UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 14, 2013
PETER N.G. SCHWARTZ, PLAINTIFF,
AT THE COVE MANAGEMENT CORPORATION, ALSO KNOWN AS "AT DISCOVERY THE COVE" REZA PAYDAR, LORI BAKER, ANDERS DALE AND DOES 1-10, DEFENDANTS.
The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER DENYING DEFENDANTS' EX PARTE APPLICATION TO ADVANCE DATE OF DEFENDANTS' ANTI-SLAPP MOTION AND GRANTING AN ORDER TO STAY ALL HOMEOWNERS' ASSOCIATION, [Dkt. No. 22.]
On March 12, 2013, Defendants filed an ex parte motion to advance the date of Defendants' anti-SLAPP motion and for an order to stay all discovery. (Dkt. No. 22.) Plaintiff filed a response on the same day. (Dkt. No. 23.) A hearing is currently set for June 14, 2013. After a review of the papers and applicable law, the Court DENIES Plaintiff's ex parte application to advance the date of Defendants' anti-SLAPP motion and GRANTS Plaintiff's request to stay all discovery.
Defendants seek to advance the hearing date on their motion to strike pursuant to California Civil Procedure Code section 425.16(f) and a motion for an order staying discovery under California Civil Procedure Code section 425.16(g).
Plaintiff states he does not oppose the hearing date of June 14, 2013. He asserts that he is still reviewing Defendants' anti-SLAPP motion and has not yet determined whether he will seek an order allowing discovery in connection with opposing the motion. At this time, he is amenable to a stay of discovery; however, he seeks the option to open discovery if needed.
California Civil Procedure Code section 425.16(f) & (g) provide:
(f) 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. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.
(g) 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.
Cal. Civ. Proc. Code § 425.16(f) & (g).
As to shortening the time to hold a hearing on the anti-SLAPP motion, due to the state of the docket, the Court cannot hear Defendants' anti-SLAPP Motion within 30 days of filing the motion, and therefore, the motion hearing date shall remain on June 14, 2013 at 1:30 p.m.
As to a stay of discovery, it is a long-recognized principle that federal courts sitting in diversity "apply state substantive law and federal procedural law." Hanna v. Plumer, 380 U.S. 460, 465 (1965). The Ninth Circuit has held that California Procedure Code section 425.16(f) and (g) cannot apply in federal court. Metabolife Internat'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001). The court explained that the discovery-limiting aspects of 425.15(f)*fn1 and (g) collide with the discovery-allowing aspects of Federal Rule of Civil Procedure 56. Id.
However, since Metabolife, courts have recognized the distinction between an anti-SLAPP motion that is in the nature of a Rule 12(b)(6) motion to dismiss and one that presents issues of fact, akin to a Rule 56 summary judgment motion, for purposes of determining whether the discovery stay applies. One court described the general rule from Metabolife as follows: "the discovery-limiting provisions of [the anti SLAPP statute] collide with the discovery-permitting provisions of Rule 56, and therefore are not available in federal court unless either (1) the factual basis of the case has been developed through discovery . . . to the extent a motion for summary judgment would be appropriate; (2) the parties agree that further discovery is not necessary; or (3) the only issue presented by the motion is an issue of law and the motion is suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6)." Aeroplate Corp. v. Arch Ins. Co., No. 06--1099 AWI SMS, 2006 WL 3257487, at *9 (E.D. Cal. Nov.9, 2006) (internal citations omitted, emphasis added); see also Davis v. Elec. Arts, Inc., No. C--10--03328 RS DMR, 2011 WL 2621626, at *3 (N.D. Cal. Jul. 5, 2011).
Here, at this time, Plaintiff agrees that further discovery is not necessary. Accordingly, discovery will be stayed. See Aeroplate Corp., 2006 WL 3257487, at *9.
Based on the above, the Court DENIES Defendants' ex parte application to advance the date of their anti-SLAPP motion and GRANTS Plaintiff's request to stay discovery pending resolution of the anti-SLAPP motion. Defendants may, on noticed motion and for good cause, move before the Magistrate Judge for specific discovery for purposes of filing an opposition to the anti-SLAPP motion.
IT IS SO ORDERED.