This case was last updated from Los Angeles County Superior Courts on 10/21/2020 at 22:41:54 (UTC).

ANGELA WHITE VS ROBERT KARDASHIAN ET AL

Case Summary

On 11/09/2017 ANGELA WHITE filed a Contract - Other Contract lawsuit against ROBERT KARDASHIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RANDOLPH M. HAMMOCK and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0035

  • Filing Date:

    11/09/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RANDOLPH M. HAMMOCK

DEIRDRE HILL

 

Party Details

Plaintiffs and Petitioners

BLAC CHYNA

WHITE ANGELA

Defendants and Respondents

KARDASHIAN KOURTNEY

JENNER KRIS

KARDASHIAN ROB

KARDASHIAN KHLOE

KARDASHIAN ROBERT

KARDASHIAN KIMBERLY

WEST KIM KARDASHIAN

JENNER KYLIE

DOES 1-100

JENNER KENDALL

BUNIM-MURRAY PRODUCTIONS

WILLIAM MORRIS ENDEAVOR ENTERTAINMENT

Interested Parties and Not Classified By Court

E! MEDIA PRODUCTIONS LLC

RYAN SEACREST PRODUCTIONS LLC

SEACREST RYAN

NON-PARTY MAKE-UP ART COSMETICS INC. AKA M.A.C. COSMETICS INC.

MAKE-UP ART COSMETICS INC. AKA M.A.C. COSMETICS INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LISA BLOOM

THE BLOOM FIRM

BLOOM LISA

CIANI LYNNE MARIE

CIANI LYNNE

Defendant and Respondent Attorneys

KINSELLA WEITZMAN ISER KUMP & ALDISERT

BOYAJIAN NINA DIANA

HOLLEY SHAWN CHAPMAN ESQ.

ROZANSKY DANIEL A. ESQ.

HOLLEY SHAWN CHAPMAN

SINGER MARTIN D.

ROZANSKY DANIEL ADAM ESQ.

Not Classified By Court Attorney

WILCOX ROCHELLE LYN

Other Attorneys

SAGER KELLI L. ESQ.

 

Court Documents

Order - Final Ruling - Demurrer to Third Amended Complaint; Motion to Strike

11/1/2018: Order - Final Ruling - Demurrer to Third Amended Complaint; Motion to Strike

Separate Statement - Joint Separate Statement of Plaintiff and E! Media Productions, LLC in Connection with Plaintiff's Motion to Compel Compliance with Deposition Subpoena for Production of Business

12/11/2018: Separate Statement - Joint Separate Statement of Plaintiff and E! Media Productions, LLC in Connection with Plaintiff's Motion to Compel Compliance with Deposition Subpoena for Production of Business

Separate Statement - Joint Separate Statement of Plaintiff and Non-Party Bunim-Murray Productions in Connections with Bunim-Murray Productions' Motion for Protective Order and Plaintiff's Motion to Co

12/11/2018: Separate Statement - Joint Separate Statement of Plaintiff and Non-Party Bunim-Murray Productions in Connections with Bunim-Murray Productions' Motion for Protective Order and Plaintiff's Motion to Co

Declaration - Declaration of Daniel A. Rozansky in Support of Joint Separate Statement

12/11/2018: Declaration - Declaration of Daniel A. Rozansky in Support of Joint Separate Statement

Order - Ruling-Motion for Protective Order; Motion to Compel Production of Subpoenaed ESI Documents; Motion to Compel Compliance with Deposition

12/17/2018: Order - Ruling-Motion for Protective Order; Motion to Compel Production of Subpoenaed ESI Documents; Motion to Compel Compliance with Deposition

DECLARATION - OF DANIEL A. ROZANSKY IN SUPPORT OF BUNIM-MURRAY PRODUCTIONS? OPPOSITION TO PLAINTIFF?S EX PARTE MOTION TO COMPEL PRODUCTION OF DOCUMENTS

5/10/2018: DECLARATION - OF DANIEL A. ROZANSKY IN SUPPORT OF BUNIM-MURRAY PRODUCTIONS? OPPOSITION TO PLAINTIFF?S EX PARTE MOTION TO COMPEL PRODUCTION OF DOCUMENTS

DECLARATION OF DANIEL A. ROZANSKY IN SUPPORT OF BUNIM-MURRAY PRODUCTIONS' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

6/4/2018: DECLARATION OF DANIEL A. ROZANSKY IN SUPPORT OF BUNIM-MURRAY PRODUCTIONS' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL

ANSWER OF DEFENDANT ROBERT KARDASHIAN TO PLAINTIFF ANGELA WHITE'S UNVERIFIED FIRST AMENDED COMPLAINT

12/27/2017: ANSWER OF DEFENDANT ROBERT KARDASHIAN TO PLAINTIFF ANGELA WHITE'S UNVERIFIED FIRST AMENDED COMPLAINT

COMPLAINT FOR: 1. ASSAULT; ETC

10/17/2017: COMPLAINT FOR: 1. ASSAULT; ETC

Notice - NOTICE OF ENTRY OF ORDER RE DEFENDANTS' MOTION TO COMPEL J. WALTER MICHAEL & ASSOCIATES' COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

3/10/2020: Notice - NOTICE OF ENTRY OF ORDER RE DEFENDANTS' MOTION TO COMPEL J. WALTER MICHAEL & ASSOCIATES' COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Separate Statement

11/1/2019: Separate Statement

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/10/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Proof of Service (not Summons and Complaint)

2/14/2020: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL FURTHER RESPONSE RE RFPD NO. 72; DECLARATION OF LYNNE M. CIANI ISO

2/18/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL FURTHER RESPONSE RE RFPD NO. 72; DECLARATION OF LYNNE M. CIANI ISO

Declaration - DECLARATION OF ROCHELLE L. WILCOX IN SUPPORT OF THIRD-PARTY E! MEDIA PRODUCTIONS, LLC'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION - FILED UNDER SEAL

10/3/2019: Declaration - DECLARATION OF ROCHELLE L. WILCOX IN SUPPORT OF THIRD-PARTY E! MEDIA PRODUCTIONS, LLC'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION - FILED UNDER SEAL

Notice - NOTICE OF RYAN SEACREST PRODUCTIONS' VERIFIED AMENDED RESPONSES

6/4/2019: Notice - NOTICE OF RYAN SEACREST PRODUCTIONS' VERIFIED AMENDED RESPONSES

Case Management Statement

11/20/2018: Case Management Statement

Minute Order - Minute Order (Order to Show Cause Re: Re: Srtriking the Anti-SLAPP Special ...)

11/28/2018: Minute Order - Minute Order (Order to Show Cause Re: Re: Srtriking the Anti-SLAPP Special ...)

515 More Documents Available

 

Docket Entries

  • 11/29/2021
  • Hearing11/29/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 11/23/2021
  • Hearing11/23/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/08/2021
  • Hearing10/08/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 12/04/2020
  • Hearing12/04/2020 at 13:30 PM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/04/2020
  • Hearing12/04/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 11/06/2020
  • Hearing11/06/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 10/20/2020
  • Docketat 10:00 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Summary Judgment (/Adjudication FURTHER ARGUMENT) - Held - Taken under Submission

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  • 10/20/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment / Adjudication FURTHE...)); Filed by Clerk

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  • 09/28/2020
  • DocketResponse (Plaintiff's Response to Defendants' Objection to Certain Evidence Resubmitted by Plaintiff in support of her Intentional Interference with Contract Claim); Filed by Angela White (Plaintiff)

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  • 09/25/2020
  • DocketObjection (DEFENDANTS KRIS JENNER, KIM KARDASHIAN WEST, KHLOE KARDASHIAN AND KYLIE JENNER?S OBJECTION TO PLAINTIFF?S SEPTEMBER 23, 2020 RESPONSE TO MINUTE ORDER); Filed by Kris Jenner (Defendant)

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823 More Docket Entries
  • 11/03/2017
  • DocketDemand for Jury Trial; Filed by Angela White (Plaintiff); Chyna Blac (Legacy Party)

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  • 11/03/2017
  • DocketReceipt; Filed by Angela White (Plaintiff)

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  • 11/03/2017
  • DocketCIVIL DEPOSIT

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  • 11/03/2017
  • DocketPLAINTIFF'S DEMAND FOR JURY TRIAL AND NOTICE OF DEPOSIT OF JURY FEES

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  • 11/03/2017
  • DocketPLAINTIFF'S DEMAND FOR JURY TRIAL AND NOTICE OF DEPOSIT OF JURY FEES

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  • 10/19/2017
  • DocketNotice of Related Case; Filed by Plaintiff/Petitioner

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  • 10/19/2017
  • DocketNotice of Related Cases

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  • 10/17/2017
  • DocketCOMPLAINT FOR: 1. ASSAULT; ETC

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  • 10/17/2017
  • DocketSUMMONS

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  • 10/12/2017
  • DocketComplaint; Filed by Angela White (Plaintiff)

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Tentative Rulings

Case Number: BC680035    Hearing Date: October 20, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

 

(1) DEFENDANT ROBERT KARDASHIAN’S MOTION FOR SUMMARY ADJUDICATION;

(2) DEFENDANTS KRIS JENNER, KIMBERLY KARDASHIAN WEST, KHLOE KARDASHIAN AND KYLIE JENNER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: (1) Defendant Robert Kardashian (aka Rob Kardashian); (2) Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian and Kylie Jenner.

RESPONDING PARTY(S): (1)-(2) Plaintiff Angela White.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Defendant Robert Kardashian moves for summary adjudication of one of the causes of action against him. Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner separately move for summary judgment or, alternatively, summary adjudication.

TENTATIVE RULING:

Defendant Robert Kardashian’s motion for summary adjudication is DENIED.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is GRANTED as to Issue No. 1 (false light) and Issue No. 3 (intentional interference with contractual relations) and is otherwise DENIED.

DISCUSSION:

Defendant Robert Kardashian’s Motion for Summary Adjudication

Request for Judicial Notice

Defendant requests judicial notice of (1) the docket for Angela White v. Robert Kardashian, Jr., LASC Case No. 17STRO0101022; (2) a Minute Order dated August 24, 2017 filed in that case; (3) a minute order dated August 24, 2017 filed in Angela White v. Robert Kardashian, Jr., LASC Case No. 17STPT00457; and (4) a minute order dated September 18, 2017 filed in Angela White v. Robert Kardashian, Jr., LASC No. 17STRO0101022.

These requests are GRANTED per Evidence Code § 452(d) (court records).

Analysis

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary adjudication. (Ibid.)

When a defendant moves for summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law as to that cause of action or affirmative defense. (Ibid.)

Issue No. 1: “Defendant is entitled to summary adjudication as to the Third Cause of Action for Violation of Cal. Civ. Code § 1708.85.”

Defendant (“Rob”) presents only one issue for summary adjudication: he argues that he is entitled to summary adjudication of Plaintiff’s (“Chyna”) third cause of action for distribution of private materials based on res judicata, arguing that this cause of action is based on the “same injury” and “same wrong” as Chyna’s revenge porn claim in a previous action, which was dismissed with prejudice in accordance with the parties’ stipulated judgment.

“As generally understood, ‘[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.’ . . . ‘In its primary aspect,’ commonly known as claim preclusion, it ‘operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. . . . ‘The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]’” (People v. Barragan (2004) 32 Cal.4th 236, 252–253, 9 Cal.Rptr.3d 76, 83 P.3d 480.)

(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)

  1. Identical Cause of Action

    Rob argues that Chyna’s third cause of action is identical to a revenge porn claim that she dismissed with prejudice pursuant to a stipulated judgment in an earlier action in family court.

    To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have “consistently applied the ‘primary rights’ theory.” . . . Under this theory, “[a] cause of action ... arises out of an antecedent primary right and corresponding duty and the . . . breach of such primary right and duty by the person on whom the duty rests. ‘Of these elements, the primary right and duty and the . . . wrong combined constitute the cause of action in the legal sense of the term . . . .’” . . .

    “In California the phrase ‘cause of action’ is often used indiscriminately . . . to mean counts which state [according to different legal theories] the same cause of action. . . .” . . . But for purposes of applying the doctrine of res judicata, the phrase “cause of action” has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. . . . As we explained in Slater v. Blackwood, . . .: “[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]” Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right. . . .

    (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797–798, citations omitted.)

    Chyna argues that the previous action did not involve the same cause of action because family law jurisdiction is finite and does not encompass a tort action claiming damages. However, as noted above, a “cause of action” for purposes of res judicata is “the right to obtain redress for a harm suffered, regardless of the specific remedy sought.” (Id. at 798.) The fact that Chyna sought different remedies in family court or could not obtain the same remedies is of no moment.

    For different reasons, however, Chyna is correct that the family court case does not preclude this cause of action. There is “little California case law that is helpful on the question of the claim preclusive effect of a judgment in a marital dissolution proceeding in a later tort action.” (Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 611.) There is even less case law addressing the claim preclusive effect of a judgment in a paternity proceeding. Boblitt is, however, instructive. In that case, the court held that a “judgment in a dissolution proceeding where claims of domestic violence were (or could have been) litigated with relation to a claim for spousal support does not preclude a later tort action for domestic violence.” (Id. at 613.) The court reasoned that, although the same incident of domestic violence could be relevant to both a spousal support claim and civil tort claims, family law rights and tort rights do not vindicate the same rights. (Id. at 612-613.) Therefore, the court concluded that the trial court had erred in dismissing claims of domestic violence and intentional infliction of emotional distress on res judicata grounds based on the fact that the “family court judge considered Linda’s claims that Steven had committed acts of domestic violence against her before and during the marriage (and during the dissolution proceeding) in determining whether to award Linda spousal support.” (Id. at 605.) The trial court dismissed Linda’s tort action for damages based on Steven’s alleged domestic violence against her on the ground that the judgment in the dissolution proceeding precluded Linda from further litigating the domestic violence issues under both res judicata (claim preclusion) and collateral estoppel (issue preclusion). (Ibid.)

    On appeal, however, the court held that this was erroneous. (Id. at 606.) In relevant part, the court concluded that a “request for spousal support in a marital dissolution proceeding is not based on the same primary right as a tort action based on domestic violence and therefore a party is not necessarily precluded from seeking damages for alleged acts of domestic violence and also asking a family law court to consider those same acts of domestic violence in awarding spousal support.” (Ibid.) Steven had argued that Linda’s cause of action for domestic violence vindicated the same primary right that had been litigated in the dissolution proceeding, but the court disagreed. (Id. at 610-611.) The court rejected this argument, reasoning that a tort action is based on “the primary right to be free from personal injury.” (Id. at 612.) There was “no sound basis, however, for concluding that a claim for spousal support in a marital dissolution proceeding is also based on ‘the primary right to be free from personal injury,’ even if one of the circumstances the family court considers in adjudicating that claim is domestic violence between the parties.” (Ibid.)

    The Boblitt court also relied on another case that is analogous to this one, Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091. In that case, the court held that a wife’s malicious prosecution action was not precluded by the family court’s prior ruling on her motion for attorney’s fees and costs in her marital dissolution proceeding. (Id. at 1094.) The motion for attorney’s fees was based on her husband’s prosecution of a “frivolous cross-complaint out of spite.” (Id. at 1095.) Nevertheless, the wife filed a malicious prosecution action based on the lack of “probable cause for [the] allegations in the cross-complaint.” (Ibid.) The appellate court concluded that the trial court erred in granting judgment on the pleadings to the husband and his co-defendants, reasoning that the family law proceeding vindicated the “right of a party . . . to an adequate opportunity to litigate, notwithstanding a disparity in the parties’ income and assets,” whereas a malicious prosecution action vindicates “one’s right to be free from malicious and unmeritorious litigation.” (Id. at 1102.) The court also noted that the parties’ duties are different in the two types of actions. A party to a dissolution proceeding must “provide funds for the party’s adversary’s litigation costs” under certain circumstances and must “work toward settlement of the litigation,” whereas a party to a malicious prosecution action has an obligation to “refrain from maintaining a malicious and unmerited lawsuit.” (Ibid.) Because both the primary rights and corresponding duties were different, the malicious prosecution action was not barred by res judicata. (Ibid.)

    Here, Chyna requested a domestic violence restraining order in the previous action based, in part, on the alleged revenge porn. (Declaration of Melissa Y. Lerner, Exh. 2 ¶ 27.) The restraining order requested included that Rob “be restrained under Civil Code § 1708.85 from showing, posting online or on social media, or distributing in any way private, intimate or sexually explicit photos of me, or any photos of me in the hospital.” (Id., Attachment 23, ¶ 1.) The stipulated judgment of paternity that required Chyna to dismiss her request for the domestic violence restraining order with prejudice then provided that neither party would “show, post online or on social media, or distribute in any way the intimate or sexually explicit photographs of the other party, including, but not limited to, any photographs of the other party in the hospital..” (Exh. 4, at p. 7.) This does not, however, mean that these family law proceedings vindicate the same rights as a cause of action under Civil Code § 1708.85. A domestic violence restraining order is “intended to prevent acts of domestic violence . . . and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (Family Code § 6220.) Civil Code § 1708.85, on the other hand, has no preventive purpose. Rather, it creates a cause of action against a person who intentionally distributes sexually explicit materials. (Civ. Code § 1708.85(a).) The Court finds that these statutes do not vindicate the same primary right and, therefore, Plaintiff’s third cause of action is not the same cause of action that was previously dismissed with prejudice as part of the domestic violence restraining order proceeding.

  2. Final Judgment

    It is unnecessary to reach this element of the res judicata test. However, res judicata applies to a “court-approved settlement agreement” in an action “dismissed with prejudice. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 577.)

Parties or Privies

It is also unnecessary to reach this element of the res judicata test. It cannot be disputed, however, that the same parties were involved in the domestic violence restraining order proceeding who are involved in this action.

Conclusion

Because the third cause of action is not barred by res judicata, Rob’s motion for summary adjudication is DENIED.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Defendants’ Evidentiary Objections

Declaration of Lynne M. Ciani

No. 2: OVERRULED. Objections go to weight, not admissibility.

Nos. 3-16: OVERRULED. Sufficient foundation; not inadmissible hearsay. It is reasonably possible these videos and photos could be authenticated and therefore would be admissible at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

No. 17-18: OVERRULED. Objections go to weight, not admissibility.

Motion For Summary Judgment

As a preliminary matter, Defendants argue that all of Chyna’s claims against them fail because she has no evidence of damages. (Defendants’ Separate Statement of Undisputed Material Facts (“UMF”) Nos. 80-93, 103-109, 131.)

Defendants primarily present evidence regarding Chyna’s contract with E! to show that she did not lose any money, because the contract was an option contract and therefore E! was under no obligation to follow through with it. (UMF Nos. 80-92, 103-108.) Even if undisputed, however, this does not establish that Chyna had no damages as a matter of law or undisputed fact. She contends that the amount she would have received from E! is the “floor” of the economic damages she suffered as a result of Defendants’ conduct. (Plaintiff’s Separate Statement (“SS”) No. 93.) Chyna presents evidence, for example, that the value of her endorsement deals has decreased significantly. (Ibid.) Although proving causation may ultimately be challenging, Chyna has presented evidence that raises a genuine issue of material fact as to her economic harm.

In addition, as discussed below, Defendants have not demonstrated that they are entitled to prevail as to all causes of action asserted against them. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion for Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

When a defendant moves for summary judgment or summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law. (Ibid.)

Issue No. 1: “Defendants are entitled to summary adjudication as to the Eighth Cause of Action for False Light alleged in the TAC.”

Defendants argue that the eighth cause of action for false light must fail because (1) their statements are true and nonactionable opinion or hyperbole; (2) no defamatory meaning attached to the statements; (3) the statements are protected by common interest privilege; and (4) Defendants did not act with actual malice.

Chyna concedes this issue in her opposition. (Oppo., at p. 2 n.1.)

Accordingly, the motion is GRANTED as to Issue No. 1.

Issue No. 2: “Defendants are entitled to summary adjudication as to the Eleventh Cause of Action for Defamation alleged in the TAC.”

Defendants argue that the eleventh cause of action for defamation must fail because

(1) their statements are true and nonactionable opinion or hyperbole; (2) no defamatory meaning attached to the statements; (3) the statements are protected by common interest privilege; and

(4) Defendants did not act with actual malice.

To prove defamation, Chyna must show “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.” (Wong v. Jing (2011) 189 Cal.App.4th 1354, 1369.) In addition, as a public figure, Chyna must show that Defendants’ statements were made with “actual malice, i.e., actual knowledge of falsehood or reckless disregard for the truth.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398.)

As to whether the statements were true, there are triable issues of material fact for the reasons explained in the motion for summary judgment in the related case, BC677472, scheduled for the same hearing date as this motion. There are triable issues regarding whether Chyna did, in fact, “beat the shit out of” Rob. Likewise, although Kylie’s and Khloe’s statements could be considered nonactionable opinion, and Kris’s reference to actions by Chyna and/or her friends as “ghetto” could be considered nonactionable hyperbole, Kris’s other statements are not clearly nonactionable opinion or hyperbole, and Defendants did not establish that Chyna has no evidence of their alleged defamatory statements at the January 4, 2017 meeting. Their separate statement and supporting evidence establish only that the statements by “Defendants” at this meeting – that Chyna had physically abused Rob – form part of the basis of this cause of action. (UMF No. 47.)

As to whether the statements had defamatory meaning, Defendants have not shown that “no reasonable reader would perceive . . . a meaning which tended to injure the subject’s reputation” as to these statements. (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 387.) Testimony from E! and BMP executives that they regarded the statements as opinions (UMF Nos. 9-11, 54-63) does not establish that a “reasonable” reader would react the same way.

As to the common interest privilege under Civil Code § 47(c), which “applies to a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication’s subject matter (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1177), Defendants’ argument that they and E! and BMP had a common interest in Rob’s well-being and safety is inconsistent with their argument that their statements were mere hyperbole and opinion. Hyperbolic or speculative statements would not be “reasonably calculated to further” their business and professional relationship with E! and BMP. (Motion, at p. 15.)

As to actual malice, this is a “subjective test, under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue.” (Reader’s Digest Ass’n v. Superior Court (1984) 37 Cal.3d 244, 257.) In light of the questions of fact regarding the truth of the statements asserted and whether a reasonable person would perceive them as defamatory, there are questions of fact regarding whether Defendants acted with actual malice.

Accordingly, the motion is DENIED as to Issue No. 2.

Issue No. 3: “Defendants are entitled to summary adjudication as to the Twelfth Cause of Action for Intentional Interference with Contractual Relations.”

To prove IICR, Chyna must show “(1) [t]he existence of a valid contract; (2) knowledge of the contract on the part of the defendant and intent to induce its breach; (3) breach of the contract by a third party; (4) proximate cause; and (5) damages.” (Farmers Ins. Exh. v. California (1985) 175 Cal.App.3d 494, 506.)

Defendants argue that Chyna cannot establish intentional interference with contractual relations (“IICR”) because (1) the Talent Agreement was an option agreement and therefore cannot form the basis of an IICR claim; and (2) there is no evidence that Defendants caused a breach of the Talent Agreement or disruption of Chyna’s relationship with E! through their alleged statements. Defendants also argue that this claim is barred by the affirmative defenses of privilege/justification and truth.

As to the nature of Chyna’s Talent Agreement, it is undisputed that it was an option agreement. (UMF No. 94.) The heart of the parties’ dispute as to this issue, however, is whether E! extended this option period to August 1, 2017 and then declined to exercise the option or whether E! had already greenlit the second season and this amendment of the agreement was a “sham,” as Chyna alleges. (3AC ¶ 113.) Chyna relies, in part, on what she characterizes as an “official Greenlight PDM” from E!’s parent company, NBCUniversal, indicating that the second season was “fully approved” before the option agreement was ever extended. (Plaintiff’s Separate Statement (“SS”) No. 94 & Exh. U.) Defendants have presented evidence, however, that this approval was merely of the financial components of the season and did not represent an exercise of the option. (Defendants’ Reply UMF No. 94.) Moreover, in arguing that the amendment to the agreement was a “sham,” Chyna contradicts her own admission at her February 4, 2020 deposition that the signature on the amendment was hers. (Defendants’ Reply UMF No. 95 and supporting evidence.) Thus, Defendants have met their burden to show that Chyna’s agreement with E! was an option agreement that cannot form the basis of an IICR claim.

To refresh everyone’s memory, this Court inevitably (and rather reluctantly) overruled these Defendants’ demurrer to this cause of action based essentially on the allegation that the “First Amendment” to the Talent Agreement was a “sham.” In this Court’s Final Ruling of August 14, 2018, it held, in relevant part:

Plaintiff attached the Talent Agreement with E! which states that E! would exercise its option for a second season via written notice. 3AC, Exh. 1, ¶ 2(a), page 6. The Court observes that E! may have decided as a network to produce a second season of “Rob & Chyna”, as evidenced by issuing a press release on the website on December 14, 2016 (3AC, ¶ 123), and on December 18, 2016 by announcing at the end of a “Rob & Chyna” episode that a New Season was coming in 2017. 3AC, ¶ 124. However, the option held by E! in the Talent Agreement, with the May 26, 2016 effective date, was “to engage Artist to render Services in connection with additional cycles of Episodes. . . .” 3AC, Exh. 1. Talent Agreement, ¶ 2(a). This option does not purport to give Plaintiff a right to be paid for an entire second season the moment E! decided to produce a second season and starting promoting a second season.

Moreover, the First Amendment dated February 21 2017—after the December 14, 2016 press release announcing that Rob & Chyna had been picked up for an eight-episode second season—references a separate option: an option “to engage Artist in connection with a Second Cycle (if any) at any time on or before August 1, 2017. If Studio does not exercise it option to engage Artist in connection with the Second Cycle on or before August 1, 2017, Studio shall pay Artist a kill fee of One Hundred Thousand Dollars ($100,000).” First Amendment, 3AC, Exh. 1 (bold emphasis and underlining added).

Why would the parties agree[1] on February 21, 2017—after the December 14, 2016 press release announcing a second season—that E! had an option to “engage Artist in connection with a Second Cycle until August 1, 2017,” otherwise it would pay a kill fee? The only reasonable conclusion is that E! picking up a second season of Rob & Chyna did not obligate E! to pay Plaintiff for a second season until E! actually exercised a separate option (embodied in the First Amendment) to “engage” her for the second season no later than August 1, 2017—otherwise, E!’s financial obligation to Plaintiff was limited to the $100,000 “kill fee.”

In this regard, Plaintiff alleges that “[i]n early 2017” E! began filming scenes for the second season of “Rob & Chyna,” including footage in a hospital room of Plaintiff undergoing a cosmetic procedure on January 25, 2017 (3AC, ¶126)—before the February 21, 2017 First Amendment had been entered into[2], which recognized that Plaintiff had not yet been “engaged” for a second season. Plaintiff also alleges that on January 9, 2017—again, before the February 21, 2017 First Amendment had been entered into—E! filmed Plaintiff’s paid appearance at nightclub. 3AC, ¶ 126. As such, the filming of this footage could not constitute the exercise of an option to “engage” Plaintiff for a second season, which she subsequently acknowledged in the First Amendment dated February 21, 2017 had not yet occurred.

Notably, the First Amendment controls over the original Talent Agreement: “Notwithstanding anything to the contrary contained in Paragraph 2(a) of the [Talent] Agreement, the parties agree. . .” First Amendment, ¶ 1. The First Amendment did not specify a particular method by which E! was to exercise the option to “engage” Black Chyna for a Second Cycle. Yet, there is no allegation that E! exercised the option to “engage” Black Chyna following the execution of the February 21, 2017 First Amendment and before August 1, 2017. As such, based upon the facts pled and Exhibits attached to the 3AC, Plaintiff’s remedy is against E! Network for the “kill fee.”

Be that as it may, in the supplemental briefing on this issue, [footnote omitted] the Plaintiff notes that she has adequately pled in ¶ 113 of her 3AC that this Amendment was a “sham,” and moreover, that the Amendment does not form the basis of her twelfth cause of action. See, Letter Brief of Plaintiff, August 21, 2018. She alleges that the only relevance of the Amendment, as it relates to her twelfth cause of action, was merely to demonstrate “evidence of disruption of her contractual relationship with E!” Id. at p. 3.

Although this Court is still skeptical of these particular allegations, and moreover, of her entire twelfth cause of action, given the liberality governing the rules of pleading, the court will now OVERRULE the demurrer to the twelfth cause of action. At this time, it is simply an issue pleading versus an issue of proof.

(Final Ruling, 8/14/18, pp. 2-4) (Emphasis in original.)

Accordingly, the critical issue for purposes of this summary adjudication is whether there is a triable issue of material fact that the First Amendment was a “sham” or not -- or more specifically, whether Chyna actually signed and/or agreed to the critical terms of that First Amendment, to wit, that E! now had the unilateral right to cancel the second season until August 1, 2017, with the payment of a “kill fee” if E! chose to do so.

The Defendants have proven that Chyna has testified in her sworn testimony at her deposition that she had appeared to have signed this First Amendment, while being represented by independent counsel. (Defendants’ Reply UMF No. 95 and supporting evidence.)

However, Chyna subsequently takes the position that she did not actually sign this critical agreement. (See, e.g., Amended Response to Special Interrogatory No. 7; Exhibit TT).

It is well settled that a party can’t contradict its own “clear and unequivocal” deposition testimony in order to create a triable issue of material fact in order to defeat a motion for summary judgment/adjudication:

“It is true that in ruling upon the propriety of a summary judgment a reviewing court will consider most liberally the affidavits filed on behalf of the party defending the motion, even considering ultimate facts and conclusions of law to the end that no case with a possible triable issue of fact will be disposed of summarily. . . . Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his deposition, made not once but twice, that Miss Andersen ‘did not apply any force or anything,’ that there had been ‘no force applied’—sworn evidentiary facts which plaintiff could not possibly withdraw without committing the grossest perjury—we are forced to conclude there is no Substantial evidence of the existence of a triable issue of fact.” (King v. Andersen (1966) 242 Cal.App.2d 606, 610.) In that case, the plaintiff had been stopped for shoplifting, was acquitted, and then sued for false arrest and assault. He submitted an affidavit in opposition to summary judgment saying that the store security guard (Miss Anderson) had used force, but he had twice said in his deposition that she had not. That case has been cited with approval by the California Supreme Court for the proposition that “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation.” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Those “stern requirements” appear to refer to the general requirements for summary judgment and the idea that it is a “drastic” measure that should be “used with caution.” (Id. at 20.) The reason for this is approach is that “admissions against interest have a very high credibility value.” (Id. at 22.) “This is especially true when . . . the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of Fact (as opposed to legal issues) between the parties, it is entitled to and should receive the kind of deference normally accorded evidentiary allegations in affidavits.” (Ibid.)

This is now known as the “D’Amico rule,” which “bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521.) It is a “classic D’Amico situation” when a “party takes a position under oath in discovery; the opponent moves for summary judgment; and in opposition the party files a declaration that conflicts with the earlier testimony.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981.) Under those circumstances, admissions made in the deposition testimony “govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613, quoted in Rutter 10:156.)

Of course, these cases can be distinguished if the prior deposition testimony was not so “clear and unequivocal.” (See, e.g., Turley, supra, 18 Cal.App.5th at 983, citation omitted [“A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.”].) Rutter also points out that this rule only applies if the contradiction is “clear and unambiguous.” (10:156.10.) In addition, “[c]ourts have consistently refused to apply the D’Amico rule to exclude evidence adduced in opposition to a summary judgment motion when either evidence adduced on the motion credibly explains or contradicts a party’s earlier admissions.” (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 144-145.)

In this particular situation, the D’Amico rule does not apply for two reasons: (1) The prior deposition was not so “clear and unequivocal” as to whether Chyna did, in fact, admit that she had knowingly signed the First Amendment; and (2) Any arguable change or “flip-flop” in her deposition took place before this motion for summary judgment was ever filed. Her “amended response to SI. No. 7 was served on 2/4/20. This motion wasn’t filed until 2/14/20.

Having now carefully reviewed the evidence highlighted by the parties in their recent supplemental filings and considering this evidence in the light most favorable to Chyna as the non-moving party as the Court is required to do, the Court finds that Chyna has met her burden to show that there are triable issues of fact as to this issue.[3]

Additionally, since the viability of this First Amendment is now at issue for the trier of fact, there certainly is a triable issue as to whether E! had already exercised its unilateral right to “green light” or otherwise approve the second season, as claimed by Chyna, and to which there is sufficient evidence presented to create such a triable issue of material fact. If the trier of fact concludes that the second season had already been approved by E!, then potentially there could be liability for tortious interference with that contract by the Defendants.

Accordingly, the motion is DENIED as to Issue No. 3.

Issue No. 4: “Defendants are entitled to summary adjudication as to the Thirteenth Cause of Action for International Interference with Prospective Economic Relations.”

Defendants argue that Chyna cannot establish intentional interference with prospective economic relations (“IIPER”) because she cannot show (1) any economic relationship with a probability of future economic benefit to her; (2) Defendants’ awareness of any such prospective economic relationship; (3) Defendants’ intent to interfere with any such economic relationship; (4) any independently wrongful conduct by Defendants; or (5) any disruption of her economic relationships. Defendants also argue that this claim is barred by the affirmative defenses of privilege/justification and truth.

As discussed above, there are triable issues of fact regarding the existence of an economic relationship with a probability of future economic benefit to Chyna. Likewise, Defendants’ communications with E! personnel raise a triable issue as to their awareness of this prospective economic relationship and their intent to interfere with it. As to independently wrongful conduct by Defendants, defamation qualifies as independently wrongful, and Chyna’s defamation claim has survived this motion, as discussed above. Chyna has also shown that there are at least triable issues of fact as to disruption of her economic relationships, as discussed in above in connection with Defendants’ contention that she cannot prove any damages.

Accordingly, the motion is DENIED as to Issue No. 4.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 20, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] That is, Plaintiff consented to the fact that E! was not yet obligated to “engage” her for a Second Cycle.

[2] Although dated February 1, 2017, Plaintiff did not sign the First Amendment until April 6, 2017.

[3] Of course, there is an issue as to whether Chyna may have subsequently “waived” this particular issue, since she undoubtedly accepted the $100K “kill fee.” However, there is also a triable issue as to whether Chyna knowingly accepted this fee or not.

Case Number: BC680035    Hearing Date: September 17, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

 

(1) DEFENDANT ROBERT KARDASHIAN’S MOTION FOR SUMMARY ADJUDICATION;

(2) DEFENDANTS KRIS JENNER, KIMBERLY KARDASHIAN WEST, KHLOE KARDASHIAN AND KYLIE JENNER’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY: (1) Defendant Robert Kardashian (aka Rob Kardashian); (2) Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian and Kylie Jenner.

RESPONDING PARTY(S): (1)-(2) Plaintiff Angela White.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Defendant Robert Kardashian moves for summary adjudication of one of the causes of action against him. Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner separately move for summary judgment or, alternatively, summary adjudication.

TENTATIVE RULING:

Defendant Robert Kardashian’s motion for summary adjudication is DENIED.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s motion for summary judgment is DENIED.

Defendants’ alternative motion for summary adjudication is GRANTED as to Issue No. 1 (false light) and Issue No. 3 (intentional interference with contractual relations) and is otherwise DENIED.

DISCUSSION:

Defendant Robert Kardashian’s Motion for Summary Adjudication

Request for Judicial Notice

Defendant requests judicial notice of (1) the docket for Angela White v. Robert Kardashian, Jr., LASC Case No. 17STRO0101022; (2) a Minute Order dated August 24, 2017 filed in that case; (3) a minute order dated August 24, 2017 filed in Angela White v. Robert Kardashian, Jr., LASC Case No. 17STPT00457; and (4) a minute order dated September 18, 2017 filed in Angela White v. Robert Kardashian, Jr., LASC No. 17STRO0101022.

These requests are GRANTED per Evidence Code § 452(d) (court records).

Analysis

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary adjudication. (Ibid.)

When a defendant moves for summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law as to that cause of action or affirmative defense. (Ibid.)

Issue No. 1: “Defendant is entitled to summary adjudication as to the Third Cause of Action for Violation of Cal. Civ. Code § 1708.85.”

Defendant (“Rob”) presents only one issue for summary adjudication: he argues that he is entitled to summary adjudication of Plaintiff’s (“Chyna”) third cause of action for distribution of private materials based on res judicata, arguing that this cause of action is based on the “same injury” and “same wrong” as Chyna’s revenge porn claim in a previous action, which was dismissed with prejudice in accordance with the parties’ stipulated judgment.

“As generally understood, ‘[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.’ . . . ‘In its primary aspect,’ commonly known as claim preclusion, it ‘operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. . . . ‘The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]’” (People v. Barragan (2004) 32 Cal.4th 236, 252–253, 9 Cal.Rptr.3d 76, 83 P.3d 480.)

(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)

Identical Cause of Action

“In California the phrase ‘cause of action’ is often used indiscriminately . . . to mean counts which state [according to different legal theories] the same cause of action. . . .” . . . But for purposes of applying the doctrine of res judicata, the phrase “cause of action” has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. . . . As we explained in Slater v. Blackwood, . . .: “[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]” Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right. . . .

Chyna argues that the previous action did not involve the same cause of action because family law jurisdiction is finite and does not encompass a tort action claiming damages. However, as noted above, a “cause of action” for purposes of res judicata is “the right to obtain redress for a harm suffered, regardless of the specific remedy sought.” (Id. at 798.) The fact that Chyna sought different remedies in family court or could not obtain the same remedies is of no moment.

  1. Final Judgment

    It is unnecessary to reach this element of the res judicata test. However, res judicata applies to a “court-approved settlement agreement” in an action “dismissed with prejudice. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 577.)

  2. Parties or Privies

    It is also unnecessary to reach this element of the res judicata test. It cannot be disputed, however, that the same parties were involved in the domestic violence restraining order proceeding who are involved in this action.

    Conclusion

    Because the third cause of action is not barred by res judicata, Rob’s motion for summary adjudication is DENIED.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Defendants’ Evidentiary Objections

Declaration of Lynne M. Ciani

No. 2: OVERRULED. Objections go to weight, not admissibility.

Nos. 3-16: OVERRULED. Sufficient foundation; not inadmissible hearsay. It is reasonably possible these videos and photos could be authenticated and therefore would be admissible at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

No. 17-18: OVERRULED. Objections go to weight, not admissibility.

Motion For Summary Judgment

As a preliminary matter, Defendants argue that all of Chyna’s claims against them fail because she has no evidence of damages. (Defendants’ Separate Statement of Undisputed Material Facts (“UMF”) Nos. 80-93, 103-109, 131.)

Defendants primarily present evidence regarding Chyna’s contract with E! to show that she did not lose any money, because the contract was an option contract and therefore E! was under no obligation to follow through with it. (UMF Nos. 80-92, 103-108.) Even if undisputed, however, this does not establish that Chyna had no damages as a matter of law or undisputed fact. She contends that the amount she would have received from E! is the “floor” of the economic damages she suffered as a result of Defendants’ conduct. (Plaintiff’s Separate Statement (“SS”) No. 93.) Chyna presents evidence, for example, that the value of her endorsement deals has decreased significantly. (Ibid.) Although proving causation may ultimately be challenging, Chyna has presented evidence that raises a genuine issue of material fact as to her economic harm.

In addition, as discussed below, Defendants have not demonstrated that they are entitled to prevail as to all causes of action asserted against them. Accordingly, the motion for summary judgment is DENIED.

The Court will proceed to address the alternative motion for summary adjudication.

Motion for Summary Adjudication

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary judgment or adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Ibid.)

When a defendant moves for summary judgment or summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law. (Ibid.)

Issue No. 1: “Defendants are entitled to summary adjudication as to the Eighth Cause of Action for False Light alleged in the TAC.”

Defendants argue that the eighth cause of action for false light must fail because (1) their statements are true and nonactionable opinion or hyperbole; (2) no defamatory meaning attached to the statements; (3) the statements are protected by common interest privilege; and (4) Defendants did not act with actual malice.

Chyna concedes this issue in her opposition. (Oppo., at p. 2 n.1.)

Accordingly, the motion is GRANTED as to Issue No. 1.

Issue No. 2: “Defendants are entitled to summary adjudication as to the Eleventh Cause of Action for Defamation alleged in the TAC.”

Defendants argue that the eleventh cause of action for defamation must fail because

(1) their statements are true and nonactionable opinion or hyperbole; (2) no defamatory meaning attached to the statements; (3) the statements are protected by common interest privilege; and

(4) Defendants did not act with actual malice.

To prove defamation, Chyna must show “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.” (Wong v. Jing (2011) 189 Cal.App.4th 1354, 1369.) In addition, as a public figure, Chyna must show that Defendants’ statements were made with “actual malice, i.e., actual knowledge of falsehood or reckless disregard for the truth.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398.)

As to whether the statements were true, there are triable issues of material fact for the reasons explained in the motion for summary judgment in the related case, BC677472, scheduled for the same hearing date as this motion. There are triable issues regarding whether Chyna did, in fact, “beat the shit out of” Rob. Likewise, although Kylie’s and Khloe’s statements could be considered nonactionable opinion, and Kris’s reference to actions by Chyna and/or her friends as “ghetto” could be considered nonactionable hyperbole, Kris’s other statements are not clearly nonactionable opinion or hyperbole, and Defendants did not establish that Chyna has no evidence of their alleged defamatory statements at the January 4, 2017 meeting. Their separate statement and supporting evidence establish only that the statements by “Defendants” at this meeting – that Chyna had physically abused Rob – form part of the basis of this cause of action. (UMF No. 47.)

As to whether the statements had defamatory meaning, Defendants have not shown that “no reasonable reader would perceive . . . a meaning which tended to injure the subject’s reputation” as to these statements. (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 387.) Testimony from E! and BMP executives that they regarded the statements as opinions (UMF Nos. 9-11, 54-63) does not establish that a “reasonable” reader would react the same way.

As to the common interest privilege under Civil Code § 47(c), which “applies to a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication’s subject matter (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1177), Defendants’ argument that they and E! and BMP had a common interest in Rob’s well-being and safety is inconsistent with their argument that their statements were mere hyperbole and opinion. Hyperbolic or speculative statements would not be “reasonably calculated to further” their business and professional relationship with E! and BMP. (Motion, at p. 15.)

As to actual malice, this is a “subjective test, under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue.” (Reader’s Digest Ass’n v. Superior Court (1984) 37 Cal.3d 244, 257.) In light of the questions of fact regarding the truth of the statements asserted and whether a reasonable person would perceive them as defamatory, there are questions of fact regarding whether Defendants acted with actual malice.

Accordingly, the motion is DENIED as to Issue No. 2.

Issue No. 3: “Defendants are entitled to summary adjudication as to the Twelfth Cause of Action for Intentional Interference with Contractual Relations.”

To prove IICR, Chyna must show “(1) [t]he existence of a valid contract; (2) knowledge of the contract on the part of the defendant and intent to induce its breach; (3) breach of the contract by a third party; (4) proximate cause; and (5) damages.” (Farmers Ins. Exh. v. California (1985) 175 Cal.App.3d 494, 506.)

Defendants argue that Chyna cannot establish intentional interference with contractual relations (“IICR”) because (1) the Talent Agreement was an option agreement and therefore cannot form the basis of an IICR claim; and (2) there is no evidence that Defendants caused a breach of the Talent Agreement or disruption of Chyna’s relationship with E! through their alleged statements. Defendants also argue that this claim is barred by the affirmative defenses of privilege/justification and truth.

As to the nature of Chyna’s Talent Agreement, it is undisputed that it was an option agreement. (UMF No. 94.) The heart of the parties’ dispute as to this issue, however, is whether E! extended this option period to August 1, 2017 and then declined to exercise the option or whether E! had already greenlit the second season and this amendment of the agreement was a “sham,” as Chyna alleges. (3AC ¶ 113.) Chyna relies, in part, on what she characterizes as an “official Greenlight PDM” from E!’s parent company, NBCUniversal, indicating that the second season was “fully approved” before the option agreement was ever extended. (Plaintiff’s Separate Statement (“SS”) No. 94 & Exh. U.) Defendants have presented evidence, however, that this approval was merely of the financial components of the season and did not represent an exercise of the option. (Defendants’ Reply UMF No. 94.) Moreover, in arguing that the amendment to the agreement was a “sham,” Chyna contradicts her own admission at her February 4, 2020 deposition that the signature on the amendment was hers. (Defendants’ Reply UMF No. 95 and supporting evidence.) Thus, Defendants have met their burden to show that Chyna’s agreement with E! was an option agreement that cannot form the basis of an IICR claim.

To refresh everyone’s memory, this Court inevitably (and rather reluctantly) overruled these Defendants’ demurrer to this cause of action based essentially on the allegation that the “First Amendment” to the Talent Agreement was a “sham.” In this Court’s Final Ruling of August 14, 2018, it held, in relevant part:

Plaintiff attached the Talent Agreement with E! which states that E! would exercise its option for a second season via written notice. 3AC, Exh. 1, ¶ 2(a), page 6. The Court observes that E! may have decided as a network to produce a second season of “Rob & Chyna”, as evidenced by issuing a press release on the website on December 14, 2016 (3AC, ¶ 123), and on December 18, 2016 by announcing at the end of a “Rob & Chyna” episode that a New Season was coming in 2017. 3AC, ¶ 124. However, the option held by E! in the Talent Agreement, with the May 26, 2016 effective date, was “to engage Artist to render Services in connection with additional cycles of Episodes. . . .” 3AC, Exh. 1. Talent Agreement, ¶ 2(a). This option does not purport to give Plaintiff a right to be paid for an entire second season the moment E! decided to produce a second season and starting promoting a second season.

Moreover, the First Amendment dated February 21 2017—after the December 14, 2016 press release announcing that Rob & Chyna had been picked up for an eight-episode second season—references a separate option: an option “to engage Artist in connection with a Second Cycle (if any) at any time on or before August 1, 2017. If Studio does not exercise it option to engage Artist in connection with the Second Cycle on or before August 1, 2017, Studio shall pay Artist a kill fee of One Hundred Thousand Dollars ($100,000).” First Amendment, 3AC, Exh. 1 (bold emphasis and underlining added).

Why would the parties agree[1] on February 21, 2017—after the December 14, 2016 press release announcing a second season—that E! had an option to “engage Artist in connection with a Second Cycle until August 1, 2017,” otherwise it would pay a kill fee? The only reasonable conclusion is that E! picking up a second season of Rob & Chyna did not obligate E! to pay Plaintiff for a second season until E! actually exercised a separate option (embodied in the First Amendment) to “engage” her for the second season no later than August 1, 2017—otherwise, E!’s financial obligation to Plaintiff was limited to the $100,000 “kill fee.”

In this regard, Plaintiff alleges that “[i]n early 2017” E! began filming scenes for the second season of “Rob & Chyna,” including footage in a hospital room of Plaintiff undergoing a cosmetic procedure on January 25, 2017 (3AC, ¶126)—before the February 21, 2017 First Amendment had been entered into[2], which recognized that Plaintiff had not yet been “engaged” for a second season. Plaintiff also alleges that on January 9, 2017—again, before the February 21, 2017 First Amendment had been entered into—E! filmed Plaintiff’s paid appearance at nightclub. 3AC, ¶ 126. As such, the filming of this footage could not constitute the exercise of an option to “engage” Plaintiff for a second season, which she subsequently acknowledged in the First Amendment dated February 21, 2017 had not yet occurred.

Notably, the First Amendment controls over the original Talent Agreement: “Notwithstanding anything to the contrary contained in Paragraph 2(a) of the [Talent] Agreement, the parties agree. . .” First Amendment, ¶ 1. The First Amendment did not specify a particular method by which E! was to exercise the option to “engage” Black Chyna for a Second Cycle. Yet, there is no allegation that E! exercised the option to “engage” Black Chyna following the execution of the February 21, 2017 First Amendment and before August 1, 2017. As such, based upon the facts pled and Exhibits attached to the 3AC, Plaintiff’s remedy is against E! Network for the “kill fee.”

Be that as it may, in the supplemental briefing on this issue, [footnote omitted] the Plaintiff notes that she has adequately pled in ¶ 113 of her 3AC that this Amendment was a “sham,” and moreover, that the Amendment does not form the basis of her twelfth cause of action. See, Letter Brief of Plaintiff, August 21, 2018. She alleges that the only relevance of the Amendment, as it relates to her twelfth cause of action, was merely to demonstrate “evidence of disruption of her contractual relationship with E!” Id. at p. 3.

Although this Court is still skeptical of these particular allegations, and moreover, of her entire twelfth cause of action, given the liberality governing the rules of pleading, the court will now OVERRULE the demurrer to the twelfth cause of action. At this time, it is simply an issue pleading versus an issue of proof.

(Final Ruling, 8/14/18, pp. 2-4) (Emphasis in original.)

Accordingly, the critical issue for purposes of this summary adjudication is whether there is a triable issue of material fact that the First Amendment was a “sham” or not. The Defendants have proven that Chyna has, in fact, admitted in her sworn testimony at her deposition that she had, in fact, signed this First Amendment, while being represented by independent counsel. (Defendants’ Reply UMF No. 95 and supporting evidence.)

Consistent with what was stated by this Court in the conclusion of the above-quoted ruling, this was now the time for Chyna to put up her evidence of “proof,” as to opposed to mere allegation as to this particular issue. Having reviewed Chyna’s evidence, and considering this evidence in the light most favorable to Chyna as the non-moving party as the Court is required to do, the Court finds that Chyna has not met her burden to show that there are triable issues of fact as to this issue.

Accordingly, the motion is GRANTED as to Issue No. 3.[3]

Issue No. 4: “Defendants are entitled to summary adjudication as to the Thirteenth Cause of Action for International Interference with Prospective Economic Relations.”

Defendants argue that Chyna cannot establish intentional interference with prospective economic relations (“IIPER”) because she cannot show (1) any economic relationship with a probability of future economic benefit to her; (2) Defendants’ awareness of any such prospective economic relationship; (3) Defendants’ intent to interfere with any such economic relationship; (4) any independently wrongful conduct by Defendants; or (5) any disruption of her economic relationships. Defendants also argue that this claim is barred by the affirmative defenses of privilege/justification and truth.

As discussed above, there are triable issues of fact regarding the existence of an economic relationship with a probability of future economic benefit to Chyna. Likewise, Defendants’ communications with E! personnel raise a triable issue as to their awareness of this prospective economic relationship and their intent to interfere with it. As to independently wrongful conduct by Defendants, defamation qualifies as independently wrongful, and Chyna’s defamation claim has survived this motion, as discussed above. Chyna has also shown that there are at least triable issues of fact as to disruption of her economic relationships, as discussed in above in connection with Defendants’ contention that she cannot prove any damages.

Accordingly, the motion is DENIED as to Issue No. 4.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 17, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] That is, Plaintiff consented to the fact that E! was not yet obligated to “engage” her for a Second Cycle.

[2] Although dated February 1, 2017, Plaintiff did not sign the First Amendment until April 6, 2017.

[3] For merely observational purposes only, this particular ruling may serve to be only a pyrrhic victory to the Defendants, given the ruling on Issue No. 4, infra. Chyna may still be able to seek the same damages she could have obtained in the Twelfth Cause of Action, by means of the Thirteenth Cause of Action. This, of course, remains to be seen.

Case Number: BC680035    Hearing Date: July 30, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

(1) THIRD-PARTY E! MEDIA PRODUCTIONS, LLC’S MOTION TO SEAL;

(2) THIRD-PARTY E! MEDIA PRODUCTIONS, LLC’S MOTION TO SEAL RELATED TO DEFENDANTS’ REPLY IN SUPPORT OF THEIR

SUMMARY JUDGMENT MOTION;

(3) NON-PARTY MAKE-UP ART COSMETICS, INC.’S APPLICATION TO SEAL CERTAIN RECORDS SUBJECT TO A STIPULATED PROTECTIVE ORDER RE CONFIDENTIAL DESIGNATIONS LODGED CONDITIONALLY UNDER SEAL

MOVING PARTY: (1) E! Media Productions, LLC; (2) E! Media Productions, LLC; (3) Make-Up Art Cosmetics, Inc.

RESPONDING PARTY(S): (1)-(2) Plaintiff Angela White (combined opposition); (3) Plaintiff Angela White

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Third parties E! Media Productions, LLC and Make-Up Art Cosmetics, Inc. move to seal documents filed related to Defendants’ motion for summary judgment and Defendants’ reply in support of that motion.

TENTATIVE RULING:

Third party E! Media Productions, LLC’s motion to seal re: Defendants’ motion for summary judgment is GRANTED.

E! Media Productions, LLC’s motion to seal re: Defendants’ reply in support of their motion for summary judgment is GRANTED.

Defendants are ordered to provide E! with a proposed redacted version of the MSJ and supporting documents, and to meet and confer regarding the proposed redactions, before publicly filing the MSJ and supporting documents.

Third party Make-Up Art Cosmetics, Inc.’s motion to seal is GRANTED as to the compensation paid to Plaintiff.

Defendants are ordered to provide Make-Up Art Cosmetics, Inc. with a proposed redacted version of the MSJ and supporting documents, and to meet and confer regarding the proposed redactions, before publicly filing the MSJ and supporting documents.

DISCUSSION:

E! Media Productions, LLC’s Motion To Seal Re: Defendants’ Motion for Summary Judgment

Third party E! Media Productions, LLC a single number that is mentioned in various documents Defendants intent to rely on in support of their motion for summary judgment: the “flat fee that was paid to Plaintiff” under E!’s Amendment To Appearance Release Form and Arbitration Provision for “services in connection with the television series ‘Keeping Up With The Kardashians.’” (Motion, at p. 2.) E! also asks that this figure be redacted from any other documents in which it appears in connection with Defendants’ motion. (Ibid.)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, the declarations submitted by E! satisfy this standard.

  1. Whether there exists an overriding interest that overcomes the right of public access to the record.

E! argues that maintaining the confidentiality of its highly confidential financial information constitutes an overriding interest. (Declaration of Lauren E. McCollester ¶¶ 5-8.)

Ordinarily, “financial information” that involves “confidential matters relating to the business operations” of the moving party will be sealed, because “public revelation of these matters would interfere with its ability to effectively compete in the marketplace.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1286 [dictum].)

Here, E! has articulated overriding interests that potentially overcome the right to public access to these records, if the other elements below are satisfied.

  1. Whether the overriding interest supports sealing the record.

E!’s supporting declarations articulate specific facts that establish that the overriding interests discussed above support sealing the record. The McCollester Declaration notes that E! “operates in a competitive media environment” in which it “competes for the crucial services of talent,” and that its business depends on “obtaining the best talent deals available.” (McCollester Decl. ¶ 7.) The figure E! seeks to seal is “highly confidential” and reflects an “anomalous deal extended to Ms. White,” in which she was paid an “unusually large” amount for a period of filming, rather than per episode. (¶ 8.) Disclosing this amount would therefore “cause competitive injury to E! in its negotiations with other talent, production companies, and other parties.” (¶ 9.)

This is sufficient to overcome the presumed right of public access to the documents, if the other elements are met. (CRC Rule 2.550(c).) Accordingly, this requirement is satisfied.

  1. Whether a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed.

E! has presented admissible evidence that the overriding interest will be prejudiced if the record is not sealed. The McCollester Declaration articulates a specific showing of serious potential injury to E!, in that the disclosure of this information would “set a pricing benchmark for talent that would interfere with E!’s ability to obtain the services of talent at appropriate and commercially practicable compensation levels.” (McCollester Decl. ¶ 9.) Future parties negotiating with E! could be reasonably expected to “invoke this arrangement if they became aware of it.” (Ibid.) Thus, E! has shown that there is a substantial probability of such harm if the record is not sealed. (Universal City Studios, supra, 110 Cal.App.4th at 1282-1283.)

This requirement is satisfied.

  1. Whether the proposed sealing is narrowly tailored.

The proposed sealing is narrowly tailored to include only the flat fee paid to Plaintiff. This requirement is satisfied.

  1. Whether any less restrictive means exists to achieve the overriding interest.

No less restrictive means than redacting the fee exists that would achieve the same overriding interest. Of course, it is unclear why this figure had to be included in Defendants’ motion at all, and Defendants’ own removal or redaction of the figure would have spared the Court the necessity of considering this motion. Nevertheless, it does not appear that there is any less restrictive means to accomplish the same goal. This requirement is satisfied.

Conclusion

In sum, E! has demonstrated by way of its factual declarations that all of the CRC Rule 2.550(d) requirements for sealing have been met.

Accordingly, the motion to seal the record is GRANTED.

E! Media Productions, LLC’s Motion To Seal Re: Defendants’ Reply in Support of Their Summary Judgment Motion

In this motion, E! moves to seal the same figure that was at issue in its motion to seal discussed above.

For the reasons discussed in connection with E!’s previous motion, this motion to seal is GRANTED.

Third Party Make-Up Art Cosmetics, Inc.’s Motion To Seal

Third party Make-Up Art Cosmetics, Inc. (“M.A.C.”) originally moved to seal two documents that were conditionally lodged under seal in connection with Defendants’ motion for summary judgment: (1) the October 17, 2016 agreement between Plaintiff and 88 Fin, Inc. and M.A.C.; and (2) a document entitled “Multi-Influencer PAID Content to Commerce.” (Motion, at p. 1.) In its reply, however, M.A.C. narrowed its request to seal only one specific term of the agreement: the compensation paid to Plaintiff. (Reply, at p. 3.)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, the declarations submitted by M.A.C. satisfy this standard as to its narrowed request.

  1. Whether there exists an overriding interest that overcomes the right of public access to the record.

M.A.C. argues that maintaining the confidentiality the amount paid to Plaintiff constitutes an overriding interest because M.A.C.’s agreements with celebrity representatives “always contain confidentiality clauses” and because it is critical to its business that these terms “not be publicly known,” as that information would put it at a “significant negotiating disadvantage.” (Declaration of William Jelinek ¶¶ 5-6.)

Ordinarily, “financial information” that involves “confidential matters relating to the business operations” of the moving party will be sealed, because “public revelation of these matters would interfere with its ability to effectively compete in the marketplace.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1286 [dictum].) In addition, a “contractual agreement not to disclose” information may also “constitute an overriding interest” under this Rule. (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283 [discussing Rule 243.1(d), the predecessor to Rule 2.550].)

Here, M.A.C. has articulated overriding interests that potentially overcome the right to public access to these records, if the other elements below are satisfied.

  1. Whether the overriding interest supports sealing the record.

M.A.C.’s supporting declarations articulate specific facts that establish that the overriding interests discussed above support sealing the record. The Jelinek Declaration notes that M.A.C. “has for many years collaborated with well-known entertainment industry celebrities.” (Jelinek Decl. ¶ 3.) Plaintiff was one of those celebrity representatives. (Ibid.) The terms of the agreements with these celebrity representatives are kept confidential, because disclosing them would put M.A.C. “at a significant negotiating disadvantage” and because the “celebrity representatives themselves do not want others in the industry to know the terms of their agreements” with M.A.C. (¶¶ 5-6, 8.)

This is sufficient to overcome the presumed right of public access to the documents, if the other elements are met. (CRC Rule 2.550(c).) Accordingly, this requirement is satisfied.

  1. Whether a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed.

M.A.C. has presented admissible evidence that the overriding interest will be prejudiced if the amount it paid Plaintiff is not sealed. The Jelinek Declaration articulates a specific showing of potential serious injury to M.A.C., in that the disclosure of this information would “put M.A.C. Cosmetics at a significant negotiating disadvantage both with new celebrity representatives and renewals with current representatives.” (Jelinek Decl. ¶ 6.) M.A.C. has also shown that the celebrity representatives with whom they negotiate expect M.A.C. to maintain the confidentiality of this information. (¶ 8.) Thus, M.A.C. has shown that there is a substantial probability of such harm if the amount is not sealed. (Universal City Studios, supra, 110 Cal.App.4th at 1282-1283.)

This requirement is satisfied.

  1. Whether the proposed sealing is narrowly tailored.

As articulated in M.A.C.’s reply, the proposed sealing is narrowly tailored to include only the amount paid to Plaintiff. This requirement is satisfied.

  1. Whether any less restrictive means exists to achieve the overriding interest.

No less restrictive means than redacting the amount paid to Plaintiff exists that would achieve the same overriding interest. Of course, it is unclear why this figure had to be included in Defendants’ motion at all, and Defendants’ own removal or redaction of the figure would have spared the Court the necessity of considering this motion. Nevertheless, it does not appear that there is any less restrictive means to accomplish the same goal.

Conclusion

In sum, M.A.C. has demonstrated by way of its factual declarations that all of the CRC Rule 2.550(d) requirements for sealing have been met.

Accordingly, the motion to seal the record is GRANTED.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: July 30, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: BC680035    Hearing Date: June 22, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

GIVEN THE RECENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES APPEARENCES BY COURT CALL. PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR VIA COURT CALL AT (888) 882-6878 (OR WWW.COURTCALL.COM). IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

(1) DEFENDANT ROBERT KARDASHIAN’S MOTION TO SEAL; (2) DEFENDANTS KRIS JENNER, KIMBERLY KARDASHIAN WEST, KHLOE KARDASHIAN AND KYLIE JENNER’S MOTION TO SEAL

 

MOVING PARTY: (1) Defendant Robert Kardashian; (2) Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner

RESPONDING PARTY(S): (2) Plaintiff Angela White

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Defendants move to seal documents filed in support of their motions for summary judgment/adjudication.

TENTATIVE RULING:

Defendant Robert Kardashian’s motion to seal is DENIED. Defendant may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary adjudication. Any documents that are timely and formally withdrawn by the lodging party will not be considered for purposes of Defendant Robert Kardashian’s pending motion for summary adjudication.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s motion to seal is DENIED. Defendants may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary for summary judgment. Any documents that are timely and formally withdrawn by the lodging parties will not be considered for purposes of Defendants’ pending motion for summary judgment.

DISCUSSION:

Defendant Robert Kardashian’s Motion To Seal

Defendant Robert Kardashian moves to seal documents that he submitted conditionally under seal in support of his motion for summary adjudication.

“Unless confidentiality is required by law, court records are presumed to be open.” (CRC 2.550.)

Here, Defendant argues, in part, that these documents should be sealed because they were designated “Confidential” or “Highly Confidential” pursuant to the parties’ Joint Stipulated Protective Order. (Notice of Motion, at p. 1.) However, this Court “cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (bold emphasis and underlining added).)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1) (bold emphasis added).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, the Declaration of Melissa Y. Lerner submitted with this motion does not even attempt to satisfy these requirements. Defendant argues in his motion that each of the five requirements delineated above are met, but Defendant has not supported any of these arguments with declaratory evidence. The declaration is entirely conclusory, stating only that the “records contain sensitive, confidential information and/or proprietary business information, as reflected on the face of those records.” (Lerner Decl. ¶ 5.) This statement and the conclusory descriptions of the documents in a previous paragraph (Id. ¶ 4) fall far short of the required showing.

Accordingly, because Defendant has not demonstrated by way of factual declarations that the CRC Rule 2.550(d) requirements for sealing have been met, the motion to seal is DENIED.

Defendant may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary adjudication.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s Motion To Seal

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner move to seal documents that they submitted conditionally under seal in support of their motion for summary judgment.

“Unless confidentiality is required by law, court records are presumed to be open.” (CRC 2.550.)

Here, Defendants argue, in part, that these documents should be sealed because they were designated “Confidential” or “Highly Confidential” pursuant to the parties’ Joint Stipulated Protective Order. (Notice of Motion, at p. 1.) However, this Court “cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (bold emphasis and underlining added).)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1) (bold emphasis added).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, as with Defendant Robert Kardashian’s motion discussed above, the Declaration of Melissa Y. Lerner submitted with this motion does not even attempt to satisfy these requirements. Defendants argues in their motion that each of the five requirements delineated above are met, but Defendants have not supported any of these arguments with declaratory evidence. The declaration is entirely conclusory, stating only that the “records contain sensitive, confidential information and/or proprietary business information, as reflected on the face of those records.” (Lerner Decl. ¶ 5.) This statement and the conclusory descriptions of the documents in a previous paragraph (Id. ¶ 4) fall far short of the required showing.

Accordingly, because Defendants have not demonstrated by way of factual declarations that the CRC Rule 2.550(d) requirements for sealing have been met, the motion to seal is DENIED.

Defendants may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary judgment.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 22, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: BC680035    Hearing Date: March 18, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

 

(1) DEFENDANT ROBERT KARDASHIAN’S MOTION TO SEAL; (2) DEFENDANTS KRIS JENNER, KIMBERLY KARDASHIAN WEST, KHLOE KARDASHIAN AND KYLIE JENNER’S MOTION TO SEAL

MOVING PARTY: (1) Defendant Robert Kardashian; (2) Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner

RESPONDING PARTY(S): (2) Plaintiff Angela White

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Defendants move to seal documents filed in support of their motions for summary judgment/adjudication.

TENTATIVE RULING:

Defendant Robert Kardashian’s motion to seal is DENIED. Defendant may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary adjudication. Any documents that are timely and formally withdrawn by the lodging party will not be considered for purposes of Defendant Robert Kardashian’s pending motion for summary adjudication.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s motion to seal is DENIED. Defendants may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary for summary judgment. Any documents that are timely and formally withdrawn by the lodging parties will not be considered for purposes of Defendants’ pending motion for summary judgment.

DISCUSSION:

Defendant Robert Kardashian’s Motion To Seal

Defendant Robert Kardashian moves to seal documents that he submitted conditionally under seal in support of his motion for summary adjudication.

“Unless confidentiality is required by law, court records are presumed to be open.” (CRC 2.550.)

Here, Defendant argues, in part, that these documents should be sealed because they were designated “Confidential” or “Highly Confidential” pursuant to the parties’ Joint Stipulated Protective Order. (Notice of Motion, at p. 1.) However, this Court “cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (bold emphasis and underlining added).)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1) (bold emphasis added).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, the Declaration of Melissa Y. Lerner submitted with this motion does not even attempt to satisfy these requirements. Defendant argues in his motion that each of the five requirements delineated above are met, but Defendant has not supported any of these arguments with declaratory evidence. The declaration is entirely conclusory, stating only that the “records contain sensitive, confidential information and/or proprietary business information, as reflected on the face of those records.” (Lerner Decl. ¶ 5.) This statement and the conclusory descriptions of the documents in a previous paragraph (Id. ¶ 4) fall far short of the required showing.

Accordingly, because Defendant has not demonstrated by way of factual declarations that the CRC Rule 2.550(d) requirements for sealing have been met, the motion to seal is DENIED.

Defendant may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary adjudication.

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner’s Motion To Seal

Defendants Kris Jenner, Kimberly Kardashian West, Khloe Kardashian, and Kylie Jenner move to seal documents that they submitted conditionally under seal in support of their motion for summary judgment.

“Unless confidentiality is required by law, court records are presumed to be open.” (CRC 2.550.)

Here, Defendants argue, in part, that these documents should be sealed because they were designated “Confidential” or “Highly Confidential” pursuant to the parties’ Joint Stipulated Protective Order. (Notice of Motion, at p. 1.) However, this Court “cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (bold emphasis and underlining added).)

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1) (bold emphasis added).) A court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(CRC 2.550(d).)

Here, as with Defendant Robert Kardashian’s motion discussed above, the Declaration of Melissa Y. Lerner submitted with this motion does not even attempt to satisfy these requirements. Defendants argues in their motion that each of the five requirements delineated above are met, but Defendants have not supported any of these arguments with declaratory evidence. The declaration is entirely conclusory, stating only that the “records contain sensitive, confidential information and/or proprietary business information, as reflected on the face of those records.” (Lerner Decl. ¶ 5.) This statement and the conclusory descriptions of the documents in a previous paragraph (Id. ¶ 4) fall far short of the required showing.

Accordingly, because Defendants have not demonstrated by way of factual declarations that the CRC Rule 2.550(d) requirements for sealing have been met, the motion to seal is DENIED.

Defendants may formally withdraw any of the documents lodged conditionally under seal within 10 days of this ruling. (CRC Rule 2.551(b)(6).) If there is no such withdrawal within this time period, all such documents shall be “unsealed” and placed in the public record. If the documents are unsealed, this Court will review and consider them, as relevant, for purposes of the pending motion for summary judgment.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 18, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED THIS COURT WILL ONLY ALLOW APPEARENCES BY COURT CALL. PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR VIA COURT CALL AT (888) 882-6878 (OR WWW.COURTCALL.COM). COUNSEL (INCLUDING SELF-REPRESENTED LITIGANTS) ARE NOT TO PERSONALLY APPEAR, ABSENT A COMPELLING EMERGENCY REASON. IF YOU ARE UNABLE OR UNWILLING TO APPEAR VIA COURT CALL, YOU ARE TO IMMEDIATELY CONTACT THIS DEPARTMENT AT (213) 633-0647 TO ARRANGE A CONTINUANCE OF YOUR HEARING OR TRIAL UNTIL AFTER THIS CRISIS HAS SUBSIDED.

Case Number: BC680035    Hearing Date: February 10, 2020    Dept: 47

Angela White (aka Blac Chyna) v. Robert Kardashian, et al.

 

MOTION TO SEVER REVENGE PORN CLAIMS FROM TORTIOUS INTERFERENCE/DEFAMATION CLAIMS

MOVING PARTY: Plaintiff Angela White

RESPONDING PARTY(S): Defendants Robert Kardashian, Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Robert Kardashian committed assault and battery against Plaintiff and has publicly slut-shamed and published defamatory statements about Plaintiff on social media. Defendants Defendants Kris Jenner, Kim Kardashian West, Khloe Kardashian, and Kylie Jenner allegedly published defamatory statements about Plaintiff and prevented the second season of Plaintiff’s television show with Defendant Kardashian from going forward with production.

Plaintiff moves to sever her “revenge porn” claims from her tortious interference and defamation claims for trial. In opposition, Defendant Robert Kardashian requests relief from his waiver of a jury trial.

TENTATIVE RULING:

Plaintiff Angela White’s motion to sever revenge porn claims from tortious interference/defamation claims is GRANTED.

In addition, the Court exercises its discretion to grant Defendant relief from his waiver of a jury trial in the revenge porn case. This consolidated case will therefore proceed with a separate jury trial on the revenge porn claims followed by a separate jury trial on Plaintiff’s other claims, unless the parties who have requested a jury trial opt to waive that right at a later date.

DISCUSSION:

Motion To Sever Revenge Porn Claims from Tortious Interference/Defamation Claims

Plaintiff moves to sever her revenge porn claims from her tortious interference and defamation claims for trial.

The Court has the discretion to order bifurcation in furtherance of convenience, the economy and efficiency of handling the litigation, or to avoid prejudice. (CCP § 1048(b).)

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.

(CCP § 1048(b).)

Defendants agree that Plaintiff’s revenge porn claims against Robert Kardashian should be severed from Plaintiff’s tortious interference and defamation claims against the other Defendants. The parties’ only dispute is whether the trial on the revenge porn claims is to be a bench trial or a jury trial.

As to the request to sever the revenge porn claims from the other claims, the Court finds that severing these claims into separate trials will avoid undue prejudice to Plaintiff. This will also promote justice, efficiency and convenience, as the issues in the two trials, which involve different Defendants and different types of claims, are not so intertwined that separating them would risk having to duplicate the presentation of evidence.

Accordingly, Plaintiff’s motion is GRANTED.

As to whether Robert Kardashian waived his right to a jury trial on the revenge porn claims, it is undisputed that he did not deposit jury fees in the revenge porn action (before it was consolidated with the other claims) and therefore waived a jury trial in that action. (CCP § 631(f)(5).) Therefore, the question is whether he should be relieved of that waiver. That question is not strictly at issue in connection with this motion. The proper course of action would have been for Defendant to seek relief from his waiver under CCP § 631(g).

In the interest of judicial economy, however, the Court will consider whether Defendant should be relieved of his waiver.

Under CCP § 631(g), the Court “may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.” Any doubt as to relief from waiver must be resolved in favor of upholding the constitutional right to trial by jury. (Bishop v. Anderson (1980) 101 Cal.App.3d 821, 823.) It is also an abuse of discretion to deny relief from waiver when the waiver is shown to be inadvertent and relief from waiver is sought promptly after discovering the error. (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 652.)

Here, Defendant has presented evidence that the failure to deposit jury fees in the revenge porn case was inadvertent. Defendant’s order form directed to Express Network shows that Defendant’s counsel had directed Express Network to deposit jury fees in Case No. BC680035, which was the revenge porn case before the cases were consolidated. (Declaration of Patricia A. Millett, Exh. D.) The deposit form itself, however, shows Case No. BC677472, which was the tortious interference/defamation case before they were consolidated. (Millett Decl., Exh. E.)

Defendant’s counsel also declares that she first learned of this error on January 17, 2020. (Millett Decl. ¶ 7.) That declaration is dated January 28, 2020, and therefore Defendant sought relief from the waiver promptly (in the context of his opposition to this motion) after discovering the error.

Plaintiff argues that she reasonably relied on Defendant’s waiver to her prejudice in preparing for trial of her revenge porn claims. (Reply, at p. 5.) This is not a case, however, where Plaintiff would have to prepare for a jury trial of those claims days before trial. (Cf. Gann v. Williams Bros. Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703 [concluding that the trial court did not abuse its discretion in denying relief from waiver five days before trial].) There are still over three months before trial, and Plaintiff also could not be certain that the Court would exercise its discretion to sever the revenge porn claims from the other claims, in which case the entire trial would have been a trial by jury. Thus, granting relief from waiver at this stage does not appear likely to prejudice Plaintiff.

Plaintiff also points out that the revenge porn statute allows a plaintiff to proceed as a “Jane Doe,” an option that is not open to Plaintiff as a well-known personality. (Civ. Code § 1708.85). The statute does not, however, disfavor jury trials in actions brought under that section or otherwise limit a defendant’s constitutional right to a jury trial.

The Court is sympathetic to Plaintiff’s argument that she is attempting to protect her minor children from additional exposure to media coverage regarding the revenge porn claims by seeking to have those claims tried as a bench trial. Perhaps that argument will ultimately prevail upon Defendant. In the meantime, however, the evidence shows that Defendant intended to invoke his right to trial by jury and inadvertently failed to do so. Plaintiff is also correct that Defendant’s counsel could have checked the docket and discovered the waiver sooner. At the same time, if Plaintiff was relying on this waiver, Plaintiff’s counsel could have brought it to their attention to confirm that it was intentional. (Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809 [noting that there is “no enforceable duty to act courteously and call the attention of opposing counsel to an obvious tactical error benefiting the case of the silent attorney,” but proceeding to reverse the trial court’s decision denying a jury trial where the alleged prejudice was not persuasive].)

Accordingly, the Court grants Defendant relief from his waiver of a jury trial in the revenge porn case. This consolidated case will proceed with a separate jury trial on the revenge porn claims followed by a separate jury trial on Plaintiff’s other claims, unless the parties that have requested a jury trial opt to waive that right at a later date.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 10, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.