Ratner v. Kohler
Filing
43
ORDER DENYING MELANIE KOHLER'S MOTION TO DISMISS THE COMPLIANT FILED NOVEMBER 1, 2017 AND HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017(ECF NO. 26 ) - Signed by JUDGE HELEN GILLMOR on 2/26/2018. "Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b) (ECF No. 26) is DENIED. Defendant's Special Motion to Strike pursuant to the California anti-SLAPP statute (ECF No. 26) is HELD IN ABEYANCE. The Parties shall meet and confer about the scope of the limited discovery necessary for Plaintiff to respond to Defendant's Special Motion to Strike pursuant to the California anti-SLAPP statute . If the Parties are unable to come to an agreement, Plaintiff shall file a Brief of no more than ten (10) pages on or before Wednesday, February 28, 2018. The Brief shall set forth the discovery that Plaintiff wishes to conduct in order to est ablish a reasonable probability that he will prevail on his defamation claim. Defendant shall file a Brief in Response of no more than ten (10) pages on or before Wednesday, March 21, 2018." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
MELANIE KOHLER; JOHN AND/OR
)
JANE DOES 1-10,
)
)
Defendant.
)
)
)
__________________________________
BRETT RATNER,
Civ. No. 17-00542 HG-KSC
ORDER DENYING DEFENDANT MELANIE KOHLER’S MOTION TO DISMISS THE
COMPLAINT FILED NOVEMBER 1, 2017
and
HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER’S SPECIAL MOTION TO
STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF No. 26)
On or about October 20, 2017, Defendant Melanie Kohler, who
is a resident and citizen of the State of Hawaii, posted a
statement on her Facebook page.
The statement claimed that
Hollywood film director and producer Brett Ratner raped Defendant
Kohler while she was living in California in either 2004 or 2005.
Plaintiff Brett Ratner filed a Complaint against Defendant
Kohler, alleging a claim for defamation based on her Facebook
post.
Defendant Kohler filed a Motion to Dismiss and a Special
Motion to Strike pursuant to a California statute barring
strategic lawsuits against public participation (“anti-SLAPP
statute”).
1
Defendant Kohler requests that the Court dismiss Plaintiff
Ratner’s lawsuit on the basis that he failed to sufficiently
plead a defamation claim pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Defendant also seeks to strike the Complaint
pursuant to the California anti-SLAPP statute.1
Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(6) is DENIED.
Defendant’s Special Motion to Strike pursuant to the
California anti-SLAPP statute is HELD IN ABEYANCE.
PROCEDURAL HISTORY
On November 1, 2017, Plaintiff filed a Complaint.
(ECF No.
1).
On January 2, 2018, Defendant filed DEFENDANT MELANIE
KOHLER’S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017,
AND TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017.
(ECF No.
26).
On January 8, 2018, the Court set a briefing schedule and
set the hearing on Defendant’s Motion for Monday, February 12,
2018.
(ECF No. 31).
1
Plaintiff argues in his Opposition that Defendant’s antiSLAPP motion was “improperly filed as part of her 12(b)(6) motion
to dismiss.” (Pla.’s Opp. at p. 12, ECF No. 34). Plaintiff is
incorrect. Federal courts have found that it is proper procedure
for a defendant to combine a 12(b)(6) motion and an anti-SLAPP
motion to strike into one pleading as long as the separate
motions are properly designated in the filing, as was done here.
Espinoza v. City of Imperial, 2009 WL 10671316, *10 (S.D. Cal.
March 4, 2009); cf. Phillips v. KIRO-TV, Inc., 817 F.Supp.2d
1317, 1328 (W.D. Wash. 2011).
2
On January 10, 2018, the hearing was advanced to Thursday,
February 8, 2018, at the Defendant’s request.
(ECF No. 33).
On January 22, 2018, Plaintiff filed PLAINTIFF BRETT
RATNER’S MEMORANDUM IN OPPOSITION TO DEFENDANT MELANIE KOHLER’S
MOTION TO DISMISS COMPLAINT FILED NOVEMBER 1, 2017, AND TO STRIKE
THE COMPLAINT FILED NOVEMBER 1, 2017.
(ECF No. 34).
On February 5, 2018, Defendant filed DEFENDANT MELANIE
KOHLER’S REPLY TO PLAINTIFF BRETT RATNER’S MEMORANDUM IN
OPPOSITION TO DEFENDANT MELANIE KOHLER’S MOTION TO DISMISS
COMPLAINT, FILED NOVEMBER 1, 2017, AND TO STRIKE THE COMPLAINT,
FILED NOVEMBER 1, 2017.
(ECF No. 35).
On February 8, 2018, the Court held a hearing on Defendant
Kohler’s Motion to Dismiss and to Strike (ECF No. 26).
At the
hearing, the Court denied Defendant’s Motion to Dismiss pursuant
to Fed. R. Civ. P. 12(b)(6).
This Order sets forth the basis for
the oral ruling at the February 8, 2018 hearing.
BACKGROUND
The Complaint asserts that Plaintiff Brett Ratner “is an
accomplished and well known film director and producer who
resides in Los Angeles and is and has been a citizen of the State
of California at all times relevant hereto.”
ECF No. 1).
(Complaint at ¶ 4,
The Complaint states Defendant Melanie Kohler is a
resident and citizen of the State of Hawaii.
(Id. at ¶ 5).
Plaintiff alleges that on or about October 20, 2017,
Defendant Melanie Kohler “recklessly and/or intentionally posted
3
a statement on her Facebook page claiming that ‘Brett Ratner
raped [her]’.”
(Id. at ¶ 7).
The entirety of the Facebook post
is attached to Defendant’s Motion, as follows:
My hands are shaking even as I try to write this. It’s
not something I’ve ever told anyone in my entire life.
Not even my closest friends at the time.
Brett Ratner raped me. He is a famous director and
producer in Hollywood.
If there is any chance of changing the hollywood
culture, the american culture, it has to happen now
while people are listening.
I tell this story in hopes that if he’s done it to
others that they might have the confidence to come
forward.
And if he hasn’t, that maybe he can be accountable for
the way he’s treated the nobodies of the world or at
least the way he treated me.
Even if he treats all the somebodies of the world with
respect and decency, he is not a public monster like
Harvey and I don’t think anyone has much bad to say
about him professionally, that doesn’t mean he can do
this in the dark shadows of the night when he thinks no
one is looking. He was a predator and a rapist on at
least on one night in Hollywood about 12 years ago.
It happened when I worked at Endeavor Talent Agency in
hollywood. It was 2004 or 2005. I won’t go into the
details here to spare the people who don’t want to hear
them but I’m willing to share my story with anyone who
needs to hear it.
Long story short, he preyed on me as a drunk girl who
was alone at a club at the end of the night, he took me
back to Robert Evans house, he forced himself upon me
after I said no and no and no again, and then left me
there. He just got up, didn’t say a word, got in his
car and left and I laid there humiliated and broken on
the floor. The rest of the night is fuzzy, I must have
stumbled out of the house and called a cab and I went
home and erased it from my mind.
I’m embarrassed, humiliated, ashamed, and wish I could
go back to forgetting it ever happened. But if I do
that, if we all do that, then it keeps happening. We
have to come forward. I can’t be an advocate for women
speaking out if I don’t speak out too.
Brett Ratner raped me. I’m saying his name, I’m saying
it publicly. Now at least I can look at myself in the
mirror and not feel like part of me is a coward or a
hypocrite. I’m standing up and saying this happened to
4
me and it was not ok.
Come what may, it is the right thing to do.
(Melanie Kohler Facebook post, attached as Ex. A to Def.’s
Motion, ECF No. 26-4).
Plaintiff Ratner alleges the statement is “entirely false,
fabricated, and fictional.”
(Complaint at ¶ 8, ECF No. 1).
The
Complaint asserts that Defendant Kohler made the statement “with
knowledge of its falsity, maliciously, and with the intent to
harm Plaintiff’s reputation and standing.”
(Id. at ¶ 9).
The Complaint states that Plaintiff believes that the
Facebook statement constitutes “libel per se.”
(Id. at ¶ 10).
The Complaint alleges that as a result of Defendant Kohler’s post
Defendant Ratner “has suffered injuries to his personal and
professional reputations in amounts to be proven at trial.”
(Id.
at ¶ 12).
STANDARD OF REVIEW
Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(6)
A court must dismiss a complaint as a matter of law pursuant
to Federal Rule of Civil Procedure 12(b)(6) where it fails “to
state a claim upon which relief can be granted.”
Rule (8)(a)(2)
of the Federal Rules of Civil Procedure requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
When considering a Rule 12(b)(6) motion to dismiss,
the Court must presume all allegations of material fact to be
true and draw all reasonable inferences in favor of the non5
moving party.
1998).
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.
Conclusory allegations of law and unwarranted inferences
are insufficient to defeat a motion to dismiss.
Id. at 699.
The
Court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.
550 U.S. 544 (2007).
The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.
129 S.Ct. 1937 (2009).
The Court stated
that “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.
at 1949 (citing Twombly, 550 U.S. at 555).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.
U.S. at 570).
Id. (quoting Twombly, 550
A claim has facial plausibility when the plaintiff
6
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.
Id. (citing Twombly, 550 U.S. at 556).
The
plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant
has acted unlawfully.
Id. (quoting Twombly, 550 U.S. at 556).
Where a complaint pleads facts that are “merely consistent with”
a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’”
Id.
(quoting Twombly, 550 U.S. at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
Special Motion To Strike Pursuant To Cal. Code Civ. P. § 425.16
California’s anti-SLAPP statute states:
A cause of action against a person arising from any act
of that person in furtherance of the person’s right of
petition or free speech under the United States
Constitution or the California Constitution in
connection with a public issue shall be subject to a
special motion to strike, unless the court determines
that the plaintiff has established that there is a
probability that the plaintiff will prevail on the
claim.
7
Cal. Code Civ. P. § 425.16(b)(1).
There are two steps in analyzing a motion to strike pursuant
to California’s anti-SLAPP statute.
First, the defendant must make a prima facie showing that
the plaintiff’s suit arises from an act in furtherance of the
defendant’s rights of free speech on a public issue.
Jordan-
Benel v. Universal City Studios, Inc., 859 F.3d 1184, 1188 (9th
Cir. 2017); Park v. Board of Trustees of Cal. State Univ., 393
P.3d 905, 907 (Cal. 2017).
Second, if the defendant establishes a prima facie case, the
burden shifts to the plaintiff to show a reasonable probability
of prevailing on the challenged claim.
1188.
Jordan-Benel, 859 F.3d at
The plaintiff’s burden at step two is relatively low.
Roberts v. McAfee, Inc., 660 F.3d 1156, 1163 (9th Cir. 2011);
Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 598 (9th Cir.
2010).
If plaintiff cannot meet its minimal burden of stating and
substantiating a legally sufficient claim, the claim is stricken
pursuant to the statute.
Jordan-Benel, 859 F.3d at 1188-89
(internal citation and quotations omitted).
ANALYSIS
I.
Conflict of Law
The Complaint asserts that Plaintiff Brett Ratner is a
resident and citizen of the State of California.
8
(Complaint at ¶
4, ECF No. 1).
The Complaint alleges that Defendant Melanie
Kohler is a resident and citizen of the State of Hawaii.
(Id. at
¶ 5, ECF No. 1).
This Court has subject-matter jurisdiction based on
diversity of the Parties.
28 U.S.C. § 1332(a)(1).
federal question asserted in the Complaint.
There is no
See 28 U.S.C. §
1331.
In a diversity case, a federal court must apply the conflict
of law rules of the state in which it sits to determine what
substantive law applies.
Lemen v. Allstate Ins. Co., 938 F.Supp.
640, 643 (D. Haw. 1995); DeRoburt v. Gannett Co., Inc., 83 F.R.D.
574, 576 (D. Haw. 1979).
Hawaii’s conflict of law jurisprudence requires the Court to
evaluate which state has the most significant relationship to the
case in order to determine the applicable substantive law to
apply.
Restatement (2d) Conflict of Laws § 145 (1971); Lewis v.
Lewis, 748 P.2d 1362, 1365 (Haw. 1988).
The Hawaii Supreme Court set forth its conflict of law
jurisprudence in Mikelson v United Servs. Auto. Ass’n, 111
P.3d 601 (Haw. 2005).
The Mikelson court observed the following:
This court has moved away from the traditional and
rigid conflict-of-laws rules in favor of the modern
trend towards a more flexible approach looking to the
state with the most significant relationship to the
parties and subject matter. This flexible approach
places primary emphasis on deciding which state would
have the strongest interest in seeing its laws applied
to the particular case. Hence, this court has said
that the interests of the states and applicable public
policy reasons should determine whether Hawai‘i law or
another state's law should apply. The preferred
9
analysis ... would be an assessment of the interests
and policy factors involved with a purpose of arriving
at a desirable result in each situation.
Mikelson, 111 P.3d at 607 (citations, brackets, and
quotation marks omitted); see Del Monte Fresh Produce (Hawaii),
Inc. v. Fireman's Fund Ins. Co., 183 P.3d 734, 741 (Haw. 2007).
In defamation cases, Hawaii courts looks to Sections 145-150
of the Restatement (Second) Conflict of Laws for guidance.
Miracle v. New Yorker Magazine, 190 F.Supp.2d 1192, 1198 (D. Haw.
2001).
Section 150(2) of the Restatement (Second) of Conflict of
Laws applies to cases involving allegedly defamatory statements
that are broadcast or published in more than one state.
The
Restatement provides that a court should ordinarily apply the law
of the state of the plaintiff’s domicile when the allegedly
defamatory statement was broadcast to multiple states.
Section 150 of the Restatement (2d) Conflict of Laws
provides, as follows:
§ 150. Multistate Defamation
(1)
The rights and liabilities that arise from defamatory
matter in any one edition of a book or newspaper, or
any one broadcast over radio or television, exhibition
of a motion picture, or similar aggregate communication
are determined by the local law of the state which,
with respect to the particular issue, has the most
significant relationship to the occurrence and the
parties under the principles stated in § 6.
(2)
When a natural person claims that he has been defamed
by an aggregate communication, the state of most
significant relationship will usually be the state
where the person was domiciled at the time, if the
matter complained of was published in that state.
10
(3)
When a corporation, or other legal person, claims that
it has been defamed by an aggregate communication, the
state of most significant relationship will usually be
the state where the corporation, or other legal person,
had its principal place of business at the time, if the
matter complained of was published in that state.
(emphasis added).
Here, Plaintiff is a resident and citizen of the State of
California.
(Complaint at ¶ 4, ECF No. 1).
He claims that he is
a “well known film director and producer who resides in Los
Angeles.”
(Id.)
The Complaint alleges that Plaintiff “has
suffered injuries to his personal and professional reputations.”
(Id. at ¶ 12).
California is the state with the most significant interest
in having its laws applied in this case.
The Complaint asserts that Plaintiff made the allegedly
defamatory statement on Facebook.
(Id. at ¶ 7).
Facebook is a
social media networking service with approximately 1.79 billion
active users.
Packingham v. North Carolina, 137 S.Ct. 1730, 1735
(2017).
Plaintiff claims in his Opposition that Defendant was
located in Hawaii when she made the Facebook post.
It is not
disputed, however, that the Facebook post was broadcast or made
available to users in multiple states, including California.
The Complaint indicates that the Defendant’s Facebook
statement caused damage to Plaintiff in California, the state of
his domicile.
(Complaint at ¶ 12, ECF No. 1).
Comment (e) to Section 150 of the Restatement (Second)
11
Conflict of Laws explains that the law of the state of the
Plaintiff’s domicile should provide the substantive law, unless
another state has a more significant relationship to the
occurrence and the parties.
150, comment (e).
Restatement (2d) Conflict of Laws §
The Comment provides that another state may
have a more significant relationship to the case when:
(a)
the plaintiff is better known in this state than in the
state of his domicil, or
(b)
the matter claimed to be defamatory related to an
activity of the plaintiff that is principally located
in this state, or
(c)
the plaintiff suffered greater special damages in this
state than in the state of his domicil, or
(d)
the place of principal circulation of the matter
claimed to be defamatory was in this state.
An assessment of the factors in comment (e) demonstrates
that California is the state with the most significant
relationship to this case.
There is no basis to find that
Plaintiff Ratner is more well-known in Hawaii than in California.
California has a significant interest in this case as
Plaintiff’s purported damages would most likely occur in
California where he resides and conducts his business.
In
addition, Defendant alleges in her Facebook post that the
purported rape took place in California.
There is no evidence
that the circulation of Defendant’s Facebook post was limited to
users in Hawaii and was not available to users in California.
In Miracle v. New Yorker Magazine, 190 F.Supp.2d 1192, 1198
(D. Haw. 2001), the District Court for the District of Hawaii
12
applied the Hawaii conflict of law rules to determine the
applicable substantive law for a defamation cause of action.
In the complaint in Miracle, the plaintiff alleged that the
defendant New Yorker Magazine published an article that defamed
her.
Id. at 1197.
The District Court found that under Hawaii
law, Section 150(2) of Restatement of Conflict of Laws applied to
determine the substantive law in the defamation case.
Id.
The
District Court explained that the alleged defamation occurred in
multiple jurisdictions because the New Yorker Magazine was
published in multiple states.
The District Court found that
pursuant to Section 150(2) of the Restatement, the substantive
state law of plaintiff’s domicile applied to the case.
Id.
Numerous federal courts sitting in diversity have applied
Section 150 of the Restatement (Second) of Conflict of Laws to
find that the law of the plaintiff’s domicile is the applicable
substantive law in similar defamation cases.
McKee v. Cosby, 236
F.Supp.3d 427, 436-37 (D. Mass. 2017) (applying Michigan law to a
defamation cause of action because plaintiff was domiciled in
Michigan at the time of publication); Adelson v. Harris, 973
F.Supp.2d 467, 475-81 (S.D.N.Y. 2013) (applying New York conflict
of law rules to determine that the substantive law of plaintiff’s
domicile applied in a defamation case); DeRoburt v. Gannett Co.,
Inc., 83 F.R.D. 574, 580-83 (D. Haw. 1979); see Tobinick v.
Novella, 108 F.Supp.3d 1299, 1304 (S.D. Fla. 2015) (finding
California law had the most significant relationship to the
claims because plaintiff’s damages were most likely suffered in
13
California).
California law provides the substantive law in this case.
Mikelson, 111 P.3d at 607; Restatement (2d) Conflict of Laws §
150(2).
II.
Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P.
12(b)(6)
Under California law, defamation is the intentional
publication of a statement of fact which is false, unprivileged,
and has a natural tendency to injure or which causes special
damage.
Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010)
(quoting Gilbert v. Sykes, 53 Cal.Rptr.3d 752, 764 (Cal. Ct. App.
2007)).
A.
Plaintiff Ratner Is A Public Figure
If plaintiff is a public figure, he must establish that the
defamatory statement was made with actual malice, that is,
knowledge that it was false, or with reckless disregard for the
truth.
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80
(1964); Walker v. Kiousis, 114 Cal. Rptr.2d 69, 80 (Cal. Ct. App.
2001); Reader’s Digest Ass’n v. Superior Court, 690 P.2d 610, 615
(Cal. 1984).
In this case, there is no dispute that Plaintiff Brett
Ratner is a public figure.
Plaintiff’s Complaint asserted that
he is “an accomplished and well known film director and
producer.”
(Complaint at ¶ 4, ECF No. 1).
14
The Ninth Circuit
Court of Appeals has stated that “artists, athletes, business
people, dilettantes, anyone who is famous or infamous because of
who he is or what he has done” is a public figure for defamation
purposes.
Manzari v. Associated Newspapers LTD., 830 F.3d 881,
888 (9th Cir. 2016) (quoting Cepeda v. Cowles Magazines & Broad.,
Inc., 392 F.2d 417, 419 (9th Cir. 1968)).
B.
Plaintiff Stated Sufficient Facts To State A Claim For
Defamation
1.
Accusations of Rape Are Libel Per Se
Plaintiff’s Complaint contends that the rape accusations
against him constitute “libel per se.”
(Id. at ¶ 10).
a form of defamation effected in writing.
Libel is
Doe 2 v. Superior
Court, 206 Cal.Rptr.3d 60, 68 (Cal. Ct. App. 2016); Shively v.
Bozanich, 80 P.3d 676, 682-83 (Cal. 2003).
California law provides three distinct, statutorilyprescribed categories of statements that are libelous on their
face.
Cal. Civ. Code § 45.
Statements that either (1) expose a
person to hatred, contempt, ridicule, or obloquy, (2) cause him
to be shunned or avoided, or (3) have a tendency to injure one in
his occupation are libel per se.
Id.
Under California law, statements that falsely impute the
commission of a crime are libelous on their face.
Yow v. Nat’l
Enquirer, Inc., 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008).
Here, Defendant has accused Plaintiff of rape.
accusation, if false, is libelous on its face.
15
Such an
Id. at 1190.
Allegations of far less serious conduct have been found to be
libel per se.
Recently, a federal district court in California
found that allegations that a magazine falsely published a story
implying that singer Blake Shelton entered an alcohol
rehabilitation center were sufficient to plead a claim for libel
per se.
Shelton v. Bauer Pub. Co., L.P., 2016 WL 1574025, *9
(C.D. Cal. 2016).
Allegations of illegal drug use have also been found to
state a claim for libel per se.
Yow, 550 F.Supp.2d at 1183.
Defendant Kohler’s allegedly false allegations of rape
constitute libel per se.
2.
Actual Malice
In Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511
(1991), the United States Supreme Court discussed the element of
“actual malice” under California law.
The Court explained,
We have used the term actual malice as a shorthand to
describe the First Amendment protections for speech
injurious to reputation, and we continue to do so here.
But the term can confuse as well as enlighten. In this
respect, the phrase may be an unfortunate one. In
place of the term actual malice, it is better practice
that jury instructions refer to publication of a
statement with knowledge of falsity or reckless
disregard as to truth or falsity.
Id. (internal citation omitted).
Courts have found that if a complaint alleges facts that
raise a reasonable inference that the defendant did not believe
what she published, it is not appropriate to dismiss the
complaint for failure to sufficiently plead actual malice.
16
See
McDonald v. Wise, 769 F.3d 1202, 1220 (10th Cir. 2014); Ultimate
Creations, Inc. v. McMahon, 515 F.Supp.2d 1060, 1066 (D. Ariz.
2007) (finding that a public figure stated a claim for defamation
with actual malice where he alleged the defendants knowingly sold
a DVD containing statements that impeached the plaintiff’s
honesty, integrity, and reputation); Flowers v. Carville, 310
F.3d 1118, 1130-31 (9th Cir. 2002) (finding that the plaintiff
sufficiently stated a claim when she “alleged in her complaint
that defendants knew that their statements were false or acted
with reckless disregard of the truth.”).
In his Complaint, Plaintiff provides sufficient facts to
plead a defamation claim with actual malice.
Plaintiff denies
that the rape took place and claims Defendant Kohler knew her
accusation was false when she made the Facebook post.
Plaintiff
Ratner alleges that Defendant Kohler’s statement that he raped
her was “deliberately false and malicious.”
ECF No. 1).
(Complaint at ¶ 1,
He claims her Facebook post was “entirely false,
fabricated, and fictional.”
(Id. at ¶ 8).
The Complaint alleges
that Defendant made the rape accusation “with knowledge of its
falsity, maliciously, and with the intent to harm Plaintiff’s
reputation and standing.”
(Id. at ¶ 9).
Defendant Kohler’s Motion to Dismiss primarily relies on
cases where a public figure had sued publishers and journalists
for defamatory articles about them.
In those cases, there were
no allegations that the publishers knew the stories were false or
purposefully avoided investigation into the veracity of their
17
articles with intent to avoid the truth.
Michel v. NYP Holdings,
Inc., 816 F.3d 686, 703 (11th Cir. 2016); Biro v. Conde Nast, 807
F.3d 541, 545 (2d Cir. 2015); Pippen v. NBCUniversal Media, LLC,
734 F.3d 610, 614 (7th Cir. 2013).
This case is not a defamation case against a publisher or a
journalist investigating events about third parties.
Rather, the
Complaint here alleges that Defendant Kohler knew her Facebook
post was false when she published it because the events she
recounted never took place.
Plaintiff Ratner alleges that
Defendant’s Facebook post was wholly fabricated.
In Chastain v. Hodgdon, 202 F.Supp.3d 1216, 1221-22 (D. Kan.
2016), the District Court for the District of Kansas addressed
similar issues involving an online Facebook post accusing the
plaintiff of sexual assault.
In Chastain, the defendant posted a narrative statement on
Facebook accusing the plaintiff, a mayoral candidate, of sexual
assault and attempted rape.
The defendant filed a motion to
dismiss on the basis that the plaintiff did not provide
sufficient facts to allege actual malice.
The federal district
court denied the defendant’s motion to dismiss for failure to
state a claim.
The plaintiff in Chastain alleged that the defendant acted
with actual malice because she knew when she published her
Facebook post that the sexual assault and attempted rape never
happened.
The court explained,
In her Facebook post, defendant stated that plaintiff
18
sexually assaulted or attempted to rape her, going into
great detail in her narrative. Such recounting from
defendant’s perspective necessarily requires a lucid
memory of the event as experienced by defendant
herself. Of course, if the event forming the basis of
defendant’s accusation never occurred, as the court is
required to assume at this stage, such a first-person
narrative would require that defendant knew that the
events were false because she necessarily never
experienced them. If defendant knew that the events
were false, and nonetheless wrote the detailed
narrative describing exactly how plaintiff sexually
assaulted or attempted to rape her when it actually
never occurred, it is axiomatic that she wrote the
narrative with actual malice, or actual knowledge that
it was false.
Id. at 1221-22.
The defendant in Chastain sought reconsideration of the
district court’s ruling denying her motion to dismiss.
The
district court denied defendant’s motion to reconsider.
Chastain
v. Hodgdon, 2016 WL 5109944, *2 (D. Kan. Sept. 20, 2016).
The
district court explained in its order denying reconsideration
that dismissal was inappropriate pursuant to Fed. R. Civ. P.
12(b)(6).
Id.
The district court stated that “because defendant
and plaintiff were the only two direct actors in events that
either did or did not occur, plaintiff’s claim of falsity
supports both that the statement was false and that defendant
necessarily knew it was false at the time she said it—because,
according to him, it never occurred.”
Id.
Just as in Chastain, Defendant Kohler’s Facebook post
provided a narrative of events describing the alleged rape by
Plaintiff Ratner.
Defendant stated that it happened when she
worked at Endeavor Talent Agency in Hollywood, in either 2004 or
19
2005.
Defendant stated that she was alone at a club at the end
of a night and claims Plaintiff Ratner took her back to “Robert
Evans house, he forced himself upon [her] after [she] said no and
no and no again, and then left [her] there....”
(Melanie Kohler
Facebook post, attached as Ex. A to Def.’s Motion, ECF No. 26-4).
California courts have explained that actual malice may be
inferred if the plaintiff demonstrates that the defamatory
statement had no basis in fact, was fabricated by the defendant,
or was the product of her imagination.
Christian Research
Institute v. Alnor, 55 Cal.Rptr.3d 600, 612 (Cal. Ct. App. 2007)
(citing Amant v. Thompson, 390 U.S. 727, 732 (1968)); Nguyen-Lam
v. Cao, 90 Cal.Rptr.3d 205, 213-14 (Cal. Ct. App. 2009) (finding
actual malice where the inference could be drawn that defendant
had no basis to falsely claim the plaintiff was a Communist).
Here, there are sufficient allegations that Defendant acted
with actual malice based on the claim that Defendant knew at the
time of publication that the purported rape never occurred.
Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b) is DENIED.
III. Defendant’s Special Motion To Strike Pursuant To The
California Anti-SLAPP Statute
California has enacted an anti-SLAPP statute designed to
protect individuals who have exercised their right to free speech
from being subject to frivolous litigation.
Hilton v. Hallmark
Cards, 599 F.3d 894, 902 (9th Cir. 2010); Batzel v. Smith, 333
20
F.3d 1018, 1024 (9th Cir. 2003).
The Ninth Circuit Court of Appeals has held that
California’s anti-SLAPP statute can be invoked by a defendant who
is in federal court on the basis that it is a substantive law.
Price, 620 F.3d at 999 (citing Vess v. Ciba-Geigy Corp., USA, 317
F.3d 1097, 1109 (9th Cir. 2003); United States ex rel. Newsham v.
Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir.
1999)).
California’s Anti-SLAPP statute provides, as follows:
A cause of action against a person arising from any act
of that person in furtherance of the person’s right of
petition or free speech under the United States
Constitution or the California Constitution in
connection with a public issue shall be subject to a
special motion to strike, unless the court determines
that the plaintiff has established that there is a
probability that the plaintiff will prevail on the
claim.
Cal. Code Civ. P. § 425.16(b)(1).
Courts evaluate a defendant’s anti-SLAPP motion in two
steps.
First, to prevail on an anti-SLAPP motion, the moving
defendant must make a prima facie showing that the plaintiff’s
suit arises from an act in furtherance of the defendant’s
constitutional right to free speech.
Makaeff v. Trump
University, LLC, 715 F.3d 254, 261 (9th Cir. 2013).
Second, if defendant makes a prima facie showing, the burden
then shifts to the plaintiff to establish a reasonable
probability that he will prevail on his claim in order to survive
dismissal under the California statute.
21
Id.
A.
Defendant’s Prima Facie Showing Under The California
Anti-SLAPP Statute
The first step in analyzing an anti-SLAPP motion is
determining whether the defendant made an initial prima facie
showing that the plaintiff’s suit arises from an act in
furtherance of the defendant’s right to free speech.
Vess, 317
F.3d at 1110.
California’s anti-SLAPP statute defines such an act to
include “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.”
See Cal. Code Civ. P. § 425.16(e).
Defendant Kohler asserts that her Facebook post was made on
a public forum and taken in furtherance of her right to free
speech in connection with an issue of public interest.
It is
well settled under California law that web sites accessible to
the public are “public forums” for purposes of the anti-SLAPP
statute.
Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal.
2006); Wong v. Tai Jing, 117 Cal.Rptr.3d 747, 759 (Cal. Ct. App.
2010).
Plaintiff does not dispute that her Facebook post was
made on an open forum.
The California anti-SLAPP statute does not provide a
definition of “an issue of public interest.”
Piping Rock
Partners, Inc. v. David Lerner Assocs., Inc., 946 F.Supp.2d 957,
968 (N.D. Cal. 2013).
Courts applying the California anti-SLAPP statute have held
that public accusations of rape or sexual assault against a
22
public figure are connected with an issue of public interest.
Heineke v. Santa Clara University, 2017 WL 6026248, *7 (N.D. Cal.
Dec. 5, 2017) (finding claims based on allegedly false
accusations of sexual assault are protected speech under
California’s anti-SLAPP statute); Dickinson v. Cosby, 225
Cal.Rptr.3d 430, 442 (Cal. Ct. App. 2017) (finding that letters
and press releases regarding rape accusations constitute speech
in connection with a public issue).
Plaintiff does not dispute that Defendant’s Facebook post
concerns an issue of public interest for purposes of the
California anti-SLAPP statute.
Defendant has met her prima facie burden under Cal. Civ. P.
Code § 425.16 to show that her Facebook post was made in
furtherance of her right to free speech on a matter of public
interest.
B.
Plaintiff Must Establish A Reasonable Probability That
He Will Prevail
The California anti-SLAPP statute does not bar a plaintiff
from litigating an action that arises out of the defendant’s free
speech, but the action is subject to dismissal when the plaintiff
cannot substantiate a legally sufficient claim.
Hilton, 599 F.3d
at 908.
Under the second step of the anti-SLAPP statute, the burden
shifts to Plaintiff Ratner to establish a “reasonable
probability” that he will prevail on his claim for defamation.
23
Makaeff, 715 F.3d at 261.
The term “reasonable probability” in the anti-SLAPP statute
has a specialized meaning.
Mindys Cosmetics, Inc. v. Dakar, 611
F.3d 590, 598 (9th Cir. 2010).
The California Supreme Court has
explained that under the reasonable probability standard, the
plaintiff need only establish that the case has “minimal merit.”
Navellier v. Sletten, 52 P.3d 703, 712 (Cal. 2002).
The Ninth Circuit Court of Appeals has explained that to
withstand an anti-SLAPP motion to strike in California:
The plaintiff must demonstrate that the complaint is
both 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. In deciding the question of potential merit,
the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant;
though the court does not weigh the credibility or
comparative probative strength of competing evidence,
it should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support
for the claim.
Manufactured Home Communities, Inc. v. Cnty. of San Diego,
655 F.3d 1171, 1176-77 (9th Cir. 2011) (quoting Wilson v. Parker,
Covert & Chidester, 50 P.3d 733, 739 (2002)).
1.
Plaintiff’s Citation To A YouTube Video Is Not
Evidence
In his Opposition, Plaintiff cites to a YouTube video.
Plaintiff states the video is “Good Morning America: Filmmaker
Sues Sex Assault Accuser (ABC News broadcast Nov. 8, 2017),
available at https://www.youtube.com/watch?v=H6Xs7umx CU.”
24
(Pla.’s Opp. at pp. 16-17, ECF No. 34).
Plaintiff asserts that
the video supports a finding that Defendant has made inconsistent
statements about the alleged rape.
Plaintiff has not demonstrated that the YouTube video he
cites to constitutes admissible evidence for purposes of an antiSLAPP motion to strike.
Metabolife Int’l, Inc. v. Wornick, 264
F.3d 832, 840 (9th Cir. 2001).
Courts have held that YouTube videos are self-authenticating
under Federal Rule of Evidence 902(11) if the party offering the
video provides certification by the custodian of the records that
the records meet the requirements of Fed. R. Evid. 803(6)(A)-(C).
United States v. Hassan, 742 F.3d 104, 132-34 (4th Cir. 2014).
The records must be (A) made near the time by—or from information
transmitted by—someone with knowledge, (B) kept in the course of
a regularly conducted activity of a business, and (C) making the
record was a regular practice of that activity.
Id.
Plaintiff has not provided a physical copy of the YouTube
video with a certification from the custodian of records that
would support a finding that the YouTube video constitutes
admissible evidence.
In Randazza v. Cox, 2014 WL 1407378, *4 (D. Nev. April 10,
2014), the federal district court found a YouTube video
inadmissible because the plaintiff had not proffered the
certificate of YouTube’s custodian or other qualified person
verifying that the page had been maintained as a business record
in the course of regularly conducted business activities.
25
Plaintiff has not provided any other theory or basis to find
the YouTube video is admissible evidence.
Plaintiff has not made
the Fed. R. Evid. 901(a) prima facie showing of genuineness that
would allow for the video’s admissibility.
See United States v.
Broomfield, 591 Fed. Appx. 847, 851-52 (11th Cir. 2014); Carucel
Investments, L.P. v. Novatel Wireless, Inc., 2017 WL 1215838, *19
(S.D. Cal. Apr. 3, 2017).
2.
Plaintiff Is Entitled To Engage In Discovery
Pursuant To The Federal Rules Of Civil Procedure
Plaintiff requests an opportunity to conduct discovery in
order to respond to Defendant’s Special Motion to Strike under
the California anti-SLAPP statute.
The Ninth Circuit Court of Appeals has explained that
provisions in the California anti-SLAPP statute that directly
collide with the Federal Rules of Civil Procedure are not
applicable.
Metabolife Int’l, Inc., 264 F.3d at 840.
In Metabolife Int’l, Inc., the appellate court found that
the discovery-limiting portions of the anti-SLAPP statute
conflict with the Federal Rules of Civil Procedure 56 and are
inapplicable in federal court under the Erie doctrine.
Id. at
846 (citing Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d
973, 980 (C.D. Cal. 1999)).
A plaintiff in federal court is entitled to engage in
discovery when there is discovery available that may assist a
plaintiff in responding to the defendant’s special motion to
26
strike under the California anti-SLAPP statute.
Heller v. NBC
Universal, Inc., 2016 WL 6583048, *9 (C.D. Cal. June 29, 2016);
Flores v. Emerich & Fike, 2006 WL 2536615, *10 (E.D. Cal. Aug.
31, 2006) (citing Verizon Delaware, Inc. v. Covad Comm. Co., 377
F.3d 1081, 1091 (9th Cir. 2004)).
Defendant’s Special Motion to Strike pursuant to the
California anti-SLAPP statute is HELD IN ABEYANCE pending limited
discovery to allow Plaintiff to respond to Defendant’s anti-SLAPP
Motion.
CONCLUSION
Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b) (ECF No. 26) is DENIED.
Defendant’s Special Motion to Strike pursuant to the
California anti-SLAPP statute (ECF No. 26) is HELD IN ABEYANCE.
The Parties shall meet and confer about the scope of the
limited discovery necessary for Plaintiff to respond to
Defendant’s Special Motion to Strike pursuant to the California
anti-SLAPP statute.
If the Parties are unable to come to an agreement, Plaintiff
shall file a Brief of no more than ten (10) pages on or before
Wednesday, February 28, 2018.
The Brief shall set forth the
discovery that Plaintiff wishes to conduct in order to establish
a reasonable probability that he will prevail on his defamation
claim.
27
Defendant shall file a Brief in Response of no more than ten
(10) pages on or before Wednesday, March 21, 2018.
IT IS SO ORDERED.
DATED: February 26, 2018, Honolulu, Hawaii.
Brett Ratner v. Melanie Kohler; John and/or Jane Does 1-10; Civ.
No. 17-00542HG-KSC; ORDER DENYING DEFENDANT MELANIE KOHLER’S
MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017 and
HOLDING IN ABEYANCE DEFENDANT MELANIE KOHLER’S SPECIAL MOTION TO
STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF No. 26)
28
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