Judge Ronald F. Frank, Case Number: 22TRCV01604, Date: 2024-03-12 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV01604, Date: 2024-03-12 Tentative Ruling

Case Number: 22TRCV01604 Hearing Date: March 12, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: March 12, 2024¿¿

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CASE NUMBER: 22TRCV01604

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CASE NAME: Julia Misley v. Steven Victor Tallarico, et al.

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MOVING PARTY: (1) Defendant, Steven Victor Tallarico aka Steven Tyler

RESPONDING PARTY: (1) Plaintiff, Julia Misley, formerly known as Julia Holcomb

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TRIAL DATE: None set.

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MOTION:¿ (1) ¿ Special Motion to Strike Plaintiff’s Complaint

Tentative Rulings: (1) GRANTED, at least as to the portions of the IIED claim based upon the publication of the books/memoirs. ARGUE if after striking those provisions, any of the IIED claim can remain.

I. BACKGROUND¿¿

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A. Factual¿¿

On December 27, 2022, Plaintiff, Julia Misley (formerly known as Julia Holcomb) (“Plaintiff”) filed a Complaint against Defendant Doe 1, and DOES 2 through 50. On February 1, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against Defendant, Steven Victor Tallarico aka Steven Tyler, and DOES 2 through 50. The FAC alleges causes of action for: (1) Sexual Battery – Civil Code § 1708.5; (2) Sexual Assault; and (3) Intentional Infliction of Emotional Distress (“IIED”).

The FAC is based on Plaintiff’ allegations that she is a survivor of childhood sexual abuse, sexual battery, assault, and molestation at the hands of Defendant, Steven Victor Tallarico aka Steven Tyler (“Defendant”). Plaintiff alleges that when she was 16 years old, Defendant used his role, status, and power as a well-known musician and rock star to gain access to, groom, manipulate, exploit, and sexually assault Plaintiff over the course of over three years in numerous states across the country, including California.

Defendant now files a Special Motion to Strike the IIED cause of action in Plaintiff’s First Amended Complaint.

B. Procedural¿¿

On April 28, 2023, Defendant filed the Anti-SLAPP Special Motion to Strike. On July 20, 2023, Defendant filed a Notice of Continuance. On October 9, 2023, the parties filed a joint stipulation to continue this motion. On January 23, 2024, Plaintiff filed an opposition. On January 29, 2024, Defendant filed a reply brief. The case was then reassigned to Judge Reinert, and after a 170.6 affidavit was field as to him, the case was reassigned to Inglewood just a few days before the continued hearing was scheduled. This Court continued the hearing to enable it to have sufficient time to read the parties’ briefs and issue a Tentative Ruling, which it has now done.

II. ANALYSIS¿

A. Legal Standard

Attorney Defendants filed a special motion to strike the Complaint against them in its entirety, consisting of the eight (8) causes of action under CCP § 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute. “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “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.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, 1 Cal.5th at 384 (citation omitted).) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 (citations omitted).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

B. Discussion

Here, Defendant moves on this Anti-SLAPP, Special Motion to Strike, on the grounds that he argues Plaintiff’s Third Cause of Action for Intentional Infliction of Emotional Distress based on Defendant’s public statements includes claims that arise from protected activity and for which she cannot demonstrate a probability of prevailing on the merits.

Conduct in Furtherance of Right of Petition or Free Speech

CCP § 425.16(e) states: “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.” “In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78. The anti-SLAPP's statute focuses, not on the form of cross-complainant’s cause of action but, rather, cross-defendants' underlying activity that gives rise to the asserted liability and whether that activity constitutes protected speech or petitioning. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)

In Baral v. Schnitt (2016) 1 Cal.5th 376, the court held that an anti-SLAPP motion may be utilized to strike specific allegations of protected activity without eliminating the entire cause of action or primary right. “By referring to a “cause of action against a person arising from any act of that person in furtherance of” the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§ 425.16(b)(1), italics added.) Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity.” (Id. at 395.)

Here, the Court’s examination of the allegations of the FAC reveals that the IIED cause of action arises at least in part from protected speech that involves a matter of public interest. FAC ¶¶ 19-23, 42, and 44 allege that Tyler “made widespread publications,” including the “publishing of memoirs and/or books” describing his [alleged] abuse of Plaintiff; that “as a result of [these] writings,” Tyler imposed involuntary infamy on Plaintiff resulting in her [alleged] deep emotional harm; that the “public dissemination” of Plaintiff’s [alleged] assaults creates additional trauma; that the “memoirs and statements” confirm the [alleged] crimes her perpetrated upon Plaintiff; that Plaintiff saw a picture of herself on a tabloid that referred to her as Tyler’s teen lover, leaving readers of the tabloid without any doubt of her identify; that details of the fire and [alleged] coerced abortion “were now published”; that Tyler “has intentionally publicized the acts he perpetrated” that reached a crescendo “when his multiple books were published”; that he “described his [alleged] assaults of Plaintiff in various media outlets including, but not limited to his books, memoirs and other public statements.” The FAC describes Tyler as a “world famous rock star” who has achieved “special status and power in the media and world generally’ and that Plaintiff has become a “central figure” in a publicized “scandal.” [FAC ¶¶ 19, 21, 23, 44, 49.] Hall v. Time Warner, Inc. (2007) 153 Cal.App.4^th 1337, 1347 held that a private person who may not have sought publicity became involved in an issue of public interest for anti-SLAPP purposes when she became involved with a celebrity (Marlon Brando) as to whose private life the public has a fascination. See Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4^th 1027, 1042 (extensive interest in Nygård—“a prominent businessman and celebrity of Finnish extraction—among the Finnish public demonstrated the public interest element for anti-SLAPP purposes.) A broad reading of the “public forum” requirement of the anti-SLAPP statute comports with the fundamental purpose underlying the anti-SLAPP statute, i.e., to protect against lawsuits that may chill the valid exercise of constitutional rights such as the right of free speech. (Id. at p. 1038 (newspapers and magazines are public fora within the meaning of section 425.16, subdivision (e)); Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (homeowners’ association newsletter constituted public forum.)

Plaintiff’s allegations indicate the IIED arose at least in part after publication of memoirs and/or books, and that she discovered her identification in the memoirs in a newspaper tabloid. These publications all constitute public forums for the purposes of the anti-SLAPP statute. Further, Plaintiff’s declaration in opposition to the anti-SLAPP motion shows that Plaintiff herself concedes that the publication of “Walk this Way” caused her severe emotional distress commencing in 1997 (Misley Decl. ¶¶26, 27.) In 2011, Plaintiff states that she sustained further emotional distress upon seeing a photo of herself in the tabloid Star Magazine in connection with an article about another upcoming memoir, which was published shortly thereafter (id. ¶¶ 29, 30, 32.) While the Opposition purports to argue that the publications are merely evidence of the underlying allegedly extreme and outrageous conduct, the allegations of the FAC and the Plaintiff’s own declaration show differently because they allege and admit that the publications themselves caused her severe emotional distress. While the memoirs themselves do appear to contain evidence of plaintiff’s other causes of action dating back to her childhood -- causes of action that are not challenged by the instant motion -- that does not alter the character of the IIED cause of action for purposes of this motion

Probability of Prevailing on the Merits: Statute of Limitations

“To establish a probability of prevailing, 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74.) However, the Court must accept as true the evidence favorable to Plaintiff. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

“[Plaintiff’s] second-[prong] burden is a limited one. [He] need not prove [his] case to the court [citation]; the bar sits lower at a demonstration of ‘minimal merit’ [citation]. At this stage, [t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. The plaintiff must demonstrate this probability of success with admissible evidence. The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 531 (internal citations and quotations omitted).)

Since the Court has found that Defendants have established the first prong, Plaintiff must establish a probability of prevailing on the merits. (See Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74.) Here, the motion assumes Plaintiff might be able to prevail on the merits but for a complete defense revealed by the allegations of the FAC: the bar of the statute of limitations. The statute of limitations for an IIED cause of action is two years, and runs starting at the time the plaintiff suffers the severe emotional distress as a result of the outrageous conduct on the part of the defendant. (Code Civ. Proc. § 335.1; see also Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.) Here, Plaintiff contends in her FAC that her IIED cause of action flows at least in part from the publication of the books and/or memoirs that allegedly caused the involuntary infamy of Plaintiff for Defendant’s profit. Such a claim falls outside of the statute of limitations as the memoirs were alleged to have been respectively published in 1997 and 2011, and based on Plaintiff’s declaration the emotional distress caused by the publication of the memoirs and the publication of her photograph in Star Magazine occurred in those years. As such, to the extent the IIED claim revolves around Plaintiff’s allegations that the publication of the memoirs caused her emotional distress as claimed in the FAC, a lawsuit would have been required to be filed by 2013 at the latest.

Although the Court is understanding of the fact that the memoirs may have triggered the memory of alleged childhood sexual abuse, the revival statute revives actions that were allegedly endured by plaintiffs when the plaintiff was a minor. While the claimed sexual abuse may have occurred when Plaintiff was a minor in the 1970’s, the publication leading to the claimed emotional distress occurred long afterwards, when Plaintiff was an adult. As such, the publications would not be included in the revival statute because they did not occur within the statutorily defined period. In 1973, Plaintiff notes that she was 16 years old. (FAC, ¶ 10.) As such, Plaintiff was a legal adult in 1975, 22 years prior to the publication of the first memoir. AB 218 as amended to Code of Civil Procedure § 340.1, subsection (c) defines “Childhood sexual assault” to include “any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years…” The IIED claim, as it relates to the publication of the memoirs, thus would not fall under this revival statute because the acts allegedly giving rise to this emotional distress cause of action – the publications and Plaintiff learning about them – occurred decades later when she was an adult.

Because this special motion to strike is based solely on the allegations involving the publications leading to an action for IIED, the Court GRANTS this motion. The Court will entertain oral argument as to whether part of the IIED cause of action should survive this anti-SLAPP motion to the extent that it pertains to the emotional distresses allegedly suffered by her for the two years from when she met Defendant to when she was 18 years old.