2018-00234969-CU-DF

Ukraine Relief vs. Ruslan Gurzhiy

Nature of Proceeding: Motion to Continue Defendants Special Motion to Strike

Filed By: Erickson, Brandon

The motion of plaintiffs Ukraine Relief (“Relief”), Great Commission Ministry International (“GCMI”), USKO Shipping, Inc. (“Shipping”), USKO Express, Inc. (“Express”), Stephan Skots, Roman Skots, Anna Skots, Vitaliy Skots, and Vladimir Skots, (collectively “Plaintiffs”) to continue defendant Ruslan Gurzhiy (“Defendant”) anti -SLAPP motion in order to conduct discovery is denied.

The filing of an anti-SLAPP motion automatically stays “[a]ll discovery proceedings.” (§ 425.16, subd. (g).) To justify lifting the discovery stay, the plaintiff must demonstrate that the proposed discovery is both necessary in the context of the issues raised by the anti-SLAPP motion and must explain what facts the plaintiff expects to uncover. ( 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.) The decision whether to lift the discovery stay is within the trial court’s discretion. (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 617

Plaintiffs have failed to demonstrate good cause (CCP § 425.16(g)) to continue the Defendant’s motion to strike, because Plaintiffs do not demonstrate that the subjects of the discovery they propose to conduct during the interim are essential or necessary to effectively oppose the Defendant’s motion in this defamation action. Plaintiffs argue that Defendant makes a number of allegations in his articles that Plaintiffs are mafia members, crooks, stealing aid and embezzling money through their church. Plaintiffs contend that they “must be allowed to be examined through deposition to fully understand where Defendant arrives at these conclusions.” Plaintiffs do not explain how a better understanding of Defendant’s conclusions in this respect is necessary for them to present a prima facie case that Defendant’s conclusions are false or to oppose

the Defendant’s challenges that raise only questions of law. Further, Plaintiffs complain that many of Defendant’s exhibits do not have dates when they were accessed by Defendant and do not have sufficient details to understand where they were found by him. However, Plaintiffs again do not articulate how that additional foundational information is necessary to establish falsity of Defendant’s statements or to counter his non-factual objections. Plaintiffs also claim that Defendant has tried to pass himself as a legitimate government authority figure during a couple of interactions with Plaintiffs and others, but again do not explain the materiality of this fact or what discovery into the matter could achieve in relation to the matters at issue on the motion to strike.

While the Court fully recognizes that it may, upon the proper showing, exercise its discretion to continue the anti-SLAPP hearing to a later date so that discovery can be completed (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247 [abuse of discretion standard of review is applied to a trial court’s decision whether to grant relief from discovery stay under § 425.16, subd. (g)]) it is not mandated to do so absent a proper showing. As above noted, to show good cause for a continuance on a SLAPP Motion, a plaintiff must show what additional facts he expects to uncover and how these facts would affect the burden of proof. (Sipple v. Found for Natl Progress, (1999) 71 Cal.App.4th 226, 247.) Plaintiff must show what facts it seeks, and how they would affect the ruling. This plaintiff has not done.

This minute order is immediately effective. Further notice of this ruling and a formal order are not required.

Item 9 2018-00234969-CU-DF

Ukraine Relief vs. Ruslan Gurzhiy

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Wilcox, Rochelle L.

The motion of defendant Ruslan Gurzhiy (“Defendant”) to strike the complaint of plaintiffs Ukraine Relief (“Relief”), Great Commission Ministry International (“GCMI”), USKO Shipping, Inc. (“Shipping”), USKO Express, Inc. (“Express”), Stephan Skots, Roman Skots, Anna Skots, Vitaliy Skots, and Vladimir Skots, (collectively “Plaintiffs”) pursuant to Code of Civil Procedure section 425.16 [anti-SLAPP] is granted in part and denied in part as set forth below.

Plaintiffs’ Complaint alleges six separate causes of action related to statements contained in three written articles authored by Defendant and published in The Slavic Sacramento through various electronic platforms. Defendant’s articles primarily address claims and questions about the Plaintiffs’ alleged misuse of charitable funds

designated as humanitarian aid for use in other countries – primarily the Ukraine. Specifically, Plaintiffs’ allege that 112 different statements variously contained within the Defendant’s publications are false and defamatory as to them. Plaintiffs thus allege six causes of action styled as: Libel; Libel Per Se; Libel Per Quod; False Light; Intentional Infliction of Emotional Distress (IIED); and Negligent Infliction of Emotional Distress (NIED).

Due to the large quantity of statements at issue in the action and individually challenged by this motion, the Court will not recite them in toto in this ruling. Instead, where necessary, the Court shall use the parties’ method of identification of each alleged statement for analysis by referring to the paragraph number and subparagraph letter corresponding to where each statement is alleged in the Complaint (i.e. 33a-33nnn; 35a-35kk; and 37a-i). As requested by the parties, the Court has also accepted the chart/statement submitted by Defendant providing a breakdown of each challenge ground asserted as to each statement (Defs’ Ex. MM), and provided by Plaintiffs identifying evidence submitted in opposition as to each statement. (Erickson Dec., Ex. 17.)

The parties’ objections to evidence are ruled upon as follows:

Defendant’s Objections – Vronskyy, sustained 1 – overruled 2, 3; Andrivchuk sustained 6 – overruled 4, 5; Shilo sustained 7; Vitaliy overruled; Anna sustained 39, otherwise overruled; Vladimir sustained 58, otherwise overruled; Roman sustained 78, 79, 81 (Ex. 13), 82 (Ex. 14), 83 (Ex. 15), otherwise overruled; Stephan sustained 92, 93, 103, otherwise overruled; Erickson Exh. 17 overruled; Erickson undertaking motion sustained 105, 106, otherwise overruled; Erickson motion to continue, sustained 109, 110, 112 [“defendant has stated an intent to destroy the Plaintiffs”], 114, otherwise overruled.

Plaintiffs’ Objections – overruled.

As the parties agree, the court analyzes this special motion in two essential steps.

First, Defendant must make an initial prima facie showing that plaintiff’s suit arises from an act in furtherance of defendant’s right of petition or free speech. (City of Montebello v. Vasquez (2016) 1 Cal. 5th 409, 420, 205; Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1056; Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 1; Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) Defendant has the initial burden to show that the Plaintiffs allege constitutionally protected activity and the claim against Defendant arose from this activity. (Park v. Board of Trustees of California State University (2017) 2 Cal. 5th 1057, 1062-1067; Gaynor v. Bulen (2018) 19 Cal. App. 5th 864, 877-887.) In this respect, Defendant meets this burden by demonstrating that the act underlying the Plaintiffs cause(s) fits one of the four categories enumerated in Code Civ. Proc. § 425.16(e). (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal. App. 5th 574, 591-596; Freeman v. Schack (2007) 154 Cal. App. 4th 719, 726-727; Braun v. Chronicle Publishing Co. (1997) 52 Cal. App. 4th

1036, 1043; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820.)

A claim arises from protected activity when that activity underlies or forms the basis for

the claim. (Park v. Board of Trustees of California State University, supra, 2 Cal. 5th at p. 1062.) In determining whether a cause of action arises from conduct protected by the anti-SLAPP law, the focus is on the wrongful, injurious acts or omissions identified in the complaint. (Shahbazian v. City of Rancho Palos Verdes (2017) 17 Cal. App. 5th 823, 834-835.)

If Defendant establishes a prima facie showing that Plaintiffs’ suit arises from an act in furtherance of Defendant’s right of petition or free speech, then the burden shifts to the Plaintiffs in the second step to establish a probability that they will prevail on their claims. (City of Montebello v. Vasquez , supra, 1 Cal. 5th 409, 420.) Once the court determines the first prong of the statute has been met, a plaintiff must provide the court with sufficient evidence to permit the court to determine whether there is a probability that the plaintiff will prevail on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal. App. 4th 562, 568.) This second step has been described as a “summary-judgment-like procedure.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 384.) As stated in Baral, “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” Id at p. 396.

Although plaintiffs’ burden may not be high, plaintiffs must demonstrate their claim is

legally sufficient. (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes

(2017) 9 Cal. App. 5th 119, 136-137.) Plaintiffs must show their claims are supported by a sufficient prima facie showing made with competent and admissible evidence. ( Squires v. City of Eureka (2014) 231 Cal. App. 4th 577, 590-591.) To establish a probability of success on the merits, the plaintiff must make a prima facie showing of facts that would, if proved at trial, support a judgment in the plaintiff’s favor. (Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 824.) A ruling on an anti-SLAPP motion

may involve a determination of the merits of the plaintiff’s claim, or a determination that the plaintiff’s claim fails for another, non-merits-based reason. (Barry v. The State Bar of California (2017) 2 Cal. 5th 318, 325.)

The court’s determination of an anti-SLAPP motion cannot involve a weighing of the evidence. (Zamos v. Stroud (2004) 32 Cal. 4th 958, 965; Kyle v. Carmon (1999) 71

Cal. App. 4th 901, 907-908.) The Court 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. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.)

“[C]laims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29

Cal.4th 82, 94.) Whether or not plaintiff has established a prima facie case is a question of law. (Zamos v. Stroud, supra, 32 Cal. 4th at p. 965.) Thus, to establish a

probability of success, the plaintiff must demonstrate that the complaint is 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. (Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 61; Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 37-38.) The burden is also upon the plaintiff to meet the defendant’s constitutional defenses by showing that defendant’s asserted constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses. (Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 824.)

Defendant argues that all of Plaintiffs’ claims arise from his journalistic conduct in furtherance of his exercise of the constitutional right of free speech relating to issues of public interest. Defendant contends that his articles fall within the scope of Section 425.16, under subsections (e)(2), (e)(3) and/or (e)(4). As used in Section 425.16(e), “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: …(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.”

Defendant’s Prima Facie Showing

Defendant has established a prima facie showing that Plaintiffs’ suit arises from an act in furtherance of Defendant’s right of free speech.

Defendant asserts that his articles fall under Section 425.16(e)(2) because they reported on official proceedings in the United States and abroad which are “official proceeding[s] authorized by law” citing Braun v. Chronicle Publ’g Co. (1997) 52 Cal. App. 4th 1036,1048-1049 (newspaper report about official proceeding falls under Subsection (e)(2)). Defendant also contends his articles alternatively fall under subsection (e)(3), which covers writings “made in … a public forum in connection with an issue of public interest” because his website is a “public forum” and the article topics are issues of public interest citing Barrett v. Rosenthal (2006) 40 Cal. 4th 33, 41 fn.4. Defendant also contends that his articles fall within Section 425.16(e)(4) which applies to “conduct in furtherance of the exercise of… the constitutional right of free speech in connection with a public issue or an issue of public interest” because his articles constituted “news reporting protected by the anti-SLAPP statute” citing Sipple v. Foundation for Nat’l Progress (1999) 71 Cal. App. 4th 226, 240.

Defendant argues that his articles unquestionably addressed a matter of widespread public interest which he describes as the alleged misuse and mismanagement of humanitarian aid. He cites Dove Audio, Inc. v. Rosenfeld, Meyer &. Susman (1996) 47 Cal. App. 4th 777, 784 for the proposition that the anti-SLAPP statute applies to

communication that raises “a question of public interest: whether money designated for charities was being received by those charities.”)

Plaintiffs oppose the motion, first arguing that Defendant’s evidentiary record is substantially deficient and that Defendant has failed to carry his burden that the alleged 112 statements fall within subdivisions (e)(2), (e)(3), or (e)(4) of Section

425.16. To the contrary, Plaintiffs contend that Defendant’s statements: (1) do not concern an issue of public interest because they relate to limited issues of potential interest to only a small group of people; or (2) involve only a private dispute between Plaintiffs and Defendant; or (3) constitute commercial speech to entice readers and advertisers to his publication; and (4) as to the official proceedings that were reported

in his articles, were not reported truthfully.

With respect to whether the articles addressed a matter of public interest, Plaintiffs

state, “In this case, the specific nature of the speech concerns a Slavic charity aimed at proving aid to the war-torn part of Ukraine, which is currently occupied by Russia. The charity receives donations primarily from the Slavic-speaking Sacramento population. The issue of alleged misappropriation and mismanagement of the charitable funds is, at best, of interest only to the donors (subsection of Slavic

speakers) within an ethnic population group of Sacramento. An issue of interest to only

a narrow sliver of society is not a public issue.” (Opp., p. 13:11-14.) In that context, Plaintiffs argue that “in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at minimum, occur in the context of an ongoing controversy dispute or discussion, such that warrants protection by a statute that embodies the public policy of encouraging participation in matters of

public significance.” (Du Charme v. International Broth. Of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 119.) Plaintiffs contend that there was no ongoing controversy in the limited Slavic community or news coverage about the specific use of humanitarian aid, except for that started by Defendant.

In Reply, Defendant maintains that the topic of misuse of charitable funds is a matter of broad general public interest. And, even if the topic was only of interest to the limited community identified by Plaintiffs, Defendant argues that cases subsequent to Du Charme have abandoned the “ongoing controversy” limitation for a more expansive interpretation of the phrase “issue of public interest” with the goal of encouraging “continued participation in matters of public significance.” The definition of “public interest” within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society or that affects a particular community of interest. Although there is no case law precisely defining the boundaries of an issue of “public interest,” the subject statements typically concern: (1) a person or entity in the public eye; (2) conduct that could directly affect a large number of people beyond the direct participants; or (3) a topic of widespread, public interest. (Rivero v. Am. Federation of State, County & Mun. Employees, AFL CIO (2003) 105 Cal.App.4th 913, 921, 924.)

Having considered the parties’ arguments and authorities, the Court finds that the

primary subject matter of Defendant’s articles constituted issues of public interest sufficient to fall within Section 425.16(e)(3) and (4). See, e.g. Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23-24; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1367.)

Further, the Court finds that to the extent Defendant’s articles also reported upon official judicial proceedings both in the United States and in the Ukraine, the statements fall within Section 425.16(e)(2).

The Court rejects the Plaintiffs’ additional contentions that the articles only relate to a private dispute between the parties, or constitute purely commercial speech unprotected by the anti-SLAPP statute.

The Court further finds that the Defendant’s evidence is sufficient to establish and satisfy his prima facie burden.

Plaintiffs’ Burden – Probability of Prevailing and Legal Sufficiency.

As to Plaintiffs’ probability of prevailing on their six claims, and the legal sufficiency of each, Defendant’s motion raises eight separate challenges to the viability of Plaintiffs’ claims. Defendant contends that if the Court concludes Plaintiffs’ claims can proceed with respect to some, but not all, of the allegedly defamatory statements or implications alleged in the Complaint, any non-actionable statements or implications should be stricken from the Complaint citing Baral v. Schnitt (2016) 1 Cal 5th 376, 392-93.

The Court restates and addresses each of the 8 challenges in the order raised by Defendant’s motion.

1. Plaintiffs bear the burden of proving the purported falsity of each of the 112 separate statements on which their claims for defamation are based, and those claims must be rejected to the extent that Plaintiffs fail to meet that burden.

Subject to the Court’s orders striking various specifically identified statements as set forth below, the Court finds that as to the remaining statements, the Complaint is legally sufficient as to the Libel claim and supported by a sufficient prima facie showing of facts as to falsity to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.

2. Plaintiffs’ claims fail as to the following statements because they are subjective statements that are not capable of being proven true or false, or are based on fully disclosed facts regarding legitimate questions that were raised about the apparent sale of humanitarian aid by Plaintiffs – paragraphs 33.a., 33.c, 33.d., 33.e., 33.f, 33.g., 33.h., 33.k., 33.m., 33.o., 33.p., 33.q., 33.r., 33.t., 33.w., 33.x., 33.z., 33.aa., 33.bb., 33.cc.,

33.dd., 33.ee., 33.gg., 33.hh., 33.ii., 33.jj., 33.kk., 33.ll., 33.oo., 33.pp., 33.qq., 33.rr.,

33.ss., 33.uu., 33.ww., 33.yy., 33.zz., 33.aaa., 33.bbb., 33.ccc., 33.ddd., 33.eee.,

33.fff., 33.ggg., 33.hhh., 33.iii., 33.kkk., 33.lll., 33.mmm., 33.nnn., 35.a., 35.b., 35.c.,

35.e., 35.j., 35.k., 35.n.,35.o., 35.q., 35.r., 35.s., 35.t., 35.u., 35.v., 35.w., 35.x., 35.y.,

35.z., 35.cc., 35.dd., 35.ee., 35.ff, 35.gg., 35.hh., 35.ii., 35.jj., 37.a., 37.b., 37.f, 37.g.,

37.h., and 37.i.

Having considered the statements, the parties’ admissible evidence, and Plaintiffs’ Exhibit 17, the Court finds that Defendant’s challenges on this ground are established as to: 33.e., 33.f, 33.g., 33.h., 33.w., 33.z., 33.aa., 33.cc., 33.ee., 33.gg., 33.hh., 33.ii., 33.kk., 33.ll., 33.oo., 33.pp., 33.qq., 33.ss., 33.uu., 33.zz., 33.aaa., 33.bbb., 33.ccc.,

33.ddd., 33.eee., 33.fff., 33.ggg., 33.hhh., 33.iii., 33.kkk., 33.lll., 33.mmm., 33.nnn.,

35.c., 35.e., 35.j., 35.k., 35.n., 35.o., 35.q., 35.t., 35.u., 35.v., 35.w., 35.cc., 35.dd.,

35.ee., 35.gg., 35.ii., 37.a., 37.b., 37.f, 37.g., 37.h., and 37.i. These statements are stricken from the Complaint as actionable defamatory statements.

3. Plaintiffs’ claims based on the following statements are barred by the absolute statutory privilege (Civil Code section 47(d)) and the federal and state constitutional protection for true and fair reports of official records and proceedings, because Defendant’s publications through The Slavic Sacramento accurately reported the gist and sting of allegations against Plaintiffs made in proceedings in the United States and abroad. Paragraphs – 33.a., 33.b., 33.g., 33.i., 33.j., 33.l., 33.ff., 33.gg., 33.hh., 33.ii., 33.kk., 33.ll.,33. mm., 33.nn., 33.oo., 33.uu., 33.vv., 33.xx., 33.bbb., 33.hhh., 33.kkk.,

33.nnn., 35.a., 35.b., 35.c., 35.d., 35.e., 35.f., 35.g., 35.h., 35.i., 35.j., 35.l., 35.m., 35.o

35.q., 35.y., 35.z., 35.aa., 35.bb., 35.cc., 35.dd., 35.ee., 35.ff., 35.gg., 35.hh., 35.ii.,

35.jj., 35.kk., 37.a., 37.b., 37.c., 37.d., 37.e., 37.f, 37.g., and 37.h.

Having considered the statements, the parties’ admissible evidence, and Plaintiffs’ Exhibit 17, the Court finds that Defendant’s challenge on this ground is established only as to: 33.b., 33.l., 33.gg., 33.hh., 33.ii., 33.kk., 33.ll.,33. mm., 33.nn., 33.xx., 33.bbb., 33.hhh., 33.kkk., 35.c., 35.g., 35.h., 35.i., 35.l., 35.m., 35.o, 35.z., 35.aa.,

35.cc., 35.dd., 35.ee., 35.hh., 35.ii., 35.jj., 35.kk., 37.a., 37.b., 37.c., 37.d., 37.e., 37.g., and 37.h. These statements are stricken from the Complaint as actionable defamatory statements.

4. Plaintiffs’ claims based on the following statements fail because those statements do not relay a defamatory meaning. Paragraphs – 33.c., 33.d., 33.e., 33.f, 33.g., 33.n., 33.r., 33.s., 33.x., 33.y., 33.ee., 33.ff., 33.hh., 33.jj., 33.kk., 33.mm., 33.ss., 33.tt.,

33.vv., 33.xx., 33.zz., 33.aaa., 33.bbb., 33.ccc., 33.ddd., 33.fff, 33.kkk., 35.d., 35.l.,

35.m., 35.p., and 35.kk.

Having considered the statements, the parties’ admissible evidence, and Plaintiffs’

Exhibit 17, the Court finds that Defendant’s challenge on this ground is established

only as to: 33.e., 33.f, 33.n., 33.r., 33.s., 33.y., 33.ee., 33.ff., 33.hh., 33.kk., 33.mm.,

33.ss., 33.tt., 33.vv., 33.xx., 33.zz., 33.aaa., 33.bbb., 33.ccc., 33.ddd., 33.fff, 33.kkk.,

35.d., 35.l., 35.m., 35.p., and 35.kk. These statements are stricken from the Complaint as actionable defamatory statements.

5. Each Plaintiff is limited to asserting claims based upon statements that are “of and concerning” that Plaintiff, and their claims otherwise fail to the extent they are based upon statements not “of and concerning” the particular Plaintiff. Specifically, Defendant contends that each Plaintiff’s claims must be limited to the statements that actually

relate to, or reference them, so as to potentially support a libel claim. Defendant contends that statements unrelated to a Plaintiff must be stricken because they are not “of and concerning” that Plaintiff.

Defendant contends that statements 33. oo., 33.u., 33.v., 33.y., and 37.b are not “of and concerning” any of the Plaintiffs. The Court agrees only as to 37.b which is stricken on this ground.

Defendant contends that statements concerning each individual Plaintiff are as follows:

(1) Ukraine Relief – 33. d., 33. g., 33.m., 33.gg., 33.yy., 33.hhh., 33.iii., 33.jjj.. 35.c.,

35.t.; (2) Great Commission – 33.c., 33.o.. 33.p., 33.q., 33.r., 33.s., 33.t., 33.w.,

33.ee., 33.jjj.; (3) USKO Shipping, Inc. – Statements 33.a., 33.n., 33.hh., 33.ii., 33.jj.,

33.kk., 33.nn., 33.zz., 33.aaa., 33.bbb., 33.ccc., 33.ddd., 35.g., 35.h., 35.i.; (4) USKO Express, Inc. – 33.kkk., 33.lll.; (5) Stephan Skots – 33.e. 33.f, 33.h., 33.i., 33.j., 33.k., 33.n., 33.o., 33.p., 33.x., 33.z., 33.aa., 33.bb., 33.cc., 33.dd., 33.ff, 33.gg., 33.ii.,

33.ss., 33.aaa., 33.eee., 33.fff., 33.ggg., 33.jjj., 33.lll., 33.mmm.. 35.c., 35.k., 35.s.,

35.t., 33.w., 33.x., 37.i.; (6) Roman Skots – 33.b., 33.k., 33.l., 33.ii, 33.jj., 33.ll., 33.nn.,

33.oo., 33.pp., 33.qq.. 33.rr., 33.ss., 33.tt., 33.uu., 33.ww., 33.eee., 33.fff, 33.ggg.,

33.nnn., 35.a., 35.b., 35.d., 35.e., 35.f, 35.g., 35.h., 35.i., 35.j., 35.k., 35. l,. 35. m., 35. n., 35. o., 35.p., 35.q., 35.r., 35.s., 35.t,, 35.u., 35.v., 35.w., 35.x., 35.y., 35.z., 35.aa., 35.bb., 35.cc., 35.dd., 35.ee., 35.ff.. 35. gg., 35. hh., 35.ii., 35.jj., 35.kk., 37.a., 37.c..

37. d., 37.e., 37.f, 37.g., 37.h.; (7) Anna Skots – 33.b., 33.kk., 33.ll., 33.nn., 33.oo.,

33.pp., 33.rr., 33.uu., 33.ww., 33.ggg., 33.nnn., 35.j., 37.d., 37.e.; (8) Vitaliy Skots –

33.aa., 33.bb., 33.cc., 33.dd., 33.hh., 33.mm., 33.aaa., 33.bbb., 33.ccc., 33.eee., 33.fff,

33.ggg., 33.jjj., 33.lll. 33. mmm., 35. k., 33. w., (9) Vladimir Skots – 33. aa., 33.bb.,

33.cc.. 33.dd., 33.ff.,33.gg., 33.bbb., 33.ccc., 33.eee., 33.fff., 33.ggg., 33.jjj., 33.kkk.,

33.lll, 33.mmm., 35.k., 35.s., 35.t, 33.w., and 33.x.

Plaintiffs do not respond to Defendant’s identification and correlation of these statements to specific Plaintiffs based upon whether the statement is “of or concerning” a given Plaintiff. The Court’s review of Defendant’s proposed categorization and correlation of each statement to each Plaintiff appears to be accurate. In that respect, the Plaintiff’s separate claims are limited to the statements enumerated after their names above, except for those statements that have otherwise been stricken by this motion.

6. Plaintiffs did not demand retraction as required by California’s retraction statute Civil Code §48a. Consequently, Plaintiffs are limited to recovering only special damages. However, Defendant contends that Plaintiffs failed to allege that they suffered special damages and cannot prove any special damages, so Plaintiffs cannot prevail on any of the statements alleged in the Complaint and all of their claims must be stricken.

Pursuant to Civil Code section 48a(a), in “any action for damages for the publication of a libel in a daily or weekly news publication … plaintiff shall only recover special damages unless a correction is demanded and is not published … as provided in this section. Plaintiff shall serve upon the publisher at the place of publication … a written notice specifying the statements claimed to be libelous and demanding that those

statements be corrected. The notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.” Subdivision (d)(5) provides that “Daily or weekly news publication” means a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”

Defendant declares that he created and is “the Editor-in-Chief of The Slavic Sacramento, an online news publication that publishes matters of public concern to the Slavic community. The Slavic Sacramento has been publishing news on a weekly basis (between two and five articles each week) since 2014.” He also declares his belief “that The Slavic Sacramento is the only online source that publishes weekly Russian news in California.” (Gurzhiy Dec., ¶2.)

The language covering print publications was changed effective January 1, 2016, from “newspaper” to “daily or weekly news publication.” This amendment is considered by commentators to have eliminated some of the restrictions that had existed under case law defining those covered by the provision. (Burnett v. Nat’l Enquirer, Inc. (1983) 144 Cal. App. 3d 991, 1000-1005; Montanan v. Triangle Publ’ns, Inc. (1975) Cal. App. 3d 938, 949-953.) Under the amended language, “daily or weekly news publication” extends to print or electronic publications that contain news on matters of public concern and that publish at least once a week [Civ. Code § 48a(d)(5)]. While clarifying that the statute applies to online publications, the Legislature specified in its statement of intent that the amended language does not apply to periodicals that publish less frequently than weekly, nor does it apply to “casual postings” on social networking sites, chat rooms, electronic bulletin boards, discussion groups, online forums, and other related web sites [2015 Cal. Stats. ch. 343 § 1].

Despite Defendant’s general conclusory declaration regarding the nature of his publication, the record does not otherwise contain sufficient evidence from which the Court may determine that The Slavic Sacramento contains news on matters of public concern and that it publishes such news at least once a week. Therefore, the Court does not find that Plaintiffs’ lack a probability of prevailing upon the remaining alleged defamatory statements based upon the assertion that The Slavic Sacramento constitutes a daily or weekly news publication, that Plaintiffs failed to timely request a proper retraction, that they are thus barred from recovering damages other than special damages, and that they have presented no evidence of special damages.

7. The Court should strike Plaintiffs’ false light, libel per se and libel per quod claims because they are based on the identical facts as Plaintiffs’ defamation claims and are therefore surplus pleadings citing Kapellas v. Kofman (1969) 1 Cal.3d 20, 35 n. 16. “When a false light claim is coupled with a defamation claim, the false-light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Eisenberg v. Alameda Newspapers, Inc.

(1999).74 Cal. App. 4th 1359, 1385 n. 13.)

Plaintiffs do not apparently join issue on this pleading argument. Defendant’s argument has merit. Plaintiffs’ false light, libel per se, and libel per quod, causes of

action are duplicative and superfluous in light of Plaintiffs’ first cause of action for libel.

Thus, the motion is granted as to the Second, Third, and Fourth causes of action.

8. Plaintiffs’ claim for intentional infliction of emotional distress fails because (a) the claim is duplicative of their claims for defamation, and thus should be stricken as superfluous, as well as for all of the reasons that Plaintiffs’ other claims fail; and (b) Plaintiffs did not and cannot allege conduct egregious enough, or emotional distress severe enough, sufficient to support a viable emotional distress claim.

Plaintiffs do not join issue on this pleading argument as well. Defendant’s argument has merit. Plaintiffs’ IIED cause of action is duplicative and superfluous in light of Plaintiffs’ first cause of action for libel. Thus, the motion is granted as to the Fifth cause of action.

9. Plaintiffs’ claim for negligent infliction of emotional distress fails because: (1) it is duplicative of Plaintiffs’ claims for defamation, and thus should be stricken as superfluous, as well as for all of the reasons that Plaintiffs’ libel claims fail; and (b) California law does not recognize a claim for negligent infliction of emotional distress.

Plaintiffs do not join issue on this pleading argument. Defendant’s argument has merit. Plaintiffs’ NIED cause of action is duplicative and superfluous in light of Plaintiffs’ first cause of action for libel to the extent such alleged tortious injury is even recoverable within the context of a libel action or under California law. Thus, the motion is granted as to the Sixth cause of action.

Defendant has reserved for subsequent separate motion a claim for attorneys’ fees under Section 435.16(c). (Motion, p. 5, fn. 2.)

Defendant shall prepare a formal order in accordance with this ruling for the court’s consideration pursuant to California Rules of Court, rule 3.1312.

Item 10 2018-00234969-CU-DF

Ukraine Relief vs. Ruslan Gurzhiy

Nature of Proceeding: Motion for an Order Requiring Plaintiffs to File an Undertaking

Filed By: Wilcox, Rochelle L.

The motion of defendant Ruslan Gurshiy for an order requiring plaintiffs Roman Skots and Anna Skots to file an undertaking pursuant to Code of Civil Procedure § 1030 is granted as set forth below.

Defendant moves pursuant to Code of Civil Procedure § 1030, for an order: (1) requiring Plaintiffs Roman Skots and Anna Skots to file an undertaking in the amount

of $300,000 to secure an award of costs and attorneys’ fees; and (2) dismissing Roman Skots and Anna Skots’ claims if they fail to file an undertaking within thirty days of this Court’s Order. The motion is made on the grounds that Roman Skots and Anna

Skots reside in Kiev, Ukraine, and there is a reasonable possibility that Mr. Gurzhiy will obtain judgment in his favor on some or all of the claims asserted in the complaint. Defendant contends that because he will be entitled to recover his attorneys’ fees and costs if he prevails on his anti-SLAPP motion, and will be entitled to recover his costs when he ultimately prevails on any claim(s) that may survive that initial motion to
strike, an undertaking is appropriate to ensure that Roman Skots and Anna Skots pay the anticipated judgment.

When the plaintiff in an action or special proceeding resides out of state, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff

to file an undertaking to secure an award of costs and attorney’s fees under Code of Civil Procedure § 1030. Upon a defendant’s motion for security, “the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Yao v. Superior Court (2002), 104 Cal. App. 4th 327, 329 citing Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The

purpose of the statute is to enable a California resident sued by an out-of-state resident “‘to secure costs in light of the difficulty of enforcing a judgment for costs

against a person who is not within the court’s jurisdiction.’ ” (Shannon v. Sims Service Center, Inc. (1985) 164 Cal. App. 3d 907, 913.)

The Court has now reached a tentative decision on Defendant’s pending motion to strike. Presently, the Defendant has prevailed on some of his challenges and may be entitled to an award of attorneys fees and costs. Defendant has shown a reasonable possibility that he will obtain judgment in the action for those statutory fees and costs.

Thus, the Court orders plaintiffs, Roman Skots and Anna Skots, to each file an undertaking in the amount of $20,000 not later than 45 days after service of the court’s order requiring the undertaking. If Roman Skots or Anna Skots fail to file their undertaking within the time allowed, their action shall be dismissed as to the Defendant.

This minute order is immediately effective. Defendant shall serve formal notice of this order upon plaintiffs.