Scott v. Sado CA2/5 ( 2022 )

Filed 9/21/22 Scott v. Sado CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ZELIA SCOTT, B313037
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 19STCV31941)
v.
PAUL SADO,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Patricia Nieto, Judge. Affirmed.
L.A. Superlawyers and William W. Bloch for Plaintiff and
Appellant.
Enenstein Pham & Glass and Teri T. Pham for Defendant
and Respondent.
________________________
Aspiring actress Zelia Scott contends that she was sexually
assaulted by producer Paul Sado, an assertion Sado denies.
Before any litigation was filed, Scott self-published an account of
the assault on a public website. Thereafter, Scott sued Sado for
assault, and Sado sued Scott for defamation. After the actions
were consolidated, Scott filed a motion to strike Sado’s
defamation complaint under the anti-SLAPP statute (Code Civ.
Proc., § 425.16). She argued: (1) that her article was speech on
an issue of public interest; and (2) Sado had no probability of
prevailing because her article was protected by the absolute
litigation privilege of Civil Code section 47, subdivision (b), as a
communication related to the assault litigation she had planned
to file. The trial court denied the motion, agreeing that the
article constituted speech on an issue of public interest, but
disagreeing that the absolute litigation privilege applied. Scott
appeals, arguing only that her article is protected by the absolute
litigation privilege. We conclude that the court did not err.
Scott’s article was directed to the general public and not limited
to individuals with a substantial interest in the outcome of her
contemplated assault litigation, which took it outside the scope of
the privilege. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Disputed Attack
This much is undisputed. Scott and Sado met in May 2018
and had a brief relationship involving consensual sexual activity.
In the early hours of July 16, 2018, Scott was at Sado’s home and
the two were “making out.” Here, the parties’ accounts diverge.
Scott claims that Sado violently grabbed her neck and began to
strangle her; she nearly lost consciousness; and by the time he
finally released her, her neck and chest were red and swollen, her
2
tooth was chipped, and she had suffered trauma to her larynx
and temporomandibular joint. Sado claims the encounter was
entirely consensual and Scott simply pulled away, cursing at him,
and would not explain why she left.1
Scott made a police report, and told the detective that she
wanted Sado prosecuted. The detective told Scott that she would
speak to the District Attorney, but no charges were filed.
2. Scott’s Allegedly Defamatory Article
On July 16, 2019, exactly one year after the alleged attack,
Scott wrote an article on the website, Medium, entitled “Paul
Sado Assaulted Me.” The Medium website is available for the
public to read for free.
Scott’s article is lengthy. It recounts, in detail, Scott’s
version of meeting Sado, the assault, and its aftermath. She
explained the physical problems and depression which continued
after the alleged attack. She complained about the District
Attorney’s inaction.2 She claimed, at length, that Sado continued
to post on his own social media accounts comments purporting to
support the “Me Too” movement and women who have been
assaulted by sexual predators. Scott wrote, “All of it is a facade.
As if by virtue signaling loudly enough, no one will hear the
sobbing and pleading of his victims.”
Her article ended with the following paragraphs: “I’ve
obviously been very reticent to share my story. Who wants to be
1 We express no opinion on the merits of Scott’s claim.
2 Scott wrote, “It is infuriating to know that you can do
everything right, and yet pieces of shit like Paul will likely walk
away with not even a slap on the wrist, thanks to prosecutors
who are more concerned with appearing to have high conviction
rates than actually putting in the work to fight for justice.”
3
known for something like this? [¶] But I’m telling my story
because I know the kind ER nurses and police officers were right
when they said I should come forward because ‘If he’s done this to
you, he’s likely done it before, and will likely do it to others.’ I
want people to know not only about Paul, but to watch out for
people like Paul, who try to paint themselves as champions for
noble causes, when in reality, they are just as bad as those that
they’re decrying. [¶] Paul Sado assaulted, strangled and
nearly killed me, and I want everyone to know. [¶] I don’t
care if that means I never work in this town again. This is what
happened and people need to know that it’s not just the ‘big shots’
that do this type of thing and get away with it. It’s also the coat
tail riding ‘nobodies’ who do it too.” (Emphasis original.)
Scott then shared the article on her own social media
(Twitter, Instagram, and Facebook) accounts. When she shared
the article on Facebook, she added, “Since sharing my story on
twitter about being assaulted by Paul Sado, I’ve had a few people
reach out and tell me there are other women who have had bad
experiences with him. If you know Paul, or have worked with
him, or might know a woman who needs to see this, please share.
I don’t want him to hurt anyone else, and if there are other
victims, I hope they feel empowered to share their story. I almost
didn’t survive to share mine. #metoo #paulsado #hollywood”
While Scott’s Facebook post asked for other victims to step
forward, her original Medium article did not.
4
3. The Cross-Actions
On September 6, 2019, nearly two months after publishing
her article, Scott filed suit against Sado.3 She alleged causes of
action for intentional infliction of emotional distress, assault,
battery, sexual battery, violation of the Ralph Civil Rights Act
(Civ. Code, § 51.7), and gender violence (Civ. Code, § 52.4).
More than a year later, on September 29, 2020, Sado filed
his suit against Scott, alleging a single cause of action for
defamation per se. Sado charged as defamatory both the Medium
article and Scott’s republications of it on social media.4
By stipulation, the two cases were consolidated.
4. Scott’s Anti-SLAPP Motion
“An anti-SLAPP motion presents a means by which a
defendant, sued for conduct in furtherance of the constitutional
right of petition or free speech, can place the burden on a plaintiff
to establish that there is a probability of prevailing on the claim
3 In the trial court’s tentative, which ultimately became its
ruling, the court stated Scott’s article was published “months
prior” to the litigation. Scott challenged this characterization at
the hearing, claiming the time period was only “seven weeks.”
The distinction is immaterial; the court was merely rounding.
4 Sado also alleged, on information and belief, that Scott had
forwarded the article “and other false statements” in emails to
“various contacts and business affiliates” of Sado. Sado offered as
evidence an email apparently sent pseudonymously to someone at
a talent agency, claiming that Sado “violently strangled a
Hollywood actress” on July 16, 2018. In connection with her anti-
SLAPP motion, Scott successfully objected to the evidence of this
e-mail. Sado does not challenge the evidentiary ruling. We do
not consider the e-mail on the merits of the appeal, and mention
it only to further explain the allegations of Sado’s complaint.
5
or face early dismissal of the action. (Code Civ. Proc., § 425.16,
subd. (b)(1).) If the defendant first establishes a prima facie
showing that a claim is based on so-called ‘protected activity,’ the
burden switches to the plaintiff to establish the lawsuit has at
least minimal merit. [Citation.]” (Ratcliff v. Roman Catholic
Archbishop of Los Angeles (2022) 79 Cal.App.5th 982, 997.)
The anti-SLAPP statute itemizes four types of protected
activity: “(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, subd. (e).)
Scott argued that she satisfied her burden to show that
Sado’s defamation complaint arose from activity protected by the
anti-SLAPP statute in two ways. First, she claimed her article
was prelitigation conduct in anticipation of litigation, protected
under subdivisions (e)(1) and (e)(2). Second, she claimed it was
speech on a public forum in connection with an issue of public
interest, protected under (e)(3). The trial court would ultimately
agree with her on the latter argument. Although Sado challenges
this determination in his respondent’s brief, we conclude it is
unnecessary to consider it. We therefore assume, without
deciding, that Scott satisfied her burden to establish the
6
defamation cause of action arose from protected speech on a
public forum in connection with an issue of public interest.5
Once a movant on an anti-SLAPP motion establishes the
action arises from protected speech, the burden shifts to the
plaintiff to demonstrate the merits of the claim by establishing a
probability of success. (Dickinson v. Cosby (2017) 17 Cal.App.5th
655, 666.) Here, Scott sought to argue that Sado could not
establish a probability of success, because her statements about
him were protected by the absolute litigation privilege of Civil
Code section 47, subdivision (b).6
5 On July 29, 2021, our Supreme Court issued Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995. In Bonni, the court
held that “[a]nalysis of an anti-SLAPP motion is not confined to
evaluating whether an entire cause of action, as pleaded by the
plaintiff, arises from protected activity or has merit. Instead,
courts should analyze each claim for relief – each act or set of acts
supplying a basis for relief, of which there may be several in a
single pleaded cause of action – to determine whether the acts
are protected and, if so, whether the claim they give rise to has
the requisite degree of merit to survive the motion. [Citation.]”
(Id. at p. 1010.) Although the Bonni opinion predates Scott’s
October 28, 2021 opening brief by several months, Scott makes no
attempt to argue each individual publication (Medium, Facebook,
Twitter) should be treated separately. To the contrary, she
suggests that if the Facebook post alone is protected, the entire
complaint should be stricken. That argument is precluded by
Bonni.
6 She also argued that the statements were protected by the
common interest privilege. Although Scott mentions the common
interest privilege in passing in her briefing on appeal, her
arguments are limited to the litigation privilege.
7
As the allegedly defamatory statements published in Scott’s
Medium article predated her complaint against Sado, Scott
argued that they were protected by the litigation privilege as pre-
litigation conduct. She submitted a declaration explaining that
she wrote the Medium article for a number of reasons – some of
which were litigation-related. Specifically, she declared that she
wrote the article because: (1) she wanted to make her “voice
heard”; (2) she wanted to alert others about Sado, but also to be
wary of other “predators in the entertainment industry,” who
claim to be champions of women but in reality “are monsters and
threats to women at large”; (3) she hoped that “other victims
would come forward and provide witness testimony to Sado’s past
assaults,” which would make “the complaint [she] planned to file
against Sado . . . that much stronger”; and (4) she thought that by
going public, it would encourage the District Attorney to fully
investigate her complaint and eventually charge Sado. Scott
explained that she chose Medium in particular because it would
“maximize the chance that my article would reach the target
audience, both who I wanted to warn and whom I hoped would be
witnesses against him.”
5. Sado’s Opposition
As we have discussed, we are limiting our discussion to the
second prong of the anti-SLAPP analysis: whether Sado
established a probability of success on his defamation cause of
action. On that point, Sado submitted his own declaration,
stating that Scott’s Medium article is “entirely untrue. I did not
assault, strangle or choke Ms. Scott.”
He argued that the litigation privilege does not apply,
because the privilege does not extend to publications to non-
8
participants in an action and particularly does not protect
litigating a case in the press.
6. Ruling and Appeal
After a hearing, the trial court denied the anti-SLAPP
motion. As to the second prong analysis, the court concluded that
Sado’s declaration was sufficient to establish a probability of
prevailing. “Accepting Sado’s version of the events on July 16,
2018 as true, Scott’s Blog Post and the social media posts
accusing Sado of assault and criminal conduct would be false and
would constitute defamation per se. . . . Accordingly, Sado has
established a prima facie case of defamation per se.”
The court then turned to the issue of the litigation
privilege, and concluded that it did not apply, in that there was
an insufficient nexus between the allegedly defamatory posts and
the litigation Scott eventually filed. Instead, the posts “are
statements published publicly on the internet to anyone, months
prior to the instant litigation.” The motion was therefore denied.7
Scott filed a timely notice of appeal.
DISCUSSION
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
7 Sado argued that Scott’s motion was frivolous, entitling
him to his attorney fees. (Code Civ. Proc., § 425.16, subd. (c)(1).)
The court did not find the motion frivolous, and therefore denied
Sado’s request for attorney fees. On appeal, Sado asks that we
remand “for a determination of attorneys’ fees to Code Civ. Proc.
§ 425.16(c)(1),” but makes no argument against the trial court’s
determination that Scott’s motion was not frivolous. We
therefore deny Sado’s request to remand for attorney fees.
9
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law. [Citation.]” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.)
Preliminarily, the trial court correctly concluded that,
barring the application of an absolute privilege, Sado’s
declaration is sufficient to establish a probability of prevailing.
The elements of a defamation claim are: (1) a publication that is
(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage. (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1259.) Sado stated the
article was false; and, if it was unprivileged, there is no dispute
that it was defamatory and had a natural tendency to injure him.
The issue then becomes whether the litigation privilege
applies. Civil Code section 47, subdivision (b) states that a
privileged publication is one made in any judicial proceeding.
“ ‘The litigation privilege precludes liability arising from a
publication or broadcast made in a judicial proceeding or other
official proceeding. “ ‘The usual formulation is that the privilege
applies to any communication (1) made in judicial or quasi-
judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the action.’
[Citation.] The privilege ‘is not limited to statements made
during a trial or other proceedings, but may extend to steps taken
prior thereto, or afterwards.’ [Citation.]” [Citation.]’ [Citation.]”
(Trapp v. Naiman (2013) 218 Cal.App.4th 113, 121.)
10
While this formulation does not expressly place any
limitations on the people to whom a privileged litigation (or pre-
litigation) statement may be made, the law imposes one.8 The
privilege is not limited to publications made to parties to the
action, but has been expanded to include publications made to
nonparties with a substantial interest in the proceeding.
(GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141,
152 (GetFugu).) The theory is that individuals who possess a
substantial interest in the pending litigation can be considered
participants. (Id. at p. 153.) “Notwithstanding the expansion of
the scope of the litigation privilege to extend to publication to
nonparties with a substantial interest in the proceeding, ‘the
expansion does not encompass publication to the general public
through the press. Such an expansion would swallow up the
general rule, which our Supreme Court . . . reaffirmed, that [the
litigation privilege] does not privilege “republications to
nonparticipants in the action. . . .” [Citation.]’ [Citation.]” (Ibid.)
The law is clear and well-established: the litigation
privilege does not apply to communications to the general public.
(Dickinson v. Cosby, supra, 17 Cal.App.5th at p. 681, fn. 11 [the
litigation privilege does not extend to press releases], Argentieri
v. Zuckerberg (2017) 8 Cal.App.5th 768, 783-784 [communications
to the general public through the press are not protected by the
litigation privilege]; Abuemeira v. Stephens (2016)
246 Cal.App.4th 1291, 1299 [privilege “does not apply to
publications to the general public through the press”]
8 As we discuss, the limitation can be understood as arising
out of the requirements that the communication must be made to
achieve the objects of the litigation and that it must have some
connection or logical relation to the action.
11
(Abuemeira); GetFugu, supra, 220 Cal.App.4th at pp. 153-154
[dissemination of statements to the general public is not
protected]; E.D.C. Techs., Inc. v. Seildel (N.D. Cal. 2016)
225 F.Supp.3d 1058, 1067-1068 [privilege “stops short of
protecting statements made to the general public”].)
The reason for this rule is explained in Abuemeira, supra,
246 Cal.App.4th at page 1299: “The principal purpose of the
litigation privilege is to afford litigants and witnesses the utmost
freedom of access to the courts without fear of litigation reprisal.
[Citation.] Republications to nonparticipants in the action are
not privileged and are actionable unless privileged on some other
basis. [Citation.] Thus, the litigation privilege does not apply to
publications to the general public through the press. [Citation.]
‘[L]itigating in the press’ does not serve the purpose of the
privilege; it serves no purpose other than to provide immunity to
those who would inflict damage upon the judiciary. [Citations.]”
Scott argues, however, that the above-cited cases do not
exclude statements to the public from the privilege, but merely
establish a limited exception to the privilege for press releases
and statements at press conferences. This misapprehends the
factual scenarios addressed in the caselaw, as well as the
rationale for the rule. As to the first, direct statements to the
public, not merely public statements through the press, are
barred from the scope of the privilege. (See GetFugu, supra,
220 Cal.App.4th at pp. 146, 153-154 [holding that not only was a
press release outside the scope of the privilege, a tweet the
defendant directly made on the internet was outside its scope as
well].) As to the second, the reason press releases are
unprotected is not because they are statements made to the
press, but because the press acts as an intermediary for the
12
public. The harm is in the ultimate publication to individuals
without a substantial interest in the litigation. (Abuemeira,
supra, 246 Cal.App.4th at p. 1299 [the focus is on the
nonparticipant “recipients” of the speech; statements “to the
general public through the Internet and the media are not
protected”].)
Here, Scott posted her article in Medium to reach a wide
audience in the general public. One of her conceded reasons for
writing it was for people “to know” about Sado. Indeed, she wrote
in the article, in bold type, that Sado attacked her “and I want
everyone to know.” Scott now asserts that one of the purposes
of her article was to find additional witnesses for her anticipated
civil case, who would have a substantial interest in the
proceeding and qualify as participants. While this is factually
disputable, as the article itself made no reference to that purpose,
it makes no difference even if it were true. Obtaining witnesses
was not Scott’s only purpose and the article was in no way
limited to an audience of potential witnesses.9 It cannot be
disputed that another of her purposes was to tell the widest
possible audience what she believed Sado had done to her, in
order to protect women from Sado and other men like him. If her
allegations are true, her goal was laudable. But her publication
to the world was not protected by the litigation privilege.
9 We note that in the GetFugu case, the challenged press
release ended with the lines, “Investigate leads may be sent to
[email address]. All tips will be held in the strictest of
confidence.” (GetFugu, supra, 220 Cal.App.4th at p. 146.) The
court nonetheless held the press release was unprivileged
because it was “posted on the Internet and thus released
worldwide.” (Id. at pp. 153-154.)
13
DISPOSITION
The denial of Scott’s anti-SLAPP motion is affirmed. Scott
shall pay Sado’s costs on appeal.
RUBIN, P. J.
I CONCUR:
MOOR, J.
14
Zelia Scott v. Paul Sado
B313037
BAKER, J., Concurring
I agree the trial court’s order should be affirmed based on
how counsel for Zelia Scott (Scott) has framed the issues to be
decided on appeal. Specifically, counsel for Scott argues only that
his client’s Medium post is protected by the litigation privilege
and does not separately contend Paul Sado’s (Sado’s) defamation
claim against Scott lacks minimal merit. There is accordingly no
occasion to decide now whether Sado is a limited public figure for
purposes of this dispute (see generally Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569, 1577) or whether the available
evidence (including Sado’s “I’m sorry” admission in response to
Scott’s text message informing him that “[t]hings haven’t been
quite right since the night you choked me out”) undercuts Sado’s
claim that Scott falsely accused him of strangling her. Instead,
we are called to resolve only the litigation privilege question, and
as to that, I agree the majority correctly concludes the privilege
has no application here.
BAKER, J.