Judge: Kevin C. Brazile, Case: 21STCV27017, Date: 2023-11-21 Tentative Ruling

Hearing Date: November 21, 2023

Case Name: Kaplan v. Gimelstob

Case No.: 19STCV19647

Matter: Motion for Summary Judgment/Adjudication

Moving Party: Justin Gimelstob

Responding Party: Randall Kaplan and Madison Kaplan

Notice: OK

Ruling: The Motion for Summary Adjudication is granted as to the litigation 

privilege, but is denied as to the fair report privilege.  

Moving party 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. 

This is an action arising from a fist fight during Halloween trick-or-treating.  On November 8, 2022, Justin Gimelstob filed a Fourth Amended Cross-Complaint (“4ACC”) against Randall Kaplan and Madison Kaplan 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 March 7, 2023, the Kaplans filed an Answer to the 4ACC in which they pleaded “privileged conduct” as their eighteenth affirmative defense.

Gimelstob now seeks summary judgment of the Kaplans’ privilege defense or summary adjudication of the issues of (a) the litigation privilege and (b) the fair report privilege.  

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As an initial matter, the Kaplans argue that the Motion is procedurally defective because (1) Gimselstob does not identify all statements at issue and (2) “the two issues cannot dispose of the Kaplans’ affirmative defense because the issues only relate to what Gimelstob contends his causes of action are based on, not on the specific statements allegedly made by the Kaplans.”  

These arguments lack merit.  The Motion and the 4ACC relate to the Kaplans disseminating their allegedly false victim impact statements (“VIS”) and transcripts from Gimselstob’s plea and sentencing hearings to private and public parties after a criminal proceeding relating to the subject halloween fight.  The issues of applicable privileges have been appropriately discussed relative to the statements described.  (See infra.)  

Gimelstob first argues that the defense of a privilege has been waived because the Kaplans never specifically pleaded any facts supporting a privilege. 

This lacks merit.  The answer is sufficient, and, so long as there is notice, a privilege can be asserted in a demurrer or summary judgment motion even if not pleaded as an affirmative defense.  (See, e.,g., Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356.)

Gimselstob next argues that neither the litigation nor fair report privilege is applicable.  

The litigation privilege set forth in Civ. Code § 47 generally applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  (Silberg v. Anderson (1990) 509 Cal.3d 205, 212.)   Statements made in anticipation of litigation are subject to the litigation privilege.  (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.)  The “principle purpose of [the litigation privilege] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  (Id. at p. 213.) “The litigation privilege is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”  (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) 

“In California, the courts have held a prelitigation statement is protected by the litigation privilege of section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is contemplated in good faith and under serious consideration.  In other words, the prelitigation statements must have some connection or logical relation to the action . . . .”  (A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal. App. 4th 1118, 1128.)  

The 4ACC makes clear that it does not target the Kaplans’ statements made in court.  (See, e.g., 4ACC ¶ 60 [“While such defamatory statements made in Court were covered by the litigation privilege, those defamatory statements in the VIS lost any protection under the litigation privilege when Kaplan published those statements to the public after the plea and sentencing hearing.”].)  

The 4ACC states that the Kaplans published the defamatory statements to their media consultant, Sean T. Walsh, who published those statements to the media.  The 4ACC indicates that the Kaplans republished the media’s stories and that they disseminated the defamatory statements to Gimelstob’s personal and business contacts.  

None of the described publications is subject to the litigation privilege.  Specifically, these statements to Walsh, the media, and Gimselstob’s personal and business contacts do not achieve the objects of the litigation for the criminal proceedings.  To the contrary, the general rule is that the litigation privilege does not apply to litigating in the press.  (See, e.g., GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 152.)

The Kaplans seek to recast the 4ACC by stating that Gimelstob was actually injured by the statements the Kaplans made directly in Court, but this merely seeks to dispute irrelevant issues for the Motion, such as causation and damages.  The 4ACC makes clear that it does not target any statements actually made in court.

Thus, the Motion for Summary Adjudication is granted as to the Kaplans’ litigation privilege defense.

Next, the fair report privilege is codified in Civ. Code § 47(d), which 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.” 

“The fair report privilege ‘confers an absolute privilege on any fair and true report in, or a communication to, a public journal of a judicial proceeding, or anything said in the course thereof.’ (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 240, 83 Cal.Rptr.2d 677.) When it applies, the reported statements are ‘absolutely privileged regardless of the defendants' motive for reporting’ them. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 278, 147 Cal.Rptr.3d 88; see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974, 234 Cal.Rptr. 702 (McClatchy).) Courts have construed the privilege broadly, ‘mindful of the Legislature's intent ... “to preserve the scarce resources of California's courts [and] to avoid using the courts for satellite litigation.” ’ (J–M Manufacturing, supra, 247 Cal.App.4th at p. 101, 201 Cal.Rptr.3d 782.) . . . Although the fair report privilege is typically invoked by news media defendants, it also protects those who communicate information to the media. (J–M Manufacturing, supra, 247 Cal.App.4th at p. 105, 201 Cal.Rptr.3d 782; Civ. Code, § 47, subd. (d).) Indeed, the Legislature's explicit purpose for enacting a 1996 amendment to section 47, subdivision (d), was to protect such intermediaries. That amendment expanded the privilege to include fair and true ‘communication[s] to,’ as well as fair and true ‘report[s] in,’ public journals concerning judicial, legislative, or other public proceedings. (J–M Manufacturing, supra, 247 Cal.App.4th at pp. 97–98, 201 Cal.Rptr.3d 782.)”  (Healthsmart Pac., Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 431-32.)

Here, the fair report privilege would not apply to the Kaplans’ publication to Walsh and the republication of media stories to private parties.  This is because Walsh and Gimselstob’s private contacts are not media outlets or public journals.

On the other hand, Gimelstob also seeks to hold the Kaplans liable for Walsh’s publications to the media; Gimelstob argues that while Walsh may be able to invoke the privilege, the Kaplans can still be liable for foreseeable re-publications to the media.  

This lacks merit.  The only case that Gimselstob cites for his argument—Neary v. Regents of Univ. of Cal. (1986) 185 Cal.App.3d 1136, 1147—is inapposite as it relates to the official duty privilege and republication due to the CPRA.  

Given the purposes of Civ. Code § 47(d)’s enactment, it would make little sense for the privilege to apply if the Kaplans made a fair report to the press, but not if they hired someone to do it for them.

In his Reply, Gimelstob argues that “If, as the Kaplans claim, Mr. Walsh was acting as their agent and effectively standing in their shoes, then they were directly communicating the defamatory statements to the press. The fair report privilege does apply to litigants who directly litigate in the press.”

The cases cited by Gimelstob, however, do not stand for this proposition and/or relate to the litigation privilege, a distinct privilege.  The language about protection for “intermediaries” was merely meant to highlight that parties other than news media defendants have protection.  (See, e.g., Healthsmart Pac., Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 431-32.)

Because the fair report privilege could apply to some of the publications at issue, the Motion for Summary Adjudication is denied as to the fair report privilege, but is granted as to the litigation privilege.  

The objections are overruled.

Moving party 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.