Judge: Curtis A. Kin, Case: 22STCV09441, Date: 2022-08-16 Tentative Ruling

Case Number: 22STCV09441    Hearing Date: August 16, 2022    Dept: 72

MOTION TO LIFT AUTOMATIC DISCOVERY STAY AND ALLOW PLAINTIFF TO CONDUCT DISCOVERY

Date:               8/16/22 (8:30 AM)

Case:               Edward H. Livingston, M.D. v. American Medical Assn. (22STCV09441)

TENTATIVE RULING:

Plaintiff Edward H. Livingston, M.D.’s Motion to Lift Automatic Discovery Stay and Allow Plaintiff to Conduct Discovery to Enable Plaintiff to Oppose Defendant’s Anti-SLAPP Motion is DENIED.

CCP § 425.16(g) states: “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.” “In the anti-SLAPP context, ‘good cause’ requires ‘a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.’ [Citation.]” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692.)

On June 27, 2022, defendant filed an anti-SLAPP motion, set to be heard on October 13, 2022.

Plaintiff Edward H. Livingston, M.D. seeks leave to conduct depositions of the individuals who submitted declarations in support of defendant American Medical Association’s special motion to strike and propound discovery seeking production of documents concerning plaintiff’s podcast and termination of employment.

Plaintiff fails to demonstrate good cause for the requested discovery. Defendant’s anti-SLAPP motion poses no factual disputes for which plaintiff would need the requested discovery.

With respect to the wrongful termination claim, plaintiff alleges that his termination violated the First and Fourteenth Amendments of the United States Constitution and Article 1, Sections 1, 2, 3, 7, and 26 of the California Constitution. (FAC ¶ 23.) Whether plaintiff can assert policy based on violations of the First or Fourteenth Amendments of the United States Constitution or the cited provisions in the California Constitution depends on whether defendant is a governmental or private actor, not on the motivations of the declarants or basis for the termination of plaintiff’s employment. (Manhattan Community Access Corporation v. Halleck (2019) 139 S.Ct. 1921, 1926 [“The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors”]; Shelley v. Kraemer (1948) 334 U.S. 1, 13 [Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful”]; Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1031 [“[A]rticle I, section 2, subdivision (a) only protects against state action”]; Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 431 [“The threshold question in this case as in any due process case, federal or state [citation] is whether the challenged conduct involves state action”].)

With respect to plaintiff’s asserted right to privacy, this is also a question of law that does not require the discovery sought by plaintiff. (Mezger v. Bick (2021) 66 Cal.App.5th 76, 87.) Plaintiff’s assertion that he seeks to obtain evidence of malice or to “test the memory and recollection of communications” between the declarants does not pertain to any privacy interest of plaintiff. (Motion at 13:18-28.)

With respect to the libel and slander causes of action, defendant’s special motion to strike is based on the assertion that the defamatory statements as pled are either time-barred, insufficiently pled, or nonactionable opinions. (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 [statements of opinion are constitutionally protected, but opinions implying a false assertion of fact are not].) These arguments can be addressed based on the allegations of the First Amended Complaint and evidence concerning the date of publication and words in the referenced statements. Defendant concedes that actual malice, which plaintiff’s discovery could address, is not at issue in the special motion to strike. (Opp. at 7:6-9 [“At issue is whether the offending statements constitute protected opinion or provably false statements of fact, i.e., this Court will conduct a Milkovich v. Lorain Journal analysis (opinion) and not a New York Times v. Sullivan analysis (actual malice) in ruling on Defendant’s anti-SLAPP Motion”].)

The other causes of action – intentional infliction of emotional distress, false light invasion of privacy, and public disclosure of private facts – are derivative of the libel, slander, and wrongful termination causes of action. (FAC ¶¶ 77, 78, 84, 117.) Accordingly, because plaintiff’s requested discovery is not necessary to oppose the special motion to strike as to the libel, slander, and wrongful termination causes of action, the requested discovery is likewise unnecessary for the other causes of action. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 34 [causes of action based on failed defamation claim also fail].)

The motion is DENIED.