Electronically FILED by Superior Court of California, County of Los Angeles on 03/16/2022 02:36 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by M. Mariano,Deputy Clerk

1 ALAN A. GREENBERG, State Bar No. 150827

AGreenberg@GGTrialLaw.com
2 WAYNE R. GROSS, State Bar No. 138828
WGross@GGTrialLaw.com
3 MICHAEL H. STRUB JR., State Bar No. 153828
MStrub@GGTrialLaw.com
4 COLIN V. QUINLAN, State Bar No. 332225
CQuinlan@GGTrialLaw.com
5 GREENBERG GROSS LLP
650 Town Center Drive, Suite 1700
6 Costa Mesa, California 92626
Telephone: (949) 383-2800
7 Facsimile: (949) 383-2801

8 Attorneys for Defendant Phoebe Bridgers

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF LOS ANGELES, CENTRAL DISTRICT

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12 CHRIS NELSON, an individual, Case No. 21STCV35635

13 Plaintiff, OPPOSITION OF DEFENDANT PHOEBE

BRIDGERS TO PLAINTIFF CHRIS
14 v. NELSON’S MOTION TO PERMIT
DISCOVERY
15 PHOEBE BRIDGERS, an individual; and
DOES 1 to 10, inclusive, Hearing:
16 Date: March 29, 2022
Defendants. Time: 9:30 a.m.
17 Dept.: 72
Reservation ID: 969323369787
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Assigned for All Purposes to:
19 Hon. Curtis A. Kin, Dept. 72

20 Action Filed: September 28, 2021

Trial Date: None
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO

PERMIT DISCOVERY
 1 I. INTRODUCTION

2 The Court should deny plaintiff Chris Nelson’s motion to permit discovery (Motion)

3 because he has not made the showing required by the anti-SLAPP statute. Because the anti-

4 SLAPP statute is based on the premise that a plaintiff cannot pursue a lawsuit arising out of

5 protected speech or conduct, discovery in connection with opposing an anti-SLAPP motion is the

6 exception, not the rule. Mr. Nelson can obtain discovery to oppose an anti-SLAPP motion only on

7 a showing of “good cause” (Code Civ. Proc., § 425.16, subd. (g)), which requires him to explain

8 in detail why the discovery is absolutely necessary, including what facts he expects to learn and

9 why these facts are important.

10 Instead of submitting a declaration explaining why the requested discovery is essential,

11 what the supposedly “critical evidence” is, and why this evidence is crucially important,

12 Mr. Nelson has submitted a declaration by his attorney that merely repeats vague, conclusory

13 statements and legal arguments from his memorandum of points and authorities. (See Declaration

14 of Tiffany B. Hunter (Hunter Decl.).) 1 And rather than making a request for limited discovery

15 specifically focused on uncovering the facts he needs—which he never explains—Mr. Nelson’s

16 motion makes general requests for a deposition and for production of “document and materials.”

17 Phoebe Bridgers’s motion is very narrow. It is premised on the fact that Mr. Nelson is a

18 limited purpose or vortex public figure and must show actual malice. By filing this motion,

19 Mr. Nelson effectively concedes that to avoid having his First Amended Complaint stricken, he

20 must prove that Ms. Bridgers’s statements about his abusive conduct were made with actual

21 malice—that is, that she actually believed that they were wrong. The only factual issue is

22 Ms. Bridgers’s subjective state of mind. Ms. Bridgers testified in her declaration that she believed

23 (and believes) that her statements were true. Mr. Nelson has not explained how any discovery

24 would belie this testimony. Mr. Nelson’s amorphous request for discovery based on his attorney’s

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Including such argument in a declaration “forces the trial and appellate courts, and opposing
counsel, to sort out the facts that are actually supported by oath from material that is nothing more
27 than the statement of an opinion ostensibly under oath,” and “makes a mockery of the requirement

28 that declarations be supported by statements made under penalty of perjury.” (In re Marriage of
Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
PERMIT DISCOVERY
 1 circular statement that it is necessary is nothing more than thinly veiled harassment.

2 For the foregoing reasons, as explained in more detail below, we respectfully request that

3 the Court deny Mr. Nelson’s motion and reset the hearing on Ms. Bridgers’s anti-SLAPP motion

4 so that it may be heard as quickly as possible.

5 II. ARGUMENT

6 Mr. Nelson’s motion to permit discovery fails to justify lifting the discovery stay imposed

7 by the anti-SLAPP statute. “As a general rule, discovery is stayed upon the filing of an anti-

8 SLAPP motion.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 692 (2021).) The stay of discovery is

9 an inherent aspect of the protections provided by the anti-SLAPP legislation, because the plaintiff

10 is seeking “[d]iscovery of constitutionally protected information.” (Paterno v. Superior Court

11 (2008) 163 Cal.App.4th 1342, 1350.) “Because the requested material is constitutionally

12 protected, the ordinary yardstick for discoverability, i.e., that the information sought may lead to

13 relevant evidence, is inapplicable.” (Ibid.)

14 Thus, courts may permit “specified discovery” only where a plaintiff has shown “good

15 cause” to do so. (Code Civ. Proc., § 425.16, subd. (g).). Mr. Nelson has neither shown “good

16 cause” for permitting any discovery, nor made a tailored request for “specified discovery.” (Ibid.)

17 “To establish good cause, the plaintiff must file a noticed motion identifying the specific discovery

18 sought and showing this discovery is ‘needed . . . to establish a prima facie case’ and ‘tailored to

19 that end.’” (Murray v. Tran (2020) 55 Cal.App.5th 10, 37 [some internal quotation marks

20 omitted], quoting Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 891; see

21 also Sipple v. Found. For Nat. Progress (1999) 71 Cal.App. 4th 226, 247 (Sipple) [plaintiff must

22 “explain what additional facts he expects to uncover”].) Further, “[a] request for discovery in

23 opposition to an anti-SLAPP motion should be determined with reference to the issues raised in

24 the motion.” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 359.)

25 A. Mr. Nelson has not shown good cause for granting discovery.

26 Mr. Nelson’s arguments and declaration are insufficient to show good cause for lifting the

27 discovery stay. Mr. Nelson’s Motion and the supporting attorney declaration state legal

28 conclusions and provide no support for a finding of good cause. (See, e.g., Mot. at 4:8-9
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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 1 [asserting Mr. Nelson needs “a reasonable opportunity to obtain this critical evidence by a

2 deposition of Defendant and request for documents”]; id. at p. 4:21-22 [contending Mr. Nelson

3 “must be provided a reasonable opportunity to discover evidence on the issues of intent from

4 Defendant”]; id. at p. 5:20-21 [“Plaintiff will suffer irreparable prejudice without a reasonable

5 opportunity to obtain evidence that he needs to establish a prima facie case and oppose the

6 motion.”]; Hunter Decl. ¶ 4 [“Without an opportunity to obtain this evidence—which can only be

7 in the mind of defendant—plaintiff would be deprived of his due process right to oppose

8 defendant’s anti-SLAPP.”].) A plaintiff cannot obtain discovery to oppose an anti-SLAPP based

9 solely on his counsel’s conclusory assertion that he needs it.

10 Mr. Nelson argues if he is not permitted discovery, his due process rights will be violated.

11 (Mot. at 4.) He never explains why and cites no authority to support this assertion. In fact, this

12 exact argument has been expressly rejected. (See 1-800 Contacts, Inc. v. Steinberg (2003) 107

13 Cal.App.4th 568, 593, fn. 18 [“Plaintiff conjunctively contends that refusal to order the deposition

14 engendered a denial of due process. Our holding that the refusal was not improper under the

15 statute subsumes and moots that contention. Where properly applied, section 425.16, subdivision

16 (g) does not infringe due process. [Citation.]”].)

17 Mr. Nelson relies extensively on the decision in Lafayette Morehouse, Inc. v. Chronicle

18 Publishing Co. (1995) 37 Cal.App.4th 855, 868, for the proposition that the Court must “liberally

19 exercise its discretion” when a plaintiff requests discovery to oppose an anti-SLAPP motion. (See

20 generally Mot. at 5.) For the reasons given by the court in Paterno, supra, 163 Cal.App.4th at

21 pp. 1350-1351, that reliance is misplaced:

22 The court in Lafayette Morehouse affirmed the dismissal of a libel

action against a newspaper because the anti-SLAPP statute applied
23 to news reporting activities. The court hinted, in dicta, that trial
courts should “liberally” exercise their discretion to authorize
24 reasonable discovery “when evidence to establish a prima facie case
is reasonably shown to be held, or known, by defendant or its agents
25 and employees.” [Citation.]

26 The Lafayette Morehouse decision “predate[s] the 1997 amendment

requiring a broad interpretation of section 425.16.” [Citation.]
27 Accordingly, we join the courts that have limited the reach of
Lafayette Morehouse’s language. [Citations.]
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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 1 (Id. at p. 1351.)

2 Mr. Nelson argues that Ms. Bridgers’s declaration provides good cause to permit him to

3 take her deposition (Mot. at 4:16-19), but courts have held that “[d]iscovery may not be obtained

4 merely to ‘test’ the opponent’s declarations.” (1-800 Contacts, Inc. v. Steinberg, supra, 107

5 Cal.App.4th 568, 593; see also Carver v. Bonds, supra, 135 Cal.App.4th 328, 359 [request

6 properly denied because the evidence plaintiff sought “was not reasonably calculated to shed any

7 light on the matters at issue”].)

8 B. Discovery is irrelevant to deciding Ms. Bridgers’s special motion to strike.

9 Not only has Mr. Nelson failed to show good cause, he cannot do so because discovery is

10 irrelevant to Ms. Bridgers’s motion. As Mr. Nelson admits, there is no dispute about Ms.

11 Bridgers’s statements concerning Mr. Nelson’s conduct or that she made them in a public forum:

12 Instagram. Further, in his Motion, Mr. Nelson implicitly concedes that he must prove actual

13 malice, consistent with the allegations in his verified complaint that show he is, at a minimum, a

14 limited purpose public figure. To prove actual malice, Mr. Nelson must show by clear and

15 convincing evidence that Ms. Bridgers subjectively knew that her statements were false. (See

16 McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 114; Reed v. Gallagher (2016) 248

17 Cal.App.4th 841, 862; Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.) It is

18 not credible that Ms. Bridgers would recant the testimony in her declaration, which is the only

19 discovery that would benefit Mr. Nelson. 2 Tellingly, Mr. Nelson has also failed to describe any

20 documents or materials that would help him make such a showing.

21 C. Mr. Nelson’s discovery requests are neither limited nor tailored to evidence of

22 relevant facts.

23 Mr. Nelson has not proffered any justification for granting the discovery he requests.

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Nor does Mr. Nelson’s contention in his Motion that only Ms. Bridgers could have such
26 evidence (Mot. at 6:8-10) aid his showing of good cause. (See Gressett v. Contra Costa County
(N.D. Cal., May 17, 2013, No. C-12-3798 EMC) 2013 WL 2156278, at *35 [denying discovery
27 under the anti-SLAPP statute: “Here, any evidence of a conspiracy involving McKenna would

28 most likely be entirely within his possession. However, Plaintiff does not identify what facts he
would hope to uncover.”].)
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
PERMIT DISCOVERY
 1 Mr. Nelson “failed to identify the additional facts he expected to discover or the facts necessary to

2 establish . . . the existence of actual malice.” (Sipple, supra, 71 Cal.App.4th 226, 231.) Further

3 compounding his failure to identify any facts he expects to prove through discovery, Mr. Nelson’s

4 discovery requests are vague and thus overbroad. Mr. Nelson not only requests “an opportunity to

5 depose” Ms. Bridgers, he also seeks to “obtain documents and materials as to intent” from her,

6 without explaining what documents he believes exist or what they might show. (Mot. at p. 6:7-8.)

7 Mr. Nelson has therefore failed to show “why such far-ranging discovery is necessary to carry his

8 burden of showing [Ms. Bridgers’s] malice.” (Sipple, supra, 71 Cal.App.4th at p. 247.) In

9 essence, Mr. Nelson’s Motion rests on the repeated, unsubstantiated contention by his counsel that

10 if any evidence exists, Ms. Bridgers must have it; however, the “mere possibility” that discovery

11 “could uncover new evidence to support a theory of malice not yet identified” is insufficient to

12 meet the standard for showing good cause under section 425.16, subdivision (g). (Nicosia v. De

13 Rooy (N.D. Cal. 1999) 72 F.Supp.2d 1093, 1111, fn. 12.)

14 Allowing Mr. Nelson “such extensive discovery would subvert the intent of the anti-

15 SLAPP legislation,” particularly in light of his complete failure to make any showing “that further

16 discovery would result in the disclosure of information that would permit [him] to demonstrate a

17 prima facie case on any of his claims.” (Sipple, 71 Cal.App.4th at p. 247, internal quotation marks

18 omitted.) If plaintiffs could justify lifting the discovery stay based solely on their lack of available

19 evidence to oppose an anti-SLAPP motion, that would enable those with the weakest claims to

20 inflict the expense and delay of discovery on the defendants the legislature most intended to

21 protect by providing a procedure for courts “to dismiss at an early stage nonmeritorious litigation

22 meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in

23 connection with a public issue.” (Id. at p. 235.)

24 III. CONCLUSION

25 Mr. Nelson has not, and cannot, make a good faith showing that reasonable and specified

26 discovery will uncover evidence to support the prima facie showing necessary to oppose

27 Ms. Bridgers’s special motion to strike the First Amended Complaint. He thus has failed to show

28 the “good cause” required to grant him the discovery he requests in this motion. The Court should
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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 1 therefore deny the motion, and reset Ms. Bridgers’s special motion to strike for a hearing at the

2 earliest available date.

4 DATED: March 16, 2022 GREENBERG GROSS LLP

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By:
7 Alan A. Greenberg
Wayne R. Gross
8 Michael H. Strub Jr.
Colin V. Quinlan
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Attorneys for Defendant Phoebe Bridgers
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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 1 PROOF OF SERVICE

2 Chris Nelson v. Phoebe Bridgers

Case No. 21STCV35635
3
STATE OF CALIFORNIA, COUNTY OF ORANGE
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At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of Orange, State of California. My business address is 650 Town Center
Drive, Suite 1700, Costa Mesa, CA 92626.
6
On March 16, 2022, I served true copies of the following document(s) described as
7 OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS
NELSON’S MOTION TO PERMIT DISCOVERY on the interested parties in this action as
8 follows:

9 SEE ATTACHED SERVICE LIST

10 BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the

Service List by submitting an electronic version of the document(s) to One Legal, LLC, through
11 the user interface at www.onelegal.com.

12 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
13
Executed on March 16, 2022, at Costa Mesa, California.
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16 Cheryl Winsten
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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 1 SERVICE LIST
Chris Nelson v. Phoebe Bridgers
2 Case No. 21STCV35635

3 Bradford G. Hughes Attorneys for Plaintiff Chris Nelson

Tiffany B. Hunter
4 CLARK HILL LLP
555 West Flower Street, 24th Floor
5 Los Angeles, CA 90071
Telephone: (213) 891-9100
6 Facsimile: (213) 488-1178
bhughes@ClarkHill.com
7 thunter@ClarkHill.com

8
Dominic Gentile
9 CLARK HILL LLP
3800 Howard Hughes Parkway, Suite 500
10 Las Vegas, CA 89169
Telephone: (702) 862-8300
11 Facsimile: (702) 862-8400
dgentile@ClarkHill.com
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OPPOSITION OF DEFENDANT PHOEBE BRIDGERS TO PLAINTIFF CHRIS NELSON’S MOTION TO
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