Judge Holly J. Fujie, Case Number: 23STCV27119, Date: 2024-04-16 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On November 3, 2023, Plaintiff OneTaste filed the instant Complaint against Defendant Netflix and DOES 1 to 100, inclusive, alleging a single cause of action for Defamation Per Se. On March 4, 2024, Defendant filed this instant special motion to strike (Anti-SLAPP) (the “Motion”). On April 3, 2024, Plaintiff filed an opposition to the Motion. On April 9, 2024, Defendant filed a reply to the opposition.

In support of its motion, Defendant has filed the declarations of Rachel R. Goldberg (the “Goldberg Declaration”), Zana Lawrence (the “Laurence Declaration”), and Sarah Gibson (the “Gibson Declaration”), with accompanying exhibits. Plaintiff objects to portions of these declarations and make general objections. The Court rules as follows:

OVERRULED: Objections 1-6 as to the Lawrence Declaration; Objection to the entirety of the Gibson Declaration; Objections 1-2 as to Goldberg Declaration; Objections 1-3 of the general objections

In support of its opposition, Plaintiff filed the declaration of Kevin Williams (the “Williams Declaration”), with accompanying exhibits. Defendant objects to portions of the Williams Declaration and certain exhibits. The Court rules as follows:

Defendant request that the Court take judicial notice of Exhibits A, C-D, DD-EE, and E-Z attached to the Goldberg Declaration.

Plaintiff requests that the Court take judicial notice of (1) Gaprindashvili v. Netflix, Inc. (C.D. Cal. Jan. 27, 2022) Case No. 2:21-cv-07408-VAPSKx, 2022 WL 363537; (2) Fairstein v. Netflix, Inc. (S.D.N.Y. Sept. 19, 2023) 20-cv-8042 (PKC), 2023 WL 6125631; and (3) Hill v. DocShop Prods., Inc., LASC 19STCV27884, 2022 WL 1078173.

The requests for judicial notice are GRANTED pursuant to Evidence Code Sections 452, subdivision (d), (g), (h) and 45, but not to the truth of the matters stated therein.

Under Code of Civil Procedure, Section 425.16, subdivision (b), “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

Such a motion involves a two-step analysis, in which the court must first determine whether a movant “has made a threshold showing that the challenged cause of action is one arising from protected activity ...” (Taus v. Loftus (2007) 40 Cal.4th 683, 712 (quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67).) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus, supra, 40 Cal.4th at p. 712.) In determining whether the respondent has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Under Code of Civil Procedure, Section 425.16, subdivision (f), “The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).)

The Court finds that Defendant’s Motion is timely. Although the Complaint was filed on November 3, 2023, Defendant was not served with the summons and complaint until January 2, 2024. (POS filed on 1/8/24.). Defendant filed this instant Anti-SLAPP motion on March 4, 2024, which is forty-two (42) days after service of the summons and complaint excluding weekends and public holidays. Thus, Defendant’s Anti-SLAPP Motion is timely and will be considered on the merits.

Defendant moves to specially strike Plaintiff’s Complaint on the grounds that: (1) Plaintiff’s cause of action arises from Defendant’s conduct in furtherance of the exercise of free speech about a matter of public interest, thus its falls within the scope of California Code of Civil Procedure Section 425.16; and (2) Plaintiff cannot meet its burden of establishing the probability of prevailing on the defamation claims against Defendant for the documentary entitled Orgasm Inc.: The Story of OneTaste (the “Documentary” or the “Film”) as a matter of law and cannot show that Defendant acted with actual malice in distributing it.

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (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.” (Code Civ. Proc., § 425.16, subd. (e).)

Defendant contends that distributing a documentary film is unquestionably conduct in furtherance of the exercise of free speech. (Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1036.) This Court agrees.

The Complaint alleges that Defendant Netflix “released the film Orgasm Inc: The Story of OneTaste (the “Film”)” on November 5, 2022. (Compl. ¶ 1.) The Complaint further alleges that this action arises from “the final 15 minutes or so of the Film before the end credits, which contain the false statements of fact that OneTaste condones violence against women and that a woman was raped and beaten in connection with her employment at OneTaste and participation in its classes and events.” (Compl. ¶¶ 2, 29-54.) The Complaint also alleges that “Netflix’s unprivileged publication of false statements of fact charging OneTaste ‘with crime’ and ‘imputing something with reference to’ OneTaste’s ‘business that has a natural tendency to lessen its profits’ or ‘which, by natural consequences, causes actual damage” is defamatory on its face, otherwise known as ‘defamation per se’ under California Civil Code Section 46.” (Compl. ¶ 3.)

Additionally, the Complaint alleges that “OneTaste has suffered and continues to suffer actual damages on an ongoing basis in that the Film is the most widely disseminated information publicly available about OneTaste, and OneTaste believes the Film’s defamatory statements have deterred and will continue to deter people from participating in OneTaste’s classes and events and has impacted OneTaste’s ability to bring its teachings to as many customers as possible at affordable prices. Meanwhile, OneTaste does not have the public platform or resources necessary to combat the defamatory statements, while Netflix, compared to OneTaste, has substantial resources to publish and promote the defamatory statements on its own platform.” (Compl. ¶¶ 4-6.)

“The mere fact that a plaintiff has filed an action after a defendant has engaged in some protected activity does not mean that the plaintiff's action arose from that activity. The anti-SLAPP statute cannot be read to mean that any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.” Gallimore v. State Farm Fire & Casualty Ins. Co. (2002), 102 Cal.App.4th 1388, 1398 (internal citations and quotations omitted).)

This is not the case here. Plaintiff’s claim in the Complaint arises directly from Defendant’s distribution of the Documentary and the statements contained therein. As such, these allegations are not merely incidental to unprotected conduct, if any, alleged in the Complaint. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 (“where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”); Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414 (“if the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.”)

The Court finds that Defendant has made a prima facie showing that the sole claim in the Complaint arises from protected speech or activity and that the Anti-SLAPP statute does apply. The Court now turns to whether Plaintiff has a reasonable probability of prevailing on the claim in the Complaint.

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “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.) In other words, the court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup v, Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

Defendant argues that none of the allegedly false statements are actionable because they are opinions, protected by privilege, and not “of and concerning” Plaintiff. Defendant further argues that OneTaste is a public figure and that the Complaint fails to plead and Defendant cannot show that Defendant acted with actual malice in publishing any statement at issue.

Specifically, Defendant contends that the first statement: “It was only a way to condone violence” comes from the journal of Ayries Blanck (“Ayries”)[1], read aloud by her sister Autumyn, which in context states: “I was told that sometimes our soulmates must do violent things to help us grow. It was only a way to condone violence.” This statement is plainly an expression of Ayries’ opinion about Plaintiff’s teachings. (Goldberg Decl. ¶, Ex. B at 1.) Defendant also contends this statement was written after leaving Plaintiff and is a journal entry outlining Ayries’ own version of what took place.

Defendant also asserts that the second statement: “that thing about them finding some strangers to rape her” was spoken by Audrey Wright during a telephone call with an FBI agent investigating potential criminal activity involving Plaintiff and was thus absolutely privileged under Civil Code Section 47, subdivision (d), which provides that: “…a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued” is a privileged publication.

With regard to the third and fourth statements, i.e., “the sexual assaults and the beatings,” Defendant argues that they are taken from an exchange between the interviewer and Autumyn after she reads one of Ayries’ journal entries describing her physical and emotional distress and the interviewer asks whether “this is your sister’s body reacting to the sexual assault and the beatings,” to which Autumyn replied affirmatively.

Thus, Defendant asserts that these phrases read in context cannot form the basis of a viable defamation claim because whether Ayries’ sexual encounters with unnamed parties constituted sexual assault or whether her then-boyfriend beat her are not assertions of and concerning Plaintiff. Additionally, Defendant asserts that the interviewer and Autumyn are plainly speculating about the link between Ayries’ physical symptoms and her experiences as described in the same scene, which is not provably false.

Similarly, Defendant argues that the fifth statement: “If you or someone you know has experienced sexual violence” is an on-screen text, appearing just before the credits that reads in full “If you or someone you know has experienced sexual violence, information and resources are available at www.wannatalkaboutit.com.” (Compl. ¶ 53; Ex. A at 01:26:05.) Defendant argues this statement is also not actionable because it addresses viewers who may have experienced sexual violence or know someone who has, and it is not defamatory to direct viewers to a website for information and resources about sexual assault.

In general, Defendant asserts that: 1) it did not publish any of the statements with actual malice, i.e., actual knowledge that they were false or with reckless disregard of whether it was false or not; and 2) Plaintiff is at least a limited public figure because: (1) it has been the willing subject of extensive media coverage for promoting “Orgasmic Meditation” as a form of wellness; (2) it has appeared in Gwyneth Paltrow’s influential Goop podcast; (3) its founder, former CEO and leader Nicole Daedone (“Daedone”) published a book about its teachings, gave a TEDx Talk seen by millions of people online and held live events attended by thousands of people; (3) it was the subject of an active FBI investigation. Defendant therefore asserts that because Plaintiff is a public figure, it is required to prove that Defendant acted with actual malice in order to prevail on its claim against Defendant. (Goldberg Decl. ¶¶ 7-8, Exs. E-Z; Compl. ¶ 1.)

Lastly, Defendant argues that: 1) its reliance on highly reputable new sources reporting in line with the account of Ayries’ experiences with Plaintiff also reflects a lack of actual malice; 2) Plaintiff’s pre-release letters to Defendant did not create the requisite knowledge of falsity; and 3) Plaintiff was contacted for comment and its denials were included in the Documentary.

Civil Code Section 46 states in pertinent part, “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage.”

In opposition, Plaintiff argues that its philosophy and teachings are not at issue in this case. Plaintiff also argues that Defendant had all the unedited video lectures from which it created evidence it now relies on. Plaintiff further argues that the unedited videos confirm that Daedone’s teachings do not condone violence or rape. As such, Plaintiff contend that Defendant cannot fabricate a statement or witness to support the argument it could have believed the statements were true. Moreover, Plaintiff contends that no one who worked on the Documentary provides testimony about what happened or why. In addition, Plaintiff asserts that Defendant knew the statements were false because there are three versions of Ayries’ story explaining why she left Plaintiff and only Louisa West’s version is spoken by Ayries and to a close friend, closest in time to the events, and closest to the reasons people leave jobs corroborated by prior December 2014 statements. (Exs. 16-17.) Likewise, Plaintiff asserts that the Documentary only exists as a vehicle to create the impression it was asserting objective facts. Finally, Plaintiff argues that Defendant was not reporting a suspected criminal activity when it filmed the scene with Audrey making a report to the FBI and Audrey is not being sued for making a false report to the FBI.

In reply, Defendant argues that Plaintiff has conceded that its suit is subject to the Anti-SLAPP statute and that Plaintiff cannot provide any factual allegations, let alone evidence, that any of the statements are false, i.e., that Ayries did not have these experiences. Defendant argues that it has provided more than sufficient evidence to show that the statements are true, including Ayries’ journals and reputable outlets’ published reporting.

Defendant contends that Plaintiff has admitted that it is a public figure and that the Documentary concerns matters of public interest. (Opp. at 8, 11.) Moreover, Defendant contends Plaintiff fails to show that each statement is actionable and false but only dismissively asserts that all the statements were presented as fact. Defendant argues that Plaintiff cites no legal authority to support that contention and identifies no specific context refuting Defendant’s position that any of the statements are opinion. Similarly, Defendant argues that Plaintiff erroneously asserts that Defendant conceded each statement is false because it did not devote the Motion to proving each is true, thus misrepresenting the legal standard.

Viewing the evidence in the light most favorable to Plaintiff, the Court presumes that Plaintiff’s founder and leader Daedone does not condone violence of any kind. The Court further presumes Ayries provided prior statements that suggest she left Plaintiff for a reason other than what is shown in the Documentary. The Court also presumes that certain interviewers featured in the Documentary were paid to be featured.

The Court therefore finds that Plaintiff proffers no evidence to support its sole cause of action for defamation per se. The evidence submitted by Plaintiff consists of hearsay statements offered for the truth of the matter asserted, irrelevant statements that do not relate to the issue at hand, and other lawsuits that are not pertinent to the case at hand. Furthermore, the evidence presented by Plaintiff does not indicate that the statements from Ayries’ journal were in fact false. In fact, Plaintiff proffers no testimony from Ayries, other employees, Autumyn, or anyone else contesting that the statements in Ayries’ purported journal were not written by her or recanting the content of the journal. Further, Plaintiff presents no evidence that Defendant knew the statements were false. Even if the statements were provably false, Plaintiff presents insufficient evidence to support the contention that Defendant acted with actual malice. Thus, Plaintiff has not established its sole claim for defamation per se has minimal merit to avoid being stricken as a SLAPP.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The Court refers to Ayries Blanck and her sister Autumyn by their first names because they apparently share a last name and for clarity, and the Court does not intend any disrespect in doing so.