Judge: Kevin C. Brazile, Case: 19STCV19647, Date: 2023-08-28 Tentative Ruling

Case Number: 19STCV19647    Hearing Date: March 7, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Thursday, March 7, 2024

Case Name: Kaplan v. Gimelstob

Case No.: 19STCV19647

Motion: Motion for Summary Adjudication

Moving Party: Cross-Defendants Madison Kaplan and Randall Kaplan (“Cross-Defendants”)

Responding Party: Plaintiff Justin Gimelstob (“Plaintiff”)

Notice: OK

Ruling: The Motion for Summary Adjudication is GRANTED as to causes of action 5-8.

Cross-Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

This is an action arising from a fist fight during Halloween trick-or-treating. On November 8, 2022, Justin Gimelstob (“Cross-Complainant”) filed a Fourth Amended Cross-Complaint (“4ACC”) against Madison Kaplan and Randall Kaplan (“Cross-Defendants”),  for (1) assault, (2) battery, (3) equitable indemnity, (4) tort in essence, (5) intentional interference with contractual relations, (6) intentional interference with prospective economic advantage, (7) defamation per se, and (8) defamation per quod.

On November 21, 2023, the Court granted Cross-Complainant’s motion for summary adjudication as to Cross-Defendants’ litigation privilege defense but denied the motion as to Cross-Defendants’ fair report privilege defense. 

On December 12, 2023, Cross-Defendants filed the instant motion for summary adjudication as to the fifth, sixth, seventh, and eighth causes of action in the 4ACC. 

On February 22, 2024, Plaintiff filed an opposition.

On February 29, 2024, Cross-Defendants filed a reply.

DISCUSSION

Applicable Law

“A party may move for summary adjudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit . . . .” (Code Civ. Proc., § 437c(f)(1).)

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action of a defense thereto.” (Code Civ. Proc., § 437c(p)(2).)

Objections

Cross-Defendants object to certain portions of the Declaration of Justin Gimelstob submitted in support of Cross-Complainant’s motion for summary judgment and object to exhibits in support of Cross-Complainant’s opposition:

The Court OVERRULES all of the objections but one: it SUSTAINS objection 2 to Cross-Complainant’s exhibits, to “Photos from Katie Stuart.” The photograph purporting to show documents pertaining to Cross-Complainant’s sentencing and victim impact statements received by “Katie Stuart” is not properly authenticated. The documents pictured are not pictured in way that they can be examined, and to the extent they can be examined, the name the envelope is addressed to is spelled “Katie Stewart” rather than “Katie Stuart.” Additionally, the address contained on the envelope is partially cut off. Furthermore, Cross-Complainant does not submit an affidavit by Katie Stuart attesting to receiving the photograph. Finally, the photograph does not indicate that the documents were sent by Cross-Defendants.

Cross-Complainant’s objections are overruled. 

Relevant Factual Background

The incident underlying this litigation took place on October 31, 2018, when Cross-Complainant was arrested and charged with battering Randall Kaplan. (Cross-Defendants’ SSF (CDSSF) No. 1.) Cross-Defendants contend Walsh reported to public journals Cross-Defendants’ statements, or the gist of such statements, made in court on April 22, 2019, as well as transcripts of the statements. (CDSSF Nos. 2 and 3.) Cross-Complainant disputes this, stating that various versions of the victim impact statement were sent to the media before any such hearing even took place, and therefore could not have reported on the gist of what took place in a hearing that had not yet occurred, and that the summaries contained in Walsh’s communications were materially incorrect representations about what statements were made in court. (Cross-Complainant’s Response to CDSSF (CCR-CDSSF Nos. 2 and 3.) Cross-Defendants contend that Walsh acted as Cross-Defendants’ agent and intermediary in all of his communications with the media regarding the civil and criminal matters between the parties. (CDSSF No. 4.) Cross-Complainant disputes that Walsh was acting in that capacity during all of the communications at issue. (CCR-CDSSF No. 4.) 

Application to the Facts

Cross-Defendants contend that the dissemination of their victim impact statements and the transcript of Cross-Complainant’s sentencing hearing to the media through their representative, Sean Walsh, was privileged under Civil Code Section 47(d)’s fair report privilege.

The Court has previously discussed the application of the fair report privilege. (11-21-2023 Minute Order.) 

Civ. Code § 47(d) states that there is a privilege for “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.” (CCP § 47(d).) 

It is clear that the fair report privilege would not apply to Cross-Defendants’ publication to private parties that are not media outlets or public journals. On this basis alone, the fifth through eighth causes of action would survive Cross-Defendants’ motion for summary adjudication to the extent they are based on the statements made to private parties.

Here, Cross-Complainant contends that, in addition to the dissemination of Cross-Defendants’ victim impact statements and the transcript of Cross-Complainant’s sentencing transcript to the public at large, the fifth through eighth causes of action are based on the publication of the victim impact statements to Walsh and Gimelstob’s personal and business contacts, as well as Randall Kaplan’s alleged wrongful witness suppression relating to the testimony of Celeste Peete. 

However, Cross-Complainant does not put forth sufficient evidence that the victim impact statements were sent to private or business contacts. Cross-Complainant attaches the Deposition of Kenneth Solomon, the now President of the Tennis Channel, as evidence that the publication of the victim impact statements to the Tennis Channel was part of the reason the Tennis Channel released Cross-Complainant. However, this deposition does not state how Tennis Channel learned the information contained in the victim impact statements or who relayed the information. Nowhere in the deposition does Solomon state that Cross-Defendants or Walsh sent the contents of the statements. Additionally, Cross-Complainant does not attach any evidence that his personal contact, Katie Stuart, received any information from Cross-Defendants or Walsh. 

The publications by Walsh to members of the media may be blocked by the fair report privilege if they contained a fair and true report of a court proceeding. 

Cross-Defendants contend the following cannot form the basis of the fifth through eighth causes of action because they are privileged:

1. Walsh’s publications of Cross-Defendants’ Victim Impact Statements or the transcript of the April 22, 2019 hearing to the media. 
2. Walsh’s November 22, 2018 email to Kurt Streeter
3. Walsh’s December 12, 2018 email to David Waldstein
4. Walsh’s March 8, 2019 oral statements to Ben Rothenberg
5. Walsh’s April 21, 2019 email to Ben Rothenberg
6. Walsh’s April 22, 2019 email to Chris Weber of the Associated Press
7. Walsh’s April 22, 2019 email to Stephanie Myles of Tennis Life
8. Walsh’s April 22, 2019 email to Richard Winton of the LA Times
9. Walsh’s April 22, 2019 email to Simon Briggs of the UK Telegraph
10. Walsh’s April 22, 2019 email to Bill Simons of Inside Tennis

Regarding statements made by Walsh to various media outlets prior to the August 22, 2019 sentencing hearing, Cross-Defendants contend that these statements are privileged because they summarized Cross-Defendants’ position in the criminal proceeding. Cross-Defendants rely on Argentieri v. Zuckerberg, which held that a mere summary of court proceedings that merely sets forth the gist of the proceedings is protected by the fair report privilege. (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 787–788.) Argentieri also stood for the proposition that “the privilege will apply even if there is a slight inaccuracy in details—one that does not lead the reader to be affected differently by the report than he or she would be by the actual truth..” (Argentieri, 8 Cal.App.5th at 787-788.) 

Cross-Defendants contend there is no dispute that the statements Walsh sent to the media were fair and true reports of what was said in court during Cross-Complainant’s criminal hearing. (SSF, Nos. 2-4.) However, in opposition, Cross-Complainant contends that the summaries contained in Walsh’s communications were materially incorrect representations about what statements were made in court. (Cross-Complainant’s Response to CDSSF (CCR-CDSSF Nos. 2 and 3.)

Cross-Complainant contends that the contents of emails sent on April 22, 2019 from Walsh to four members of the media—Bill Simons, Simon Briggs, Richard Winton, and Chris Weber—were not fair and true reports of what was said in Cross-Complainant’s sentencing hearing and thus are not shielded by the fair report privilege. Cross-Complainant contends that the following statements contained in Cross-Defendants' victim impact statements were defamatory and not within the court record:

• “I was told that in September 2017, Mr. Gimelstob was playing in a paddle tennis tournament in Venice, and after arguing a line call, Mr. Gimelstob called his opponent a ‘faggot’ and a ‘girl’, jumped over the net, and started to attack and choke his opponent before being restrained by three people—including Austin Doerner, the number one paddle tennis player in the world.” (Randall Kaplan VIS., p. SW00442).
• Mr. Humphreys who filmed this paddle court attack promised to destroy this video of Justin attacking the player because “he was terrified of Mr. Gimelstob before the Halloween attack-and he fears for his life if his video would help send Mr. Gimelstob to prison.” (Id.)
• “Finally, I was also told that on September 27, 2017, Mr. Gimelstob threatened a woman named Mia Feil-following her out of their children’s preschool, and with Mr. Gimelstob’s son at his side, the screamed: ‘Tell your fucking husband I will break his neck if he ever writes another affidavit in my divorce.’ Mrs. Feil filed a police report with the LAPD, but then declined to pursue this matter because she was-and remains-extremely terrified of Mr. Gimelstob.” (Id. at SW00443.)
• “Including the attack on me, that’s five assaults in four years-all of which Mr. Gimelstob denies every (sic) took place. He may not have an official criminal record -but he very likely would if people were not terrified that he would come after them again.” (Id.) (Kaplans’ Evidence, Exhibit 80 Sean Walsh Deposition, SW004442-43.) 

In reply, Cross-Defendants contend that even if the parts of the victim impact statements not read in court are not privileged, they cannot support the fifth through eighth causes of action because they relate to activity outside the scope of what Cross-Complainant’s defamation and contractual relations claims are based on. Cross-Defendants point to Cross-Complainant’s supplemental responses to Cross-Defendants’ special interrogatories, set two, No. 229, in which Cross-Complainant contended that Randall Kaplan made the following defamatory statements, all regarding the incident on October 31, 2018: 

- That Cross-Complainant attacked Kaplan;

- That the short altercation between Cross-Complainant and Kaplan was unprovoked.

- That Cross-Complainant jumped on Kaplan from behind;

- That Kaplan did not see Cross-Complainant before the short altercation;

- That Cross-Complainant repeatedly yelled “I’m going to fucking kill you;”

- That Cross-Complainant hit Kaplan a couple hundred times;

- That Cross-Complainant punched Kaplan in the head with all his strength at least a couple hundred times;

- That Cross-Complainant ran away from the scene;

- That Cross-Complainant caused the death of Madison Kaplan’s unborn child;

- That Cross-Complainant caused Madison Kaplan to have a miscarriage;

 - That doctors said everything looked perfect with the pregnancy before the Halloween incident;

- That doctors told Madison Kaplan that “the only reason they could see causing the miscarriage was the stress from the attack;”

- That Cross-Complainant “kill[ed] a tiny innocent girl;”

-That Madison had been trying to get pregnant for a year;

-That Madison was put on bed rest after the Halloween incident;

-That Madison has “been afraid of becoming pregnant again since the Halloween attack, for fear the same thing could happen;”

-That Cross-Complainant threatened a woman who took a photo of him;

-That Cross-Complainant told Randall Kaplan that he would punch him in the face for not answering his calls. 

(See Ex. 6, Response to Special Interrogatory No. 229; Ex. 8, Response to Special Interrogatory No. 2.)

As Cross-Defendants demonstrate, all of the statements listed in Cross-Complainant’s Response No. 229 were read in Court at the sentencing hearing. In other words, none are contained in the parts of the victim impact statements that were not read into court.Therefore, the Court finds that Cross-Complainant fails to demonstrate the existence of non-privileged communications that can provide a basis for claims 5-8. 

CONCLUSION

The Motion for Summary Adjudication as to causes of action 5 through 8 is GRANTED.

Plaintiffs/Cross-Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.