
The court grants the motion to
strike plaintiff’s first amended complaint.
Recovery of attorney’s fees shall be
by noticed motion.
Defendants shall file and serve a
proposed judgment.