GARY G. KREEP – SBN
066482
D. COLETTE WILSON –
SBN 123112
UNITED STATES JUSTICE
FOUNDATION
932 “D” Street, Suite
3
Ramona, California
92065
tel: (760) 788-6624
fax: (760) 788-6414
Attorneys for
Plaintiff
PETER F. PAUL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – CENTRAL DIVISION
IN A MATTER OF UNLIMITED JURISDICTION
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PETER
F. PAUL,
Plaintiff, v. WILLIAM
JEFFERSON CLINTON, HILLARY RODHAM CLINTON, HILLARY RODHAM CLINTON FOR U.S.
SENATE COMMITTEE, INC., NEW YORK SENATE 2000, DAVID ROSEN, GARY SMITH, JAMES
LEVIN, and AARON TONKEN, Defendants. |
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Case
No. BC304174 NOTICE
OF MOTION AND MOTION FOR: (1) LEAVE
TO DEPOSE DEFENDANT HILLARY RODHAM CLINTON RE SPECIAL MOTION TO STRIKE
(ANTI-SLAPP) (C.C.P. § 425.16) and (2) CONTINUANCE
OF DEFENDANTS’ ANTI-SLAPP MOTION DECLARATION
OF D. COLETTE WILSON AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
THEREOF DATE: March 10, 2006 TIME: 8:30 DEPT: 47 The
Honorable Aurelio N. Munoz Original
Complaint Filed: 10-14-03 1st
Amended Cplt. Filed: 2-27-04 Discovery
Cut-Off: None Trial
Date: None |
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TO
ALL DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
PLEASE
TAKE NOTICE that, on March 10, 2006, at 8:30 a.m., or as soon thereafter as the
matter can be heard, in Department 47 of the above-entitled court, located at
111 N. Hill St., Los Angeles, California 90012, plaintiff Peter Paul (“PAUL”)
will move the Court, pursuant to Code of Civil Procedure (“C.C.P.”) Section
425.16(g):
(1) For
an order lifting the automatic stay imposed by that statute – and additionally
imposed by this Court’s order dated September 23, 2004 – for the limited
purpose of permitting PAUL to depose defendant Hillary Rodham Clinton (“HRC”),
and
(2) For
an order continuing the hearing on the defendants’ Anti-SLAPP motion until
sixty days after the deposition of HRC has been completed.
This
motion is made on the ground that good cause exists under Section 425.16(g) for
the deposition because (a) defendant HRC is the key witness in this case as to
defendants HRC and Hillary Rodham Clinton for U.S. Senate Committee, Inc.
(“COMMITTEE”) and (b) HRC has information that will assist PAUL in preparing
his opposition to defendants HRC’s and COMMITTEE’s special “Anti-SLAPP” motion
to strike under C.C.P. § 425.16. Good
cause exists for continuing the Anti-SLAPP motion in order to protect PAUL’s
due process rights in that C.C.P. § 425.16 requires a plaintiff to show a prima
facie case without permitting the collection of evidence needed to satisfy that
burden.
PAUL
is entitled to take the deposition to respond to the special motion to strike,
and defendants HRC and COMMITTEE will not be prejudiced. The discovery sought is limited -- a single
deposition. Furthermore, even if HRC’s
and COMMITTEE’s special “Anti-SLAPP” motion were to be granted, HRC will be subpoenaed to testify under oral deposition in
this case in any event. This is because
HRC is also a key witness in PAUL’s case as to the other defendants,
particularly William Jefferson Clinton.
Because
PAUL seeks HRC’s deposition solely for the purpose of responding to HRC’s and
COMMITTEE’s Anti-SLAPP motion, PAUL moves that the Court also order that the
deposition is without prejudice to PAUL’s right to depose HRC more fully later
in the case.
This
motion will be based on this notice of motion, the accompanying Declaration of
D. Colette Wilson, the accompanying Memorandum of Points and Authorities, and
on the entire record herein.
Dated: February 7, 2006 UNITED STATES JUSTICE
FOUNDATION
By: __________________________________ D. COLETTE
WILSON
Attorneys
for Plaintiff
DECLARATION
OF D. COLETTE WILSON
I,
D. COLETTE WILSON, declare:
1.
I am an attorney at law, licensed to practice
before all the courts of the state of
California, and I am co-counsel for
plaintiff PAUL herein. The following
facts are true of my own knowledge and, if called to testify to these facts, I
could and would competently testify as follows.
2.
The filing of HRC’s and COMMITTEE’s Anti-SLAPP
motion in this case on
July 22, 2004, triggered an automatic
stay of all discovery pursuant to C.C.P. § 425.16(g). On August 23, 2004, while HRC’s and COMMITTEE’s motion was
pending, defendants HRC, William Jefferson Clinton and COMMITTEE filed a Motion
for Protective Order and Ex Parte Application for Protective Order, requesting
a stay of all discovery. The Court
granted the Ex Parte Application, temporarily ordering a further stay of all
discovery. On September 23, 2004, the
Court granted the defendants’ motion, staying all discovery as to all parties
until 30 days after final resolution by HRC’s and COMMITTEE’s Anti-SLAPP motion
by the Supreme Court.
3.
On February 3, 2006, the Court ordered that it
would exercise its discretion and
accept HRC’s and COMMITTEE’s Anti-SLAPP
motion for filing. The Court thereupon
set the matter for a hearing on the merits on March 16, 2006, in Department
47. The Court’s September 23, 2004,
order staying all discovery remains in effect.
4.
By its discovery motion in this case, PAUL seeks
leave to depose HRC before
responding to the Anti-SLAPP motion. PAUL is entitled to this discovery because
HRC is a key witness, the Anti-SLAPP motion raises issues making HRC’s
deposition necessary for PAUL to prepare a proper defense to said motion. Defendants HRC and COMMITTEE will not be
prejudiced, as HRC is subject to deposition in any event as a third party
witness, even if she were to prevail on her Anti-SLAPP motion.
I
declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that I executed this declaration on
February 7, 2006, at Ramona, California.
______________________________________
D.
Colette Wilson
MEMORANDUM
OF POINTS AND AUTHORITIES
I.
Plaintiff Is Entitled to Limited Discovery
Under C.C.P. § 425.16(g)
Section
425.16(g) provides for an exception to the automatic stay of discovery. Specifically, upon “noticed motion and for
good cause shown,” a plaintiff is entitled to discovery that will help
establish his prima facie case. Sipple v. Foundation for Nat’l Progress,
71 Cal. App. 4th 226, 247, 83 Cal. Rptr. 2d 677, 690 (1999). Courts have routinely recognized that such
discovery may be necessary to protect a plaintiff’s due process rights, in that
section 425.16 requires a plaintiff to show a prima facie case without
permitting the collection of evidence needed to satisfy that burden. Schroeder
v. Irvine City Council, 97 Cal. App. 4thy 174, 190, 118 Cal. Rptr. 2d 330,
343 (2002). This is particularly true
where, as in this case, the “principal source of evidence critical to
establishing the prima facie case is in the possession of the defendant and not
available from other sources.” Id.
(citing Lafayette Morehouse, Inc. v.
Chronicle Publishing Co., 37 Cal. App. 4th 855, 868, 44 Cal.
Rptr. 2d 46 (1995)). In Lafayette Morehouse, the court held
that:
“[T]he trial court . .
. must liberally exercise its discretion by authorizing reasonable and
specified discovery timely petitioned for by a plaintiff . . . when evidence to
establish a prima facie case is reasonably shown to be held, or known, by
defendant or its agents and employees.”
Id. On proper application, a plaintiff “must be
given a reasonable opportunity to obtain . . . evidence through discovery
before the motion to strike is adjudicated.” Id. In this case, evidence
relating to PAUL’s prima facie case is “held or known” by HRC.
The
Fifth Cause of Action alleges that HRC and COMMITTEE “tacitly and/or expressly
agreed with Defendant William Jefferson Clinton (“WJC”) and James Levin
(“LEVIN”) to commit one or more of the unlawful acts referenced in the First
and Third Causes of Action[1],
above.” (First Amended Complaint, hereafter “FAC,” paragraph 143.) The First Cause of Action alleges fraud and
deceit against WJC and LEVIN. In particular, it alleges that WJC and LEVIN made
“false promises and representations to Plaintiff knowing that Defendant William
Jefferson Clinton had no intention of working with Plaintiff and his companies,
Stan Lee Media, Inc. and Mondo English, Inc., after leaving the White House in
January 2001.” (FAC paragraph 120) Furthermore, WJC and LEVIN, in making these
false promises and representations, “intended to deceive Plaintiff and intended
to induce Plaintiff to underwrite and serve as executive producer for the
Hollywood Tribute and to make substantial, additional contributions to the U.S.
Senate campaign of his wife, Defendant Hillary Rodham Clinton.” (FAC paragraph
121) HRC is the key source of the facts
regarding her knowledge of WJC’s and
LEVIN’s intentions with regard to PAUL and the allegations of the FAC.
The
Fourteenth Cause of Action alleges that HRC “tacitly and/or expressly agreed
with Defendant Gary Smith to commit one or more of the unlawful acts referenced
in the Eleventh and Thirteenth Causes of Action[2],
above.” (FAC, paragraph 199) The
Eleventh Cause of Action alleges that Defendant Gary Smith (“SMITH”) “falsely promised and represented to
Plaintiff on July 14, 2000 that he would accept an agreed-upon, ‘turn-key’ fee,
inclusive of all expenses, to produce the concert portion of the Hollywood
Tribute and an edited videotape of the concert,” but that he had no intention
of abiding by this agreement, and that PAUL was forced to pay SMITH more than
$80,000 over the agreed-upon amount. (FAC, paragraphs 180-184) HRC is the key source of the facts regarding
her dealings with SMITH and her knowledge of his actions in
producing the Hollywood Tribute at issue, particularly as they related to PAUL
and the allegations of the FAC.
According
to this Court’s Minute Order dated July 14, 2004, the Court granted defendant
David Rosen’s Anti-SLAPP motion, in part, because: “There is no direct evidence tying defendant Rosen (Rosen) to any
of the fraudulent acts that are alleged to have occurred.” Clearly, in order to establish a prima facie
case as to the same causes of action against HRC and COMMITTEE, PAUL must
provide evidence tying HRC and COMMITTEE to the alleged fraudulent acts of WJC,
LEVIN and SMITH.
II.
Good Cause Exists For
Granting This Motion
In
Garment Workers Ctr. v. Superior Court,
117 Cal. App. 4th 1156, 1162, 12 Cal. Rptr. 3d 506, 509 (2004), the
Second Appellate District set forth in detail the factors to be considered in
deciding whether good cause exists to grant a motion for limited
discovery. These factors include:
·
Whether evidence necessary to establish a prima
facie case is in the hands of the defendant or a third party;
·
Whether the information sought is otherwise
available from other sources or through informal discovery;
·
Whether, in the context of the issues raised in
the motion to strike, the complaint is legally sufficient, whether requested
discovery concerns relevant, contested issues, and whether any other issues
could preclude success for which discovery is not sought; and
·
The relative circumstances of the parties and
the importance of freezing discovery as protection for the defendant.
Id. These factors, applied to this case, weigh
heavily in favor of granting the limited discovery PAUL requests.
It
is clear that any direct evidence
relating to PAUL’s claims against HRC and COMMITTEE is most likely to be in the
exclusive knowledge of HRC. In a
directly comparable case, the court in Lafayette,
supra, recognized that discovery was critical in that instance, a libel
action, because the defendant “will generally be the principal, if not the
only, source of evidence concerning such matters as whether the defendant knew
the statement published was false and defamatory, or acted negligently in
failing to learn whether the matter published was false and defamatory.” Lafayette, supra, 37 Cal. App. 4th at 868 (cited with approval in Garment Workers Ctr., 117 Cal. App. 4th
at 1162). Here, only HRC is likely to
have information regarding her personal knowledge of WJC’s and LEVIN’s
intentions with regard to PAUL and the allegations of the FAC, and only HRC is
likely to have information regarding her personal knowledge of SMITH’s actions
in producing the Hollywood Tribute. And
this information – central to PAUL’s claims – will only be available to PAUL
through a deposition of HRC.
Moreover,
by overruling the Defendants’ demurrer as to the First, Fifth, Eleventh and
Fourteenth Causes of Action, the Court has already recognized those claims as
legally sufficient. The opportunity to
obtain evidence relating to those claims as they relate to HRC and COMMITTEE is
central to PAUL’s ability to establish a prima facie basis, and no other avenue
for discovery of this evidence is apparent.
HRC
and COMMITTEE will suffer no prejudice by HRC’s submitting to a deposition
limited to the issues necessary to establish PAUL’s prima facie case as to them
because, even if their Anti-SLAPP motion were to be granted, HRC would be
subject to deposition subpoena as a third party witness to testify in this case
in any event. This is because HRC’s
testimony is critical to PAUL’s case against the other defendants, particularly
WJC. Thus, granting this motion does
not subject HRC and COMMITTEE to any significant discovery burden.
III.
The Court Should Order That the
Deposition
of HRC Is Without Prejudice to PAUL’s
Right
To Further Depose HRC Later in the Case.
The
Code provides that parties generally may be deposed only once in a case, absent
leave of court. C.C.P. § 2025.610. The Code does not say anything about whether
a deposition under C.C.P. § 425.16(g) in connection with an Anti-SLAPP motion
counts as the one deposition as of right under section 2025.610.
PAUL
requests that the Court order that the deposition of HRC is without prejudice
to PAUL’s right to depose HRC again later in the case. PAUL anticipates that, for purposes of
responding to the Anti-SLAPP motion,
the deposition of HRC will be substantially shorter than were she to be deposed
for all purposes. Also, because of the
discovery stay, PAUL has not had the chance to request documents or propound
interrogatories before taking HRC’s deposition.
In
the interest of economy and expedition, PAUL should be allowed to pursue a
shorter deposition of HRC now, without prejudice to his right to depose HRC for
all purposes later in the case.
IV.
Good Cause Exists for Continuing
HRC’s and COMMITTEE’s Anti-SLAPP Motion
Good
cause exists for continuing the Anti-SLAPP motion to sixty days beyond the date
when HRC’s deposition is completed, because, otherwise, PAUL’s due-process
right to obtain evidence critical to establishing a prima facie case as to HRC
and COMMITTEE will be violated. PAUL
has previously filed opposition to HRC’s and COMMITTEE’s Anti-SLAPP motion, on
August 30, 2004. Upon filing that
opposition, PAUL previously also filed a motion for limited discovery. However, when the Court denied HRC’s and
COMMITTEE’s Anti-SLAPP motion on September 8, 2004, PAUL’s motion for limited
discovery became moot. Due to pending
Anti-SLAPP motions, first by David Rosen, and soon afterwards by HRC and
COMMITTEE, PAUL has had almost no opportunity to conduct discovery since filing
the First Amended Complaint. In view of
the Court’s reasons for granting David Rosen’s Anti-SLAPP motion and the
similarity of HRC’s and COMMITTEE’s Anti-SLAPP motion, the case is in danger of
being dismissed as to HRC and COMMITTEE unless PAUL is able to produce direct
evidence of HRC’s knowledge of the fraudulent intentions of WJC, LEVIN and
SMITH as alleged in the First Amended Complaint. No other means exists to obtain such evidence than to question
HRC herself. Unless the Anti-SLAPP
motion is continued to permit HRC’s deposition to be taken, PAUL will be denied
his due process right to a fair hearing.
Sixty days following the completion of HRC’s deposition is a reasonable
time period in which to obtain the certified transcript of the deposition,
analyze HRC’s responses, and accommodate full briefing by both sides prior to
the hearing.
Conclusion
For
the foregoing reasons, PAUL’s motion for leave to depose defendant HRC should
be granted, without prejudice to PAUL’s right to depose HRC more fully later in
the case. Moreover, in order to protect
PAUL’s due process rights, PAUL’s motion to continue the Anti-SLAPP motion to a
date sixty days after HRC’s deposition has been completed should also be
granted.
DATED:
February 7, 2006 Respectfully
submitted,
UNITED
STATES JUSTICE FOUNDATION
By: __________________________________ D. COLETTE
WILSON
Attorneys
for Plaintiff