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Judge Properly Considered New Facts Alleged by Plaintiff After §425.16 Motion Filed—C.A.
By a MetNews Staff Writer
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Above is a promotional graphic for a cable television reality show that aired from 2011-17 starring Clifford and Tameka Harris. The Court of Appeal on Friday rejected the Harrises’ contention that a judge erred in considering new facts alleged by the plaintiff in a defamation action against them that were put forth in response to their anti-SLAPP motion. The denial of their special motion to strike the defamation claim was affirmed although the appeals court held that other causes of action must fall.
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The Court of Appeal for this district has held that a judge did not err, in ruling on an anti-SLAPP motion, by considering facts alleged by the plaintiff that did not appear in her complaint, put forth in her effort to show that the action has minimal merit.
Then-Los Angeles Superior Court Judge David Sotelo (now retired) found that allegations about plaintiff Sabrina Peterson made by defendants Clifford and Tameka Harris (entertainers who use the stage names of stage names “T.I.” and “Tiny”) and by defendant Hekinah Jones Anderson came under the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16: protected speech. In determining whether Peterson made a showing under the second prong—a probability of prevailing on the merits—Sotelo took into account post-complaint evidence that the Harrises had induced Anderson to post accusations against the plaintiff.
That, the defendants argued, was contrary to the holding in the 2001 Third District Court of Appeal opinion in Simmons v. Allstate Ins. Co.
Then-Court of Appeal Justice Consuelo Maria Callahan (now a judge of the Ninth U.S. Circuit Court of Appeals) said in Simmons:
“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.”
Mori’s Opinion
Writing for this district’s Div. Four, Court of Appeal Justice Audra Mori said in Friday’s unpublished opinion:
“[W]e find no error in the trial court’s attribution of Anderson’s statement to the Harrises when considering each cause of action.”
Mori explained in a footnote:
“Courts have applied the Simmons rule in two circumstances not present here: (1) when the proposed amendment seeks to overcome the defendant’s initial burden under prong one of the anti-SLAPP analysis; and (2) when the proposed amendment seeks to assert for the first time that a defendant is liable for statements not found in the complaint.”
She set forth:
“[A] court may deny an anti-SLAPP motion where, after the first prong of the analysis is met, the allegations of a cause of action can be amended conforming to proof presented to state a cause of action upon which the plaintiff has the requisite probability of success.”
Posted Allegations
Peterson’s complaint contained seven causes of action including defamation. At issue was whether Peterson had lied, as the Instagram postings implied, about Clifford Harris having held a gun to her head and uttering a threat to kill her and whether she had—as the postings alleged outright—engaged in sexual conduct of a nature that Mori described as “salacious.”
Addressing the first prong of §425.16, Mori said the requirement of comments on a public issue in a public forum was met. She wrote:
“Clifford and Tameka are accomplished musicians and producers, and both have a television show covering their lives. Peterson herself is a successful entrepreneur and business coach who has been featured in well-known publications. The controversy under which this case arose directly concerns gun violence and sexual abuse by those in the entertainment industry. The many articles covering this controversy clearly establish the public’s interest in it.”
So far as the statements having been made in a public forum, Mori noted that “[w]ith one exception, all of their statements were published on Instagram and could be readily accessed by 3.5 to 13.5 million followers.
Probability of Prevailing
Sotelo had found that the defendants had demonstrated a probability of defeating all seven causes of action. Mori disagreed, concluding that the anti-SLAPP motion was granted only as to the cause of action for defamation—her major claim.
Mori made note of evidence put forth by Peterson that Clifford Harris did hold a gun to her head and threaten her and that the Harrises fabricated takes of sexual misconduct on her part, with the Harrises offering no contrary evidence.
“Thus, Peterson has met her burden of establishing minimal merit for defamation under both of her claims,” Mori wrote.
However, the jurist found that “Peterson’s false light cause of action is cumulative and will add nothing to her claims for relief”; that the plaintiff “failed to meet her burden of establishing minimal merit to her cause of action for negligent infliction of emotional distress, and her cause of action for intentional infliction of emotional distress based on the implied statement she had lied about the gun incident”; that the cause of action for trade libel fails because “Peterson has not identified any evidence in which a particular customer, business entity, or specific contract or sale was lost as a result of the salacious sexual accusations”; and that causes of action for intentional and negligent interference with prospective economic advantage cannot stand because Peterson did not point to ant relationship with a third party that was put in jeopardy.
“The Harrises are entitled to fees and costs incurred both in the trial court and on appeal in moving to strike the claims on which they prevailed,” she declared, based on their partial success in defeating an anti-SLAPP motion.
The case is Peterson v. Harris, B315356.
Andrew B. Brettler and Jake A. Camara of the West Hollywood firm of Berk Brettler joined with Kelsey J. Leeker of the Century City firm of Lavely & Singer in representing the Harrises and Anderson. Rodney S. Diggs of the downtown Los Angeles firm of Ivie McNeill Wyatt Purcell & Diggs acted for Peterson.
Copyright 2023, Metropolitan News Company