Judge: Monica Bachner, Case: 19STCV11404, Date: 2022-09-07 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV11404    Hearing Date: September 7, 2022    Dept: 71

 

 

Superior Court of California

County of Los Angeles

 

DEPARTMENT 71

TENTATIVE RULING

 

BIG BALLER BRAND, et al.

 

         vs.

 

GREGORY ALAN FOSTER

 Case No.:  19STCV11404

 

 

 

 Hearing Date:  September 7, 2022

 

Defendant and Cross-Complainant Gregory Alan Foster’s unopposed motion to seal is denied as to the Deposition testimony of Lonzo Anderson Ball, the Motion for Leave to Amend, and the Declaration of Foster.  To the extent Foster intended to move to seal the Turnauer Declaration, the motion is denied.  Foster is to file unredacted versions of the Amendment Motion, Foster Declaration, and Turnauer Declaration with the Court.

 

Foster’s motion for leave to file a second amended cross-complaint is denied.

 

  1. Motion to Seal

             

    Defendant and Cross-Complainant Gregory Alan Foster (“Foster”) moves to seal documents in support of his motion for leave to amend (“Amendment Motion”) that he filed and lodged conditionally under seal.  Specifically, Foster moves to seal redacted portions of the Amendment Motion itself, redacted portions of the supporting declaration of Foster (Exhibit E to the Amendment Motion), and the entirety of the submitted portions of the deposition transcript of Cross-Defendant and Cross-Complainant Lonzo Anderson Ball (“Lonzo”) (Exhibit C to the Amendment Motion).  On September 1, 2022, Lonzo filed a Notice of Non-Opposition to the instant motion to seal.

     

    Under CRC Rule 2.550(c), Court records are presumed to be open.  Under CRC Rule 2.551(a), a record must not be filed under seal without a Court order, and the Court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.  While exceptions to this rule exist, a motion for leave to amend a pleading and materials submitted in support of that motion, do not fall within the possible exceptions.  (See CRC Rule 2.550(a)(2)-(3).) Finally, CRC Rule 2.551(b)(1) provides that a party requesting a record be filed under seal must file a motion or an application for an order sealing the record which must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.

     

    CRC Rule 2.550(d) provides, as follows: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4)  The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

     

    The Court has reviewed the unredacted filings lodged conditionally under seal. The redacted portions in the Amendment Motion and Foster Declaration only indicate that Foster learned facts supporting the proposed defamation cause of action via the deposition of Lonzo.  Neither of these filings go into the specifics of Lonzo’s testimony, and only generally address that based on the testimony, Foster learned Lonzo knew a statement he made to Ramona was false at the time it was made.  (Motion, pgs. 3, 6-7; Exh. E: Decl. of Foster ¶¶5-7 [redacted, description of Foster’s prior belief and how after Lonzo’s deposition, Foster believes Lonzo knew the statements were false at the time they were made as well as a description of emotional distress Foster has suffered (which is included in the proposed SACC)].)  In the Proposed SACC, Foster alleges Lonzo knew this statement was false at the time it was made, and Foster also alleges facts supporting his having suffered emotional distress.  (SACC ¶¶267, 269.)  The Proposed SACC includes additional allegations that correspond to material in the Amendment Motion and supporting declarations that Foster seeks to have sealed. The Court has also reviewed the Lonzo’s deposition testimony, which the Court notes Foster does not cite to or quote in his motion or declaration, other than generally addressing that during the deposition (at what point is unspecified), he learned Lonzo had knowledge of the falsity of his statements.  In his deposition, Lonzo discusses his role in the various businesses he was involved in as well as financial information relating to bank accounts with which he was associated. (Motion, Exh. C.)  The actual information discussed in the deposition does not appear in the Amendment Motion, Foster Declaration, or Proposed SACC.

     

    The Court finds that the fact Foster learned facts supporting a potential cause of action for defamation against Lonzo at Lonzo’s deposition is not confidential for the purposes of being subject to the requested sealing order, which is based on the confidentiality of Lonzo’s deposition as disclosing confidential commercial business information of Lonzo, a well-known basketball player and public figure.  As such, the Court finds Foster did not sufficiently demonstrate that the information contained in the redacted portions of the Amendment Motion and Foster Declaration amount to confidential information necessitating a sealing order based on the factors set forth in CRC Rule 2.550(d).  Accordingly, Foster’s motion to seal these filings is denied.

     

    As to Lonzo’s deposition transcript, Foster has not demonstrated the information contained therein amounts to confidential and commercially sensitive business information to warrant sealing.  A review of the portions of the deposition conditionally lodge under seal demonstrates the matters discussed by Lonzo do not amount to confidential commercial business information.  Foster’s counsel Tamar Yeghiayan (“Yeghiayan”) declared the information in Lonzo’s deposition testimony was designated confidential by Lonzo’s counsel pursuant to the protective constitutes confidential information. (Decl. of Yeghiayan ¶¶4-5.)  However, Yeghiyan fails to cite to any lines of testimony and/or confidential business information that Lonzo disclosed in his deposition, and the Court’s review of the transcript confirms Lonzo discusses matters alleged in the action and parties to the case, without specifically discussing private information.  Foster asserts Lonzo may have a privacy in the deposition testimony at issue because it contains sensitive business information.  (Motion, pg. 5.)  Foster asserts Lonzo’s overriding interests will be prejudiced if the deposition testimony is not sealed because public access to such information would dissemination of Lonzo’s sensitive business information.  (Motion, pgs. 4-5.) However, these arguments are unsupported as it is unclear how the matters discussed in the submitted transcript qualify as confidential business information.  A conclusory assertion that the required factors to be considered in a sealing motion have been satisfied is insufficient.  Accordingly, Foster’s motion to seal the deposition transcript is denied.  The Court notes the Amendment Motion does not refer to or cite matters Lonzo discussed in his testimony, and as such, the submitted transcript is not material to the Court’s ruling on that motion.  

     

    Finally, the Court notes the Declaration of Brian E. Turnauer (“Turnauer”) also includes a redacted paragraph. (Decl. of Turnauer ¶8.)  While this declaration is not discussed in the motion to seal and is not part of Foster’s sealing request, it was lodged conditionally under seal as an attachment to the Amendment Motion, and a review of the filing suggests the material contained in Paragraph 8 need not be sealed for the same reasons as the Amendment Motion and Foster Declaration. Notably, Paragraph 8 only sets forth that Foster’s counsel conducted Lonzo’s deposition on September 9, 2021, during which Foster learned facts relating to Lonzo’s knowledge of the falsity of certain facts he made to the ESPN reporter.  To the extent Foster intended to move to seal this declaration, the motion is denied.

     

    Based on the foregoing, Foster’s unopposed motion to seal is denied as to the Lonzo Deposition (Exhibit C), the Amendment Motion, and the Foster Declaration.  To the extent Foster intended to move to seal the Turnauer Declaration, the motion is denied.  Foster is instructed to file unredacted versions of the Amendment Motion, Foster Declaration, and Turnauer Declaration with the Court. 

     

  2. Motion for Leave to Amend

     

    Foster moves for leave to leave to file a second amended cross-complaint (“SACC”) against Cross-Defendants Lonzo, Big Baller Brand, LLC (“BBB”), Lavar Christopher Ball (“Lavar”), Tina Ball (“Tina”), Ball Sports Group, Inc. (“BSG”), Darren Moore (“Moore”), Marathon Media Consulting, Inc. (“Marathon”), and Big Baller Brand, Inc. (“BBB Inc.”) (collectively, “Cross-Defendants”) for the purpose of adding causes of action for defamation (slander per se) and intentional infliction of emotional distress (“IIED”) against Lonzo. (Notice of Motion, pg. 2.)

     

    Background

     

              On April 2, 2019, Lonzo and BBB (collectively, “Plaintiffs”) filed their initial complaint against Foster alleging four causes of action for fraud, breach of fiduciary duty, conversion, and accounting based on Foster’s alleged embezzlement of Lonzo’s finances.  On October 2, 2019, Foster filed his initial cross-complaint against BBB, Lonzo, Lavar, Tina Ball (“Tina”), BSG, Darren Moore (“Moore”), and Marathon Media Consulting, Inc. (“Marathon”) for 17 causes of action including breach of contract, breach of fiduciary duties, fraudulent concealment, conversion, and accounting.  On March 12, 2021, the Court granted the parties’ stipulation to permit the filing of a first amended cross-complaint (“FACC”), and on March 24, 2021, Foster filed his FACC which added a constructive trust cause of action among other changes.  On September 22, 2021, the Court approved the parties’ stipulation to allow Lonzo to dismiss his first and second causes of action against Foster in the complaint, effectively dismissing his complaint, BBB to file a first amended complaint (“FAC”) adding no new causes of action, and Lonzo to file a cross-complaint against Foster limited to the claims alleged in the dismissed first and second causes of action.  On July 28, 2022, Foster filed the instant motion for leave to amend.

             

              The proposed SACC adds new general allegations. In the opening pararaphs, Foster adds allegations that after conducting discovery, he can establish that when Lonzo made false statements to Ramona Lonzo know those statements were false and that “recently” Foster has suffered emotional distress as a result of Lonzo’s statements.  At Paragraph 94, which discussed the publication of the ESPN article, Foster adds allegations that Lonzo knew his Defamatory Quote to Ramona was false at the time he made it.  The SACC also adds paragraphs 96-98, in which Foster alleges he previously believed Lonzo had made the Defamatory Quote because he had been given inaccurate information from his then financial advisor Lameck Humble Lukanga (“Humble”); however, as a result of discovery in September 2021, Foster alleges Lonzo knew the falsity of the statement at the time he made it. Foster alleges after the ESPN Article was published (March 25, 2019) and before the complaint was filed (April 2, 2019), he started receiving death threats, which caused him to move out of the country.  Foster alleges that his September 2021 realization Lonzo made the Defamatory Quote with actual knowledge of its falsity “hit [him] hard” as it has caused him to remember the death threats and negative comments resulting from the ESPN article which together with an inability to find work has manifested into severe emotional distress, which was brought on by Lonzo’s quote in the ESPN Article. (Proposed SACC ¶¶97-98.)

     

              The new defamation cause of action is based on allegations that in March 2019, Lonzo made the defamatory statement indicating Foster had stolen Lonzo’s assets to the ESPN reporter Ramon Shelbourne which was published in an ESPN article in March 2019. (Proposed SACC ¶¶260-265.)  The new IIED cause of action is based on allegations that Lonzo’s Defamatory Quote to Ramona was outrageous because he knew it was false, the Defamatory Quote resulted in Foster receiving death threats and reputational damage, Lonzo intended to cause Foster emotional distress by making the quote, and Foster has suffered emotional distress which symptoms manifested in September 2021.  (Proposed SACC ¶¶266-272.)

     

    Motion for Leave to Amend

     

    “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (C.C.P. §473(a)(1).)

     

    “Trial courts are vested with the discretion to allow amendments to pleadings ‘in furtherance of justice.’ That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state since 1901.” (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.)

     

    CRC Rule 3.1321(a) requires that a motion to amend must: “[i]nclude a copy of the proposed… amended pleading… [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located…”

     

    CRC Rule 3.1324(b) provides, as follows: “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.”

     

    Foster’s motion does not comply with CRC Rule 3.1324(a). The motion indicates Foster seeks to add causes of action for defamation and IIED against Lonzo and includes a copy of the proposed SACC and a redline comparison of it with the operative FACC. (Notice Motion pg. 2; Decl. of Turnauer ¶15, Exh. F [SACC Redline].)  Neither the motion nor supporting declarations directly state what allegations are proposed to be added or deleted and where, by page, paragraph, and line number; rather, Foster appears to rely only on the attached redline comparison of the FACC and the proposed SACC to satisfy this requirement.  Notably, the Proposed SACC deletes allegations, but these are not referenced in the motion. (SACC Redline, pgs. 6-7.) 

     

    Foster’s motion does not comply with CRC Rule 3.1324(b). In support of the motion, Foster submitted a declaration of his counsel Turnauer; however, this declaration does not specify the effect of the amendment and why it is necessary and proper. Rather, Turnauer only declares that Lonzo and Foster attempted to set a mediation to settle their differences, during which time Turnauer felt it prudent to not move to amend the FACC to not hinder settlement efforts, and in May 2022, Lonzo’s counsel refused Turnauer’s request to stipulate to Foster’s filing the SACC.  (Decl. of Turnauer ¶¶10-12.)  Notably, the Turnauer declaration does not include any information addressing why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and/or the reasons why the request for amendment was not made earlier.  The motion indicates Foster learned of facts giving rise to his defamation and IIED causes of action during Lonzo’s deposition, which took place in September 2021; however, this motion was not filed until July 2022.

     

    In opposition, Lonzo argues the motion should be denied because the proposed defamation claim is barred by the one-year statute of limitations, and the discovery rule does not apply to extend the statute given the at-issue defamatory statement was publicly published on March 25, 2019, at which time Foster confronted Lonzo about the article and his quote. (Opposition, pgs. 4-5; Proposed SACC ¶¶99 [allegation that on March 31, 2019, Foster sent Lonzo, Lavar, and Moore an email informing them to all cease from “making false statements that he stole Lonzo’s money from his personal accounts…” and requested that “Lonzo and Lavar use the same energy they used to wrongly defame him to contact the media with a retraction video apologizing and stating [Foster] never took any money from Lonzo or the Ball companies…”], ¶100 [allegation that on April 1, 2019, Bryant sent an email to Foster, Lonzo, Moore, and Humble resigning as BBB’s brand manager and confirming his awareness that “Lonzo, [Moore], Humble, and Lavar were lying to the media about [Foster]…”].)  Lonzo argues the relation-back doctrine, whereby the defamation cause of action filing date would relate back to the filing date of Foster’s original cross-complaint, within the statute of limitations, does not apply defamation cause of action given the defamation claim is based on new facts and alleges a new injury. (Opposition, pgs. 5-6.)  Lonzo argues Foster’s claims against Lonzo in the original cross-complaint relate to ownership of BBB and breach of an oral agreement relating to Lonzo’s college living expenses, notwithstanding the fact the original cross-complaint refers to the ESPN article and Lonzo’s quote therein.  (Opposition, pg. 6.)  

     

    Lonzo argues the IIED cause of action is likewise time-barred on the face of the proposed pleading by the two-year statute of limitations given it is based on emotional distress Foster alleges he suffered shortly after the ESPN article containing Lonzo’s quote was published in 2019. (Opposition, pgs. 7-8; SACC ¶97.)  Lonzo argues the IIED cause of action does not relate back to Foster’s original cross-complaint, since it is also seeks damages on a different injury than alleged in the cross complaint and does not arise from the same facts as his previously asserted contract and tort claims.  (Opposition, pg. 8.)  The Court notes Lonzo does not raise other arguments in opposition to the motion, namely whether he will be prejudiced if the Court grants Foster’s request for leave to amend.

     

    Foster is not entitled to an order granting leave to file the proposed SACC. As discussed above, the motion is procedurally deficient.  In addition, the proposed causes of action are time-barred on the face of the pleading, and neither relation back nor the discovery doctrine apply. 

     

    In reply, Foster argues the original cross-complaint’s inclusion of allegations that ESPN published an article containing Lonzo’s Defamatory Quote means the proposed SACC’s assertion of a new cause of action based on the same set of previously alleged facts such that it is based on the same general set of facts as the original cross-complaint for purposes of application of the relation back doctrine. (Reply, pgs. 4-5.)  However, Foster does not address how the cross-complaint’s general allegation relating to the ESPN article publication supported relief Foster requested in his 7th (declaratory relief as to ownership of BBB), 11th (breach of oral contract relating to a living expenses agreement), and/or 15th (accounting based on BBB ownership) causes of action asserted against Lonzo.  Notably, of the cross-complaint’s 17 causes of action, these three are the only causes of action asserted against Lonzo.  Here, the recovery sought in the original pleading is based on a different set of facts as the recovery sought via the proposed SACC. Relation back does not apply. While amendments alleging a new theory of liability can relate back to the original complaint so long as the new cause of action is based on the same set of previously alleged facts, that is not the case here.  Foster does not address the fact that the relief requested against Lonzo in the cross-complaint in no way relates to the publication of the ESPN article and statements Lonzo made to a reporter in connection therewith for relation back to apply.

     

    Foster contends the IIED cause of action is also saved by the relation back doctrine because the symptoms of distress did not manifest until a later date, specifically, at and after Lonzo’s September 2021 deposition.  (Reply, pg. 6, citing Wassmann v. South Orange County Comm. College Dist. (2018) 24 Cal.App.5th 825, 852-853 [“A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.”]; Pugliese v. Sup. Ct. (2007) 146 Cal.App.4th 1444, 1450; Unruh-Haxton v. Regents of Univ. of Calif. (2008) 162 Cal.App.4th 343, 356-357.)  However, this argument is belied by Foster’s previous and proposed allegations, which contend he began suffering emotional distress as a result of Lonzo’s false statement in the ESPN article shortly after the article was published in 2019, including receiving death threats that caused him to leave the country.  Foster alleges he suffered additional symptoms of distress on learning that Lonzo made the March 2019 statement with actual knowledge of its falsity during his September 2021 deposition; however, these symptoms remain based on Lonzo’s 2019 statement to ESPN in connection with which Foster had already begun experiencing symptoms of distress. 

     

    Foster has not demonstrated his proposed causes of action are subject to the discovery rule for purposes of avoiding the applicable statutes of limitations. 

     

    “Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Citations Omitted).)  

     

    “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.”  Id. (Citations Omitted).  “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘information of circumstances to put [them] on inquiry’ or if they have ‘the opportunity to obtain knowledge from sources open to [their] investigation.’  In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.”  Id. at 807-808 (Citations Omitted).  “The Legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause.”  (Id. at 808 (Citations Omitted).) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’”  (Id.)

     

    In the context of applying the discovery rule to a defamation cause of action, the justification for its application does not apply when the defamation occurred by means of a book, magazine, or newspaper distributed to the public.  (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250-1251.)

     

    Notwithstanding Foster’s allegation that he did not know Lonzo made the March 2019 statement with actual knowledge of its falsity until the September 2021 deposition, the allegations make clear that Foster suspected Lonzo of defamation, indeed, he even sent Lonzo an email accusing him of defamation at the time. These allegations together with the fact that the defamatory statement was published to the public in March 2019 demonstrate the discovery rule does not apply to this cause of action. In reply, Foster argues the discovery rule applies to cause of action without addressing the authority relating to defamation cited by Lonzo.  (Reply, pgs. 6-7.)  Foster also overstates the requirements of the delayed discovery rule, that until he knew with certainty that Lonzo knew the falsity of his statements, the cause of action had not accrued. However, as set forth above, suspicion of one or more of the remaining elements is enough to trigger the discovery rule, and here, Foster more than suspected Lonzo of defaming him before filing the original cross-complaint given he sent an email asserting as much.    

     

    Foster asserts the discovery rule also saves his IIED cause of action because the cause of action did not accrue until he suffered the damages he now complains of, apparently in reference to the emotional distress suffered following the September 2021 deposition.  (Reply, pg. 7, citing Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341 [“Traditionally, a claim accrues when [it] is complete with all of its elements–those elements being wrongdoing [or breach], harm, and causation.”].)  However, this argument is belied by Foster’s allegations that the emotional distress symptoms he suffered after the September 2021 deposition are also based on Lonzo’s March 2019 statement and the 2019 ESPN article publication which resulted in Foster receiving death threats at that time, such that a cause of action based on Lonzo’s statement had already accrued. In addition, the allegations demonstrate Foster at least suspected Lonzo of making a false statement at the time given he accused him of defamation.  As such, the discovery rule does not apply.

     

    Based on the foregoing, Foster’s motion for leave to file a SACC is denied.

     

    Dated:  September _____, 2022                                                                      

    Hon. Monica Bachner

    Judge of the Superior Court