Judge: Michael E. Whitaker, Case: 24SMCV05929, Date: 2025-06-11 Tentative Ruling

Case Number: 24SMCV05929    Hearing Date: June 11, 2025    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from allegations of sexual harassment and assault, stemming from a business relationship. 

On December 6, 2024, Plaintiffs brought suit, proceeding under the pseudonyms “Jane Doe” and “Jane Roe.”  On February 5, 2025, Plaintiffs filed the operative verified First Amended Complaint (“FAC”) proceeding under their real names, Linda Luna and Ayah Altayri (“Plaintiffs”) against Defendants Top Dawg Entertainment, LLC (“TDE”); Brandon Tiffith (“Brandon”); Anthony Tiffith, Jr. (“Anthony”); and David Harrell (“Harrell”) (together, “Defendants”) alleging six causes of action for (1) sexual harassment; (2) battery; (3) assault; (4) negligence; (5) breach of contract; and (6) doxxing.  The sixth cause of action is alleged against TDE only.

Defendants now demur to the sixth cause of action on the grounds that it fails to state facts sufficient to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e).  Defendants also file a special motion to strike (anti-SLAPP) the sixth cause of action. 

Plaintiffs oppose both motions and Defendants reply.

REQUEST FOR JUDICIAL NOTICE

            Defendants’ Request for Judicial Notice

Defendants request judicial notice of the following documents pursuant to Evidence Code section 452, subdivision (h) as “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”: 

1. A true and correct copy of a press release that was published and distributed by counsel for Plaintiffs Linda Luna (“Luna”) and Ayah Altayri (“Altayri”) (collectively “Plaintiffs”) on or about January 30, 2025 in connection with the instant action. Declaration of Allison S. Hart (“Hart Decl.”), ¶ 2, Exh. 1.

2. A news article published by the online pop culture and hip hop publication Complex on January 31, 2025 entitled “Top Dawg Entertainment Executives and Employees Accused of Sexual Misconduct in Lawsuit.” Hart Decl, ¶ 3, Exh. 2.

3. An article that was published by the online publication hotnewhiphop.com on February 1, 2025 entitled “Wack 100 Reacts to TDE Getting Sued for Alleged Sexual Harassment & Assault.” Hart Decl., ¶ 4, Exh. 3.

            In support of the request, Defendants cite to Seelig v. Infinity Broadcasting Corporation (2002) 97 Cal.App.4th 798, 807-808, fn. 5, in which the appellate court permitted judicial notice of “the fact that news articles discussing topics provoked by the Show were published” without assuming the truth of the assertions contained in those news articles.

            Similarly, here, the Court takes judicial notice that the above news articles and press release were published, but does not take judicial notice of the truth of any assertions made therein.

            Plaintiffs’ Request for Judicial Notice

            Plaintiffs request judicial notice of the following:

·       A true and correct copy of Senate Rules Committee, Office of Senate Floor Analyses, Third Reading, Assembly Bill No. 1979 (2023-2024 Reg. Sess.), page 4.  Attached as Exhibit 18 to the Declaration of Shounak S. Dharap.

·       A true and correct copy of the Pew Research Center Report, January 2021, “The State of Online Harassment”, https://www.pewresearch.org/wpcontent/uploads/sites/20/2021/01/PI_2021.01.13_Online-Harassment_FINAL1.pdf. Attached as Exhibit 19 to the Declaration of Shounak S. Dharap.

·       A true and correct copy of Federal Protective Service, “Protect Yourself Online – Shield from Doxing”, https://www.dhs.gov/sites/default/files/2024- 11/24_1101_fps_doxing.pdf. Attached as Exhibit 20 to the Declaration of Shounak S. Dharap.

As for Exhibit 18, Plaintiffs seek judicial notice as an official act of the legislature, pursuant to Evidence Code section 452, subdivision (c).  In support, Plaintiffs cite to People ex rel. Schlesinger v. Sachs (2023) 97 Cal.App.5th 800, 813, where the appellate court held that courts may take judicial notice of legislative history, pursuant to evidence code section 452, subdivision (c).  Therefore, the Court takes judicial notice of the legislative history.

Regarding Exhibit 19, Plaintiffs seek judicial notice as “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of indisputable accuracy” pursuant to Evidence Code section 452, subdivision (h).  In support, Plaintiffs cite to Cantrell v. Board of Supervisors (1948) 87 Cal.App.2d 471, 477 as standing for the proposition that trial courts may judicially notice “knowledge of scientific facts which are commonly recognized” (hereafter Cantrell) and Coughlin v. Greate Western Power Co. (1920) 183 Cal. 548, 551 (hereafter Coughlin.) 

The Court is not persuaded that Plaintiffs’ authority demonstrates the Court’s ability to take judicial notice of the Pew Research Center Report from 2021.  In Cantrell, the court took judicial notice of the fact that large numbers of rats and flies are detrimental to public health.  In support, Cantrell cited to Spreckels v. City & County of San Francisco (1926) 76 Cal.App. 267, 274, where the court took judicial notice of the fact that marine traffic to San Francisco required its constant vigilance against the bubonic plague (spread by rats).  In Coughlin, the court took judicial notice of basic principles of electricity and how it discharges in evaluating the plausibility and foreseeability of the plaintiff’s theory for how he was purportedly electrocuted.  (See Coughlin, supra, 183 Cal. at pp. 551-552.)

But unlike the basic principles of electricity, or commonly understood concepts about vermin and the spread of disease, the Court cannot say that the Pew Research Center Report from 2021 regarding its recent study of the rate of online harassment contains facts that are so commonly accepted that they are not reasonably subject to dispute.  Therefore, the Court declines to take judicial notice of Exhibit 19.

As for Exhibit 20, Plaintiffs seek judicial notice as “regulations” issued by or under the authority of the United States or any public entity in the United States under Evidence Code section 452, subdivision (b).  But the Court does not find the Department of Homeland Security’s guidance on how to protect oneself online constitutes a “regulation” for the purpose of subdivision (b), and Plaintiffs do not cite any authority to the contrary.  Therefore, the Court declines to take judicial notice of Exhibit 20.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          Sixth Cause of Action – Doxxing

Civil Code section 1708.89 creates a private right of action against a person who “doxes” another person, defined as “an act when a person, with intent to place another person in reasonable fear for their safety, or the safety of the other person’s immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action.”

Here, Plaintiffs allege in the FAC: 

151. This cause of action is brought by both Plaintiffs against Defendant TDE.

152. On information and belief, Defendant TDE electronically distributed and published personally identifying information of Plaintiffs—specifically, their names, which were previously unknown to the public in relation to the allegations in the instant action.

153. On information and belief, Defendant TDE released Plaintiffs’ personally identifying information through an electronic communication device.

154. Defendant TDE released Plaintiffs’ personally identifying information without their consent.

155. On information and belief, Defendant TDE released Plaintiffs’ personally identifying information for the purpose of imminently causing Plaintiffs unwanted harassment by third parties. Indeed, Plaintiffs cannot imagine a legitimate, non-harassing purpose behind TDE’s release of their personally identifying information.

156. The release of Plaintiffs’ personally identifying information was likely to incite or produce harassment by third parties.

157. As a result of the above-described conduct, Plaintiffs have suffered emotional distress. Plaintiff Luna has additionally suffered economic harm.

(FAC ¶¶ 151-157.)

Defendants argue that Plaintiffs fail to state a claim for doxxing against them because (1) Plaintiffs never had the right to proceed in this lawsuit under pseudonyms in the first place; (2) Defendants’ conduct is protected by the litigation privilege; and (3) the FAC does not allege facts regarding Defendants intent to incite third parties to physically harm or harass Plaintiffs.

As for Defendants’ first argument, the Court need not decide whether Plaintiffs would ultimately have been able to proceed under pseudonyms or would have been ordered to proceed under their real names.  The Court and parties were deprived of that answer when Defendants revealed Plaintiffs’ true names in a public news article, mooting the issue.  (Compare RJN Ex. 1 and 2 (late January articles referring to Plaintiffs anonymously) with RJN Ex. 3 (early February article where Defendants name Plaintiffs.)  Thus, at the time the statement was made, it revealed Plaintiffs’ true identities, which were not previously publicly known.

Regarding Defendants’ second argument, as discussed below, although a cause of action may be subject to a special motion to strike if (1) it arises from protected speech or petitioning activity and (2) Plaintiffs fail to demonstrate a likelihood of success on the merits, Defendants cite to no authority that simply satisfying the first prong is sufficient to make the cause of action demurrable.

As for Defendants’ third argument, the FAC alleges:

155. On information and belief, Defendant TDE released Plaintiffs’ personally identifying information for the purpose of imminently causing Plaintiffs unwanted harassment by third parties. Indeed, Plaintiffs cannot imagine a legitimate, non-harassing purpose behind TDE’s release of their personally identifying information.

156. The release of Plaintiffs’ personally identifying information was likely to incite or produce harassment by third parties.

(FAC ¶¶ 155-156.) 

            Thus, Plaintiffs have sufficiently alleged ultimate facts[1] to withstand demurrer to the sixth cause of action.

2.     SPECIAL MOTION TO STRIKE (ANTI-SLAPP)

“A cause of action arising from a person's act in furtherance of the ‘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[….]’”  (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (hereafter Monster).)  Such lawsuits are commonly known as “SLAPP” suits (Strategic Litigation Against Public Participation).  (Id. at fn. 1.)

Background

The California Legislature enacted Code of Civil Procedure section 425.16, known as the “anti-SLAPP statute” to “allow[] defendants to seek early dismissal of unmeritorious claims arising from protected speech and petitioning activities.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1004 (hereafter Bonni.)  “Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.”  (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (hereafter Wilson).)  The anti-SLAPP statute is also designed to expedite the early dismissal of unmeritorious claims arising from protected activity.  (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.)  “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, emphasis in original (hereafter Baral).)  But anti-SLAPP motions are not permitted in limited civil cases. (1550 Laurel Owner’s Assn., Inc. v. Appellate Division of Superior Court (2018) 28 Cal.App.5th 1146, 1149.)

“SLAPPs are unsubstantiated lawsuits based on claims arising from a defendant's constitutionally protected speech or petitioning activity.”  (Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 757 (hereafter Kurz).)  They “seek[] to chill rights to free speech or petition by dragging the speaker or petitioner through the litigation process, without genuine expectation of success in the suit.”  (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 591–592 (hereafter Area 51 Productions.)  They are “generally brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff.”  (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 479.) 

“The Legislature enacted section 425.16 to provide a summary disposition procedure for SLAPP claims.”  (Area 51 Productions, supra, 20 Cal.App.5th at p. 592.)  The statute “authorizes courts, upon motion by anyone who claims to be the target of a SLAPP suit, to probe the basis for any cause of action allegedly arising from protected communicative activities, and to strike it if the claimant cannot show minimal merit.”  (Ibid.)  A special motion to strike may only be directed to a complaint, cross-complaint, or petition, but not to an answer or affirmative defenses.  (Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC (2021) 67 Cal.App.5th 1149, 1156-1157.)

Procedure

To determine whether an anti-SLAPP motion should be granted, courts engage in a two-step process and evaluate the merits of the claim(s) using a “summary-judgment-like procedure.”  (Baral, supra, 1 Cal.5th at p. 384.)  “The procedures authorized in the statute allow a defendant to stay discovery before litigation costs mount, obtain early dismissal of the lawsuit, and recover attorney fees.”  (Kurz, supra, 221 Cal.App.4th at p. 757.)  A special motion to strike “is not a substitute for a motion for a demurrer or summary judgment.”  (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1161.)  And there is no meet and confer requirement prior to filing an anti-SLAPP motion.  (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008.) 

First Step

In the first step, the moving defendant has the initial burden of showing that the challenged cause of action arises from protected free speech or petitioning activity.  (Bonni, supra, 11 Cal.5th at p. 1009; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (hereafter Park).)  “The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute.”  (Wilson, supra, 7 Cal.5th at p. 884.)  When the defendant has not met this burden, the court may summarily deny the special motion to strike “without putting the plaintiff to the burden of establishing the probability of success on the merits.”  (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 360 (hereafter Whitehall).)

“[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.”  (Park, supra, 2 Cal.5th at p. 1063.)  It is not enough that a claim was filed after or even “because of” protected activity, but rather the protected activity must “supply elements of the challenged claim.”  (Id. at p. 1064.)  Moreover, courts “must distinguish between speech or petitioning activity that is mere evidence related to liability, and liability that is based on speech or petitioning activity.”  (Whitehall, supra, 17 Cal.App.5th at p. 361.)

Moreover, the anti-SLAPP statute does not require a defendant “to disprove allegations of illicit motive.”  (Wilson, supra, 7 Cal.5th at p. 887.)  Courts must distinguish between “allegations of conduct on which liability is based” and “allegations of motives for such conduct” because “the anti-SLAPP statute is triggered only when the alleged injury-producing conduct is protected activity, not merely the motivating conduct for that activity.”  (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 887 (hereafter Gaynor).)  However, a defendant’s motives are not “categorically off-limits in determining whether an act qualifies as protected activity under the anti-SLAPP statute” but “the plaintiff's allegations cannot be dispositive of the question.”  (Wilson, supra, 7 Cal.5th at p. 889.)  “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.”  (Ibid.)  “But there is an important difference between permitting the defendant to present evidence of its own motives in an effort to make out its prima facie case of protected activity and treating a plaintiff's allegations of illicit motive as a bar to anti-SLAPP protection,” which is not proper.  (Ibid.) 

Second Step

Once the court finds the defendant has made the threshold showing, the “the burden then shifts to the plaintiff to show a probability of prevailing on [the] claims.”  (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 854.)  To meet this burden, “the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.)  “[T]he plaintiff must then demonstrate its claims have at least ‘minimal merit.’ ”  (Park, supra, 2 Cal.5th at p. 1061.)  “[A] plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’”  (Monster, supra, 7 Cal.5th at p. 788.)  “[A] court must at the second step accept as true the evidence favorable to the plaintiff” but is not required to give “similar credence” to allegations in the complaint “in the face of contrary evidence.”  (Wilson, supra, 7 Cal.5th at p. 887.) 

This procedure is essentially a summary judgment motion in reverse.  (Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 152.)  “Rather than requiring the defendant to defeat the plaintiff's pleading by showing it is legally or factually meritless, the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.”  (Ibid.)  “Consistent with this summary-judgment-like procedure, the court “must draw all reasonable inferences from the evidence in favor of [the party opposing the anti-SLAPP motion.’”  (Ibid.)  “Only a [cause of action] that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP suit, subject to being stricken under the statute.”  (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162.) 

            Discussion

            As for the first prong, Defendants argue that the statement is privileged as a statement made in connection with an issue under consideration by a judicial body, pursuant to Code of Civil Procedure section 425.16, subdivision (e)(2).   

            But not all statements regarding the litigation are statements made “in connection with” the litigation for purposes of the litigation privilege under the anti-SLAPP statute.  “The phrase ‘in connection with’ implies that the statement must be aimed at achieving the objects of the litigation.”  (Anderson v. Geist (2015) 236 Cal.App.4th 79, 89; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [the litigation privilege “applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved”].)

            Indeed, Civil Code section 47, subdivision (b), which Defendants cite to in the introduction to their motion, outlines the specific contours of the litigation privilege.  Specifically, subdivision (b) protects a publication or broadcast made “in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2” with some exceptions not applicable here.  Here, the statement made to the press is plainly not a publication or broadcast made in a judicial or other proceeding authorized by law.

            Defendants also cite to subdivision (d), which protects “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.”  However, the “fair and true report” exception does not apply to any communication to a public journal that (A) violate Rule 3.6 of the State Bar Rules of Professional Conduct [regarding trial publicity statements]; (B) breaches a court order; or (C) violates a requirement of confidentiality imposed by law.

            Rule 3.6 of the State Bar Rules of Professional Conduct prohibits making extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter, although a lawyer may make a statement a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client, so long as such statement is limited to such information as is necessary to mitigate the recent adverse publicity. 

            Here, Defendants argue that it was Plaintiffs who initiated the inflammatory press release and it was necessary for them to publicly respond and correct the record.  Plaintiffs correctly point out, however, that publicly revealing their true identities was not a necessary part of correcting the narrative in the public record.  

            Therefore, the Court does not find that Defendants’ revealing Plaintiffs’ identities to the press are protected by the litigation privilege.[2]

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendants’ demurrer and denies Defendants’ special motion to strike the sixth cause of action. 

Further, the Court orders Defendants to file an Answer or Answers to the FAC on or before June 25, 2025. 

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  June 11, 2025                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court