Judge: Stephen I. Goorvitch, Case: 23STCV14544, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV14544    Hearing Date: March 27, 2024    Dept: 39

Berry Gordy v. Timothy Bogart, et al.

Case No. 23STCV14544

Order #1 of 2

Motion to Lift Stay of Discovery for Limited Purposes

            Plaintiff Berry Gordy (“Plaintiff”) filed this action against Defendants, alleging as follows:

“This case concerns the conception, development, and production of a motion picture known as ‘Spinning Gold’ (the ‘Picture’). The Picture presents a defamatory, fraudulent, and dishonest fictional subplot in which Plaintiff Berry Gordy the 94 year old iconic founder of Motown records is portrayed as a gangster and a thug. Of course, none of this is true and the character assassination of Plaintiff was done solely for the commercial gain of Defendants by smearing the legendary reputation of Plaintiff for their own pecuniary benefit. Defendants either knew this or should have known this as the opposition to the motions will argue and deposition testimony will show. Herein, most importantly, Defendants created a false, but inescapable, conclusion in the mind of a reasonable viewer that Plaintiff had committed a crime or crimes.”

(Plaintiffs’ Memorandum of Points & Authorities, p. 3:13-21.)  Based upon these allegations, Plaintiff asserts the following causes of action in the operative complaint:

            First COA – Declaratory relief

            Second COA – Defamation: Libel per se

            Third COA – Defamation: Libel

            Fourth COA – Invasion of privacy

            Fifth COA – False light invasion of privacy

            Sixth COA – Violation of the right to publicity

            Seventh COA – Intentional infliction of emotional distress

            Eighth COA – Unfair competition

Defendants have filed special motions to dismiss under Code of Civil Procedure section 425.16, commonly known as “anti-SLAPP motions.”  This automatically stays discovery.  Plaintiffs now seek to lift this stay in order to conduct limited discovery as necessary to oppose the anti-SLAPP motions. 

In ruling on anti-SLAPP motions, the trial court uses a two-step process.  First, the defendants must show that the act or acts of which the plaintiff complains were taken in furtherance of their right of petition or free speech under the United States or California Constitutions in connection with a public issue.  (Code Civ. Proc., § 425.16, subd. (b)(1).)  The defendant has the burden of making a prima facie showing that a cause of action arises from an act in furtherance of his or her constitutional rights of petition or free speech in connection with a public issue.  (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  If the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.  (Code Civ. Proc., § 425.16, subd. (b)(3).)

As a general rule, discovery is stayed upon the filing of an anti-SLAPP motion.  (See Balla v. Hall (2021) 59 Cal.App.5th 652, 692, citing Code of Civil Procedure, section 425.16, subd. (g).)  However, the Court has discretion to order “specified discovery” based upon a showing of “good cause.”  (Ibid., citation omitted).  In the anti-SLAPP context, “good cause” requires “a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.”  (Ibid., citation omitted.)

            As an initial matter, Plaintiff seeks to lift the discovery stay by arguing that “there is substantial doubt that C.C.P. § 425.16 applies at all to this case.”  (Plaintiff’s Memorandum of Points & Authorities, p. 5:4-5.)  This is not a basis to grant the motion.  As discussed, Plaintiff must identify “specified discovery [that] is necessary for [him] to oppose the [anti-SLAPP] motion . . . .”  In the alternative, Plaintiff requests to take the depositions of Defendant Timothy Bogart and the persons most knowledgeable from Defendants Universal City Entertainment Group and Amazon Prime Video. 

            The Court continues the hearing on this motion to the same date/time as Defendants’ anti-SLAPP motions: June 10, 2024, at 8:30 a.m.  If the Court cannot determine the special motions to strike without considering the second prong, and the requested discovery may result in a different outcome, the Court will grant Plaintiff’s motion for discovery at that time and order additional briefing on any remaining issues.  (See The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.)

            Based upon the foregoing, the Court orders as follows:

            1.         The Court continues the hearing on Plaintiff’s motion to lift the stay of discovery for limited purposes to June 10, 2024, at 8:30 a.m.

            2.         Defendants’ counsel shall provide notice and file proof of such with the Court.

Order #2 of 2

Motions to Seal

Defendants move to seal the following documents: (1) Exhibit A to the declaration of Patrick Cooper, and (2) Exhibit A to the declaration of Alexandra Glenn.  Civil court proceedings are presumptively open to the public. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580, fn. 17.)  Before sealing records, “a trial court must hold a hearing and expressly find that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.)

The Court finds that sealing is appropriate.  The Court finds that there is an overriding interest in sealing the documents (which are agreements regarding the distribution of the film at issue) because they contain proprietary information.  The Court finds that there is a substantial probability that Defendants’ interests will be compromised absent sealing.  The Court finds that the request is narrowly-tailored to cover only the necessary information.  The Court finds that there is no less restrictive means of protecting Defendants’ proprietary information.  Finally, the Court finds that the public’s right to understand the proceedings will not be compromised by sealing these exhibits.

Based upon the foregoing, the Court orders as follows:

1.         The Court grants Defendants’ motions to seal.

2.         The Court orders that the following documents shall be sealed: (1) Exhibit A to the declaration of Patrick Cooper, and (2) Exhibit A to the declaration of Alexandra Glenn.

3.         Defendants’ counsel shall provide notice and file proof of such with the Court.