Judge Kerry Bensinger, Case Number: 24STCV14245, Date: 2024-11-06 Tentative Ruling

This is a defamation case. Plaintiff Michael J. Williams (Williams or Plaintiff) is an attorney. Brad Prescott (Prescott), a wealthy person who supports environmental causes, is Williams’s client. Over the years, Prescott has donated substantial time and money to preservation projects advanced by the Oswit Land Trust (Oswit). Oswit is an environmental nonprofit organization whose central mission is to preserve and restore wildlife areas in the Palm Springs region. Jane Garrison (Garrison) and Aaron Leider (Leider) (collectively, Defendants) are Oswit’s CEO and CFO, respectively.

In July 2022, Prescott helped fund Oswit’s purchase of the Mesquite Country Club, now known as the Prescott Preserve. In August 2022, the Mesquite Homeowners Association (HOA) sued Oswit concerning that purchase (the Mesquite Action). The lawsuit is ongoing. Although not a party to the Mesquite Action, Prescott has been involved in that lawsuit by funding Oswit’s defense and participating through his attorney, Williams.

The parties engaged in settlement discussions in the Mesquite Action. In October 2023, Williams intended to attach a proposed response to the HOA’s settlement proposal to an email but instead attached a draft amendment to Prescott’s Living Trust. Williams inadvertently provided Garrison and Leider with a copy of the trust document. Williams notified Garrison and Leider of the inadvertent disclosure and asked them to delete the document. Garrison, however, reviewed the document and later asked an estate attorney to review it.

In January 2024, Prescott’s representatives notified Defendants that Prescott would not provide Oswit with funding to acquire another conservation project. In response, Defendants made derogatory remarks about Williams for purportedly pressuring the client to withdraw the funding.

In February 2024, Garrison dined with Prescott and his sister. At the dinner, Garrison allegedly told Prescott that his attorney, Williams, “was not trustworthy, called into question Williams’s professional conduct and the adequacy of his performance as a fiduciary to [Prescott], and claimed that these assertions were being supported by an attorney Defendants had retained to review and analyze the inadvertently disclosed draft Trust Document.” (Complaint, ¶ 24.) Defendants have not disclosed the identity of the attorney whom they retained.

On June 6, 2024, Plaintiff filed a complaint against Defendants for (1) Defamation, (2) Interference with Contract, and (3) Interference with Prospective Economic Advantage.

On August 30, 2024, Defendants filed a Special Motion to Strike the Complaint (SLAPP Suit) or, In the Alternative, Portions of The Complaint Under Code of Civil Procedure Section 425.16 and For an Order Dismissing the Complaint with Prejudice. The Anti-SLAPP Motion is scheduled for January 31, 2025.

On the same day, Plaintiff filed this Motion to Lift Stay of Discovery As To Limited Issues Concerning Anti-SLAPP Motion.

Code of Civil Procedure section 425.16, subdivision (g), provides “[a]ll discovery proceedings in [an] action shall be stayed upon the filing of a notice of motion made pursuant to” Code of Civil Procedure section 425.16. Such stay “shall remain in effect until notice of entry of the order ruling on the motion,” but the Court, “on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Code Civ. Proc., § 425.16, subd. (g).)

Plaintiff moves the court for an order to lift the stay of discovery to permit Plaintiff to obtain Defendants’ responses to the following previously propounded discovery: (1) Special Interrogatories Nos. 1-10, (2) Requests for Admission Nos. 7 and 10, and (3) Form Interrogatory No. 17.1. Plaintiff also seeks to take Defendants’ depositions. Plaintiff argues this discovery is necessary to ascertain the following:

(1) the identity of and communications with the “estate attorney” referenced in Defendants’ anti-SLAPP motion for purposes of substantiating the falsity element of his defamation cause of action;

(2) whether Garrison was seriously considering filing a lawsuit against Plaintiff on February 8 for purposes of rebutting Defendants’ claim of privilege under Civil Code section 47(b);

(3) whether Defendants harbored ill will toward Plaintiff on February 8 for purposes of rebutting Defendants’ claim of privilege under Civil Code section 47(c);

(4) whether Garrison intended to cause a disruption of Plaintiff’s business relationship with Prescott for purposes of substantiating the intent element of his interference causes of action; and

(5) whether Garrison intended to aid the “estate attorney” in allegedly violating California Rules of Professional Conduct 4.4 for purposes of substantiating the independently wrongful conduct element of his interference causes of action.

The court finds good cause exists to lift the stay. In their anti-SLAPP motion, Defendants argue, in part, that Garrison’s statements are (1) nonactionable opinions, (2) truthful, (3) protected by the litigation privilege because Garrison “seriously contemplat[ed] litigation, and (4) protected by the common interest privilege based on Garrison, Prescott, and Prescott’s sister’s common interest in Oswit and its environmental mission. Accordingly, the information Plaintiff seeks is tailored to meet Defendants’ anti-SLAPP motion to determine if Garrison actually consulted an attorney, the nature of the information Garrison shared with the attorney (i.e., was it accurate or misleading?), and whether the allegedly defamatory statements were made in contemplation of imminent litigation and made with ill will such that neither the litigation[1] or common interest[2] privileges apply.

Plaintiff’s Motion to Lift Stay of Discovery As To Limited Issues Concerning Anti-SLAPP Motion is GRANTED. Plaintiff may obtain the requested discovery. Defendants’ depositions are not to exceed three hours and are limited to the topics related to the anti-SLAPP motion.

The court sets a Status Conference Re: anti-SLAPP Discovery for January 10, 2024 at 9:00 AM. The court will discuss discovery issues, if any, at the conference. Unless otherwise indicated, the opposition and reply papers regarding Defendants’ anti-SLAPP motion are to be served and filed consistent with Code of Civil Procedure section 1005(b).

Kerry Bensinger

Judge of the Superior Court

[1] See Edwards v. Centex Real Est. Corp. (1997) 53 Cal.App.4th 15 [For litigation privilege to attach to statements in advance of litigation, contemplated litigation must be imminent; unless and until parties are negotiating under actual threat of impending litigation, original justification for litigation privilege of encouraging access to courts can have no relevance in their communications].)

[2] The “common interest” privilege is a “qualified” one because it also only applies if the

statement is made “without malice.” (Civ. Code, § 47(c).) Malice can be found to exist if (i) the

statement was motivated by ill will toward the plaintiff or (ii) the defendant lacked reasonable

grounds for belief the statement was true, as where the defendant exhibited a willful disregard

or avoidance of accuracy. (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 740.) A series

of heated disagreements between the parties that preceded the defamatory statement may be

prima facie evidence of ill will. (See Hawran v. Hixson (2012) 209 Cal.App.4th 256, 288.)