22VECV01845 SANELA JENKINS vs ENTY LAWYER

                      

Van Nuys Courthouse East / Dept T - Hon. Shirley K. Watkins        

4/14/2023

[TENTATIVE] ORDER:  The Motion for Leave to Conduct Specified Discovery Pursuant to Code of Civil Procedure section 425.16(g) is DENIED.  The court will reset the hearing on the anti-SLAPP motion.

Introduction

On January 5, 2023, Defendant Enty Lawyer ("Defendant") filed a special motion to strike the complaint of Plaintiff Sanela Jenkins a/k/a Diana Jenkins ("Plaintiff"). Pursuant to Code of Civil Procedure section 425.16(g), discovery was stayed pending the Court's ruling on Defendant's motion. Plaintiff now moves to conduct specified discovery.

Discussion

A court may grant a continuance of an anti-SLAPP motion to allow discovery for good cause. (Code Civ. Proc. § 425.16(g).) "To establish good cause, the plaintiff must file a noticed motion identifying the specific discovery sought and showing this discovery is 'needed ... to establish a prima facie case' and 'tailored to that end.' [Citation.]" (Murray v. Tran (2020) 55 Cal.App.5th 10, 37.) (Emphasis added.)

Plaintiff's request does not identify specific discovery. Plaintiff's motion and notice of motion states that she seeks to conduct "discovery regarding Enty Lawyer's actual malice, including but not limited to…Information and evidence regarding Enty Lawyer's identity, background, knowledge, and experience…Information and evidence regarding Enty Lawyer's use of anonymous sources…Information and evidence regarding Enty Lawyer's investigation, research, and vetting…" (Motion, pg. 2.) Beyond these three broad categories, the only further detail Plaintiff provides is an indirect comment that her requested discovery "consists of a single deposition and written discovery requests issued to Enty Lawyer alone." (Reply, pg. 6.) Plaintiff probably seeks to depose and propound interrogatories on Defendant. But the Court is left to make this inference-Plaintiff does not actually say it.

In addition, Plaintiff's request is not tailored to defeating Defendant's anti-SLAPP motion. Plaintiff contends she needs to unmask the identity of Defendant and Defendant's sources to show that Defendant acted with actual malice. There are three problems with Plaintiff's argument.

First, Plaintiff has not met the standard for disclosing Defendant's identity. As Plaintiff correctly notes, the Krinsky standard requires a plaintiff seeking to unmask an anonymous defendant to make a prima facie showing of libel or defamation based "on a preliminary showing of only those facts accessible to the plaintiff." (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1171, ft. 12.) According to Plaintiff, the Krinsky requirement is less than what she would need to defeat Defendant's anti-SLAPP motion. However, the Krinsky Court explicitly pointed out that it was "not confronted with issues involving freedom of the press [or] the confidentiality of news sources…" (Id. at 1165.) Here, Plaintiff seeks to disclose Defendant's identity and potentially the identity of Defendant's sources. Plaintiff must provide additional justification in light of the protection afforded to journalists and their sources-even if they are bloggers - such discovery at this stage.  She has not described how this information will meet the statutory goals of discovery pending an anti-SLAPP motion.

Article I, section 2, subdivision (b) of the California Constitution, also known as the California Shield Law, protects publishers and reporters from having to disclose their sources. Consequently, "in a civil action a reporter, editor, or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources." (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 279.) California courts have found that this protection applies to online publishers who disseminate information about current events to a mass audience. (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1467 ["we can see no sustainable basis to distinguish petitioners [as online bloggers] from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media."].) This, in part, is because courts do not distinguish between legitimate and illegitimate journalism. (See Id. at 1457 ["We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news."].)

Here, the parties do not dispute that Defendant is an online publisher who disseminates information about public figures to a mass audience. Plaintiff nevertheless seeks discovery of Defendant's identity, the identity of Defendant's anonymous sources, and Defendant's pre-publication investigations. As a journalist-whether seemingly legitimate or illegitimate-Defendant has a qualified privilege beyond Krinsky to withhold the identity of his confidential sources and any unpublished information supplied those sources. Plaintiff's justification for her requested discovery does not meet this heightened standard.

Second, it is unclear how disclosing Defendant's identity per se will establish actual malice. Plaintiff argues that unmasking Defendant may reveal that Defendant relied on unverified, anonymous sources-and reliance on unverified, anonymous sources is evidence of actual malice. But the only case Plaintiff cites in support is from New York. (Zuckerbrot v. Lande (N.Y. Sup. Ct. 2022) 167 N.Y.S.3d 313, 335.) Conversely, California courts have held that "mere failure to investigate the truthfulness of a statement, even when a reasonably prudent person would have done so, is insufficient" to establish actual malice. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1169; see also Edward v. Ellis (2021) 72 Cal.App.5th 780, 793 ["failure to investigate, without more, generally is insufficient"].)

"To prove actual malice, a plaintiff must show that statements were made with 'knowledge that [they were] false or with reckless disregard of whether [they were] false or not.' [Citation.] 'There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth,' and the evidence must be clear and convincing. [Citation.]" (Balla v. Hall (2021) 59 Cal.App.5th 652, 682-683.) Plaintiff has not shown how unmasking Defendant's identity will meet this standard.

Third, it is not clear that disclosing Defendant's identity will defeat Defendant's special motion to strike. Defendant's anti-SLAPP motion gives four reasons why Plaintiff cannot show a probability of prevailing. Plaintiff's inability to show Defendant acted with actual malice is the fourth and final argument Defendant makes. Disclosing Defendant's identity and the identity of Defendant's sources does not help Plaintiff address the first three arguments.

To summarize, Plaintiff moves to conduct specified discovery but Plaintiff does not specify which discovery devices she seeks to use, has not identified proposed discovery (such as specific interrogatories). Instead, Plaintiff asks the Court to allow discovery of three broad categories-including, but not limited to, the disclosure of Defendant and Defendant's sources. However, it is not clear Plaintiff has met the heightened standard for disclosure of a journalist's sources and it is not clear disclosure will prove actual malice.

Plaintiff has therefore failed to show good cause to conduct specified discovery pursuant to Code of Civil Procedure section 425.16(g).

IT IS SO ORDERED, CLERK TO GIVE NOTICE.