Judge: Richard Y. Lee, Case: 30-2022-01260863, Date: 2022-10-06 Tentative Ruling

Plaintiff Brett Gregor (“Plaintiff” or “BRETT”) seeks an order granting him leave to conduct limited discovery in response to the Special Motion to Strike/Anti-SLAPP (“Motion”) filed by Defendant Karen Gregor (“Defendant”) or (“KAREN”) pursuant to California Code of Civil Procedure section 425.16(g). The Motion is set for hearing on December 1, 2022.

Code of Civil Procedure section 425.16(g) states as follows: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”

“If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated.” (Lafayette Morehouse, Inc. v. Chron. Publ'g Co. (1995) 37 Cal.App.4th 855, 868.)

Plaintiff contends that good cause exists to allow him to conduct “limited” discovery because KAREN’s Motion contends that the allegedly defamatory comments were statements made in the course of a judicial proceeding, i.e., the dissolution/divorce proceedings, and were part of her “investigation” efforts in connection with the proceeding; and thus protected speech under the anti-SLAPP statute; that KAREN was investigating to confirm whether BRETT was having an affair and misappropriating community property for the divorce proceedings; that her conduct is protected by the litigation privilege; and that discovery is needed to determine if the litigation privilege applies to KAREN’s conduct. Specifically, Plaintiff contends that he is entitled to conduct discovery on: (1) whom KAREN spoke to for her “investigation” ; (2) what KAREN’s “investigation” entailed, i.e., whether as alleged in the Complaint, she was merely making false and defamatory statements about Plaintiff or whether she was inquiring as to whether they had any information about his spending money on other women; and (3) what objectives of the divorce proceedings KAREN’s investigation could achieve, if any.

In Opposition, KAREN contends that Plaintiff’s motion does not even articulate a need for discovery to present a prima facie case or to obtain evidence that establishes any element of a claim for defamation as required; that Plaintiff’s entire motion is based on his need to determine whether the litigation privilege applies, which is a question of law; that Plaintiff’s subjective intent and motives are not relevant to whether the litigation privilege applies; that Plaintiff does not even identify what information Plaintiff is seeking; and that Plaintiff’s motion essentially seeks discovery to challenge the statements made in her declaration in support of her Motion. Defendant further contends that, in any event, the discovery sought by Plaintiff is overly expansive since Plaintiff seeks, inter alia, depositions and deposition subpoenas of an unspecified number of people and is not narrowly tailored.

Here, Plaintiff seeks discovery in order to determine whether or not the litigation privilege applies to KAREN’s allegedly defamatory comments. Although the discovery is not aimed at evidence establishing a prima facie case of defamation, Plaintiff does seek evidence on issues raised in KAREN’s Motion. Pursuant to section 425.16(g), if the Court allows specified discovery, the “discovery should be limited to the issues raised in the special motion to strike.” (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2022) 99 Cal.App.4th 1179, 1189; see also Garment Workers Ctr. v. Superior Court (2004) 117 Cal.App.4th 1156, 116 [stating that in considering whether to allow discovery, the court should also consider the plaintiff's need for discovery in the context of the issues raised in the SLAPP motion].)

Further, contrary to KAREN’s contentions, application of the litigation privilege is a question of law only when “the facts and circumstances under which a defamatory publication was made are undisputed.” (See Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 147.) Here, the facts and circumstances under which KAREN’s comments were made are not undisputed. Rather, KAREN contends they were made as part of the divorce proceedings and Plaintiff contends that the evidence will likely establish that KAREN started her smear campaign even prior to becoming aware of the dissolution proceedings and at a time when KAREN was not even contemplating commencing divorce and prior to knowing that Plaintiff intended to commence the dissolution proceeding.

The litigation privilege 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.” (Nguyen, supra, 69 Cal.App.4th at 146-147.) 

Here, Plaintiff presents evidence that since KAREN has invoked the litigation privilege as a defense, Plaintiff needs to obtain evidence in order to oppose the Motion. (See Ryan Decl., ¶ 5.) Plaintiff contends that KAREN’s declaration filed in support of her Motion is vague and does not identify when she started her investigation, what her investigation entailed, and to whom she spoke with during the investigation and further contends this information is essential to determine whether the comments were made “to achieve the objects of the dissolution proceeding” – a factor in determining whether the litigation applies.

Plaintiff did not provide the Court with a detailed account of what is stated in KAREN’s declaration in support of the Motion. The Court, however, has reviewed the declaration and it only states that Plaintiff filed a marital dissolution action on or about January 6, 2022 (“Dissolution Action”); that at issue in the Dissolution Action is whether Plaintiff spent community funds on mistresses by way of gifts or in trust in order to avoid the distribution of the assets to the community; and that in “order to obtain evidence and identify witnesses on this topic and for the Dissolution Action, I have contacted family members and mutual friends of both Plaintiff and I, one of whom happens to be a business associate of Plaintiff”; and “I have also been investigating the expenditures of community funds made to find out whether Plaintiff was mismanaging our community property and gifting monies to third parties without my consent. It would appear that the communications with these persons are the communications identified by Plaintiff in the body of the Complaint.” (See K. Gregor Decl., ¶¶ 3, 6, and 7.) (Note to Court: ROA 17.)

The declaration does not state when KAREN’s investigation began, who Plaintiff contacted as part of her investigation (only that it “appears that the communications” are with persons identified by Plaintiff in the Complaint), or how, or in what context, the statements were made. As such, the Court finds that Plaintiff should be allowed limited specified discovery into these matters as the timing and substance of Plaintiff’s communications will be key in determining whether or not the litigation privilege applies.

The Court, however, finds that Plaintiff’s request for discovery is not narrowly tailored to obtain the specific evidence needed and is overly expansive as Plaintiff seeks: (1) Special interrogatories to KAREN to identify all third parties she spoke to and document requests to produce documents for all communications with third parties related to her “investigation”; (2) A limited deposition of KAREN related to her “investigation” efforts after the above information is received; and (3) Subpoenas for documents and potentially limited depositions of third parties identified by KAREN related to her “investigation.” (See Mattel, Inc., supra, 99 Cal.App.4th at 1189 [“[N]ot only did the Legislature desire early resolution to minimize the potential costs of protracted litigation, it also sought to protect defendants from the burden of traditional discovery pending resolution of the motion.”].)

The Court thus GRANTS the Motion, in part, and ORDERS that Plaintiff be allowed to only take the deposition of KAREN; the scope of the deposition limited to the ascertaining of details into her investigation efforts as stated in her declaration; and the deposition limited to one-day and a maximum of 5-hours. The parties are ORDERED to meet and confer and select a mutually agreeable date to occur within the next 21-days.

Moving Party is to give notice.