Judge: H. Jay Ford, III, Case: 22SMCV01309, Date: 2022-10-25 Tentative Ruling

Case Number: 22SMCV01309    Hearing Date: October 25, 2022    Dept: O

  Case Name:  Kang v. Varughese, et al.

SUBJECT:                MOTION FOR SPECIFIED DISCOVERY UNDER CCP §425.16(g)

MOVING PARTY:   Plaintiff Grace Kang

RESP. PARTY:         Defendant Jason Varughese

TENTATIVE RULING

            Plaintiff Grace King’s Motion for Specified Discovery under CCP §425.16(g) is GRANTED.  Plaintiff is granted leave to conduct the specific discovery identified in the proposed order received 9-9-2022.

A court may grant a continuance of an anti-SLAPP motion to allow discovery for good cause. (§ 425.16, subd. (g).) (§ 425.16, subd. (g).) “To establish good cause, the plaintiff must file a noticed motion identifying the specific discovery sought and showing this discovery is needed to establish a prima facie case and tailored to that end.”  Murray v. Tran (2020) 55 Cal.App.5th 10, 37. 

            Plaintiff establishes good cause to conduct the requested discovery in connection with the IIED cause of action.  The elements of an IIED cause of action are:  (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  See Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (plaintiff alleged outrageous conduct based on three racially offensive statements made by defendant’s employee before 50 of plaintiff’s coworkers and 3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct).

Plaintiff alleges that Defendant engaged in extreme and outrageous conduct by falsely stating to the parenting class instructor that Plaintiff made false allegations of child abuse against her.  See Complaint, ¶27.  Plaintiff alleges Defendant made these false allegations to his parenting class instructor, who he knew was a mandatory reporter.  Id. at ¶¶28-29.  Plaintiff alleges Defendant made these statements with malicious intent.  Id. at ¶30.  Plaintiff alleges that she suffered severe emotional distress as a result of Defendant’s conduct and the investigations.  Id. at ¶¶43 and 53.

In support of these allegations, Plaintiff submits her declaration.  Plaintiff testifies that she suffered severe emotional distress due to the LAPD and DCFS investigation.  See Dec. of G. Kang, ¶8.  Plaintiff testifies that Defendant’s family law attorney notified her that Defendant’s parenting class instructor had filed a child abuse report against her.  Id. at ¶7.  Plaintiff testifies that the child did not have any bruises or abrasions on his face when Defendant picked him up at Plaintiff’s home on June 4, 2022.  Id. at ¶4.  Plaintiff also denies that she ever abused, hit, spanked or yelled at the child.  Id. at ¶6.    

Plaintiff’s evidence satisfies the low threshold applicable to the 2^nd step of SLAPP as to the element of severe emotional distress.  On the 2^nd step of SLAPP, “probability of prevailing” means a “reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply a “summary judgment like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant's evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law.”  Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444. 

“Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we 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.  Only a cause of action that lacks ‘even minimal merit’ constitutes SLAPP.”  See Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.

However, Plaintiff’s evidence of Defendant’s “extreme and outrageous” conduct is limited to what Defendant’s family law attorney said to her about the parenting instructor’s child abuse report.  The “extreme and outrageous” element of Plaintiff’s IIED claim is based on Defendant’s knowingly false statements to the parenting instructor that Plaintiff had abused the child.  According to Plaintiff, Defendant made those statements to the instructor knowing that the instructor would have to report the incident as a mandatory reporter.  The instructor’s state of mind when the instructor filed the complaint, whether the instructor filed the complaint based on Defendant’s statements and the substance of Defendant’s statements are facts necessary to establish both the “extreme and outrageous conduct” and causation elements of the IIED claim. 

Without the requested discovery, Plaintiff has no way of knowing precisely what Defendant told the parenting instructor or the instructor’s reasons for reporting the incident.  See The Garment Workers Ctr. v. Superior Ct. (2004) 117 Cal. App. 4th 1156, 1162 (“Surely the fact evidence necessary to establish the plaintiff’s prima facie case is in the hands of the defendant or a third party goes a long way toward showing good cause for discovery.”)  Plaintiff would be unable to establish either the “extreme and outrageous conduct” or causation element.  The requested discovery is not sought to “test” Defendant’s evidence but to obtain substantive, affirmative evidence of these elements.  As such, Plaintiff has established “paradigmatic good cause” for discovery pursuant to CCP §425.16(g).  See e.g. Wilson, supra, 7 Cal.5th at 891–892 (“Where a defendant relies on motive evidence in support of an anti-SLAPP motion, a plaintiff's request for discovery concerning the asserted motive may often present paradigmatic ‘good cause.’”). Plaintiff’s motion is GRANTED.