Judge: Kevin C. Brazile, Case: 21STCV43407, Date: 2024-04-30 Tentative Ruling

Hearing Date: April 30, 2024

Case Name: Kaplan v. Gimelstob

Case No.: 19STCV19647

Matter: Motion for Reconsideration or Other Relief

Moving Party: Justin Gimelstob

Responding Party: Randall Kaplan and Madison Kaplan

Notice: OK

Ruling: The Motion is denied.

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 December 21, 2023, the Kaplans filed and served a motion for summary adjudication (“MSA”) with respect to the 4ACC.

On January 17, 2024, Gimelstob filed a substitution of counsel form indicating that he would represent himself.

On February 7, 2024, Gimelstob filed a substitution of attorney form indicating that Mokri, Vanis & Jones, LLP (“Mokri”) would represent him only as a Defendant and Cross-Defendant, and not for his affirmative 4ACC.  

On March 7, 2024, the Court granted the Kaplans’ MSA.  There were thirteen issues: 

ISSUE NO. 1: Justin Gimelstob’s causes of action for intentional interference with contractual relations based on Sean Walsh’s publications of the Kaplans’ Victim Impact Statements or the transcript of the April 22, 2019 hearing to the media are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 2: Justin Gimelstob’s causes of action for intentional interference with prospective economic advantage based on Sean Walsh’s publications of the Kaplans’ Victim Impact Statements or the transcript of the April 22, 2019 hearing to the media are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 3: Justin Gimelstob’s causes of action for defamation per se based on Sean Walsh’s publications of the Kaplans’ Victim Impact Statements or the transcript of the April 22, 2019 hearing to the media are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 4: Justin Gimelstob’s causes of action for defamation per quod based on Sean Walsh’s publications of the Kaplans’ Victim Impact Statements or the transcript of the April 22, 2019 hearing to the media are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 5: Justin Gimelstob’s causes of action based on Sean Walsh’s November 22, 2018 email to Kurt Streeter are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 6: Justin Gimelstob’s causes of action based on Sean Walsh’s December 12, 2018 email to David Waldstein are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 7: Justin Gimelstob’s causes of action based on Sean Walsh’s March 8, 2019 oral statements to Ben Rothenberg are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 8: Justin Gimelstob’s causes of action based on Sean Walsh’s April 21, 2019 email to Ben Rothenberg are barred because such publication did not occur. 

ISSUE NO. 9: Justin Gimelstob’s causes of action based on Sean Walsh’s April 22, 2019 email to Chris Weber of the Associated Press are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 10: Justin Gimelstob’s causes of action based on Sean Walsh’s April 22, 2019 email to Stephanie Myles of Tennis Life are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 11: Justin Gimelstob’s causes of action based on Sean Walsh’s April 22, 2019 email to Richard Winton of the LA Times are barred because such publications are privileged under Civil Code section 47(d).

ISSUE NO. 12: Justin Gimelstob’s causes of action based on Sean Walsh’s April 22, 2019 email to Simon Briggs of the UK Telegraph are barred because such publications are privileged under Civil Code section 47(d). 

ISSUE NO. 13: Justin Gimelstob’s causes of action based on Sean Walsh’s April 22, 2019 email to Bill Simons of Inside Tennis are barred because such publications are privileged under Civil Code section 47(d).

In ruling on the Kaplans’ MSA, the Court concluded that Gimelstob’s fifth through eighth causes of action were premised on statements that were subject to the fair report privilege.

On March 20, 2024, Fernald & Zaffos APC became counsel for Gimelstob for his 4ACC.

Gimelstob now seeks reconsideration of the Court’s March 7, 2024, ruling.  Gimelstob contends that the Court should reconsider whether the fair report privilege applies based on “(1) evidence of defamatory statements made before the institution of court proceedings; (2) evidence of defamatory statements made to non-media members; and (3) evidence ‘reporting’ defamatory matter that was not part of court proceeding.”  

Alternatively, Gimelstob asks the Court to (a) certify the privilege issue for appellate review; (b) grant relief under Code Civ. Proc. § 473(b) for excusable neglect, mistake, surprise, or inadvertence because Gimelstob was without counsel when he filed his opposition to the MSA; or (c) allow Gimelstob to file a fifth amended cross-complaint that clarifies the scope of his allegations with respect to defamatory statements.

Code Civ. Proc. § 1008(a) provides, “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

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.)

As an initial matter, the request to certify the privilege issue is denied as moot because Gimelstob’s petition for writ of mandate was already denied.

Next, Gimelstob argues, “[a]s to the first category, Kaplan sent anonymous e-mails to Kenneth Solomon, President of the Tennis Channel, on November 30, 2018 and December 10, 2018 – before any court proceedings. Decl. Gimelstob, ¶ 12, Exs. 11-12. Kaplan’s defamation led to the Tennis Channel parting ways with Gimelstob. Id., ¶ 21, Ex. 18. These defamatory communications were outside of the fair report privilege.”

This, however, is not new evidence that could not have been produced at the time of the MSA hearing.  Gimelstob argues that he could not have produced the evidence because he was a pro per litigant.  As an initial matter, it appears that Gimelstob had help of counsel to some degree in preparing his opposition as Mokri emailed the Kaplans for a Word-version of their separate statement on February 15, 2024, before the March 7, 2024, MSA hearing.  Second, Gimelstob fails to cite any authority that stands for the proposition that a party can establish that evidence could not be produced because he misunderstood its significance as a pro per litigant.  Actually, “[s]elf-represented litigants are ‘held to the same standards as attorneys. [ ]’ ” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) 

Gimelstob next argues, “[a]s to the second category, Kaplan mailed an anonymous package to Gimelstob’s then girlfriend, Katie Stuart, containing defamatory materials (the ‘Unabomber Package’). Decl. Gimelstob, ¶¶ 7-10, Exs. 6-10. The contents of the Unabomber Package contained defamatory material and Ms. Stuart was not a member of the media. Id., ¶ 6. . . . Kaplan also made defamatory statements about Gimelstob to Jonathan Gallagher, a real estate agent and ex-personal trainer who Kaplan then enlisted to defame Gimelstob to Mr. Solomon and circulate a petition to get Gimelstob fired. Decl. Gimelstob, ¶ 13, Exs. 13-14. Mr. Gallagher was not a member of the media. . . . Kaplan also made defamatory statements about Gimelstob to an ATP executive seeking to remain anonymous out of fear of reprisals from Kaplan. Decl. Gimelstob, ¶ 14. The ATP executive was not a member of the media. These defamatory communications were outside of the fair report privilege.”

The Court’s conclusion on this evidence is mostly the same—Gimelstob does not adequately establish why this evidence could not have been presented at the MSA hearing.  With respect to the Stuart package, Gimelstob states that he “put the contents back into the Unabomber Package and gave the package to my then-lawyers at Vedder Price for safekeeping. Unbeknownst to me, Vedder Price never gave Kaplan’s Unabomber Package over to my successor lawyers at Buchalter. I did not have access to Kaplan’s Unabomber Package until Vedder Price returned it to me on March 14, 2024.”  Gimelstob, however, fails to explain what efforts he took to obtain the package before his opposition was due.

With respect to the ATP executive, Gimelstob states that he learned of this evidence on March 12, 2024, when he had a conversation with this executive, who identified specific defamatory statements and identified Randall as the publisher.  These statements, however, are hearsay to the extent they are out of court statements used for the truth of the matter asserted.  (Evid. Code § 1200.)  Indeed, “[e]vidence must be presented that the defendant or anyone associated with the defendant made or authorized the publication.  Evidence that others told the plaintiff that they heard the defamatory statement is insufficient, absent evidence as to how or from whom they heard it.  The plaintiff's testimony that third parties told the plaintiff that the defendant made certain statements is generally insufficient, because it is hearsay.”  (Coltoff et al., 53 C.J.S. Libel and Slander, Injurious Falsehood § 264 (emphasis added); see also GMO Rice v. Hilton Hotel Corp. (D.D.C. Sept. 1, 1987) 1987 WL 16851, at *2 [“plaintiff seeks to testify that one person (‘B’) told the plaintiff that another person (‘A’) made a statement defaming plaintiff. Plaintiff offers this testimony in an effort to show that ‘A’ did, in fact, make the defamatory statement. This is inadmissible hearsay . . . .” ].)  

Gimelstob next contends that “[a]s to the third category, Kaplan sent Victim Impact Statements (‘VISs’) to media members that were materially different to those actually contained in court records. Decl. Gimelstob, ¶ 16, Ex. 17. (See also Ex. 1, Order [3/7/2024] at 7.) At the very least, this raised a question of fact as to whether the ‘reports’ Kaplan sent to the media were ‘fair and true.’ ”

In its ruling for the MSA, the Court considered this argument and stated that Gimelstob’s response to special interrogatory no. 229 framed all of the defamatory statements at issue and that all of those statements were actually made at Gimelstob’s sentencing hearing.  The Court refused to consider the evidence of other statements that were not identified in Gimelstob’s special interrogatory response.  Gimelstob argues that his 4ACC defines the scope of his claims and that the Court narrowly construed and misapplied Gimelstob’s discovery response. 

On the one hand, it is true that the 4ACC states that “to try to secure as wide spread broadcasting of the false statements as possible, Kaplan disseminated to Walsh various versions of drafts of the VIS’s Kaplan had written – not just the versions that were read in Court.”  (4ACC ¶ 75.)  

On the other hand, the problem with Gimelstob’s argument is that discovery is meant to clarify and narrow the issues of litigation.  (Universal Underwriters Ins. Co. v. Superior Ct. for Los Angeles Cnty. (Ct. App. 1967) 250 Cal.App.2d 722, 728 [“One purpose of pretrial discovery is to ‘simplify and narrow the issues.’ ”]).  The Kaplans asked for “all” defamatory statements at issue and Gimelstob provided a list of specific statements in response.  Gimelstob never sought to appropriately supplement his discovery response or to continue the MSA hearing.  Based on what was before it, the Court made the correct determination.  

Gimelstob next argues that he should be given relief under Code Civ. Proc. § 473(b) because he was self-represented and abandoned by his former counsel for a dispositive motion.  

The discretionary provision of Code Civ. Proc. § 473(b) provides, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  The statute is liberally construed in order to give effect to the policy favoring resolution of disputes on their merits.  (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)  To be entitled to relief under the statute, the moving party must demonstrate a satisfactory excuse for his or her default, as well as diligence in seeking relief after discovery of the default.  Whether the moving party has carried this burden is a question to be resolved in the discretion of the trial court.  (Ibid.)

For relief to be warranted, any mistake must be something other than professional incompetence or ignorance of the law.  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)  The term “surprise” refers to “some condition or situation in which a party is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  (Ibid., internal quotations omitted.)  Similarly, to be excusable, a litigant’s inadvertence or neglect must have been “such as might have been the act of a reasonably prudent person under the same circumstances.”  (Ibid.)

The Court has already pointed out that Gimelstob likely had some attorney assistance in preparing his opposition.  Further, the failure of Gimelstob, who is held to the same standard of counsel, to present sufficient evidence is not excusable error warranting relief.  Indeed, relief was not intended for tactical errors “such as the failure to provide sufficient evidence in opposition to a summary judgment motion.”  (Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17.)  

There is also nothing indicating why Gimelstob could not obtain new counsel between January 17, 2024, and his opposition deadline of February 22, 2024, or even the hearing date of March 7, 2024.  

Gimelstob further contends his ignorance of the right to ask for a continuance under Code Civ. Proc. § 437c(h) is a basis to grant relief under Code Civ. Proc. § 473(b).

Notably, however, “[m]istake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the ‘mistake’ is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . .”  (Henderson v. Pac. Gas & Elec. Co. (2010) 187 Cal.App.4th 215, 229.)  Here, Gimelstob admits that he was ignorant of a common procedural mechanism; therefore, relief is not warranted.

Finally, Gimelstob seeks leave to file a fifth amended cross-complaint, but such a request should have been made before the MSA hearing.  (See, e.g., Leibert v. Transworld Sys., Inc. (1995) 32 Cal.App.4th 1693, 1699.)

For all of these reasons, the Motion is denied.  The objections are overruled.

The parties are strongly urged to consider settlement discussions or private mediation or ADR. 

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.