On 11/07/2019 D R filed a Personal Injury - Uninsured Motor Vehicle lawsuit against UNIVERSITY OF SOUTHERN CALIFORNIA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and EDWARD B. MORETON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
EDWARD B. MORETON
UNIVERSITY OF SOUTHERN CALIFORNIA
UNIVERSITY OF SOUTHERN CALIFORNIA
WYATT ANDREW M
GRETHER NICHOLAS M.
SLADE LAWRENCE P
12/9/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
12/9/2020: Notice of Ruling
12/9/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE (ALL-PURPOSE); HEARING ON DEFENDANT UNIVERS...)
9/22/2020: Case Management Statement
9/3/2020: Notice of Case Management Conference
8/5/2020: Reply - REPLY ANTISLAPP MOTION
8/6/2020: Order - ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT CALENDAR (IC) COURT
7/30/2020: Declaration - DECLARATION DECLARATION OF MICHAEL OTT IN OPPOSITION TO PLAINTIFF/CROSS- DEFENDANT R.D.S SPECIAL MOTION TO STRIKE
8/6/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: ORDER TRANSFERRING PERSONAL INJURY (PI) CASE ...)
5/19/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: COVID-19)
4/29/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF HEARING ON UNIVERSITY OF SOUTHERN CALIFORNIA'S DEMURRER TO PLAINTIFF'S COMPLAINT
3/5/2020: Summons - SUMMONS CROSS-COMPLAINT
3/23/2020: Proof of Service by Substituted Service
4/2/2020: Proof of Service by Mail
11/27/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES
Hearing05/06/2021 at 09:00 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
Hearing04/22/2021 at 09:00 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing03/08/2021 at 09:30 AM in Department 58 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
DocketNotice (OF CONTINUANCE OF OSC RE DISMISSAL (SETTLEMENT) AND COURT?S SETTING OSC RE DISMISSAL (FOR PLAINTIFF?S FAILURE TO APPEAR) AND OSC RE ENTRY OF JUDGMENT); Filed by University of Southern California (Defendant)Read MoreRead Less
Docketat 09:30 AM in Department 58; Order to Show Cause Re: Dismissal (Settlement) - HeldRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by ClerkRead MoreRead Less
Docketat 09:30 AM in Department 58; Status Conference ((All-Purpose)) - HeldRead MoreRead Less
DocketMinute Order ( (Status Conference (All-Purpose))); Filed by ClerkRead MoreRead Less
Docketat 10:15 AM in Department 58; Hearing on Demurrer - without Motion to Strike ((filed on 04/07/2020)) - HeldRead MoreRead Less
Docketat 10:15 AM in Department 58; Status Conference ((All-Purpose)) - Held - Advanced and HeardRead MoreRead Less
DocketCross-Complaint; Filed by Michael Ott (Defendant)Read MoreRead Less
DocketAnswer; Filed by Michael Ott (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by R. D. (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by R. D. (Plaintiff)Read MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by R. D. (Plaintiff)Read MoreRead Less
DocketSummons (on Complaint); Filed by R. D. (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by R. D. (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 19STCV40277 Hearing Date: December 09, 2020 Dept: 58
Judge John P. Doyle
Hearing Date: December 9, 2020
Case Name: R.D. v. University of Southern California, et al.
Case No.: 19STCV40277
Matter: (1) Anti-SLAPP Motion
Moving Party: (1) Plaintiff R.D.
(2) Defendant University of Southern California
Responding Party: (1) Defendant Michael Ott
(2) Plaintiff R.D.
Tentative Ruling: The Anti-SLAPP Motion is denied.
The Demurrer is sustained. Leave to amend is to be argued.
On November 7, 2019, Plaintiff R.D. filed the operative Complaint for (1) sexual battery in violation of Civ. Code § 1708.5, (2) assault, and (3) battery. Plaintiff alleges she was subjected to an unconsented ejaculation by Defendant Michael Ott which resulted in an unwanted pregnancy. Plaintiff alleges Ott’s actions were taken within the course and scope of his employment for Defendant University of Southern California (“USC”) and that USC ratified Ott’s conduct by failing to engage in an immediate investigation or take corrective action.
On February 28, 2020, Ott filed a Cross-Complaint against R.D. and USC for (1) intentional interference with contractual relations, (2) intentional interference with prospective economic relations, (3) negligent interference with prospective economic relations, (4) aiding and abetting intentional interference with contractual relations, (5) aiding and abetting intentional interference with prospective economic relations, (6) negligence, (7) injunctive relief, (8) equitable indemnity, and (9) comparative contribution and indemnity.
With respect to R.D., the allegations of the Cross-Complaint are as follows. Ott entered into a contract with Number 7 Films, LLC (“N7F”) to produce his movie, “California Dreams.” Ott entered into another contract with Factory 25 to distribute the movie, and with the American Film Institute (“AFI”) to screen the movie. R.D. disrupted these actual or prospective relationships by falsely telling the “movie’s producer, distributor and Sales Agent, and the American Film Institute, that Mr. Ott was a rapist and sexual assaulter, and by demanding that they cut ties with Mr. Ott.” (Cross-Complaint ¶¶ 50, 59.) Additionally, R.D. “posted on social media sites such as FaceBook, Twitter and IMDb, calling Mr. Ott a ‘rapist,’ falsely accusing him of sexual assault, and falsely asserting that he was being investigated by the police for sexual assault and rape of high school age girls and others.” (Cross-Compl. ¶ 22.)
R.D. brings an anti-SLAPP Motion as to all claims against her in Ott’s Cross-Complaint—specifically, the first through third and seventh causes of action.
(a) Procedural Issues
Ott argues the Motion is procedurally defective because it was filed late, is unsigned, and was not served properly.
The argument as to service lacks merit as there does not seem to be any resulting prejudice.
On the other hand, Ott is correct that the Motion was not timely filed. Code Civ. Proc. § 425.16(f) provides, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” Here, R.D. was served with the Cross-Complaint on February 28, 2020, but did not file the Motion until May 15, 2020. This is 77 days.
Further, the Motion is unsigned in violation of Code Civ. Proc. § 128.7(a).
These defects alone are sufficient to deny the Motion. Nevertheless, the Court will rule on the merits of the Motion.
(b) Legal Standard
Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc. § 425.16(b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)
Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)
(c) Protected Activity
To meet her burden for the first prong of the anti-SLAPP analysis, R.D. must demonstrate that Ott’s claims arise from protected activity. That is, it must be that “defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . ‘the act underlying the plaintiff’s cause’ or ‘the at which forms the basis for the plaintiff’s cause of action’ must itself have been an act in furtherance of the right of petition or free speech.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 63 (internal citations omitted).)
An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc. § 425.16(e).)
R.D. argues Ott’s claims arise from protected activity under Code Civ. Proc. § 425.16(e)(1)-(e)(4).
R.D. first contends the claims against her arise from the filing of the Complaint in this action.
Code Civ. Proc. § 425.16(e)(1) relates to statements made before an official proceeding. This subdivision does not apply because the Cross-Complaint is not premised on statements made within this action, but rather statements made on the internet and to AFI, Factory 25, and N7F.
Code Civ. Proc. § 425.16(e)(2) relates to statements made in connection with an issue under consideration by a government body. (See City of Costa Mesa v. D’Alessio Investments LLC (2013) 214 Cal.App.4th 358, 372-273.) The challenged statements need not be made before an official body, but must “relate to the substantive issues in the [underlying] litigation and [must be] directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) The defendant need not separately demonstrate that a statement or writing concerned an issue of public significance if it was made in connection with an issue under consideration or review by an official proceeding or body. (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1113.)
Such includes communications “ ‘preparatory to or in anticipation of’ ” the bringing of an action or other official proceeding. (Id. at p. 1115.) Courts look to the litigation privilege “as an aid” in determining whether a given communication falls within the ambit of Code Civ. Proc. § 425.16(e)(2). (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) “In California, the courts have held a prelitigation statement is protected by the litigation privilege of section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is contemplated in good faith and under serious consideration. In other words, the prelitigation statements must have some connection or logical relation to the action . . . .” (A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal. App. 4th 1118, 1128.)
Code Civ. Proc. § 425.16(e)(2) does not apply because the subject statements were made to AFI, Factory 25, and N7F who do not have an actual interest in this action. (See Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
R.D. argues Ott’s causes of action arise from protected activity under Code Civ. Proc. § 425.16(e)(3)-(e)(4) to the extent the subject statements relate to an issue of public interest. Specifically, the statements relate to the topic of unconsented sex and Ott, who is a person in the public eye by virtue of his film making.
“The definition of ‘public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) A statement concerns a “public issue” where it either “[(1)] concerned a person or entity in the public eye [Citations], [(2)] conduct that could directly affect a large number of people beyond the direct participants [Citations] or [(3)] a topic of widespread, public interest.” (Rivero v. Am. Fed'n of State, Cty., & Mun. Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.)
For the purposes of Code Civ. Proc. § 425.16(e)(3), “[a] ‘public forum’ is traditionally defined as a place that is open to the public where information is freely exchanged.” (Damon, supra, 85 Cal.App.4th at p. 475.)
With respect to Code Civ. Proc. § 425.16(e)(4), our Supreme Court has stated,
The inquiry under the catchall provision instead calls for a two-part analysis rooted in the statute's purpose and internal logic. First, we ask what “public issue or [ ] issue of public interest” the speech in question implicates—a question we answer by looking to the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.
But the catchall provision demands “some degree of closeness” between the challenged statements and the asserted public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132, 2 Cal.Rptr.3d 385.) . . . “[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Wilbanks, supra, 121 Cal.App.4th at p. 898, 17 Cal.Rptr.3d 497; see also Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280, 55 Cal.Rptr.3d 544 [“[t]he fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute” is not enough].)
What it means to “contribute to the public debate” (Wilbanks, supra, 121 Cal.App.4th at p. 898, 17 Cal.Rptr.3d 497) will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest. (See All One, supra, 183 Cal.App.4th at pp. 1203–1204, 107 Cal.Rptr.3d 861 [finding the “OASIS Organic seal” did not “contribute to a broader debate on the meaning of the term ‘organic’ ”]; Cross v. Cooper (2011) 197 Cal.App.4th 357, 375, 127 Cal.Rptr.3d 903 [finding the defendant's conduct “directly related” to an issue of public interest because it “served th[e] interests” of preventing child abuse and protecting children].)
(FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–51.)
Here, R.D. has failed to present evidence indicating that the public is interested in the subject statements. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038 [“ ‘[A]n issue of public interest’ within the meaning of section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.”].)
R.D. argues there is widespread public interest as to nonconsensual sex.
However, it has been said,
“The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements” of the anti-SLAPP statute. (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280, 55 Cal.Rptr.3d 544.) By focusing on society's general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called “synecdoche theory of public issue in the anti-SLAPP statute,” where “[t]he part [is considered] synonymous with the greater whole.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34, 1 Cal.Rptr.3d 390 (Commonwealth ).) In evaluating the first prong of the anti-SLAPP statute, we must focus on “the specific nature of the speech rather than the generalities that might be abstracted from it. [Citation.]” (Ibid.)
(World Fin. Grp., Inc. v. HBW Ins. & Fin. Servs., Inc. (2009) 172 Cal. App. 4th 1561, 1570.)
The proper inquiry here is whether the public is interested in R.D.’s specific statements that Ott assaulted her and others. Again, there is no evidence of this.
R.D. argues Ott is in the public eye as a filmmaker and professor at USC.
R.D., however, has failed to demonstrate that Ott is an “ ‘all purpose’ public figure who has ‘achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.’ ” (Reader's Digest Assn. v. Superior Court (1984) 37 Cal. 3d 244, 253.) Similarly, there is no evidence that Ott is a limited public figure that voluntarily acted to influence resolution of the issue of public interest by attempting to thrust himself into the public eye. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 484.) Thus, R.D. has not shown that her statements pertain to an issue of public interest under Code Civ. Proc. § 425.16(e)(3)-(e)(4).
In sum, because the Cross-Complaint does not arise from protected activity, the Anti-SLAPP Motion is denied. Ott’s objections are overruled as immaterial.
Defendant USC demurs to the Complaint for uncertainty and failure to state sufficient facts due to the statute of limitations.
Defendant’s uncertainty argument is not well-taken; any uncertainty can be clarified in discovery. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.)
(b) Statute of Limitations
USC argues Plaintiff’s claims are time-barred under either Code Civ. Proc. § 335.1 (two years) or Code Civ. Proc. § 340.15 (three years) because (1) Plaintiff’s claims accrued on November 14, 2014, when she was allegedly battered and (2) the Complaint was filed on November 7, 2019.
Plaintiff argues newly enacted Code Civ. Proc. § 340.16 provides for a ten-year statute of limitations.
USC argues Code Civ. Proc. § 340.16 does not revive claims that have already expired.
(See Krupnick v. Duke Energy Morro Bay LLC (2004) 115 Cal.App.4th 1026, 1027-1030 [“If the statute of limitations had already run before the amendment enlarging the time to sue became effective, the new statute of limitations does not retroactively extend the time to sue (reviving the claim) unless the Legislature provides otherwise . . . .”].)
Plaintiff argues this is false because Code Civ. Proc. § 340.16(c)(1) provides, “This section applies to any action described in subdivision (a) that is commenced on or after January 1, 2019.”
The Court respectfully disagrees with Plaintiff. There is no language providing for revival; Code Civ. Proc. § 340.16(c)(1) simply provides for prospective application.
But, even assuming the statute is ambiguous, canons of construction and legislative history indicate there is no revival.
For one thing, the statute contemplates revival for some claims against student physicians (Code Civ. Proc. § 340.16(c)(2)), but does not do so for other claims. That is, had the legislature intended for all sexual battery claims to be revived, it would have included this language.
Plaintiff points to legislative history indicating an intent to revive claims. (USC’s Request for Judicial Notice (“RJN”), Exhibit B.) However, this is an early senate committee report. It was later indicated that the revival provision should be stricken due to cost concerns. (RJN, Exhibit C [“Author Amendments: Strike retroactivity provision.”].) Further, an early draft of the statute included a revival provision which was subsequently stricken. (Cf. RJN, Exhibit E with Exhibit F.)
Because Code Civ. Proc. § 340.16 does not apply to lapsed claims, it does not apply to Plaintiff’s claims here.
Plaintiff also argues equitable tolling applies because she made a complaint to USC and “USC delayed until 2018 before finishing the investigation. . . . Plaintiff filed the suit in 2019, less than two years after the final results of the investigation were provided.”
However, the Complaint seems to indicate that Plaintiff actually pursued a remedy with USC only between September 2016 and April 2018. (Compl. ¶¶ 23, 26.) This is only 20 months when Plaintiff needs approximately 24 months of tolling to the extent her claims were time-barred (at the latest) by November 14, 2017, but the Complaint was filed on November 7, 2019.
Because Plaintiff’s causes of action are time-barred under Code Civ. Proc. §§ 340.15 335.1, the Demurrer is sustained. Leave to amend is to be argued.
 The RJN is granted.
 The Complaint states Plaintiff met with a USC representative in January 2015 but was told there was nothing USC could do. (Compl. ¶ 19.) Plaintiff reinitiated her pursuits with USC in September 2016. (Compl. ¶ 23.)
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