Judge: Theresa M. Traber, Case: 22STCV20788, Date: 2024-05-31 Tentative Ruling
Case Number: 22STCV20788 Hearing Date: May 31, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 31, 2024 TRIAL DATE: NOT
SET
CASE: Maral Kazandjian, et al. v. Does 1-100
CASE NO.: 22STCV20788 
SPECIAL
MOTION TO STRIKE (CODE CIV. PROC. § 425.16)
MOVING PARTY: Defendant Kevork Kahwajian
RESPONDING PARTY(S): Plaintiffs Maral
Kazandjian and Souzi Zerounian-Khanzadian
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for defamation that was filed on June 24, 2022.
Plaintiffs allege that Defendants created and shared several social media posts
accusing Plaintiffs of being adulterers and prostitutes and making derogatory
comments about their sexual orientation.
Defendant Kevork Kahwajian, sued as
Doe 2, specially moves to strike the Complaint pursuant to Code of Civil
Procedure section 425.16.
TENTATIVE RULING:
Defendant’s Special Motion to
Strike is DENIED.
DISCUSSION:
Defendant Kevork Kahwajian, sued as
Doe 2, specially moves to strike the Complaint pursuant to Code of Civil
Procedure section 425.16.
Legal Standard
In ruling on a defendant’s special
motion to strike, the trial court uses a “summary-judgment-like procedure at an
early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant
must show that the act or acts of which the plaintiff complains were taken “in
furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue.”
(Code Civ. Proc. § 425.16(b)(1).) Second, 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(b)(3).) The defendant has the burden on
the first issue, and the plaintiff on the second. (Kajima Engineering &
Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Rivero
v. American Federation of State, County and Municipal Employees, AFL-CIO
(2003) 105 Cal.App.4th 913, 919.) In making both determinations, the trial
court is to consider “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (Code Civ.
Proc. § 425.16(b)(2); Equilon Enterprises, LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.)
Timeliness of Motion
The Code of Civil Procedure
requires that a special motion to strike must be filed within 60 days of
service of the Complaint, subject to the Court’s discretion to permit late
filing. (Code Civ. Proc. § 425.16(f); see, e.g., Newport Harbor Ventures LLC
v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 639.) Here, Defendant
was served by personal service on Sunday, February 25, 2024. (Proof of Service
of Summons filed February 26, 2024.) Thus, the deadline to file this motion was
Thursday, April 25, 2024. However, Defendant’s motion was filed at 12:05 AM on
Friday, April 26, 2024. In the strictest sense, Defendant’s motion was not
timely filed. However, the time of filing—a mere five minutes after the
deadline passed—demonstrates good cause on its face for the Court to permit
late filing, especially as Plaintiffs did not object to the motion on this
basis. The Court will therefore exercise its discretion to accept the late filing
and address Defendant’s motion on its merits.
Protected Activity
Defendant
contends that the Complaint in its entirety is based on protected activity.
To satisfy
the first prong of the two-prong test, the defendant’s acts underlying the
cause of action must themselves have been in furtherance of the right of
petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal. 4th
69, 76-78.) The defendant’s acts are protected activity – that is, made in
furtherance of protected petition or free speech in connection with a public
issue – if they fit into one of the following categories under the section
425.16(e): (1) oral or written statements made before a legislative, executive,
judicial or any other official proceeding; (2) oral or written statements made
in connection with an issue under consideration or review by a legislative,
executive, judicial body, or any other official proceeding authorized by law;
(3) written or oral statements made in a place open to the public or in a
public forum in connection with an issue of public interest; and (4) any other
conduct in furtherance of the exercise of the constitutional rights of petition
or free speech in connection with a public issue or an issue of public
interest. (Code Civ. Proc. § 425.16(e); City of Cotati, supra,
29 Cal.4th at 78; Equilon Enterprises, supra, 29 Cal.4th at
67.)
In
determining whether a cause of action is based on protected activity, we
“examine the¿principal thrust¿or¿gravamen¿of a plaintiff's cause
of action to determine whether the anti-SLAPP statute applies.” (Optional
Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP¿(2017) 18
Cal.App.5th 95, 110, citation omitted.) “We assess the principal thrust by
identifying ‘[t]he allegedly wrongful and injury-producing¿conduct¿...
that provides the foundation for the claim.’” (Id. at 111, bold
emphasis added, citation omitted.) In other words, section 425.16 does not
apply if Defendant’s constitutionally protected activity is “merely incidental”
or “collateral” to the unprotected activity. (Baral v. Schnitt (2016) 1
Cal.5th 376, 395.) “Allegations of protected activity that merely provide
context, without supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.”¿(Ibid.)
As pertaining to this Defendant,
the Complaint alleges four defamatory social media posts on Facebook. The first
post, made on May 5, 2022, shared a previous post by Doe Defendant 1 containing
a photograph of Plaintiff Zerounian and commenting in Armenian “What is
happening Bedig Kazandjian? What is this, Miss Souzi?” (Complaint ¶ 13.) The shared
version of the post added further comments that allegedly translate as “Bedig
and Maral are used to fucking over and getting fucked.” (Id. ¶ 14.) The
second post was created by Defendant on May 2, 2022 and contained a photograph
of Plaintiff Kazandjian overlaid with the text “$5/hour” and commenting in
Armenian “Maral Kazanjian ‘the Cabaret whore’.” (¶ 15.) The third post was made
on May 6, 2022, and contained several photos of both Plaintiffs, labeling them
as bisexual, as well as a photo of Plaintiff Kazandjian’s husband, labeled
“cuckold Bedig.” (¶ 16.) The final post was made on May 14, 2022, and contained
another photo of Plaintiff Kazandjian overlaid with “Expelled from ARF” and
commenting “Because I am getting older, from you I will collect only $2 for one
night.” (¶ 17.)
Defendant contends that the
Complaint rests entirely on protected activity because the factual allegations
concern written statements on social media concerning an issue of public
interest. In ruling on whether statements pertain to a matter of public
interest, the Court of Appeal in Rivero v American Federation of State,
County, and Municipal Employees, AFL-CIO identified three categories of
protected statements: (1) “statements [that] concerned a person or entity in
the public eye,” (2) “conduct that could directly affect a large number of
people beyond the direct participants,” and (3) statements on “a topic of
widespread public interest.” (Rivero v American Federation of State, County,
and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.)
Defendants contend that these
statements concern matters of public interest because Plaintiffs allege their
extensive involvement in Armenian community organizations and claim
reputational damage within that community as a result of these statements.
Defendants assert that Plaintiffs’ “morality” is a matter of public interest. The
Court entirely fails to see how that could be so. Accusations that Plaintiffs
are adulterers and prostitutes are not matters connected to any issue of public
interest. Nor are derogatory speculative remarks regarding Plaintiffs’
sexuality. Moreover, the Complaint does not allege that the statements affect
the Armenian diaspora, as Defendant asserts, but merely sets forth the
reputation which is alleged to have been damaged by Defendant’s conduct.
(Complaint ¶¶ 10-12.) Defendants’ additional claim that this lawsuit is part of
a factional dispute within the Armenian Revolutionary Foundation is entirely
speculative and wholly unsupported.
Further still, not a single case
relied on by Defendant, either in his motion or his reply papers, stands for
the position that invective of the type alleged here concerns an issue of
public interest. Damon v. Ocean Hills Journalism Club, for example,
concerned statements questioning the plaintiff’s competence and veracity as
general manager of a homeowner’s association. (Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468, 479; see also Cabrera v. Alam
(2011) 197 Cal.App.4th 1077, 1081-82 [mismanagement of corporate funds]; Lee
v. Silveira (2016) 6 Cal.App.5th 527, 540 [concerning conduct of vote by
homeowner’s association for bidding on roofing project].) Others concerned
statements regarding the plaintiff’s history of criminal sexual activity (Terry
v. Davis Comm. Church. (2005) 131 Cal.App.4th 1534, 1547 [sexual
relationship with a minor]; Cross v. Cooper (2011) 197 Cal.App.4th 357,
378 [disclosure that resident of neighborhood is a registered sex offender].)
Still others pertain to the conduct of organizations, not of individuals like
these Plaintiffs. (Du Charme v. Int’l. Broth. Of Elec. Workers Local 45 (2003)
110 Cal.App.4th 107, 115-16; Kurwa v. Harrington, Foxx, Dubrow & Canter.
LLP (2007) 146 Cal.App.4th 841, 846.) Brodeur v. Atlas Entertainment,
Inc. concerned a joke made at the plaintiff’s expense in a film. (Brodeur
v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 675.) And there is nothing to suggest that
Plaintiffs were or are subject to such “extensive media scrutiny” that
“celebrity gossip” is in the public interest. (Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240, 1254.)
Defendant
offers nothing which would lead the Court to conclude that the statements here
concern a matter of public interest, and the statements themselves do not lend
themselves to that conclusion. Direct accusations aimed at Plaintiffs of
adultery and prostitution and speculative remarks about their sexuality are not
protected activity. Even the May 14 post accusing Plaintiff Kazandjian of being
expelled from the Armenian Revolutionary Foundation reveals its lack of
connection to any public issue through the accompanying text, which merely
denigrates Plaintiff’s age and repeats the accusation of prostitution. The
Court therefore concludes that these statements are not protected activity and
are therefore not subject to the provisions of section 425.16.
Immunity Under Communications Decency Act
Defendant
also argues that he is immune from liability under section 230 of the
Communications Decency Act. This statute states, in pertinent part, that “[n]o
provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider.” (42 U.S.C. § 230(c)(1).) The CDA also prohibits liability under
state law that is inconsistent with section 230. (42 U.S.C. § 230(e)(3).) As
interpreted by the California Supreme Court, the CDA protects an individual
user from liability for republication of allegedly defamatory material created
by another. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 40-41.)
Defendant asserts that the
Complaint’s claims against him are based entirely on republished material—a
conclusion which is wholly unsupported by the Complaint with the sole exception
of the May 5, 2022 post. (Complaint ¶ 14.) However, the protections of section
230 do not apply to someone who creates or develops defamatory content or who
makes a material contribution to the illegality of the content. (Phan v.
Pham (2010) 182 Cal.App.4th 323, 328 [introductory paragraph to defamatory
email forwarded by defendant did not create liability where the paragraph merely
invited the recipient to read the underlying material].) With respect to the
May 5 post, Defendant’s addition to the underlying material appears to continue
the derogatory speculation as to Plaintiffs’ sexual conduct. Thus, the
Complaint alleges that Defendant is the creator and not merely the distributor
of allegedly defamatory content, and therefore Defendant may not claim immunity
under section 230 of the Communications Decency Act.
Sanctions
Plaintiffs
request sanctions against Defendant pursuant to Code of Civil Procedure section
425.16(c).
Subdivision
(c) of section 425.16 authorizes the Court to impose sanctions pursuant to Code
of Civil Procedure section 128.5 if the Court finds that a special motion to
strike “is frivolous or is solely intended to cause unnecessary delay.” (Code
Civ. Proc. § 425.16(c).)
Here,
however, notwithstanding Plaintiffs’ assertion to the contrary, the Court is
not persuaded that the motion was brought for an improper purpose. Given the
nature of the claims asserted, a special motion to strike under section 425.16
is an intuitive tactical choice for an initial challenge to the merits of the
action. Even though the motion was not successful, that failure does not render
it frivolous or solely a delaying tactic. The Court therefore declines to award
sanctions.
CONCLUSION:
Accordingly,
Defendant’s Special Motion to Strike is DENIED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: May 31, 2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
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have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.