Judge: Kevin C. Brazile, Case: 22STCV34318, Date: 2023-01-26 Tentative Ruling

Hearing Date: January 26, 2023

Case Name: Nathan v. Redstone, et al.

Case No.: 22STCV27621

Matter: Anti-SLAPP Motion

Moving Party: Defendant Keryn Redstone

Responding Party: Plaintiff Scott Nathan

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. 

On October 13, 2022, Plaintiff Scott Nathan filed the operative First Amended Complaint (“FAC”) against Defendant Keryn Redstone for (1) defamation per se, (2) breach of oral contract for signing bonus, (3) breach of oral contract for relocation bonus, (4) quantum meruit, (5) intentional infliction of emotional distress (“IIED”), (6) negligent infliction of emotional distress (“NIED”), and (7) intentional interference with contractual relations.  

Defendant Redstone seeks to strike the first, fifth, sixth, and seventh causes of action in the FAC pursuant to Code Civ. Proc. § 425.16.  

1. Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.  In pertinent part, the statute states, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  (Code Civ. Proc. § 425.16(b)(1).)  The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech.  (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)  To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech.  (Ibid.)  From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.  It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ”  (Ibid.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

2. Protected Activity 

To meet her burden for the first prong of the anti-SLAPP analysis, Defendant must demonstrate that the first, fifth, sixth, and seventh causes of action in the FAC arise from protected activity.  That is, it must be that “defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . ‘the act underlying the plaintiff’s cause’ or ‘the at which forms the basis for the plaintiff’s cause of action’ must itself have been an act in furtherance of the right of petition or free speech.’ ”  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63 (internal citations omitted).)  

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (Code Civ. Proc. § 425.16(e).)

Defendant contends that the subject claims arise from protected activity under Code Civ. Proc. § 425.126(e)(2) to the extent premised on statements relating to a police report.

Code Civ. Proc. § 425.16(e)(2) relates to statements made in connection with an issue under consideration by a government body.  (See City of Costa Mesa v. D’Alessio Investments LLC (2013) 214 Cal.App.4th 358, 372-273.)  The challenged statements need not be made before an official body, but must “relate[] to the substantive issues in the [underlying] litigation and [must be] directed to persons having some interest in the litigation.”  (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)  The defendant need not separately demonstrate that a statement or writing concerned an issue of public significance if it was made in connection with an issue under consideration or review by an official proceeding or body.  (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1113.)

Such includes acts “ ‘preparatory to or in anticipation of’ ” the bringing of an action or other official proceeding.  (Id. at p. 1115.)   Courts look to the litigation privilege “as an aid” in determining whether a given communication falls within the ambit of Code Civ. Proc. § 425.16(e)(2).  (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.)  

Defendant’s arguments lack merit because the FAC does not relate to any police report.  The first cause of action for defamation is premised on (1) a statement to a visiting pornstar that Plaintiff would steal and that he had threatened Defendant with a gun, (2) a public tweet indicating that Plaintiff stole Defendant’s cat, and (3) a statement to Paypal that Plaintiff had stolen from Defendant, which was made to obtain a reversal of payments from Paypal.  (FAC ¶¶ 13-15.)  Further, the IIED and NIED claims are premised on Defendant’s threats to harm Plaintiff.  (FAC ¶¶ 36, 42.)  The interference with contract claim is also premised on statements to Paypal.  (FAC ¶ 48.)  

The Court notes that the initial Complaint references a police report, but the instant Motion was directed at the FAC.  (See Notice of Motion [Defendant “hereby moves this Court for an Order striking portions [of] the First Amended Complaint filed by Plaintiff, Scott Michael Nathan . . . .”].)  Also, the Motion was filed after the FAC had already been filed, rendering the FAC the operative pleading and any motion to the initial Complaint moot.  (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 478.)  

It doesn't matter that some of the subject statements were also made to the police.  This is because the claims at issue target only statements made to private parties or the public that do not apparently achieve the objectives of any investigation or litigation.  (See Silberg v. Anderson (1990) 509 Cal.3d 205, 212 [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.”].)  Indeed, a public tweet or a statement made to a pornstar has nothing to do with a police investigation.  

  As the subject claims do not arise from statements relating to an official proceeding (Code Civ. Proc. § 425.16(e)(2)), Defendant has failed to carry her burden on the first prong of the anti-SLAPP analysis.  Therefore, 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.