Case Number: BC680035 Hearing Date: October 01, 2018 Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

HEARING RE: LEAVE TO FILE ANTI-SLAPP SPECIAL MOTION TO STRIKE

MOVING PARTY: Court’s own motion

RESPONDING PARTY(S): Defendants Robert Kardashian, Kris Jenner, Kim Kardashian, Khloe Kardashian and Kylie Jenner; Plaintiff Angela White

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

On September 10, 2018, the Court set an OSC re: striking the special motion to strike.

TENTATIVE RULING:

The Court sets a further OSC re: striking the anti-SLAPP special motion to strike for November 1, 2018 at 8:30 A.M. The parties are ordered to submit by October 25, 2018 a joint brief setting forth a chart showing what allegations are being challenged by the anti-SLAPP motion, and whether or not those allegations were contained in the original Complaint, 1AC or 2AC.

THE CASE MANAGEMENT CONFERENCE IS ALSO CONTINUED TO THE SAME DATE AND TIME.

DISCUSSION:

The 3AC was filed on June 12, 2018. The anti-SLAPP special motion to strike re: the 3AC was filed 58 days later on August 9, 2018. The issue, thus, is not whether the anti-SLAPP motion was untimely relative to the 60-day deadline set forth in CCP § 425.16(f). In this regard, the Court’s discretion under § 425.16(f) is not even arguably implicated.

Rather, the issue is whether Defendants were entitled to file an anti-SLAPP motion to the 3AC, when no anti-SLAPP motions had been filed as to the original complaint, 1AC or 2AC. In other words, at this stage of the litigation, is Defendants’ anti-SLAPP motion timely?

Since this case was filed, there has been significant law and motion and discovery propounded. Needless to say, the purpose of the anti-SLAPP motion—to resolve a case promptly and inexpensively—will have been thwarted if Defendants could have brought an anti-SLAPP special motion to strike at an earlier stage of the litigation, that is, as to earlier versions of the operative complaint.

We agree with the Court of Appeal. Section 425.16 provides a means for the prompt and relatively inexpensive resolution of lawsuits that threaten free speech. But it also “present[s] the possibility for abuse of the anti-SLAPP statute.” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 783 [83 Cal. Rptr. 3d 95].)

“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.” (§ 425.16, subd. (g).) “An order granting or denying a special motion to strike shall be appealable under [Code of Civil Procedure s]ection 904.1.” (Id., subd. (i).) An appeal under this provision “automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion.” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 186.) Because of these provisions, as one Court of Appeal put it, we “have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse.” (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283 [35 Cal. Rptr. 3d 909].) “[S]ome anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial. … [S]uch a result may encourage defendants to ‘misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes.’” (Varian Medical Systems, Inc., at p. 195.)

In this case, as the trial court noted when it exercised its discretion to deny a late filing, much litigation, including discovery, had already been conducted for two years before the anti-SLAPP motion brought it to a halt. It is far too late for the anti-SLAPP statute to fulfill its purpose of resolving the case promptly and inexpensively. “An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 625–626 [192 Cal. Rptr. 3d 559].) To minimize this problem, section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court’s discretion to permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.

Defendants argue that, because filing an anti-SLAPP motion stays discovery proceedings, and an appeal from the denial of the motion stays all further trial court proceedings on the merits of the causes of action affected by the motion, permitting defendants to challenge only new causes of action in an amended complaint cannot further judicial efficiency. We disagree. Perfect [*646] efficiency may be unobtainable. But limiting an anti-SLAPP motion to new causes of action can make the process more efficient. Claims unaffected by the anti-SLAPP motion might be able to go forward. Moreover, a rule limiting the anti-SLAPP motion to new causes of action can streamline the resolution of the motion and any ensuing appeal by limiting the number of issues to be resolved. The plaintiff also has control over what to allege in an amended complaint. An amended complaint might not add new causes of action subject to an anti-SLAPP motion, in which case no anti-SLAPP motion at all would be permitted.

For these reasons, we agree with the Court of Appeal’s interpretation of section 425.16, subdivision (f). Specifically, we agree with the summary of its holding quoted in part I., ante, of this opinion. (Newport Harbor, supra, 6 Cal.App.5th at p. 1219.) (We express no opinion regarding its further conclusion that plaintiffs had established a probability of prevailing on the new causes of action.)

Defendants argue that this conclusion requires overruling Baral v. Schnitt, supra, 1 Cal.5th 376. It does not. That case concerned how “the special motion to strike operate[s] against a so-called ‘mixed cause of action’ that combines allegations of activity protected by the statute with allegations of unprotected activity.” (Id. at p. 381.) It did not consider the timeliness of any motion to strike or the proper interpretation of section 425.16, subdivision (f).

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645-46 (bold emphasis and undellinig added).

In this regard, the Court sets a further OSC re: striking the anti-SLAPP special motion to strike for November 1, 2018 at 8:30 a.m. The parties are ordered to submit by October 25, 2018 a joint brief setting forth a chart showing what allegations are being challenged by the anti-SLAPP motion, and whether or not those allegations were contained in the original Complaint, 1AC or 2AC. If there are new allegations in the 3AC as to which Defendants could not have earlier brought an anti-SLAPP motion, the Court will limit the scope of the anti-SLAPP motion to address only those causes of action in accordance with Baral v. Schnitt. Otherwise, if the entire anti-SLAPP motion could have been brought as to an earlier version of the operative complaint, the Court will, in its discretion,[1] decline to hear the motion and the entire anti-SLAPP motion will be stricken.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 1, 2018 ___________________________________

Randolph M. Hammock

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 should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you 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.

[1] If it turns out that Defendants could have brought this anti-SLAPP motion at an earlier date, much law and motion and discovery proceedings would have been obviated. In that case, Defendants cannot complaint if their inexcusable delay renders their anti-SLAPP motion ineffective.