DEPARTMENT 58 LAW AND MOTION RULINGS

Effective 2-1-16, Judge Treu is assigned to Dept. 59, Family Law.

Case Number: 20STCV01890 Hearing Date: January 25, 2021 Dept: 58

J J P. D

D 58

Hearing Date: January 25, 2021

Case Name: Butler, et al. v. Stage 29 Productions, LLC, et al.

Case No.: 20STCV01890

Matter: Anti-SLAPP Motion

Moving Party: Defendant Stage 29 Productions, LLC

Responding Party: Plaintiffs Jenelle Butler and Crezdon Butler

Tentative Ruling: The Motion is denied.

On January 15, 2020, Plaintiffs Jenelle Butler and Crezdon Butler filed the operative Complaint for (1) negligent
selection, (2) negligent breach of voluntary undertaking, and (3) loss of consortium. The principal allegations of
the Complaint are as follows. Defendants Stage 29 Productions, LLC, Stage 29 Media Productions, Inc., Stage
29 Entertainment Group, LLC, and Stage 29 Media Productions, LLC negligently selected a physician on their
television show for the purposes of potentially removing silicon fillings from Plaintiff Jenelle Butler’s buttocks.
This physician subsequently committed malpractice in that Jenelle Butler’s surgery resulted in severe necrosis,
bleeding, and disfigurement.

On February 3, 2020, Defendant Stage 29 Productions, LLC filed an anti-SLAPP motion seeking to strike the
entirety of the Complaint.

The Motion is denied as premature for the reasons stated in the Court’s November 13, 2020, order. (Code Civ.
Proc. § 425.16(f).) The Court found the supplemental briefing on this issue to be excellent; however, the Court
will ultimately maintain its ruling. The objections are overruled.
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 58

20STCV01890 November 13, 2020

JENELLE BUTLER, et al. vs STAGE 29 PRODUCTIONS, 10:15 AM
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, et
al.

Judge: Honorable John P. Doyle CSR: Ermelinda Hernandez, CSR #12257

(Telephonic)
Judicial Assistant: M.F. Lopez ERM: None
Courtroom Assistant: R.E. Lee Deputy Sheriff: None

APPEARANCES:
For Plaintiff(s): Christopher Paul Ridout, Esq. (Video); Stephen F. Rosenthal (Video); &
Kristina M. Infante (Video)
For Defendant(s): Kelli Lee Sager (Video)

NATURE OF PROCEEDINGS: Hearing on Plaintiffs' The Motion to Lift Stay of Discovery

(filed on 3/13/2020 - reservation #809127611097)

Pursuant to Government Code sections 68086, 70044, and California Rule of Court, rule 2.956,
Ermelinda Hernandez (CSR #12257), certified shorthand reporter is appointed as an official
Court reporter pro tempore in these proceedings, and is ordered to comply with the terms of the
Court Reporter Agreement. The Order is signed and filed this date.

The matter is called for hearing.

Hearing on Plaintiffs' The Motion to Lift Stay of Discovery is held.

The Court gives the following tentative ruling:

The Motion to Lift Stay of Discovery is denied.

On January 15, 2020, Plaintiffs Jenelle Butler and Crezdon Butler filed the operative Complaint
for (1) negligent selection, (2) negligent breach of voluntary undertaking, and (3) loss of
consortium. The principal allegations of the Complaint are as follows. Defendants Stage 29
Productions, LLC, Stage 29 Media Productions, Inc., Stage 29 Entertainment Group, LLC, and
Stage 29 Media Productions, LLC negligently selected a physician on their television show for
the purposes of potentially removing silicon fillings from Plaintiff Jenelle Butler’s buttocks. This

Minute Order Page 1 of 5

 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 58

20STCV01890 November 13, 2020

JENELLE BUTLER, et al. vs STAGE 29 PRODUCTIONS, 10:15 AM
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, et
al.

Judge: Honorable John P. Doyle CSR: Ermelinda Hernandez, CSR #12257

(Telephonic)
Judicial Assistant: M.F. Lopez ERM: None
Courtroom Assistant: R.E. Lee Deputy Sheriff: None

physician subsequently committed malpractice in that Jenelle Butler’s surgery resulted in severe
necrosis, bleeding, and disfigurement.

On February 3, 2020, Defendant Stage 29 Productions, LLC filed an anti-SLAPP motion seeking
to strike the entirety of the Complaint.

Plaintiffs now seek to lift the stay of discovery in this action with respect to Defendant State 29
Productions, LLC in order to conduct limited discovery. Specifically, Plaintiffs seek discovery as
to the following evidence.

(1) the evidentiary foundation of documents and emails that Stage 29 has already produced to
Plaintiffs in a parallel Florida lawsuit (“the Florida Action”), if Stage 29 contests their
competence for purposes of the adjudication of the Special Motion to Strike;
(2) the evidentiary foundation of documents and emails produced to Plaintiffs in the Florida
Action by a non-party, AHPR, Inc., pursuant to duly issued subpoena, if Stage 29 contests their
competence for purposes of the adjudication of the Special Motion to Strike; and
(3) a deposition of the Stage 29 employee whom Stage 29 contends handed Jenelle Butler the
blank “Gift Release” form Stage 29 filed as Exhibit I in its Compendium of Evidence (see Decl.
de Michele, ¶ 10), or, if Stage 29 cannot identify that person, a corporate representative with
knowledge of (a) the specific practices Stage 29 took regarding the signing and storage of
releases in October 2017, and (b) the specific search that Stage 29 claims to have performed to
locate the gift acknowledgement form for Mrs. Butler.

(Notice of Motion at p. 2)

Code Civ. Proc. § 425.16(g) provides,

All discovery proceedings in the action shall be stayed upon the filing of a notice of motion
made pursuant to this section. ?The stay of discovery shall remain in effect until notice of entry
of the order ruling on the motion. ?The court, on noticed motion and for good cause shown, may
order that specified discovery be conducted notwithstanding this subdivision.

In order to establish “good cause” within the meaning of Code Civ. Proc. § 425.16(g), the
plaintiff must show that “a defendant or a witness possesses evidence needed by the plaintiff to
establish its probability of prevailing on a claim.” (1-800 Contacts, Inc. v. Steinberg (2003) 107
Minute Order Page 2 of 5
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 58

20STCV01890 November 13, 2020

JENELLE BUTLER, et al. vs STAGE 29 PRODUCTIONS, 10:15 AM
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, et
al.

Judge: Honorable John P. Doyle CSR: Ermelinda Hernandez, CSR #12257

(Telephonic)
Judicial Assistant: M.F. Lopez ERM: None
Courtroom Assistant: R.E. Lee Deputy Sheriff: None

Cal.App.4th 568, 572). Whether good cause has been shown is within the discretion of the Court.
(See Lafayette Morehouse, Inc. v. Chronicle Publ'g Co. (1995) 37 Cal.App.4th 855, 868.)

Here, good cause has not been shown for the subject discovery. This is because the subject
discovery is unnecessary as the anti-SLAPP motion of Defendant Stage 29 Productions, LLC is
premature.

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.”

As the anti-SLAPP motion was filed before service of the Complaint, it was not filed within the
time allotted by Code Civ. Proc. § 425.16(f).

Within its opposition to Plaintiffs’ prior motion to stay this action and its reply brief for its anti-
SLAPP motion, Defendant argues the anti-SLAPP motion is timely because (1) this Court
already ruled such on October 5, 2020, in connection with Plaintiffs’ motion to stay this action;
(2) Code Civ. Proc. § 425.16(f) does not create a jurisdictional deadline; and (3) Defendant’s
general appearance is equivalent to service of the Complaint.

As to Defendant’s first argument, notwithstanding the Court’s oral comments at the October 5,
2020, hearing in connection with Plaintiffs’ motion to stay, the Court’s written ruling explicitly
left open the issue as to whether Defendant’s anti-SLAPP motion is premature. But in any case,
the Court has inherent authority to reconsider its own rulings. (See, e.g., Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1109.)

Next, Defendant cites Lam v. Ngo (2011) 91 Cal.App.4th 832, 840, to argue that “the 60-day
time period set forth in subdivision (f) of section 425.16 is not jurisdictional.” However, this
discussion in Lam was provided to indicate that courts have discretion to hear an anti-SLAPP
motion after the sixty-day period set forth in Code Civ. Proc. § 425.16(f). (Lam, supra, 91
Cal.App.4th at p. 840 [“The trial court has the legal authority to allow the filing of an anti-
SLAPP suit motion to strike ‘at any later time [after ”60 days of the service of the complaint“]
upon terms it deems proper.’ ”].)

Contrary to Defendant’s arguments, “[t]he 60–day period commences with the service of the
Minute Order Page 3 of 5
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 58

20STCV01890 November 13, 2020

JENELLE BUTLER, et al. vs STAGE 29 PRODUCTIONS, 10:15 AM
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, et
al.

Judge: Honorable John P. Doyle CSR: Ermelinda Hernandez, CSR #12257

(Telephonic)
Judicial Assistant: M.F. Lopez ERM: None
Courtroom Assistant: R.E. Lee Deputy Sheriff: None

most recent complaint or amended complaint in the action.” (Olsen v. Harbison (2005) 134
Cal.App.4th 278, 283 (emphasis added).)

Defendant argues that it made a general appearance by filing an anti-SLAPP motion and cites
Code Civ. Proc. § 410.50(a) which provides that a “general appearance by a party is equivalent
to personal service of summons on such party.”

There are two problems with this argument. First, it conflates the imposition of personal
jurisdiction with the time period in which an anti-SLAPP motion can be filed. Indeed, the first
sentence of Code Civ. Proc. § 410.50(a) states, “Except as otherwise provided by statute, the
court in which an action is pending has jurisdiction over a party from the time summons is
served on him as provided by Chapter 4 (commencing with Section 413.10 ).” (Code Civ. Proc. §
410.50(a) (emphasis added).)

Second, this argument contravenes the plain language of Code Civ. Proc. § 425.16(f) which
identifies “service of the complaint” as the relevant date for commencing the 60–day period for
filing a special motion to strike. This is critical as Code Civ. Proc. § 410.50 merely provides that
a general appearance is equivalent to service of “summons.” (Code Civ. Proc. § 410.50(a)
(emphasis added).)

In sum, because Defendant’s anti-SLAPP motion is premature, there is no need for the requested
discovery at this juncture. Accordingly, the Motion is denied.

The Court hears oral argument and the Court's tentative becomes the ruling of the Court.

The plaintiffs' Motion for Leave Plaintiffs' Notice of Motion and Motion for Leave to Conduct
Discovery in Support of Plaintiffs' Opposition to Defendant's Special Motion to Strike filed by
Jenelle Butler, Crezdon Butler on 03/13/2020 is Denied.

The Court allows plaintiff's counsel, Stephen F. Rosenthal, to submit a supplemental brief for
reconsideration of the Court's ruling on the Motion to Lift Stay of Discovery. Both sides may file
supplemental briefs 12/21/2020 and responsive brief shall be filed by 01/11/2021. The matter
will be addressed at the next hearing, concurrently with the Motion to Strike, on 01/25/2021.

On the Court's own motion, the Hearing on Special Motion to Strike under CCP Section 425.16
Minute Order Page 4 of 5
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 58

20STCV01890 November 13, 2020

JENELLE BUTLER, et al. vs STAGE 29 PRODUCTIONS, 10:15 AM
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, et
al.

Judge: Honorable John P. Doyle CSR: Ermelinda Hernandez, CSR #12257

(Telephonic)
Judicial Assistant: M.F. Lopez ERM: None
Courtroom Assistant: R.E. Lee Deputy Sheriff: None

(Anti-SLAPP motion) (filed on 02/03/2020 - reservation #529336306510) scheduled for

01/25/2021, and Case Management Conference scheduled for 01/25/2021 are advanced to this
date and continued to 01/25/2021 at 10:15 AM in Department 58 at Stanley Mosk Courthouse.

Notice is waived.

Minute Order Page 5 of 5

 1

2 PROOF OF SERVICE
3
I am employed in the County of Los Angeles, State of California. I am over the age
4 of 18 and not a party to the within action. My business address is Davis Wright Tremaine,
LLP, Suite 2400, 865 South Figueroa Street, Los Angeles, California 90017-2566.
5
On January 25, 2021, I served the following document(s):
6
NOTICE OF RULING ON DEFENDANT STAGE 29
7 PRODUCTIONS, LLC’S SPECIAL MOTION TO STRIKE
(C.C.P. § 425.16)
8

9 by causing the documents listed above to be sent electronically through First Legal, e-filing
system’s electronic e-service system to the persons at the e-mail addresses stated in the below
10 referenced service list.

11 Christopher P. Ridout, Esq. Stephen F. Rosenthal Esq.

12 Christopher.ridout@zimmreed.com SRosenthal@podhurst.com
Zimmerman Reed, LLP Kristina Infante, Esq.
13 2381 Rosecrans Avenue, Suite 328 KInfante@podhurst.com
Manhattan Beach, CA 90245 Christina H. Martinez
14 CMartinez@podhurst.com
Podhurst Orseck, P.A.
15 One S.E. Third Avenue, Suite 2300
16 Miami, Florida 33131

17
I declare under penalty of perjury, under the laws of the State of California, that the
18 foregoing is true and correct.

19 Executed on January 25, 2021, at Los Angeles, California.

20 Vicky Isensee /s/ Vicky Isensee

Print Name Signature
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DAVIS WRIGHT TREMAINE LLP

865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
NOTICE OF RULING (213) 633-6800
Fax: (213) 633-6899