Judge: Deborah C. Servino, Case: 30-2021-01233236, Date: 2022-12-16 Tentative Ruling
Defendants/Cross-Complainants Golden Dipper Corporation dba Niko Niko Sushi, Michael Kim, and Leslie Kim’s motion to lift the discovery stay imposed under Code of Civil Procedure section 415.16, subdivision (g), is denied.
Procedural Background
Plaintiff/Cross-Defendant Ser Won Lee initiated this lawsuit by filing his Complaint for wrongful termination. (ROA 2.) Defendants/Cross-Complainants filed an Answer and Cross-Complaint. (ROA 17 & 39.) The Cross-Complaint asserts two causes of action against Lee: intentional interference with prospective economic advantage and intentional interference with contractual relations. These causes of action are based on allegations of (1) misconduct by Lee when a sushi chef at Niko Niko such that he caused two other sushi chefs to quit, and (2) the filing of his Complaint in this action with lies about Defendants/Cross-Complainants. (Cross-Complaint, at ¶¶ 2-16, 19, 22, 26.)
Lee then filed a special motion to strike the Cross-Complaint under Code of Civil Procedure section 425.16. Lee contends his filing of the Complaint is protected speech under Code of Civil Procedure section 425.16, subdivision (e)(1), and Defendants/Cross-Complainants cannot show a likelihood of prevailing on their interference claims based on his filing of his Complaint.
Applicable Law
Code of Civil Procedure section 425.16, subdivision (g) provides that once a special motion to strike is filed, there is a stay of all discovery “in the action.” The purpose of the discovery stay is to protect the defendant who should not be dragged into further litigation until the plaintiff (or cross-complainant) makes a prima facie showing of the probable validity of the plaintiff’s claim. (Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1348; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:1096.5.) “[T]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Code Civ. Proc., § 425.16, subd. (g).)
Good cause may exist to overcome the stay “[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”. (Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1161.) Given the purpose of the anti-SLAPP statute, a showing of the relevancy of the evidence sought is not enough to show good cause. (Paterno v. Superior Court, supra, 163 Cal.App.4th at p. 1348.) The evidence sought must also be necessary in terms of the anti-SLAPP motion. (Garment Workers Center v. Superior Court, supra, 117 Cal.App.4th at pp. 1161-1162.) The showing should include some explanation of what additional facts the plaintiff expects to uncover. Discovery may not be obtained merely to “test” the opponent's declarations. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.) Courts should refrain from ordering “unnecessary, expensive and burdensome” discovery proceedings “if it appears from the SLAPP motion there are significant issues . . . which the plaintiff should be able to establish without discovery. . . .” (Paterno v. Superior Court, supra, 163 Cal. App. 4th at p. 1349.)
Merits
For purposes of the second step of the anti-SLAPP analysis, and thus for the current analysis of relevant and necessary evidence, only the protected activity is considered. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395; Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 778.) Here, the special motion to strike contends that the protected speech is the Complaint. (See Special Motion to Strike, at pp. 5-6.) To the extent Defendants/Cross-Complainants premise their interference claims on Lee’s Complaint and the allegations in it, the claims must fail because the Complaint is privileged.
Civil Code section 47, subdivision (b) provides an absolute privilege to statements made in litigation. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) As a general rule, this absolute privilege bars tort claims arising out of litigation conduct except for malicious prosecution and, possibly, certain abuse of process claims. (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-44 [finding litigation privilege barred emotional distress claim and probably abuse of process claim, but also distinguishing latter from malicious prosecution claim and finding no action for abuse of process based on alleged filing or maintenance of meritless suit].)
Because Defendants/Cross-Complainants’ interference claims based on Lee’s Complaint must fail on privilege grounds, evidence as to the truth of the allegations in the Complaint is not relevant or necessary. Defendants/Cross-Complainants thus have not shown good cause for discovery into whether the allegations of the Complaint are false. (See Paterno v. Superior Court, supra, 163 Cal.App.4th at p. 1349 [finding defamation plaintiff cannot show good cause for discovery on actual malice without making a prima facie showing of provably false factual assertions].) Defendants/Cross-Complainants have not shown good cause for discovery. They also have not shown that the evidence sought is necessary.
Here, Defendants/Cross-Complainants seek to depose approximately nine witnesses and obtain written discovery from Lee and Lee’s deposition. (Song Decl., at ¶¶ 4-6, 10.) While counsel provides some indication of what information he seeks from the witnesses, he lumps all the witnesses in together without explanation why all of them would be necessary. (Song Decl., at ¶ 2.) The discovery sought is sweeping. Defendants/Cross-Complainants have not explained why they need the discovery. Indeed, from counsel’s declaration it appears most of the identified witnesses would provide declarations without the need for discovery. (Song Decl., at ¶ 5.) Such extensive discovery would subvert the intent of the anti-SLAPP legislation. (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 247.) Accordingly, the motion is denied.
Defendants/Cross-Complainants’ request for statement of decision is denied. (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 294.)
Plaintiff shall give notice of this ruling.