Judge: Frank M. Tavelman, Case: 24NNCV04097, Date: 2024-12-06 Tentative Ruling

Case Number: 24NNCV04097    Hearing Date: December 6, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

SPECIAL MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Justin Best, Anthe Best, and BxB Studios LLC (Plaintiffs) bring this action against Liang-Chun Lin (Defendant). Plaintiffs allege that Defendant was informally contracted to work as Assistant Director on Plaintiffs’ indie horror film project ‘Sheryl’. Plaintiffs allege that Defendant was let go from the project because she could not timely meet the job’s demands. Defendant disputes this, claiming she worked a substantial amount on the film but was never paid for her efforts. Plaintiffs allege that Defendant then commenced a campaign of libelous social media posts, defaming Plaintiffs as unethical. Plaintiffs also allege that Defendant contacted several film festival officials resulting in the cancellation of several screenings.

Plaintiffs’ Complaint states causes of action for (1) Defamation, (2) Intentional Interference with Prospective Economic Advantage, and (3) Injunctive Relief.

Before the Court is a special motion to strike Plaintiffs’ Complaint as a Strategic Lawsuit Against Public Participation (SLAPP). Such motions, commonly dubbed anti-SLAPP motions, are made pursuant to C.C.P. § 425.16. Defendant argues that Plaintiffs’ claims against her arise from constitutionally protected speech as her social media posts were aimed at bringing awareness to the abuse of Asian filmworkers, especially women, by movie studios. Defendant further argues that Plaintiffs have not shown their claims are prima facie valid. Plaintiffs oppose the motion and Defendant replies.

ANALYSIS: 

I.                LEGAL STANDARD 

C.C.P. § 425.16 provides a two-step test in determining whether a cause of action constitutes a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; C.C.P. § 425.16(b)(1).)

First, the defendant must make the “threshold showing” that the challenged cause of action arises from “protected speech or petition activity.” (Id.) “[T]he statutory phrase cause of action...arising from means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) This step is satisfied if the defendant shows that the challenged claims arise from one of the four protected activities provided under C.C.P. § 425.16(e).

Second, “[i]f the court finds the defendant has met this threshold burden, it then determines whether the plaintiff has demonstrated a probability of prevailing on the merits of the plaintiff's claim.” (Navellier supra, 29 Cal.4th at 88-89.) To meet this second step, the plaintiff must demonstrate: (1) “that the complaint is both legally sufficient” and (2) “supported by a…prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Id. at 89.)

In analyzing the second step, the court considers “the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (C.C.P. § 425.16(b).) “Looking at those affidavits, [the courts] do not weigh credibility, nor...evaluate the weight of the evidence. Instead [the courts] accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) “Only a cause of action that satisfies both prongs...is a SLAPP, subject to being stricken under the statute.” (Navellier supra, at 88-89.)

II.              MERITS

The Court begins by acknowledging that its analysis must necessarily deviate from typical procedure in analyzing an anti-SLAPP motion. As stated above, C.C.P. § 425.16 provides a two-step procedure by which courts analyze the merits of an anti-SLAPP motion. First, the court determines whether Defendant has carried their burden to demonstrate the challenged claims arise from protected activity. This step is referred to as a “threshold showing” and is usually conducted first because failure to demonstrate protected activity results in automatic denial. If protected activity is shown, the court engages in the second step of determining whether plaintiff has shown a probability of prevailing. The move from first step to second step involves the explicit shift of the burden of proof from the moving party to the plaintiff.

This case presents somewhat of an anomaly in that the first and second steps of the analysis are not so cleanly separable. As will be explained at length below, Plaintiffs’ Complaint suffers from deficiencies which inherently limit Defendant’s ability to demonstrate her alleged conduct arises from protected speech. Plaintiffs’ allegations as to the supposed defamatory statements of Defendant are impermissibly vague. As such, whether Defendant has carried her initial burden would appear to be limited in scope by the pleadings. It is unclear whether a determination of the first prong is even possible where a Complaint alleging defamation is insufficiently pleaded. Regardless, a claim is not subject to an anti-SLAPP motion to strike except where both prongs have been satisfied. As such, the Court is required to determine whether Defendant has carried her burden within the scope of Plaintiffs’ Complaint.

First Prong

Defendant argues that her speech is protected by virtue of C.C.P. § 425.16(e)(3)-(4). These sections read as follows:

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: 

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest

C.C.P. § 425.16(e)(4) is commonly referred to as the Anti-SLAPP statute’s “catchall” provision, extending the protections of speech to “other conduct” in furtherance of the right to free speech. In other words, it allows actions like protesting to be protected the same as if they were written or oral statements. C.C.P. § 425.16(e)(3) and (4) both require that the activity be made in connection with an issue of public interest. C.C.P. § 425.16(e)(4) varies slightly in that it also includes conduct “in connection with a public issue…” In practice the phrases “public issue” and “issue of public interest” appear to refer to the same concept. (Dubac v. Itkoff (2024) 101 Cal.App.5th 540, 548.)

The California Supreme Court has articulated a two-step test for determining whether speech implicates a public issue such that it is protected under the anti-SLAPP statute. First, the court must determine what public issue the challenged activity implicates. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149.) Second, the court must determine whether the challenged activity contributes to public discussion of any such issue. (Id.) If the answer to the second question is yes, then the protections of the anti-SLAPP statute are triggered, and the plaintiff in the underlying lawsuit must establish a probability of prevailing before the action may proceed. (Id.)

As will be explained further in the Court’s analysis of the second prong, Plaintiffs’ allegations of defamatory statements are fatally unclear. Plaintiffs’ Complaint contains vague allegations that Defendant utilized social media for the purpose of defaming them. The Court analyses Defendant’s threshold showing in the context of these general allegations.

Defendant states that she intended her statements to address her “fellow members of the film community, including cast members, film festivals, Asian film festivals, Asian filmmakers, and those who attended the screening of Plaintiffs’ film.” (Id at ¶ 11.) The content and context of Defendant’s Exhibit A, a public Facebook post, appear to comport with her stated intention.

Defendant’s post states, “I've known at least 5 Asian ladies were terribly abused by them back in 2022, and more were reached out to. I need that number to stop.” (Lin Decl. Exh. A.) Defendant goes on to write, “So here I am, leaving my words on some platforms for people to find when they search for some clues.” (Id.) These statements indicate to the Court that Defendant was at least in some part motivated by a desire to bring public attention to the abuse of women Asian filmmakers.

Further, the Court notes that this Facebook post is accompanied by a globe icon. The Court understands this to mean that Defendant’s post was not restricted in any way and was intended to be viewed by the public. This understanding is reinforced by Defendant’s use of hashtags at the end of the post. Hashtags are generally used to help other social media users find particular content when searched. It would make little sense for Defendant to use hashtags such as “#AsianFilmFestival” and “#AsianFilmmakers” if her speech was not directed at bringing public attention to these issues.

In short, Defendant has satisfied her burden within the context of the Complaint. Plaintiffs have generally alleged (1) that Defendant made defamatory comments on social media, and (2) that Defendant’s defamatory comments interfered with prospective economic advantage. Defendant has demonstrated that both these claims relate arise from protected speech under C.C.P. § 425.16(e)(4). As such, Plaintiffs bear the burden to demonstrate a probability of prevailing.

Second Prong

By their very nature, anti-SLAPP motions occur at an extremely early stage of litigation. This occasionally draws anti-SLAPP motions into conflict with another type of motion that commonly occurs at early stages of litigation, demurrers. Just like demurrers, anti-SLAPP motions can implicate issues with the sufficiency of the pleadings. This is because the second prong of the anti-SLAPP determination is itself split into two considerations: (1) that the Complaint is legally sufficient (i.e. it is properly pled), and (2) that the Complaint is supported by a sufficient prima facie showing of facts. (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017.)

Courts have been long divided on what to do when the Complaint to which an anti-SLAPP motion is directed is insufficiently pled. Unlike the statute governing demurrers, C.C.P. § 425.16 contains no provision for amendment. This lack of a statutory remedy has meant that courts construe amendment to be generally unavailable once an anti-SLAPP motion has been filed. (See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (Simmons).)

The Simmons court explained that allowing amendment, “…would completely undermine the statute by providing the pleader a ready escape from section 425.16's quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Id.) Such a result "would totally frustrate the Legislature's objective of providing a quick and inexpensive method of unmasking and dismissing" meritless claims arising from protected activity. (Id at 1074.) As one court has put it, “[t]here is no such thing as granting an anti-SLAPP motion with leave to amend.” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676.)

The flip side of the Simmons rule against amendment is that the pleading party may face a situation in which an otherwise meritorious claim is stricken as the result of poor drafting. Case law on how to mitigate such concerns is unclear, but the Court will endeavor to review those cases which appear relevant to the instant motion.

In Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam), the court distinguished case law holding that anti-SLAPP motions may not be granted with leave to amend. (Id. at 870-871.) The defendant in Nguyen-Lam showed that the plaintiff's slander claim arose from protected activity. (Id. at 865-866.) The trial court concluded that the complaint was deficient because it failed to sufficiently allege the legal element that the defendant acted with actual malice. (Id. at 865-866.) However, the evidence submitted with the plaintiff's opposition brief showed actual malice. (Id. at pp. 865-866, 868-869.) The court found that when, "the evidence prompting amendment is found in the declarations already submitted for the hearing, there is no risk the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs." (Id. at 872.)

In other words, Nguyen-Lam allowed amendment because the plaintiff submitted evidence that would allow the court to properly rule on the claims outlined in her pleading. The amendment to sufficiently plead malice had no bearing on the movant’s showing of protected activity under the first prong. The court noted, “plaintiff's amendment had nothing to do with defendant's assertion his statements were made in connection with his right of petition or free speech. Rather, assuming that showing had been made, and in conjunction with her burden on the second prong to show a probability of prevailing on the merits, plaintiff sought to amend the complaint to plead specifically that defendant harbored the requisite actual malice as shown by the evidence presented for the hearing on the strike motion.” (Id. at 870.) An amendment under those circumstances did not implicate the "'procedural quagmire'" with which prior case law was concerned. (Id. at 872, quoting Simmons, supra, 92 Cal.App.4th at 1073.)

Courts have been reticent to extend leave to amend beyond the narrow circumstances of Nguyen-Lam. In Medical Marijuana, Inc. v. ProjectCBD.com, the Fourth District Court of Appeal reviewed the denial of an anti-SLAPP motion challenging a libel cause of action premised on asserted inaccuracies in a 25-page article. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 885 (Medical Marijuana).) The allegations of the operative Complaint identified two such misstatements. (Id.) On appeal, plaintiffs sought to amend their claim to identify another 19 purported inaccuracies in the article that were not alleged in the Complaint. (Id. at p. 892.) The plaintiffs argued that it was unnecessary to plead each challenged statement because the entire article was attached to the pleading. (Id. at 894.)

The Medical Marijuana court rejected this argument, emphasizing that a libel charge requires a verbatim recitation of the allegedly offensive communication, and that no matter the theory of defamation, a plaintiff is required to allege the substance of the defamatory statement. (Id. at 893.) The court found that plaintiffs had not “quoted, identified, mentioned or otherwise referenced” the 19 statements in the allegations of their complaint, nor had they “even highlighted, underlined, or otherwise identified” them in the copy of the article attached as an exhibit to the Complaint. (Id. at 892, fn. 14.) The Medical Marijuana court concluded that, because the boundaries of the issues to be considered on an anti-SLAPP motion are delimited by the pleadings, plaintiffs could not rely on the 19 newly identified statements to establish a probability of prevailing on their libel claim. (Id. at p. 895.)

Returning to the case at hand, the Court finds the facts here are much more akin to those in Medical Marijuana than in Nguyen-Lam. Here, Plaintiffs’ pleadings are far too vague to sufficiently state a cause of action for defamation. Plaintiffs’ Complaint contains the following allegations:

·       Defendant changed tactics to cyber stalking plaintiffs and reaching out to plaintiffs’ contacts via social media. (Compl. p. 1.)

·       The producer/creator of HorrorHound received unsolicited social media communications for defendant, again with defaming claims. (Compl. p. 3.)

·       Defendant embarked on friend requesting/following plaintiffs friends, family, cast members and media members for the sole purpose of harassing, cyberstalking the plaintiffs and directly defaming plaintiffs to anyone who would accept her social media invitation. (Compl. p. 3.)

·       Defendant has continued to slander, libel and defame plaintiffs in social media posts, communications to others in the film industry. (Compl. p. 4.)

Despite the interchangeable use of the words “slander” “libel” and “defamation” in the Complaint, each of these words has distinct legal meaning. Slander and libel are commonly understood to be two forms of defamation, one oral and the other written. (See Cal. Civ. Code §§ 45, 46.) Here, Plaintiffs do not allege any spoken defamation in their Complaint. As such, Plaintiffs’ cause of action for “Defamation at Common Law and Pursuant to Civ. Code § 46(3)(5)” is more appropriately categorized as a cause of action for defamation sounding in libel.

This above distinction is important because, “[t]he general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.) Here, Plaintiffs have only pled libel in general and amorphous terms. Plaintiffs do not identify what statements were made by Defendant on social media, or otherwise, which qualify as libelous. Are these statements libelous in their entirety? If so, what language renders them so? If not, what parts of the statements are libelous? The result is that Defendant is left with only a vague notion as to the claims against which she must defend. These pleadings are undoubtedly legally insufficient. (See Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 387 ["To plead and prove any libel, the plaintiff of course must state facts sufficient to make the defamatory meaning apparent to the triers of law and fact.”].)

The fact that Plaintiffs have subsequently identified some of these allegedly libelous statements in their evidentiary submissions does not afford them leave to amend. Unlike the plaintiff in Nguyen-Lam, Plaintiffs have not properly alleged the substance of any alleged defamatory statements. The fact that Plaintiffs have now submitted supposed evidence of the statements has no effect on the parameters of the claims in their Complaint. Permitting Plaintiffs to avoid this anti-SLAPP motion by amending their Complaint would create the exact type of moving target the Simmons court disapproved of.

Additionally, unlike the proposed amendment in Nguyen-Lam, Plaintiffs proposed amendment very much concerns the first prong of the anti-SLAPP analysis. Because Plaintiffs have failed to allege the substance of the allegedly defamatory comments, Defendant’s ability to show these claims arise from protected speech are at the mercy of Plaintiffs amendment. As a result, Defendant would be required to bring yet another anti-SLAPP motion to address why the newly alleged statements qualify as protected speech. Simmons, Medical Marijuana, and even Nguyen-Lam are clear that such a result in unacceptable.

Further, Medical Marijuana makes clear that the Court cannot insert these allegations on Plaintiffs’ behalf. “It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.” (Medical Marijuana supra at 885 [internal quotation marks and citations omitted].) In other words, it is not the role of the Court to determine the substance of Plaintiffs’ allegations and thereby determine the boundaries of the claims which they state.

Plaintiffs’ second cause of action for intentional interference with prospective economic advantage is also insufficiently pled. The elements of such a claim include “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404 [citations, brackets, and quotation marks omitted].) Further, “the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Id. [citation, ellipsis, and quotation marks omitted].)

Here, Plaintiffs allege the following with respect to this cause of action:

When Defendant discovered an economic relationship, such as Plaintiffs had with LATSFF, DisOrient and the promotional podcasts, Defendant took intentional acts to disrupt the relationship. These acts include direct messaging through email and social media with liabelist, defaming untrue statement regarding the character, reputation of the Plaintiffs.

(Compl. p. 5.)

These allegations are deficient under the standard enumerated above. First, the “economic relationship” which Defendant allegedly disrupted is not alleged with any specificity. It in fact appears that Plaintiffs are alleging there were multiple relationships disrupted, yet they lump each of these together in a singular sentence. Second, Plaintiffs’ allegation that Defendant took “intentional acts” to disrupt those relationships is exceedingly vague. It is unclear whether these intentional acts refer to Defendant’s social media posts, her contacts with the prospective business partner, or something else altogether.

Even Plaintiffs appear unclear on this issue. In their opposition Plaintiffs state Defendant, “made defamatory statements about the Bests to two notable film festivals with the knowledge that they were set to premiere the subject film.” (Oppo. p. 14.) In the very next sentence Plaintiffs state, “…as a result of Ms. Lin’s online campaign against the Bests and their subject film, the film festivals retracted their decision to show the subject film to their audiences.” (Id.) It is entirely unclear whether Plaintiffs are alleging Defendant’s interference resulted from her social media posts, the alleged letters she sent to the film festivals, or both. 

Finally, Plaintiffs’ third cause of action for injunctive relief is also deficiently pled. “There are no separate causes of action for specific performance or injunctive relief, which are instead remedies.” (Green Valley Landowners Ass'n v. City of Vallejo (2015) 241 Cal.App.4th 425, fn. 8, citing Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2 [specific performance and injunctive relief are equitable remedies and not causes of action for injuries].)

In conclusion, each cause of action in Plaintiffs’ Complaint is insufficiently pled. It follows that because of these deficiencies, Plaintiffs cannot uphold their burden to demonstrate a reasonable probability of success as required by C.C.P. § 425.16. Although upon demurrer Plaintiffs would be entitled to amend their complaint, the anti-SLAPP statute (and the case law interpreting it) makes clear that amendment would be improper here. Plaintiffs’ proposed amendment would result in a substantial changes to the Complaint far beyond the minor changes contemplated in Nguyen-Lam.

Accordingly, the special motion to strike is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Liang-Chun Lin’s Special Motion to Strike came on regularly for hearing on December 6, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE SPECIAL MOTION TO STRIKE IS GRANTED AND PLAINTIFFS’ COMPLAINT IS HEREBY STRUCK.

DEFENDANT TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE:  December 6, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles