Case Name: Patrick v. Patrick
Case No.: 18CV332169

On July 17, 2018, plaintiff Ronald S. Patrick (“Plaintiff”) filed a complaint against defendant Ruthven Patrick (“Defendant”), asserting causes of action for:

1) Breach of written contract;
2) Breach of the covenant of good faith and fair dealing;
3) Defamation;
4) False light invasion of privacy; and,
5) Intentional infliction of emotional distress.

The complaint alleges that the parties were married for a period of time until their divorce in March 2011. (See complaint, ¶ 6.) During the divorce proceedings, Defendant alleged that Plaintiff committed domestic violence against her, and filed an application for domestic violence restraining order against Plaintiff. (Id.) Plaintiff prepared an agreement during the divorce proceedings entitled “Personal Conduct Contract” that provided, in part:

4. Personal Conduct Provisions: The parties agree to be bound by the following personal conduct terms:

a. For duration of this contract Ronald shall stay at least 300 yards away from Ruth, Ruth’s home and Ruth’s place of employment. For the duration of this contract Ronald shall not contact or attempt to contact Ruth by any means including but not limited to email, telephone, text message, via third parties or by any other method.
b. Until January 1, 2014 Ronald shall stay at least 300 yards away from James Patrick, James’ school and James’ place of employment. For the duration of this contract Ronald shall not contact or attempt to contact James by any means including but not limited to email, phone, text message, via third parties or by any other method. When James turns 18, he shall be provided this contract and shall have the right to rescind the contract by signing the attached notice of rescission. It shall not be a violation of this contract for James Patrick to initiate contact with his father Ronald Patrick or for Ronald Patrick to engage in contact that James initiates.
c. For the duration of this contract Ruth shall not disclose to anyone, including any government entity, the allegations of her domestic violence restraining order petition unless ordered to do so by a court order or subpoena. Ruth shall further not disclose to anyone, except in a confidential therapeutic setting with a licensed mental health professional bound by privilege, that she believes she was a victim of domestic violence unless ordered to do so by a court order or subpoena.
d. The duration of this contract shall be five years. At the end of the five years, December 22, 2015, if Ronald has his citizenship application pending, the contract shall continue until he either receives his citizenship pursuant to that application or that application is denied….

(Complaint, ¶¶ 9-10, exh. A.)

Post-divorce and after execution of the Personal Conduct Contract, Defendant started a support group for victims of domestic violence, and on April 9, 2018, Defendant appeared on the Today Show with Megyn Kelly. (See complaint, ¶ 12.) The promotional video for the show includes a voiceover from Megyn Kelly where she states that “Ruth Patrick started a domestic support group after suffering years of domestic abuse herself.” (Complaint, ¶ 15.) During the segment itself, Kelly opened her discussions with Defendant by saying, “you, too, are the survivor of domestic abuse,” to which Plaintiff nodded. (Id.) Plaintiff’s defamation causes of action alleges that “Defendant falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Plaintiff, which are illegal and criminal acts, and constitute the most egregious and intolerable accusations that could be made against someone.” (Complaint, ¶ 30; see also complaint, ¶ 41.)

On October 22, 2018, Defendant filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. In her motion, Defendant argues that Plaintiff cannot establish a probability of success on the merits because as to the contract causes of action, the Personal Conduct Contract is invalid and unenforceable, has expired, and Defendant has not breached the contract even if it was valid and enforceable at the time of the April 9, 2018 television appearance. On December 27, 2018, Plaintiff filed a motion for specified discovery to oppose Defendant’s motion, seeking documents relating to communications with any employee, agent or representative of the Today Show regarding her experience with domestic abuse, her participation in the segment, the truth of the allegations in the dismissed DVRO application, and Defendant’s deposition subpoena to the Department of Homeland Security requesting documents relating to Plaintiff’s citizenship application.

Plaintiff’s request for judicial notice

In support of his motion, Plaintiff requests judicial notice of the following documents:

1) The complaint (attached as Exhibit A);
2) Defendant’s notice of special motion to strike the complaint and supporting memorandum (attached as Exhibit B);
3) Defendant’s declaration in support of special motion to strike the complaint (attached as Exhibit C); and,
4) Stipulation and order regarding dismissal of domestic violence restraining order (attached as Exhibit D).

The request for judicial notice is granted as to the existence of these documents. (See Evid. Code § 452, subd. (d); see also Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (stating that “a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file… [but a] court may take judicial notice of the existence of each document in a court file”).)

Plaintiff’s motion for specific discovery

“Although a section 425.16 motion to strike stays discovery, the court for good cause may permit specified discovery.” (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 190; see also Code Civ. Proc. § 425.16, subd.(g) (stating that “[t]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted”).) “Decisions that have considered what constitutes such a showing of good cause have described it as a showing ‘that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.’” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.) “The showing should include some explanation of “what additional facts plaintiff expects to uncover.” (Id., citing Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247.) “Only in these circumstances is the discretion under section 425.16, subdivision (g) to be ‘liberally exercise[d].’” (Id., citing Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.) “Discovery may not be obtained merely to ‘test’ the opponent’s declarations.” (Id., citing Sipple, supra, 71 Cal.App.4th at p.247.)

More than two months after the filing of the special motion to strike, Plaintiff filed an ex parte application for an order shortening time to hear the instant motion for specified discovery on December 24, 2018. The motion was filed on December 27, 2018 and is supported by the aforementioned request for judicial notice and the declaration of Plaintiff’s counsel, Jill E. Fox, who attaches:

• California deposition subpoenas for the production of business records to the custodian of records and person most knowledgeable for NBCUniversal Media, LLC in New York (see Fox decl., exh. A); and,
• Requests for production of documents to Defendant seeking documents relating to communications with any employee, agent or representative of the Today Show regarding her experience with domestic abuse, her participation in the segment, the truth of the allegations in the dismissed DVRO application, and Defendant’s deposition subpoena to the Department of Homeland Security requesting documents relating to Plaintiff’s citizenship application (see Fox decl., exh. B).

As to the deposition subpoenas, Plaintiff may not use California Judicial Council deposition subpoena forms to a New York third-party. Moreover, Plaintiff has not demonstrated good cause for the deposition subpoenas on NBCUniversal’s custodian of records and person most knowledgeable.

As to the requests for production of documents (“RPDs”), Plaintiff does not explain what information or additional facts he expects to uncover as to his discovery of records that Defendant requested from Homeland Security or how it is possibly relevant to establish a prima facie case for his causes of action. Presumably, Defendant’s request to Homeland Security relates to Plaintiff’s citizenship; however, Plaintiff may not conduct discovery on Defendant’s request simply to test Defendant’s declaration. Plaintiff fails to demonstrate good cause as to Plaintiff’s RPD 6.

Similarly, Plaintiff’s memorandum and evidence utterly fails to mention the discovery sought by RPDs 4 and 5, much less explain what information or additional facts he expects to uncover as a result of these RPDs. Plaintiff fails to demonstrate good cause as to Plaintiff’s RPDs 4 and 5.

RPD 1 seeks all documents Defendant provided to any employee, agent, or representative of the Today Show regarding Defendant’s experience with domestic abuse. This request is incredibly broad when considering that Defendant is alleged to have started a support group assisting women to overcome the effects of domestic violence. (See complaint, ¶ 12.) This request as stated would obviously involve privacy rights of third parties, seek irrelevant information and is overly burdensome. Moreover, Plaintiff does not explain what information or additional facts he expects to uncover as to his discovery of any such documents. Plaintiff fails to demonstrate good cause as to Plaintiff’s RPD 1.

RPD 2 seeks communications with any employee, agent or representative of the Today Show regarding Defendant’s participation in the segment that first aired on or around April 9, 2018 entitled “3 Women Who Endured Domestic Abuse Tell Megyn Kelly Their Stories.” Here, the subject defamation causes of action allege that “Defendant falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Defendant, which are illegal and criminal acts and constitute the most egregious and intolerable accusations that could be made against someone.” (Complaint, ¶¶ 30, 41.) RPD 2 would not assist Plaintiff in establishing a prima facie case for his cause of action because his defamation causes of action are premised on false representations made by Defendant on the Today Show, not by any employee, agent or representative. Plaintiff has, in reply, provided the subject portion of the Today Show episode and a transcript and this would definitively demonstrate whether his claims are true, that Defendant, in fact, “falsely represented on the Today Show with Megyn Kelly, an internationally broadcast program, that Plaintiff was a domestic abuser and had committed acts of domestic violence upon Plaintiff.” As Plaintiff notes, unlike a nonspecific statement that Defendant is “a survivor of domestic abuse,” if Defendant falsely represented that Plaintiff had committed acts of domestic violence upon Defendant, such a specific misrepresentation would constitute slander per se. (See Civ. Code § 46, subd. 1.) Plaintiff fails to demonstrate good cause as to Plaintiff’s RPD 1.

RPD 3 seeks “[a]ll DOCUMENTS including ESI that REFER or RELATE TO the basis for Megyn Kelly’s statements on the TODAY SHOW….” Here, this request is entirely speculative. Plaintiff does not allege that Defendant conspired with Megyn Kelly to defame him, name Megyn Kelly as a Defendant, or otherwise explain how Defendant would know what the basis for Megyn Kelly’s statements might be. Moreover, for reasons stated above, RPD 3 would not assist Plaintiff in establishing a prima facie case for his cause of action because his defamation causes of action are premised on false representations made by Defendant on the Today Show, not by Megyn Kelly. Plaintiff fails to demonstrate good cause as to Plaintiff’s RPD 3.

Plaintiff’s motion for specific discovery pursuant to Code of Civil Procedure section 425.16, subdivision (g) is DENIED.

The Court will prepare the Order.