Judge Katherine Chilton, Case 22STCP03790 2023-03-29 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP03790, Date: 2023-03-29 Tentative Ruling

Case Number: 22STCP03790 Hearing Date: March 29, 2023 Dept: 25

PROCEEDINGS: PETITION TO COMPEL COMPLIANCE WITH SUBPOENA

MOVING PARTY: Petitioner Miami New Times, LLC

RESP. PARTY: Respondent Erik Laibe

PETITION TO COMPEL COMPLIANCE WITH SUBPOENA

(CCP § 2029.100 et seq.)

TENTATIVE RULING:

Petition to Compel Compliance with Subpoena, pursuant to Code of Civil Procedure § 2029.600, filed by Petitioner Miami New Times, LLC, is GRANTED. Respondent Erik Laibe is ordered to submit materials requested through the Subpoena.

The Court further orders Petitioner Miami New Times, LLC to exclusively utilize the information obtained through the Subpoena for the purpose of defending itself in the underlying litigation initiated by Plaintiff Ehrlich against Petitioner Miami New Times, LLC.

Petitioner’s request for monetary sanctions is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 14, 2023. [ ] Late [ ] None

REPLY: Filed on March 21, 2023. [ ] Late [ ] None

ANALYSIS:

I. Background

On October 17, 2022, Petitioner Miami New Times, LLC (“Petitioner”) filed a Petition to Compel Compliance of Respondent Erik Laibe (“Respondent”) with Subpoena (“Petition”).

On October 19, 2022, Scott D. Ponce, Esq. filed an Application to Appear as Counsel Pro Hac Vice for Petitioner Miami New Times, LLC, in association with Counsel of Record Lydia L. Lockett, Esq. The Court granted Counsel Ponce’s Application on March 15, 2023. (3-15-23 Minute Order.)

On October 26, 2022, the Court denied Petitioner’s Ex Parte Application for Order Shortening Time for Notice and Advancing Hearing Dates on Petition. (10-26-22 Minute Order.)

On December 28, 2022, attorneys for Petitioner filed Notices of Remote Appearance throughout the case.

On February 14, 2023, Petitioner filed a Reply Brief in Support of Petition.

On March 14, 2023, Respondent, in propria persona filed an Opposition.

On March 21, 2023, Petitioner filed a Reply to the Opposition.

On March 28, 2023, the Court on its own motion, continued the hearing on the Petition to March 29, 2023. (3-28-23 Minute Order.)

II. Legal Standard

Under the California Interstate and International Depositions and Discovery Act (Code Civ. Proc., §§ 2029.100–2029.700) ( “Act”), a party to a proceeding in another state or foreign nation may obtain discovery in California. The party may (1) request the superior court in the county where the discovery is sought to issue a subpoena or (2) hire a local attorney to issue the subpoena. (Code Civ. Proc., §§ 2029.300(a)-(b), 2029.350(a).)

If a dispute arises relating to the subpoena, the party may file a petition with the superior court seeking a court order to enforce the subpoena. (Code of Civ. Proc., § 2029.600(a).) California statutes and court rules governing subpoenas and sanctions apply to the dispute. (Code of Civ. Proc. § 2029.500.)

Under Code of Civil Procedure section 1987.1(a) (emphasis added):

If a subpoena requires … the production of … documents, [or] electronically stored information …, the court, upon motion reasonably made by any person [including a party] … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.

The court may also “make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Civ. Code Proc. § 1987.1(a).)

III. Discussion

A. Petition to Compel Compliance with Subpoena

Petitioner Miami New Times seeks an order compelling Respondent Laibe to produce all documents in response to a subpoena issued by New Times and requests monetary sanctions in the amount of $3,700.00. (Pet. p. 3.)

The Petition arises out of an underlying lawsuit in Miami, Florida, in which Petitioner Miami New Times, LLC was sued by Charlie Ehrlich. (Moritz Decl. ¶ 2, Ex. A.) Miami New Times is a publisher of online and print editions of a newspaper in Miami. (Ibid.) During this litigation, New Times issued a subpoena to the Respondent in the instant Petition, Erik Laibe, for documents relevant to the underlying action. (Ibid., Ex. B.) Laibe is a third-party witness who resides in California. (Ibid.) New Times alleges that Laibe entered into an agreement with Ehrlich and “acquired the rights to commercially exploit [Ehrlich’s] life story.” (Ibid. at ¶ 3, Ex. C.) Laibe then wrote a movie script, which includes a scene placing Ehrlich with O.J. Simpson one hour before Nicole Brown Simpson and Ron Goldman were murdered. (Ibid.) New Times published an article reporting on the existence of this script in Hollywood and that the script placed Ehrlich with O.J. Simpson the night of the murders. (Ibid. at ¶ 4.) Subsequently, Ehrlich sued New Times for defamation alleging that the portion of the script is false and was included without his consent. (Ibid. at ¶ 5.)

On September 23, 2022, after several unsuccessful attempts, New Times’s process server personally served Respondent with a Subpoena for Production of Business Records in Action Pending Outside California (“Subpoena”), with a date of production of October 13, 2022. (Ibid. at ¶¶ 5-6, 8, Exs. B, D.) The subpoena seeks materials that will demonstrate “(1) the extent to which Plaintiff participated in, or was otherwise aware of, the creation of the portion of the script that Plaintiff now alleges is defamatory, and (2) whether Mr. Laibe acted independently in writing something about Plaintiff that Plaintiff claims is false and defamatory.” (Ibid. at ¶ 7.) Laibe failed to produce documents in response to the subpoena and informed Petitioner’s counsel that he will likely not produce the documents due to his First Amendment rights and journalistic privilege. (Ibid. at ¶ 9.) He also claimed that the materials are “work product” and are thus, not discoverable. (Ibid. at ¶ 10, Ex. E.) Counsel for New Times sent an email to Laibe explaining that these objections are invalid and requesting confirmation that the documents would be produced by 9:00 a.m. on October 17, 2022. (Ibid at ¶ 11, Ex. F.) However, Laibe has refused to cooperate. (Ibid.)

Petitioner argues that none of Respondent’s objections, asserted orally and via email, shield him from discovery. (Pet. p. 6.) First, Respondent is not shielded by the First Amendment as it “does not provide any immunity or privilege.” (Ibid.) Furthermore, California statutory and constitutional law only shields publishers, editors, reporters, and others employed or connected with a newspaper, magazine, periodical publication, press association or wire service, or radio or television news reporter. (Ibid. at pp. 6-7, citing to Cal. Civ. Code § 1070.) None of these exceptions apply to Laibe as he wrote a movie script. (Ibid.) Second, Laibe is not shielded by California’s work product doctrine as it only applies to an attorney’s or self-represented litigant’s “‘impressions, conclusions, opinions, or legal research or theories” and materials prepared in anticipation of litigation.’” (Ibid. at p. 7, citing to Code of Civ. Proc. §§ 2018.020, 2018, 030.) Thus, this doctrine does not shield Laibe from producing documents sought in the Subpoena. (Ibid. at p. 7.)

Finally, Petitioner seeks monetary sanctions against Respondent for violation and misuse of the discovery process, under Code of Civil Procedure §§ 2023.010, 2023.030, in the amount of $3,700. (Ibid. at pp. 7-8.) Petitioner argues that its process server attempted to serve Laibe with the Subpoena on eight different occasions, thus indicating that “Laibe was attempting to evade service.” (Ibid.; Moritz Decl. ¶ 6, Ex. D.) After the Subpoena was served and Petitioner attempted to resolve any issues through the meet and confer process, Respondent still refused to respond to the Subpoena with the requested documents. (Pet. p. 8.) Petitioner calculates sanctions as follows: attorney’s fees at an hourly rate of $500.00, for 7.4 hours preparing the Petition and supporting documents. (Moritz Decl. ¶ 12.)

B. Respondent’s Exhibit List

On February 9, 2023, Respondent filed an Exhibit List identifying documents that he will introduce at trial. The Court notes that none of the exhibits are authenticated.

Exhibit 1 is a letter from John Orlando, a Senior Vice President of Production and Development at Universal 1440 Entertainment. Attached to the letter is a certificate from a notary; however, the information on the certificate does not match the information on the letter, as it incorrectly lists the date of the document as 2/4/23 and incorrectly describes it as a two-page document. (Ex. List pp. 6-7, Ex. 1.)

Exhibit 2 is a Confidentiality/Non-Disclosure Agreement between Erik Laibe/Above the Arc Productions and Todd Guzze. This letter is not authenticated and cannot be admitted into evidence.

Exhibit 3 is a letter from Respondent to Todd Guzze dated June 10, 2019. This document is not authenticated and cannot be admitted into evidence.

Exhibit 4 is a Personal Statement of Todd Guzze, an “Investigative Producer/Writer/Journalist.” The letter is notarized. In the Statement, Guzze states that he received a screenplay from Blumhouse Productions sometime in 2021 and gave a copy to Miami New Times without the knowledge of Above the Arc. (Ex. List p. 15-17, Ex. 4.) Guzze explains that after he noticed that significant amounts of money were being invested into a “‘fake’” and “‘fabricated’” story, he “decided to whistleblow on the entire” project. (Ibid.)

C. Reply Brief

On February 14, 2023, Petitioner submitted a brief arguing that Respondent did not file an opposition on or before February 6, 2023, nine court days before the hearing on the Petition. (Reply p. 2.) Thus, the Court should grant Petitioner’s unopposed Petition. (Ibid.)

The Exhibit List, served via email on February 9, 2023, does not constitute an opposition, was not filed timely, and does not establish that Laibe is shielded from producing the documents requested in the Subpoena. (Ibid.; Ponce Decl. ¶ 5, Ex. A.)

Petitioner addresses the inconsistencies in the letter from John Orlando and its lack of authentication. (Ibid. at p. 3.)

Petitioner adds that on October 18, 2022, it deposed Respondent for the underlying action. (Ponce Decl. ¶ 6, Ex. B.) During the deposition, Laibe testified that he has various materials requested via the Subpoena. (Ibid. at ¶ 7, Ex. B – 66:11-68:18.) Furthermore, he has not reached any agreements with Universal regarding the movie script and did not identify anyone at Universal with whom he has spoken about the material in question; thus, Petitioner concludes that Respondent is not “connected” with Universal. (Ibid. at ¶¶ 8-9, Ex. B – 101:23-102:11, 114:11-118:10, 116:6-118:12; Ex. C.) Petitioner argues that Laibe’s statements demonstrate that he is not shielded from producing the documents requested in the Subpoena. (Reply p. 4; citing to Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1545 (quoting In re: Madden (3d Cir. 1998) 151 F.3d 125, 1290-30 for the ruling that shield law “does not grant status to any person with a manuscript, a web page, or a film…”).)

D. Respondent’s Opposition

On March 14, 2023, Respondent filed an Opposition to the Petition and an Amended Exhibit List.

The Amended List of Exhibits does not contain a description of the exhibits or any form of authentication. The first exhibit, which is not labeled, is a Confidentiality/Non-Disclosure Agreement between Erik Laibe/Above the Arc Productions, Inc. and Todd Guzze. Exhibit 3 is an unauthenticated letter from Erik Laibe to Todd Guzze. Exhibit 4 is a notarized Personal Statement of Todd Guzze. Exhibit 5 is a letter from John Orlando clarifying the inconsistencies between his letter and the certificate of notary. At the end of the letter John Orlando adds the following language: “For this letter and for the letter dated February 1.2022(3) (notarized February 4, 2023), I, John Orlando, declare that, to the best of my knowledge and belief, the information herein is true and complete. I this statement is made for use as evidence in court and is subject to penalty for perjury.” (Amended Ex. List – Ex. 5, p. 12.)

In its Opposition, Respondent argues that the Petition should be denied based on relevance. (Oppos. pp. 1-2.) He argues that the underlying action is a civil suit between Ehrlich and New Times and he is not a party to that lawsuit. (Ibid.) Moreover, the materials published by New Times were stolen from Laibe and published without his permission. (Ibid. at p. 2.) These materials are “very specific to this historic period and extremely newsworthy.” (Ibid.) Respondent argues that “New Times is inappropriately attempting to force” him to produce materials regarding Ehrlich’s life. (Ibid.) The Court should deny the Petition because these materials “are not germane to the New Times burden for their own defense in their suit with Mr. Ehrlich.” (Ibid.)

Respondent also argues that the Exhibits he has submitted demonstrate his connection with NBC/Universal, which shields him from having to produce documents under California law. (Ibid. at pp. 3-4.) Petitioner attempts to cast doubt on the validity of the letter from an NBC executive due to a clerical error, but the Amended Exhibits filed by Respondent clarify this error. (Ibid. at p. 3, see Am. Ex. List – Ex. 5.)

Furthermore, Respondent argues that the case cited by Petitioner, In re: Madden, does not apply to the facts of this case because in In Re Madden, Madden admitted that he was an entertainer, not reporter, and he was disseminating creative fiction, not news. (Oppos. p. 4.) Here, Ehrlich’s story has “obvious news worthiness.” (Ibid. at pp. 3-4.) Thus, Respondent is shielded by California Shield Law, Evidence Code § 1070, as he clearly has a protected relationship with Universal. (Ibid.)

Respondent also argues that the Petition should be denied because Petitioner’s underlying motivations are questionable. (Ibid.) Petitioner “has already profited by wrongly publishing Mr. Laibe’s stolen property.” (Ibid.) Petitioner believes that New Times is using the underlying lawsuit to obtain additional material from Respondent. (Ibid. at pp. 4-5.)

E. Petitioner’s Reply

Given that the hearing on the Petition was continued and Respondent filed an Opposition, Petitioner submits the instant Reply to the Opposition, filed on March 14, 2023.

Petitioner argues that the materials requested in the Subpoena are “discoverable and relevant to issues in the underlying litigation” because the underlying lawsuit concerns Petitioner’s article about the movie script being developed by Respondent and the defamation lawsuit that arose from this article. (Reply p. 2.) Petitioner states that Plaintiff Ehrlich cannot prevail on a claim of defamation if he has been participating in the development of the script. (Ibid. at p. 3.) The materials requested through the Subpoena will show “(1) the extent to which Plaintiff Ehrlich participated in, or was otherwise aware of, the creation of the portion of the script that he now alleges is defamatory, and (2) whether Mr. Laibe acted independently in writing something about Plaintiff Ehrlich that Plaintiff Ehrlich claims is false and defamatory.” (Ibid.)

Moreover, Evidence Code § 1070 protects work obtained by a journalist in the course of his or her work as a journalist. (Ibid. at p. 3.) California shield law does not apply to Laibe because he has testified that “he was not connected with NBC/Universal at the time that he obtained the information in the subpoenaed materials.” (Ibid.) He has testified that he has not reached any agreement with NBC/Universal and has not cited to any authority for the proposition that this connection can be established in the absence of an agreement at the time the information was obtained. (Ibid. at pp. 3-4; 2-14-23 Reply – Ponce Decl. Ex. B, 101:23-102:11, 114:11-118:10, Ex. C.) Laibe has also admitted that in early 2020, he was trying to sell the script and information about Ehrlich to Bluhmouse Television. (2-14-23 Reply - Ponce Decl, Ex. B, 84:24-91:10, 90:19-22.) Thus, it is clear that “Mr. Laibe did not collect information from Plaintiff Ehrlich while connected with NBC/Universal” since he was trying to sell this information to another company. (Ibid.)

Furthermore, the notarized Deal Memo, attached to the Petition, between Laibe and Ehrlich contains no mention of NBC/Universal and only refers to Laibe and his companies – Above the Arc Productions, Inc. and Basketball Nation. (Pet., Ex. C; 2-14-23 Reply – Ponce Decl, Ex. B, 38:24-40:1.)

Laibe has also testified “that no one besides him has, or can claim, any rights in the script.” (2-14-23 Reply – Ponce Decl., Ex. B, 65:11-18.) Thus, Laibe has not produced any evidence to show that he was connected with a news agency at the time of obtaining the information sought in the Subpoena. The information demonstrates that Laibe was self-employed and not affiliated with any company at the time he obtained the information. (Ibid. at p. 4.)

Finally, Laibe’s arguments regarding New Times’s motivations to exploit the materials produced in response to the Subpoena are misplaced. (Ibid.) In response to Laibe’s concerns, New Times agrees to an order stating that the materials produced by Laibe “may be used by New Times solely for the purpose of defending the litigation that Plaintiff Ehrlich has brought against New Times.” (Ibid.)

F. Analysis

a. Petition

Petitioner has properly filed a Petition to Compel Compliance with Subpoena, pursuant to Code of Civil Procedure § 2029.100, et seq.

The issue in dispute is whether Respondent is protected from having to produce the information requested in the Subpoena.

California Shield Law is set forth in the Article I, Section 2(b) of the California Constitution and Evidence Code § 1070. It provides immunity for journalists, reporters, editors, and others connected with or employed by news organizations. Specifically, it states:

(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

(Evid. Code § 1070; Delaney v. Superior Court (1990) 50 Cal.3d 785.) In Delaney, the Court notes that the primary purpose of the shield law is to protect “the newsperson’s access to future sources and information.” (Delaney, 50 Cal.3d at 810.) The law does not protect “information obtained by a journalist not directly engaged in ‘gathering, receiving or processing’ news.” (Ibid. at p. 798, Fn. 8.)

In In Re Madden, the Court notes that generally “testimonial exclusionary rules and privileges are not favored and “the Supreme Court has not shown enthusiasm for the creation of constitutional privileges.” (In Re Madden (3d Cir. 1998) 151 F.3d 125, 128.). However, the Court recognizes that “society’s interest in protecting the integrity of the newsgathering process” and the importance of journalistic privilege. (Ibid.) The Court adopts the reasoning of previous cases and finds that journalistic privilege is not extended to “any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public.” (Ibid. at 129.) It is available to those “whose purposes are those traditionally inherent to the press; persons gathering news for publication.” (Ibid. at pp. 129-131.) Parties claiming the privilege have the burden to establish their right to protection by demonstrating that they “1) are engaged in investigative reporting; 2) are gathering news, and 3) possess the intent at the inception of the news-gathering process to disseminate this news to the public.” (Ibid.) Applying this test to the facts of the case, the Court found that Madden, a creative fiction author, was providing advertisement and entertainment, not gathering or disseminating news, and thus, was not shielded by journalistic privilege. (Ibid.)

Here, the Court finds that Respondent has not met the burden of demonstrating that he was engaged in investigative reporting, was gathering news, and possessed the intent to disseminate news to the public at the inception of the information gathering process. In his Opposition, Respondent repeatedly calls the information “newsworthy;” however, this label is not sufficient to meet the elements discussed above. Respondent also distinguishes his case from In Re Madden, as “Mr. Ehrlich’s story is far from creative fiction.” (Oppos. p. 4.) However, Respondent admits that “some of this material will be released as the factual newsworthy material it is, while other elements may take a documentary or fictional narrative form. All materials are still being vetted.” (Ibid.) Although most of the evidence submitted by Respondent is not authenticated, the Court does not find that the evidence regarding Respondent’s discussions with various media and news organizations is sufficient to establish that Respondent was engaged in investigative reporting and possessed the intent to disseminate the news to the public at the inception of a news-gathering process.

Respondent also refers to the protections afforded by the work product doctrine, as set forth in Code of Civil Procedure § 2018.030. However, this privilege is limited to “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” and does not apply in the instant case.

For the reasons discussed above, the Court does not find that Respondent is entitled to journalistic privilege and protection under California shield law or privilege under the work product doctrine. Accordingly, the Petition is GRANTED.

To address Respondent’s concern regarding Petitioner’s motivations in obtaining information through the Subpoena, the Court orders New Times to exclusively utilize the information obtained through the Subpoena for the purpose of defending itself in the underlying litigation initiated by Plaintiff Ehrlich against New Times.

b. Sanctions

Petitioner also seeks monetary sanctions against Respondent for violation and misuse of the discovery process, under Code of Civil Procedure §§ 2023.010, 2023.030, in the amount of $3,700. (Pet. at pp. 7-8.) Petitioner argues that its process server attempted to serve Laibe with the Subpoena on eight different occasions, thus indicating that “Laibe was attempting to evade service.” (Ibid.; Moritz Decl. ¶ 6, Ex. D.) After the Subpoena was served and Petitioner attempted to resolve any issues through the meet and confer process, Respondent still refused to respond to the Subpoena with the requested documents. (Pet. p. 8.) Petitioner calculates sanctions as follows: attorney’s fees at an hourly rate of $500.00, for 7.4 hours preparing the Petition and supporting documents. (Moritz Decl. ¶ 12.)

In City of Los Angeles v. PricewaterhouseCoopers, LLC, the Court ruled that Code of Civil Procedure §§ 2023.010 and 2023.030 list the available discovery sanctions but do not independently authorize a court to impose specific sanctions. (PricewaterhouseCoopers (2022) 84 Cal.App.5th 466, 503-504.) Thus, a court’s authority to impose the sanctions specified in §§ 2023.010 and 2023.030 must arise from a statute governing a particular method of discovery. (Ibid.)

Here, Petitioner has not demonstrated that the Court has authority under a specific statute to impose monetary sanctions listed in §§ 2023.010, 2023.030 on a non-party witness.

For this reason, the Court denies Petitioner’s request for monetary sanctions.

IV. Conclusion & Order

For the foregoing reasons,

Petitioner’s request for monetary sanctions is DENIED.

Moving party is ordered to give notice.