ARIANNA DAVIS, ET AL. VS BIG GRRRL BIG TOURING, INC, A DELAWARE CORPORATION, ET AL.

Case Number: *******3553 Hearing Date: November 3, 2023 Dept: I

The matter is here on two ex parte applications brought by plaintiffs. One is to file an over-length brief and the other is for an order shortening time on their motion to lift the discovery stay in whole or in part. Both applications are DENIED.

The court will not turn this application into a mini-hearing on the merits of the Special Motion to Strike (SMS) currently set for November 22, 2023-the day before Thanksgiving. The court does, however, set forth a few things that apply to both motions. A SMS has two prongs. The first goes to whether the complaint alleges liability based on defendants' exercise of certain constitutional rights. The burden on this prong is on the moving party. It is generally resolved by the pleadings, but the court can look beyond the pleadings primarily for context and understanding. If the first prong is met, then plaintiffs must address the second prong, which is whether they have established "a probability" that they "will prevail" on their claim. Notwithstanding that language, however, plaintiffs real burden is only to show "minimal merit," meaning that there is a triable issue of fact as to whether they will prevail, similar to what they would have to show to defeat a summary judgment motion. The Legislature has determined that where a cause of action alleges liability based on a defendant's exercise of applicable constitutional rights, the plaintiff must have the evidence in hand before filing suit; a discovery stay is imposed automatically when the SMS is filed. However, for "good cause," the court may allow targeted discovery in appropriate cases.

With that general overview in mind, the court turns to the two applications. The first goes to the page limit. Defendants were able to file a brief within the 15 page confines. True, they had a ton of extrinsic evidence in the form of declarations, but the legal brief was only 15 pages. It discussed the law and it discussed the facts. Plaintiffs have not shown why they cannot do the same. They note that they will need to address 7 cases. But that is hardly an avalanche of authority, and not all cases need to be addressed exhaustively. For now, plaintiffs have not made their showing. If the court, upon reading the opposition, concludes that plaintiffs in fact did need more pages, it will entertain a request at the hearing for a continuance and to allow supplemental briefing. It goes without saying (which is always a prelude to someone saying it anyway) that defendants ought not request leave to file an overlength reply. The request to file the overlength brief is therefore DENIED.

That leads to the OST as to the discovery stay. As a practical matter, if the OST is denied, so is the underlying motion, which is not set to be heard until after the SMS hearing. The court is therefore aware that a denial of the OST is a denial of the merits.

Plaintiffs bear the burden of showing good cause to take discovery. They make two arguments. The first is that they need to depose certain people to delve into what the "creative expression" is that undergirds the motion. As set forth above, that goes to the first prong, which is based to a very large extent on the allegations. To the extent that there is doubt on the subject, it is generally resolved in the moving party's favor. The court does not see a particularized need for discovery on this point. The second relates to depositions of the various declarants. But plaintiffs there mis-perceive their burden. This goes to the second prong. Doubts there are resolved against the moving party. Were the court allowed to weigh the evidence and make a determination based thereon, plaintiffs would have a good case. And such motions are not rare. Motions for preliminary injunctions, motions to expunge a lis pendens, and motions to obtain attachments, are all motions where the court can weigh the evidence. Were this also such a motion, the court would agree that it would be necessary to depose the various declarants. But it is not. Plaintiffs need only establish "minimal merit," that is, a triable issue of fact. The court has read the underlying motion and does not see that any good cause has been established to lift the discovery stay. Moreover, while plaintiffs contend that the discovery they seek is "very limited," in the same sentence they say that they need to take 21 depositions. That is not "very limited." If the court is otherwise inclined to grant the SMS, the court will entertain discussion at the hearing that discovery was needed to give plaintiffs the ammunition needed to defeat the SMS and will consider continuing the hearing to allow such laser-beam discovery. However, plaintiffs will need to make a far stronger showing than they have done to date to obtain that relief given the actual burden that they must carry to defeat the SMS. Accordingly, the application to lift the stay is DENIED.