Ratner v. Kohler

Filing 46

ORDER ON PLAINTIFF'S REQUEST FOR DISCOVER TO RESPOND TO DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF NO. 26 ) - Signed by JUDGE HELEN GILLMOR on 4/5/2018. "Plaintiff Ratner shall serve Defendant Kohler with his request for answers to interrogatories and request for production of documents on or before Thursday, May 10, 2018. Defendant Kohler shall respond to Plaintiff's requests on or before Monday, June 11, 2018. Plaintiff shall file his evidence in support of his Opposition to Defendant Kohler's Motion pursuant to the California anti-SLAPP statute on or before Tuesday, July 10, 2018. Defendant shall file her Reply on or before Friday, August 10, 2018." (emt, )

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 ON PLAINTIFF’S REQUEST FOR DISCOVERY TO RESPOND TO
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
posted a statement on her Facebook page.

The statement claimed

that Hollywood film director and producer Brett Ratner raped her,
in either 2004 or 2005, when she was living in California.
Plaintiff Brett Ratner filed a Complaint against Defendant
Kohler, alleging defamation.
Defendant Kohler filed a Motion to Dismiss and a Special
Motion to Strike pursuant to a California statute barring
strategic lawsuits against public participation, a law designed
to protect speech (“anti-SLAPP statute”).
On February 26, 2018, the Court issued an Order Denying
Defendant’s Motion to Dismiss and Holding in Abeyance Defendant’s
Motion Pursuant to the California anti-SLAPP statute.
The Court ordered the Parties to meet and confer regarding
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the scope of discovery necessary to allow Plaintiff to respond to
Defendant’s Motion.

The Parties were unable to agree on the

scope of discovery.
The Court FINDS that Plaintiff Ratner is entitled to serve
interrogatories and a request for production of documents in
order to respond to Defendant’s Motion pursuant to California’s
anti-SLAPP statute.
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 February 8, 2018, the Court held a hearing on Defendant
Kohler’s Motion to Dismiss and to Strike (ECF No. 36).
On February 26, 2018, the Court issued an 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. 43).

On February 28, 2018, Plaintiff filed PLAINTIFF BRETT
RATNER’S MEMORANDUM OF POINTS AND AUTHORITIES RE: SCOPE OF
DISCOVERY.

(ECF No. 44).

On March 21, 2018, Defendant filed DEFENDANT MELANIE
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KOHLER’S MEMORANDUM OF POINTS AND AUTHORITIES OPPOSING
PLAINTIFF’S SCOPE OF DISCOVERY.

(ECF No. 45).

BACKGROUND

Plaintiff alleges that on or about October 20, 2017,
Defendant Melanie Kohler “recklessly and/or intentionally posted
a statement on her Facebook page claiming that ‘Brett Ratner
raped [her]’.”

(Verified Complaint at ¶ 7, ECF No. 38).

Plaintiff Ratner alleges the statement is “entirely false,
fabricated, and fictional.”

(Id. at ¶ 8).

Plaintiff 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).

Plaintiff believes that the Facebook statement constitutes
“libel per se.”

(Id. at ¶ 10).
STANDARD OF REVIEW

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.
Cal. Code Civ. P. § 425.16(b)(1).
There are two steps in analyzing a Motion filed pursuant to
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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.

Jordan-Benel, 859 F.3d at

1188.
ANALYSIS
I.

The Substantive Provisions of California’s Anti-SLAPP
Statute Apply To This Case
The Ninth Circuit Court of Appeals has determined that the

substantive provisions of California’a anti-SLAPP statute apply
in federal cases where the federal court applies California law
and there is subject-matter jurisdiction based on diversity.
United States ex rel. Newsham v. Lockheed Missiles & Space Co.
Inc., 190 F.3d 963, 971 (9th Cir. 1999).
The Court has ruled that California law applies to this case
and Defendant Kohler 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.
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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.
Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013).
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); see
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 (Cal. 2002)).
II.

The Procedural Provisions of California’s Anti-SLAPP Statute
That Conflict With The Federal Rules Of Civil Procedure Do
Not Apply To This Case
Federal courts allow for discovery before granting an anti-

SLAPP motion on grounds of factual insufficiency.

Makaeff, 715

F.3d at 275; Verizon Delaware, Inc. v. Covad Commc’ns Co., 377
F.3d 1081, 1091 (9th Cir. 2004); Rogers v. Home Shopping Network,
Inc., 57 F.Supp.2d 973, 980 (C.D. Cal. 1999).
Plaintiff requests an opportunity to conduct discovery in
order to respond to Defendant’s Motion pursuant to the California
anti-SLAPP statute.
The Ninth Circuit Court of Appeals has explained that
provisions in the California anti-SLAPP statute that directly
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collide with the Federal Rules of Civil Procedure are not
applicable.

Metabolife Int’l, Inc. v Wornick, 264 F.3d 832, 840

(9th Cir. 2001).
In Metabolife Int’l, Inc., the appellate court found that
the discovery-limiting portions of the anti-SLAPP statute
conflict with Federal Rule of Civil Procedure 56 and are
inapplicable in federal court under the Erie doctrine.

Id. at

846 (citing Rogers, 57 F.Supp.2d at 980).
III. Plaintiff Ratner Is Permitted To Engage In Limited Discovery
At This Stage In Proceedings
A.

Plaintiff’s Cause of Action For Defamation

In the Court’s February 26, 2018 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. 43), the Court ruled that California law provides the
substantive law in this case.

(Id. at pp. 8-14).

Plaintiff Ratner alleges that Defendant Kohler made a
defamatory statement that he raped her “about 12 years ago.”
(Verified Complaint at ¶ 7, ECF No. 38).
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.
6

2007)).
Plaintiff’s Verified Complaint contends that the rape
accusations against him constitute “libel per se.”
Complaint at ¶ 10, ECF No. 38).
effected in writing.

(Verified

Libel is a form of defamation

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).
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.

Such an

Id. at 1190.

Plaintiff is a public figure and 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).

The burden is on Plaintiff Ratner to prove falsity.

Dickinson v. Cosby, 225 Cal.Rptr.3d 430, 462 (Cal. Ct. App.
2017).
B.

Plaintiff Ratner Is Entitled To Engage In Discovery To
Demonstrate A Reasonable Probability of Prevailing On
His Defamation Cause of Action

Under the second step of the California anti-SLAPP statute,
it is the Plaintiff’s burden to establish a “reasonable
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probability” that he will prevail on his claim for defamation.
Makaeff, 715 F.3d at 261.
Plaintiff Ratner is entitled to engage in limited discovery
to obtain evidence from the Defendant that may assist Plaintiff
in responding to Defendant Kohler’s Motion pursuant to the
California anti-SLAPP statute.

Heller v. NBCUniversal, 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., 377 F.3d at 1091).
Federal Rule of Civil Procedure 26(b) permits “discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense....”

Fed. R. Civ. P. 26(b)(1).

Evidence is relevant if it has “any tendency to make a fact more
or less probable than it would be without the evidence” and if
that fact is “of consequence in determining the action.”

Fed. R.

Evid. 401.
The scope of discovery is not unlimited.

Limited discovery

is permitted to allow Plaintiff to defend the Motion brought
pursuant to the California’s anti-SLAPP statute.

In such cases,

the plaintiff is entitled to discovery of probative information
solely available from the defendant.

Metabolife Int’l, Inc., 264

F.3d at 850; Nat’l Abortion Fed. v. Ctr. for Medical Progress,
2015 WL 5071977, *9 (N.D. Cal. Aug. 27, 2015).
Here, Plaintiff Ratner has identified evidence solely
available from Defendant Kohler that is relevant to his defense
of her Motion.
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Plaintiff claims that Defendant Kohler falsely alleged that
Plaintiff Ratner raped her.

Plaintiff seeks discovery regarding

Defendant Kohler’s state of mind and what she recalls about the
alleged rape.

Defendant Kohler has not provided the day, month,

or year of the alleged rape, the identities of any witnesses to
the events before, during, or after the alleged rape, or any
information as to whether Defendant notified anyone of the
incident, made a police report, or sought medical treatment for
the alleged rape.
Plaintiff also seeks to obtain evidence from Defendant that
bears on her credibility with respect to her October 20, 2017
Facebook post.

A defendant’s credibility is a key issue in a

defamation action.

Evidence as to the defendant’s credibility

may support a finding that the defendant’s statement is false and
defamatory.

Parisi v. Mazzaferro, 210 Cal. Rptr.3d 574, 584

(Cal. Ct. App. 2016) (upholding the trial court’s finding that
the defendant was not credible and its conclusion that the
defendant’s unsubstantiated statements were false, defamatory,
and served no legitimate purpose); Moreno v. Ostly, 2012 WL
3095344, *4-*5 (Cal. Ct. App. July 31, 2012) (upholding a jury
verdict finding defamation where “it is apparent from the jury’s
responses to the special verdict forms that the jury concluded
Moreno’s sexual relationship with Ostly was consensual, her
testimony that she submitted to unwelcome sex in order to stay
employed was not credible, and that her allegations of rape and
sexual assault were false”).
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Plaintiff Ratner requests discovery in the form of a
deposition, interrogatories, and production of documents.
Plaintiff has not established that a deposition is necessary at
this stage in the proceedings.

Plaintiff is able to obtain the

necessary discovery in order to oppose Defendant’s Motion
pursuant to the California anti-SLAPP statute with
interrogatories and production of documents.
1.

Interrogatories

Federal Rule of Civil Procedure 33 allows a party to request
answers to no more than 25 written interrogatories, including all
discrete subparts.

Marine Lumber Co. v. Precision Moving &

Storage, 2016 WL 9488599, *3 (D. Haw. Dec. 23, 2016).
Plaintiff may request answers to interrogatories from
Defendant Kohler about the details of the alleged rape, where it
supposedly occurred, precisely when it purportedly occurred, what
allegedly happened before and after, who was present for the
events before and after the alleged rape, when and to whom she
told about the alleged incident, and any other interactions she
had with Plaintiff Ratner.
2.

Production of Documents

Federal Rule of Civil Procedure 34 allows a party to serve
another party with a request to produce documents and other
tangible things within the responding party’s possession,
custody, or control.

Keith H. v. Long Beach Unified Sch. Dist.,
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228 F.R.D. 652, 655 (C.D. Cal. 2005).

The scope of the request

is governed by Federal Rule of Civil Procedure 26(b), which
allows a party to obtain discovery concerning any nonprivileged
matter that is relevant to any party’s claim or defense.

Each

request must describe with reasonable particularity the items to
be produced.

Fed. R. Civ. P. 34(b)(1).

Plaintiff Ratner may request from Defendant Kohler any
documentary evidence in her possession, custody, or control that
Plaintiff Ratner raped her.
Plaintiff Ratner may request from Defendant Kohler any
nonprivileged correspondence between Defendant Kohler and any
third-party (including but not limited to the Los Angeles Times,
Good Morning America, and other media outlets) about the alleged
rape.
At this stage in the proceedings, it is the Plaintiff’s
burden to respond to Defendant Kohler’s Motion pursuant to the
California anti-SLAPP statute.

Jordan-Benel, 859 F.3d at 1188.

Defendant Kohler is not entitled to engage in discovery from
Plaintiff Ratner at this time.
CONCLUSION
Plaintiff Ratner shall serve Defendant Kohler with his
request for answers to interrogatories and request for production
of documents on or before Thursday, May 10, 2018.
Defendant Kohler shall respond to Plaintiff’s requests on or
before Monday, June 11, 2018.
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Plaintiff shall file his evidence in support of his
Opposition to Defendant Kohler’s Motion pursuant to the
California anti-SLAPP statute on or before Tuesday, July 10,
2018.
Defendant shall file her Reply on or before Friday, August
10, 2018.
IT IS SO ORDERED.
DATED: April 5, 2018, Honolulu, Hawaii.

Brett Ratner v. Melanie Kohler; John and/or Jane Does 1-10; Civ.
No. 17-00542HG-KSC; ORDER ON PLAINTIFF’S REQUEST FOR DISCOVERY TO
RESPOND TO DEFENDANT MELANIE KOHLER’S SPECIAL MOTION TO STRIKE
THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF No. 26)

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