BRETT O’BRIEN, et al.,

Plaintiffs,

vs.

JOHN GOULD, et al.,

Defendants.

Case No.: 20STCV19892
Hearing Date: February 9, 2021
Hearing Time: 2:00 p.m.
[TENTATIVE] ORDER RE: 

 

(1)   MOTION OF DEFENDANTS TO STRIKE PURSUANT TO CCP § 425.16 AND

(2)   PLAINTIFFS’ EX PARTE APPLICATION TO STRIKE DEFENDANTS’ NEW ARGUMENT AND EVIDENCE OR, ALTERNATIVELY, FOR LEAVE TO FILE A SUR-REPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PURSUANT TO CCP §425.16

 

 

            Motion of Defendants to Strike

Defendants John Gould (“Gould”), Sylvia A. Gould (“Sylvia Gould”), and John Thomas Gould (“JT Gould”) (collectively, “Defendants”) move to strike the First Amended Complaint (“FAC”) of Plaintiffs Brett O’Brien (“Mr. O’Brien”) and Karen Murphy O’Brien (“Mrs. O’Brien”) (jointly, “Plaintiffs”) pursuant to Code of Civil Procedure section 425.16.

The Court notes that Defendants have collectively interposed more than 150 evidentiary objections. Due to the voluminous evidentiary objections that were filed, the hearing on this motion will be set at the Hearing on Objections discussed below.

The Court orders the parties to meet and confer by telephone or in person in a serious and good faith effort to resolve and eliminate the objections. The only objections that should remain are those that pertain to material evidence regarding material issues. Keeping the rules of evidence in mind, the parties should be able to reduce the objections to just a few. If any material objections remain unresolved, the parties are to set them forth in a joint statement with the text, the objection, and the argument of each side in favor of their respective positions regarding the remaining material objections.

The joint statement must be filed with a courtesy copy directly in Department 50 by _________, 2021. The Court will review any remaining objections with the parties at a hearing on _____________, 2021 at __________ (the “Hearing on Objections”). The Court will reset the hearing on the anti-SLAPP motion at the Hearing on Objections.

If necessary, based upon the resolutions reached during the meet and confer process and/or at the Hearing on Objections, the parties may respectively file and serve revised briefing and evidence. The revised evidence may eliminate objectionable material; however, no new evidence or new argument is to be submitted unless it is as a result of compromises reached during the meet and confer process. In the event that revised briefing and evidence is necessary, the Court will discuss with the parties a briefing schedule for the revised briefing at the Hearing on Objections.

            Plaintiff’s’ Ex Parte Application

The Court does not find that the “new” evidence shouldn’t be stricken. The evidence at issue appears to be rebuttal evidence, and Defendants are correct that the burden on prong 2 is on the opposing party (Plaintiffs), so Defendants may submit “new” evidence in reply that rebuts the Plaintiffs’ prong 2 arguments.

With regard to a sur-reply, the Court does not find that Plaintiffs are entitled to a sur-reply. The burden was always on Plaintiffs to establish the likelihood of success on the merits irrespective of Defendants’ argument with regard to prong 2 in their moving papers.

“[P]laintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) Even though Defendants focused solely on the litigation privilege in their moving papers, Plaintiffs had the burden in their opposition to establish each element of their causes of action, in addition to showing why the litigation privilege doesn’t apply. If Plaintiffs did not accomplish all of that, the fault will not be Defendants’ fault.  For these reasons, the Ex Parte Application is denied.

Defendants are ordered to give notice of this Order.