Judge: Michael P. Linfield, Case: 24STCV00072, Date: 2024-04-19 Tentative Ruling
Case Number: 24STCV00072 Hearing Date: April 19, 2024 Dept: 34
SUBJECT: Motion to
Strike the Complaint Pursuant to California Code of Civil Procedure 425.16
Moving Party: Defendants Barrett S. Litt and Lindsay Battles
Resp. Party: Plaintiff James Dibdin
SUBJECT: Demurrer to
the Complaint
Moving Party: Defendants Barrett S. Litt and Lindsay Battles
Resp. Party: Plaintiff James Dibdin
SUBJECT: Special
Motion to Strike Pursuant to Code of Civil Procedure § 425.16
Moving Party: Defendant Do Kim
Resp. Party: Plaintiff James Dibdin
The Litt and Battles anti-SLAPP Motion is
GRANTED.
The Kim anti-SLAPP Motion is
GRANTED.
Defendants Litt, Battles,
and Kim are STRICKEN from the Complaint.
Defendants Litt, Battles,
and Kim may file their respective attorney’s fees motions.
The Demurrer is TAKEN OFF CALENDAR.
BACKGROUND:
On January 2,
2024, Plaintiff James Dibdin filed his Complaint against Defendants Barrett S.
Litt, Lindsay Battles, Salomon Zavala, and Do Kim on a cause of action for
defamation.
On March 6,
2024, Defendants Barrett S. Litt (“Litt”) and Lindsay Battles (“Battles”) filed
their Motion to Strike the Complaint Pursuant to California Code of Civil
Procedure 425.16 (“Litt and Battles anti-SLAPP Motion”). Defendants Litt and
Battles concurrently filed: (1) Memorandum of Points and Authorities (“Litt and
Battles anti-SLAPP Memorandum”); (2) Declaration of David Adida; (3) Request
for Judicial Notice; and (4) Proposed Order.
On March 6,
2024, Defendants Litt and Battles filed their Demurrer to the Complaint (“Demurrer”).
Defendants Litt and Battles concurrently filed: (1) Memorandum of Points and
Authorities (“Demurrer Memorandum”); (2) Declaration of David Adida; (3)
Request for Judicial Notice; and (4) Proposed Order.
On March 13,
2024, Defendant Do Kim (“Kim”) filed his Special Motion to Strike Pursuant to
Code of Civil Procedure § 425.16 (“Kim anti-SLAPP Motion”). Defendant Kim
concurrently filed: (1) Declaration of David D. Samani; (2) Request for
Judicial Notice; and (3) Compendium of Exhibits.
On March 27,
2024, Plaintiff filed his Opposition to the Kim anti-SLAPP Motion. Plaintiff
concurrently filed: (1) Declaration of Lara Shapiro; and (2) Declaration of
James Dibdin.
On March 29,
2024, Plaintiff filed his Opposition to the Litt and Battles anti-SLAPP Motion.
Plaintiff concurrently filed: (1) Declaration of Lara Shapiro; and (2)
Declaration of James Dibdin.
On April 3, 2024,
Defendant Kim filed his Reply in support of the Kim anti-SLAPP Motion.
On April 5,
2024, Defendants Litt and Battles filed their Reply in support of the Litt and
Battles anti-SLAPP Motion.
On April 8,
2024, Plaintiff filed his Opposition to the Demurrer.
On April 9,
2024, Defendants Litt and Battles filed their Reply in support of the Demurrer.
ANALYSIS:
The Court first concurrently
considers the anti-SLAPP motions because they make the exact same arguments.
The Court then considers the Demurrer.
I.
The Anti-SLAPP Motions
A. Request
for Judicial Notice
1. Defendants
Litt and Battles’ Request for Judicial Notice
Defendants Litt and Battles request that the
Court take judicial notice of two pleadings filed in a case before the United
States District Court for the Eastern District of California.
The Court GRANTS Defendants
Litt and Battles’ request for judicial notice.
2. Defendant
Kim’s Request for Judicial Notice
Defendant Kim requests that the Court take
judicial notice of the docket and various pleadings in the same case before the
United States District Court for the Eastern District of California. (Defendant
Kim’s Counsel mistakenly states that the case is before the United States
District Court for the Central District of California, but this does not affect
the Court’s decision.)
The Court GRANTS Defendant Kim’s request for
judicial notice.
B. Legal
Standard
“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,
subd. (b)(1).)
“In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)
“A SLAPP suit—a strategic lawsuit against public
participation—seeks to chill or punish a party's exercise of constitutional
rights to free speech and to petition the government for redress of grievances.
The Legislature enacted Code of Civil Procedure section 425.16—known as the
anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that
are brought to chill the valid exercise of constitutional rights.” (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)
“In light of the
foregoing, we may summarize a court's task
in ruling on an anti-SLAPP motion to strike as follows. Section 425.16,
subdivision (b)(1) requires the court to engage in a two-step process. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. The moving
defendant's burden is to demonstrate that the act or acts of which the plaintiff
complains were taken ‘in furtherance of the [defendant]'s right of petition or
free speech under the United States or California Constitution in connection
with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If
the court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim. Under
section 425.16, subdivision (b)(2), the trial court in making these
determinations considers ‘the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.’” (Equilon
Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
“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, subject to
being stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 88–89, emphases in original.)
C. Discussion
1. The
Parties’ Arguments
Defendants Litt and Battles move the Court to
strike the Complaint without leave to amend and allow them to file a separate
motion for attorney’s fees. (Litt and Battles’ anti-SLAPP Memorandum, p.
11:5–11.) They argue: (1) that Plaintiff does not identify the allegedly
defamatory statements; (2) that the defamation claim arises from protected
activity; and (3) that Plaintiff cannot establish a reasonable probability of
prevailing on his defamation claim because it is barred by both the litigation
privilege and the statute of limitations. (Id. at pp. 6:15, 7:1, 8:1–3,
10:16.)
Defendant Kim makes the same
arguments. (Kim anti-SLAPP Motion, pp. 9:11–15, 10:7, 11:7, 11:20, 14:11.)
Plaintiff disagrees, arguing: (1) that this
lawsuit is timely under the continuing harm doctrine; (2) that Code of Civil
Procedure section 128.7 mirrors Federal Rules of Civil Procedure, rule 11; (3)
that there is a lack of probable cause for the allegedly defamatory statements;
and (4) that the two-step anti-SLAPP analysis favors Plaintiff in this action
because the Complaint does not arise from protected activity and Plaintiff meets
the minimal showing of merit. (Opposition to Litt and Battles anti-SLAPP
Motion, pp. 2:19, 3:11–14, 4:24, 6:10, 7:1, 10:25; Opposition to Kim anti-SLAPP
Motion, pp. 2:19, 3:11–14, 4:24, 6:10, 7:1, 10:25.)
Defendants Litt and Battles reiterate their
arguments in their Reply. Defendant Do reiterates his arguments in his Reply.
2. The
First Prong
a. Legal Standard
“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. A claim may be struck only if the speech
or petitioning activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability is
asserted. To determine whether a claim arises from protected activity, courts
must consider the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis for liability. Courts then must evaluate
whether the defendant has shown any of these actions fall within one or more of
the four categories of acts protected by the anti-SLAPP statute.” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [cleaned up], emphasis
in original.)
“As used in this
section, ‘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, subd. (e).)
“An act is in
furtherance of the right of free speech if the act helps to advance that right
or assists in the exercise of that right.” (Tamkin v. CBS Broad., Inc. (2011)
193 Cal.App.4th 133, 143, citation omitted.)
There is “a
two-step inquiry for deciding whether the activity from which a lawsuit arises
falls within section 425.16(e)(4)'s protection: first, we ask what
public issue or issues the challenged activity implicates, and second, we ask
whether the challenged activity contributes to public discussion of any such
issue. If the answer to the second question is yes, then the protections of the
anti-SLAPP statute are triggered, and the plaintiff in the underlying lawsuit
must establish ‘a probability’ of prevailing before the action may proceed.” (Geiser
v. Kuhns (2022) 13 Cal.5th 1238, 1243, citing FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150; Code Civ. Proc., § 425.16,
subd. (b).)
“At this stage,
the question is only whether a defendant has made out a prima facie case that
activity underlying a plaintiff's claims is statutorily protected, not whether
it has shown its acts are ultimately lawful. . . . Consistent with this
understanding, at the first step of the anti-SLAPP analysis, we routinely have
examined the conduct of defendants without relying on whatever improper motive
the plaintiff alleged.” (Wilson, supra, 7 Cal.5th at p. 888,
citations omitted.)
b. The
Conduct Alleged
“Analysis of an anti-SLAPP motion is not confined to evaluating
whether an entire cause of action, as pleaded by the plaintiff, arises from
protected activity or has merit. Instead, courts should analyze each claim for
relief—each act or set of acts supplying a basis for relief, of which there may
be several in a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has the requisite
degree of merit to survive the motion.” (Bonni v. St. Joseph Health Sys. (2021)
11 Cal.5th 995, 1010, citation omitted.)
On the first step, “the moving
defendant must identify the acts alleged in the complaint that it asserts are
protected and what claims for relief are predicated on them. In turn, a court
should examine whether those acts are protected and supply the basis for any
claims. It does not matter that other unprotected acts
may also have been alleged within what has been labeled a single cause of
action; these are disregarded at this stage. So long as a court determines that
relief is sought based on allegations arising from activity protected by the
statute, the second step is reached with respect to these claims.” (Bonni, supra, at p. 1010,
quotation and internal quotation marks omitted.)
“If a cause of
action contains multiple claims and a moving party fails to identify how the
speech or conduct underlying some of those claims is protected activity, it
will not carry its first-step burden as to those claims. The nonmovant is not
faced with the burden of having to
make the moving party's case for it.” (Bonni, supra, at p. 1011.)
The following is the conduct
that Plaintiff alleges Defendants Litt, Battles, and Kim engaged in:
(1) the intentional
publication of false statements in a complaint filed in the United States
District Court for the Eastern District of California; and
(2) the repeatedly
publication of these false statements in subsequent pleadings in that case.
(Complaint, ¶¶ 15–16.)
c. Discussion
Here, all of the alleged
conduct — filing statements in a pleading — are clearly acts taken in
furtherance of the right of petition under the United States Constitution.
(Code Civ. Proc., § 425.16, subd. (b)(1).)
Defendants Litt, Battle, and Kim meet their
initial burden on the first prong.
3. The
Second Prong
a. Legal Standard for Defamation
“Defamation is
effected by either of the following: (a) Libel. (b) Slander.” (Civ. Code, §
44.)
“Libel is a false and unprivileged
publication by writing, printing, picture, effigy, or other fixed representation
to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy,
or which causes him to be shunned or avoided, or which has a tendency to injure
him in his occupation.” (Civ. Code, § 45.)
“A libel which is defamatory of the
plaintiff without the necessity of explanatory matter, such as an inducement,
innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory
language not libelous on its face is not actionable unless the plaintiff
alleges and proves that he has suffered special damage as a proximate result
thereof. Special damage is defined in Section 48a of this code.” (Civ. Code, §
45a.)
“Slander is a false
and unprivileged publication, orally uttered, and also communications by radio
or any mechanical or other means which:
“1. Charges any person with crime, or with
having been indicted, convicted, or punished for crime;
“2. Imputes in him the present existence of
an infectious, contagious, or loathsome disease;
“3. Tends directly to injure him in respect
to his office, profession, trade or business, either by imputing to him general
disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his office,
profession, trade, or business that has a natural tendency to lessen its
profits;
“4. Imputes to him impotence or a want of
chastity; or
“5. Which, by natural consequence, causes
actual damage.”
(Civ. Code, § 46.)
“‘The sine
qua non of recovery for defamation . . . is the existence of falsehood.’
Because the statement must contain a provable falsehood, courts distinguish
between statements of fact and statements of opinion¿for purposes of defamation
liability.¿Although statements of fact may be actionable as libel, statements of
opinion are constitutionally protected.” (McGarry v. Univ. of San Diego (2007)
154 Cla.App.4th 97, 112, quoting Letter Carriers v. Austin (1974) 418
U.S. 264, 283.)
“[T]he question is not strictly whether the published statement is fact or
opinion. Rather, the dispositive question is whether a reasonable fact finder
could conclude the published statement declares or implies a provably false
assertion of fact.” (Franklin v. Dynamic Details, Inc. (2004) 116
Cal.App.4th 375, 385, citations omitted.)
“Whether a statement declares or
implies a provable false assertion of fact is a question of law for the court to
decide, unless the statement is susceptible of both an innocent and a libelous
meaning, in which case the jury must decide how the statement was understood.”
(Franklin, supra, at p. 385, citations omitted.)
“To determine whether a statement is
actionable fact or nonactionable opinion, we apply a totality of the
circumstances test pursuant to which we consider both the language of the
statement itself and the context in which it is made.” (Summit Bank v.
Rogers (2012) 206 Cal.App.4th 669, 696, citation omitted.)
b. The Litigation Privilege
“A privileged
publication or broadcast is one made: . . . (b) 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 (commencing with Section
1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
[examples involving marital dissolution or legal separation, intentional destruction
or alteration of physical evidence, existence of insurance policies, recorded
lis pendens, and false police reports].” (Civ. Code, § 47, subd. (b).)
Here, the publications at
issues were made in connection with a judicial proceeding, and they do not fall
within any of the statutory exceptions.
Plaintiff quotes Younger
v. Solomon (1974) 38 Cal.App.3d 289, 301 for the following test: “that
absolute privilege in judicial proceedings is afforded only if the following
conditions have been met: the publication (1) was made in a judicial
proceeding; (2) had some connection or logical relation to the action; (3) was
made to achieve the objects of the litigation; and (4) involved litigants or
other participants authorized by law.” (Opposition to Litt and Battles
anti-SLAPP Motion, pp. 7:12–8:3; Opposition to Kim anti-SLAPP Motion, pp.
7:12–8:3.) Plaintiff then argues that “the complained of defamatory statements
published in the underlying case have no material relevance to the underlying
case.” (Id. at p. 10:18–19.)
The publications at issue
(which, according to the Oppositions, take place in paragraphs 147 and 150a of
the Third Amended Complaint) involve allegations: (1) that Plaintiff has a
professional history of misconduct; (2) that Plaintiff has a reputation for
professional incompetence; (3) that Plaintiff has multiple prior firings; (4)
that Plaintiff has other negative prior employment issues, such as suspensions;
(5) that Plaintiff “flies into rages”; (6) that Plaintiff is “dangerous to have
him work on an autopsy with you”; and (7) and so on.
Notably, all of these statements involve
allegations of Plaintiff’s work. This is directly relevant to the judicial
proceeding of the underlying case, which involve allegations of false imprisonment
based on false medical evidence, and causes of action such as: (1) violation of
42 United States Code section 1983 for reckless investigation; (2) violation of
California Government Code section 815.2 for negligent hiring, supervision,
promotion, retention, and training; and (3) negligence.
Under the Younger test, it is clear
that the litigation privilege applies here.
Thus, even using Plaintiff’s preferred test, it is clear that the
publications here are absolutely privileged and cannot be the subject of a
defamation claim.
c. The
Statute of Limitations
“We next consider the application of the
statute of limitations for defamation, which requires that an action be filed
within one year of accrual of the cause of action, to the present case. (Code Civ. Proc., § 340, subd. (c).) . . . In a claim for defamation, as with other tort claims, the
period of limitations commences when the cause of action accrues. (Code Civ.
Proc., § 312; Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.) As we
have discussed, in general a cause of action in tort accrues at the time of
injury, and a cause of action for defamation accrues at the time the defamatory
statement is ‘published’ (using the term ‘published’ in its technical sense).
As noted, in defamation actions the general rule is that publication occurs
when the defendant communicates the defamatory statement to a person other than
the person being defamed.” (Shively v. Bozanich (2003)
31 Cal.4th 1230, 1246–1247, citations and paragraph breaks omitted.)
Plaintiff argues that the
continuing violation doctrine applies here, extending the statute of
limitations until the present. Put differently, Plaintiff is arguing that
because the underlying case has not yet been resolved, the defamatory statement
in those pleadings remain a continuing harm.
Plaintiff is incorrect.
The continuing violation doctrine is a narrow
doctrine that extends a statute of limitations by clarifying when accrual
begins. (See, for example, Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th
798, 823–824, adopting the continuing violation doctrine in the context of
disability harassment accommodations under the California Fair Employment and
Housing Act.) The continuing violation doctrine does not indefinitely extend a
statute of limitations for as long as a harm “continues.” To do so would be an
exception that completely swallows up the general rule of statutes of limitations.
Here, the allegedly
defamatory statements were originally made on April 29, 2019 in a complaint and
made most recently on September 20, 2021 in a third amended complaint. (Decl.
Adida Re: Litt and Battles anti-SLAPP Motion, Exhs. A, B; Compendium of
Exhibits, Exhs. 2, 5.) More than a year has passed since both of these
publications, and Plaintiff has not presented the Court with any reason why the
statute of limitations should be tolled past the date that all of the elements
of the causes of action accrued. Thus, no cause of action for defamation on
these publications is actionable under California law due the statute of
limitations contained in Code of Civil Procedure section 340, subdivision (c).
D. Conclusion
At the first prong, Defendants Litt, Battles
and Kim meet their initial burden of demonstrating that they engaged in
protected activity by making pleadings in an underlying case.
At the second prong, Plaintiff fails to meet
his subsequent burden of demonstrating a probability of success in this matter.
Plaintiff fails to meet his burden for two independent reasons: one, the
protected activity at issue is absolutely privileged, and two, he filed this
complaint well beyond the one-year statute of limitations for a defamation
cause of action.
The Litt and Battles
anti-SLAPP Motion is GRANTED.
The Kim anti-SLAPP Motion is
GRANTED.
Defendants Litt, Battles,
and Kim are STRICKEN from the Complaint.
Defendants Litt, Battles,
and Kim may file their respective attorney’s fees motions.
II. Demurrer
Defendants Litt and Battles have been
stricken from the Complaint. Thus, the Court no longer has jurisdiction to rule
on their Demurrer.
The Demurrer is TAKEN OFF CALENDAR.