Judge: Gail Killefer, Case: 24STCV17141, Date: 2024-12-03 Tentative Ruling

Case Number: 24STCV17141    Hearing Date: December 3, 2024    Dept: 37

HEARING DATE:                 Tuesday, December 3, 2024

CASE NUMBER:                   24STCV17141

CASE NAME:                        Nomi Abadi v. Daniel Elfman

MOVING PARTY:                 Defendant Daniel Elfman

OPPOSING PARTY:             Plaintiff Nomi Abadi

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike

OPPOSITION:                        18 November 2024

REPLY:                                  22 November 2024

TENTATIVE:                         Defendant Elfman’s motion to strike the Complaint is granted as to lines 20 to 22 of Paragraph 61 without leave to amend and is otherwise denied.

Background

On July 10, 2024, Nomi Abadi (“Plaintiff”) filed a Complaint against Daniel Elfman (“Defendant”) and Does 1 to 10, alleging a single cause of action for defamation per se. The Complaint alleges that famed film and music composer, Defendant Elfman, defamed Plaintiff in a July 29, 2023, Rolling Stone article in which Defendant painted Plaintiff as a spurned lover who retaliated against Defendant by making false sexual misconduct allegations against him.

Defendant Elfman has filed a motion to strike several allegations in Plaintiff’s Complaint. Plaintiff opposes the Motion. The matter is now before the court.

REQUEST FOR JUDICIAL NOTICE

The court notes that “ ‘[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting the interpretation of its meaning.’ [Citation.] While courts take judicial notice of public records, they do not take judicial notice of the truth of matters stated therein. [Citation.] ‘When judicial notice is taken of a document,…the truthfulness and proper interpretation of the document are disputable.’ [Citation.]” (Herrera v. Deutsche National Trust Co. (2011) 196 Cal.App.4th 1366, 1375

Defendant Elfman seeks judicial notice of the following:

Exhibit 1: An article by Rolling Stone, dated July 10, 2024, entitled “Danny Elfman Sexual Misconduct Accuser Sues Film Composer for Defamation” which is available at https://www.rollingstone.com/music/music-news/danny-elfman-sued-for-defamation-over-sexualabuse-denial-1235056742/#.

Exhibit 2: An article by Rolling Stone, dated July 19, 2023, entitled “Danny Elfman Settled a Sexual-Harassment Allegation for $830,000” which is available at https://www.rollingstone.com/music/music-features/danny-elfman-nomi-abadi-sexual-harassmentallegation-1234791842/#.

The court grants Defendant Elfman’s request for judicial notice of Exhibit 2 because it is the publication at issue in the Complaint and while the truthfulness of the statements is disputed, the contents of the publication are not disputed. The court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

The court fails to see the relevance of Exhibit 1 and denies the request for judicial notice as to Exhibit 1. “Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.” (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.) 

MOtion to strike[1]

I.         Legal Standard

A.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

B.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Discussion

The Complaint alleges that Defendant Elfman engaged in sexual misconduct against Plaintiff and that he destroyed Plaintiff’s credibility, reputation, and career by denying the allegations in a July 19, 2023, Rolling Stone article entitled “Danny Elfman Settled a Sexual-Harassment Allegation for $830,000.” (Compl, ¶¶ 3, 4, 10, 25, 70; RJN Ex. 2.)

In the Rolling Stone article,  Defendant Elfman alleged that Plaintiff’s allegations were “ ‘vicious and wholly false’ ”, the “ ‘intention was to break up [his] marriage and replace [his] wife,’ ” and as a spurned lover, Plaintiff  retaliated via “fabricated sexual harassment allegations to make him ‘pay for rejecting her,’ and that ‘[Defendant has] ‘done nothing indecent or wrong.’ ” (Compl., ¶ 11; RJN Ex. 2 at pp. 3-4.) Defendant Elman moves to strike various allegations in Plaintiff’s Complaint on the basis that the allegations are irrelevant, false, and improver and not essential to a claim or defense. (CCP, §§ 436; 431.10(b)(1).)

The specific allegations Defendant Elfman seeks to strike are the following:

• Paragraph 3:7-10: ““Defendant Daniel Elfman (“Elfman”) peddled appalling lies for publication to Rolling Stone about Nomi, who had previously, truthfully relayed facts corroborating his penchant to sexually abuse women. Why? As part of a harebrained ‘zero sum’ scheme by Elfman to prop up his checkered reputation by destroying Nomi’s credibility.”
• Paragraph 10:8-9: “ – fearful that Elfman’s career would be finished if the public knew the truth about his own perversions –”
• Paragraph 42:17-19: “Initially, Elfman feigned embarrassment about his nudity, but reiterated to Nomi that nudity was an essential part of his writing routine and enhanced his creativity.”
• Paragraph 53:24-27: “Each time Elfman masturbated in front of Nomi, he increased the gravity of his tone to make Nomi keep his misbehavior a secret, sometimes towering over Nomi and pointing a finger in her face while he made his demands. Nomi was intimidated and petrified and obliged.”
• Paragraph 54:2-4: “Nomi tried every way to protect herself from Elfman and establish boundaries while trying to resume the professional relationship they had started out with when Elfman, Nomi’s childhood musical hero, first invited her to his studio.”
• Paragraph 55:8-11: “All her efforts to wear more layers of clothing, to stop wearing makeup, to appear as professionally as possible, to be less friendly, to make fewer jokes, to try to focus all conversations on music and scoring and visiting less frequently and for shorter durations of time, were futile in thwarting Elfman’s conduct.”
• Paragraph 56:13-16: “On at least one occasion, while he and Nomi were talking in his studio compound living room, Elfman interrupted Nomi and told her to ‘keep looking at him like that.’ Nomi did not know what Elfman meant but realized that he was masturbating. Nomi was not only blindsided, but mortified and humiliated.”
• Paragraph 59:2-5: “Nomi felt uncomfortable with Elfman’s nudity and scared when he masturbated in front of her and coerced her into taking nude photos she did not want to take, forcing her hand on herself when she showed no sexual desire toward Elfman, and felt ashamed each time Elfman would manage to gain, break, regain her trust, and betray her again.”
• Paragraph 61:17-22: “Nomi felt disgusted, belittled, isolated, and scared. A visibly upset Elfman hastily placed the glass of semen ejaculate back in his refrigerator. Nomi recalls the air in the room being tense and unsafe. Elfman opened up his laptop and made a comment about Donald Trump to break the silence. When Nomi responded by expressing her support for Bernie Sanders, Elfman told Nomi that ‘We can’t have a Jew running our country.’ Nomi was stunned and pushed back on Elfman’s antisemitic comment.”
• Entirety of Paragraphs 18-19, 35, 37-40, 43-44, 46-47, 50-51, 58, and 62.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259 (Jackson) [internal citation omitted].) “In general, leaving aside certain qualifications that are not relevant in this case, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)

The Complaint alleges that Defendant Elfman’s denial of Plaintiff’s allegations and characterization of Plaintiff as a spurned lover who retaliated against him by making false allegations ruined her professional reputation as a composer and musician and harmed her future job opportunities and career prospects of working in the film composing industry. (Compl., ¶¶ 3, 4, 25, 28.) Per the Rolling Stone article, Defendant Elfman is attributed as having stated that Plaintiff’s sexual misconduct accusations were “vicious and wholly false” and that he and his lawyers “stand ready to prove with voluminous evidence that these accusations are false.” (RJN Ex. 2, pp. 3-4.) The court finds that the nature of the sexual relationship between Plaintiff and Defendant Elfman, as well as the specific sexual misconduct allegations Plaintiff made about Defendant Elfman, are relevant to this action and it is not improper for Plaintiff to reiterate and elaborate on them in her Complaint. “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

While Defendant’s Motion seeks to strike allegations about Defendant Elfman masturbating in front of Plaintiff, exposing himself, taking nude photos of Plaintiff, and presenting Plaintiff with a martini glass that contained semen, those allegations are repeated in the Rolling Stone article and the truthfulness of those allegations remains disputed. (See RJN Ex. 2 at pp. 8-10.)

The trier of fact determines whether Plaintiff’s allegations were truthful. Moreover, Plaintiff as a public figure or semi-public figure must prove that Defendant Elfman acted with malice when asserting that Plaintiff’s sexual misconduct allegations were wholly false. “Where, as here, the plaintiff is a limited public figure, he must prove both that the challenged statement is false, and that the defendant made the libelous statement with ‘actual malice.’ ” (Edward v. Ellis (2021) 72 Cal.App.5th 780, 790.) “ ‘If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence ..., that the libelous statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” (Jackson, supra, 10 Cal.App.5th at p. 1260 [internal citations omitted].)

Plaintiff asserts that the Complaint’s detailed allegations of sexual misconduct show that Defendant Elfman knew his statements to Rolling Stone were false and contradicted Plaintiff’s sexual misconduct allegations against Defendant. Plaintiff maintains that striking Plaintiff’s Complaint would render the Complaint defective as it would fail to show the falsity of Defendant Elfman’s statements. Plaintiff further asserts that allegations are an effort to prove actual malice by circumstantial evidence. (See Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 978; Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.)

According to the Rolling Stone article “Elfman painted their relationship as platonic, claiming that Abadi had attempted to pursue Elfman romantically and retaliated against him after he spurned her advances.” (RJN, Ex. 2 at p. 3) However, Plaintiff’s Complaint illustrates her relationship with Defendant Elfman as her being “groomed, coerced, and manipulated.” (Compl., ¶ 35.) The nature of Plaintiff and Defendant Elman’s relationship—whether it was consensual or the product of coercion—remains a disputed issue of fact. Moreover, the nature of their relationship is relevant to assessing whether Elfman’s statements to Rolling Stone were knowingly false and made with actual malice or were made up by Plaintiff with the intent to retaliate and exhort money from Defendant Elfman, as alluded to by Elfman in the Rolling Stone article. Matters essential to a cause of action should not be stricken and it is error to do so. (See Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d. 227, 242.) “ ‘Where a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety.’ ”  (Triodyne, Inc. v. Superior Court for Los Angeles County (1966) 240 Cal.App.2d 536, 542 [internal citation omitted].)

Accordingly, the court denies the motion to strike Plaintiff’s Complaint as Plaintiff’s characterization of her relationship with Defendant Elfman and his alleged sexual misconduct toward her are relevant to proving Plaintiff’s defamation claim. However, the court agrees that Paragraph 61, lines 20-22 alleging that Defendant Elfman made an antisemitic comment, is irrelevant and entirely superfluous to Plaintiff’s defamation claim. Therefore, the court grants the request to strike lines 20 to 22 from Paragraph 61 of the Complaint. Defendant Elman’s motion to strike is otherwise denied.

Conclusion

Defendant Elfman’s motion to strike the Complaint is granted as to lines 20 to 22 of Paragraph 61 without leave to amend and is otherwise denied.