Judge: Jon R. Takasugi, Case: 23STCV27581, Date: 2024-04-29 Tentative Ruling

Case Number: 23STCV27581    Hearing Date: April 29, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to conduct limited discovery is DENIED.

            On 11/9/2023, Plaintiff Lance Hara pka Vicky Vox (Plaintiff) filed suit against Netflix, Inc., Titmouse, Inc., Lol Send, Inc., Gabe Liedman, Fremulon, LLC, Michael Schur, Universal Television, LLC, Hazy Mills Production, Inc., Sean Hayes, Todd Milliner, Ben Beins, 2 Arts Entertainment, LLC, David Miner, and Max Silverstri.

            Now, Plaintiff moves to lift the stay in discovery to conduct limited discovery pursuant to CCP section 425.16(g) and to continue Defendants’ special motion to strike.

Discussion 

Plaintiff moves to lift the stay in discovery to conduct limited discovery to support her opposition to Defendants’ pending anti-SLAPP motion.

After review, the Court declines to grant the requested relief at this time.

Once an anti-SLAPP motion has been filed pursuant to Code Civ. Proc., section 425.16, all discovery proceedings must be stayed. However, Code Civ Proc., section 425.16(g) permits a court, on noticed motion and for good cause to order that specified discovery be conducted.  (Id.) “Good Cause” under Code Civ. Proc., section 425.16(g), “require[s] a showing that the specified discovery is necessary for the plaintiff to oppose the motion and is tailored to that end.” (Tutor–Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 617.)  

To satisfy this requirement, plaintiff must make a prima facie showing at least as to the elements of the claim for which no discovery should be needed. (Paterno v. Sup.Ct. (Ampersand Publishing) (2008) 163 Cal.App.4th 1342, 1349.) Thus, the Court may¿allow¿discovery¿only into the issues raised by the¿motion¿to¿strike on a showing of good cause. 

            Here, despite characterizing the discovery sought as “limited,” Plaintiff seeks:

(1) Depositions of each of the individual Defendants, aimed only at the anti-SLAPP allegations and limited to three hours;

(2) A deposition of the person(s) most knowledgeable from Netflix about the development, the selection of the Vox character, the creation, marketing and distribution of the Series and all Netflix advertisements used in all marketing and aimed only at the anti-SLAPP allegations and limited to three hours;

(3) A deposition of the person(s) most knowledgeable from Titmouse about the artistic development, the selection of the Vox character, the creation, marketing and distribution of the Series and its advertisements aimed only at the anti-SLAPP allegations and limited to three hours;

(4) Custodian of Records deposition of Defendant Netflix relating to all internal records related to Plaintiff and/or the use of the Vicky Vox character;

(5) any and all treatments, overviews, bibles, written pilots, character studies, character developments (whether written and/or drawn) or other writings related to Q-Force and any of its marketing materials;

(6) all correspondence and communications between Netflix and any of the co-defendants (including their agents and/or employees) related to the development of the offending Q-Force uses;

(7) all correspondence and communications between anyone at Defendants related to the development of the offending Q-Force Series and any use of Plaintiff’s image in connection therewith; and

 (8) all documents created for use in pitching the offending Q-Force Series (whether used or not).

            The underlying purpose of the anti-SLAPP statute, and its automatic stay on discovery, is to strike offending claims at the earliest possible stages of litigation. As such, to allow such broad discovery would run counter to the purpose of the anti-SLAPP statute and must be supported by a clear demonstration of good cause.   

Defendants argue that Plaintiff cannot meet her burden to establish a prima facie case because: 1) the Series and its advertisements are expressive works protected under the First Amendment; 2) the Series and its advertisements are transformative of Plaintiff’s likeness and her First Amendment protected character, Vicky Vox; 3) Plaintiff is a public figure and therefore must prove by “clear and convincing evidence” that Defendants acted with actual malice; and 4) that Plaintiff cannot overcome Defendants’ “incidental use defense.”

            Plaintiff herself argues that “[t]he internal correspondence and documentation relating to Defendant Liedman’s admissions, which are pled in the Complaint, and Plaintiff’s supporting declaration is arguably sufficient on its own to invalidate Defendants’ Anti-SLAPP Motion, and certainly constitutes a proper showing that evidence necessary to establish a prima facie case is within the possession of either Defendants and/or third parties.” (Motion, 21: 6-10.)

            As such, by Plaintiff’s own admission, the allegations already set forth may, in fact, be sufficient to overcome Defendant’s motion. Based on this, alongside the fact that discovery should only be allowed in the anti-SLAPP context under limited circumstances, the Court cannot then conclude that good cause exists to allow additional discovery which may not even be necessary to adequately defeat to Defendant’s motion.

            As such, the Court finds insufficient good cause exists at this time to allow limited discovery to be conducted. In so concluding, the Court notes that, while it takes no position on the merits of Defendant’s anti-SLAPP motion, Plaintiff’s allegations appear, at first glance, to be sufficient to survive Defendants’ anti-SLAPP motion.  

            Based on the foregoing, Plaintiff’s motion to conduct limited discovery is denied.

It is so ordered.

Dated:  April    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.