Judge: Mark H. Epstein, Case: 22SMCV02098, Date: 2024-06-11 Tentative Ruling

Case Number: 22SMCV02098    Hearing Date: June 11, 2024    Dept: I

The ex parte application to strike the SMS is DENIED.  The issue whether the proper party is bringing the motion will be dealt with at the hearing when the court has had the benefit of briefing by both sides.

The request to continue the SMS is GRANTED.  The court cannot fathom why service did not work.  The court will try again.  In this day and age, the court simply does not believe that NBC and defense counsel lack the technical know-how to transmit a file and papers electronically.  If the file is too large, find another way.  If necessary, meet at a coffee shop with a thumb drive.  Get on the phone and discuss service so that defendant can be sure plaintiff has the documents and plaintiff can be sure she has them, too, and can work out problems.  The court does not believe that this kind of thing ought to be a problem.  However, if it becomes a problem, the court has many tools in its toolbox to be sure that service is effected—none of which will be pleasant for the parties to this case.  One example is to order each party to have a human at a particular location at a particular time each and every day in case to accept service in case there is something that needs to be served and to require that all service be personal and videotaped.  The court would rather not resort to that kind of thing, and the parties ought to be able to work this out amongst themselves.  But be that as it may, defendant has not had a fair opportunity to respond.

The request to lift the discovery stay is DENIED.  Plaintiff already has evidence that the news report is in error, or so she states.  The court is not ruling on that question at this time, of course, it is only stating that there is enough to raise a factual question on that subject.  But that is not the pertinent question.  If defendant is correct that the first prong of the SMS is satisfied, then the question is not whether the report is true or false.  Even if it is false, that does not make it defamatory.  A news organization reporting on news is subject to the New York Times test.  Thus, the issue is whether the article was published with malice.  It could be that showing that it is wrong would be enough to defeat the motion at this stage, but the court is not ruling on that one way or the other.  According to the Leonard Declaration, filed in support of the SMS, the story was based on an LAPD report that is available to the public at an address disclosed in the declaration.  Because that is the asserted basis for the story, and it is available without the need for formal discovery, the court believes that plaintiff has access to it and can make whatever arguments need to be made based thereon.  The court notes that the whole point of the SMS is to stay discovery on the theory that plaintiff must have evidence at the ready without discovery.  That said, if the only way to substantiate NBC’s position that it was relying on a police report would be to allow limited discovery, the court might consider it.  Since that is not the case, however, there is no need to lift the stay.