Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 1 of 26 PageID #: 139

ERIC A. SEITZ
ATTORNEY AT LAW
A LAW CORPORATION

ERIC A. SEITZ 1412

DELLA A. BELATTI 7945
820 Mililani Street, Suite 714
Honolulu, Hawaii 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608

LAVELY & SINGER

PROFESSIONAL CORPORATION

MARTIN D. SINGER (pro hac vice)

ANDREW B. BRETTLER (pro hac vice)
2049 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: (310) 556-3501
Facsimile: (310) 556-3615

Attorneys for Plaintiff

BRETT RATNER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

BRETT RATNER, CASE NO. 17-cv-00542-HG-KSC

Plaintiff, PLAINTIFF BRETT RATNER’S

MEMORANDUM IN OPPOSITION
vs. TO DEFENDANT MELANIE
KOHLER’S MOTION TO DISMISS
MELANIE KOHLER; and JOHN COMPLAINT FILED NOVEMBER 1,
and/or JANE DOES 1-10, 2017, AND TO STRIKE THE
COMPLAINT FILED NOVEMBER 1,
Defendants. 2017
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 2 of 26 PageID #: 140

Hearing
Date: February 8, 2018
Time: 10:30 a.m.
Judge: Helen Gillmor

Trial: March 12, 2019

Page 2
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 3 of 26 PageID #: 141

TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................... 2

II. RELEVANT BACKGROUND...................................................................... 4

III. ARGUMENT.................................................................................................. 5

A. The Court Should Deny Defendant’s Motion To Dismiss Under Rule

12(b)(6)..................................................................................................5

1. Motions to dismiss are disfavored in federal courts; notice

pleading is all that is required. ................................................... 5

2. Here, the allegations in the Complaint satisfy the notice

pleading standard used in federal courts.................................... 6

a. Mr. Ratner has adequately pleaded a cause of action for

defamation. ...................................................................... 7

b. The issue of actual malice cannot be disposed of on a

motion to dismiss........................................................... 10

3. To the extent the Court is inclined to dismiss the Complaint, it

should do so without prejudice and grant Mr. Ratner leave to
amend. ...................................................................................... 11

B. The Court Should Deny Defendant’s Anti-SLAPP Motion Because

California Law Does Not Apply Here. ...............................................12

1. Hawaii’s anti-SLAPP statute does not protect Defendant from

the defamation claim at issue................................................... 15

2. Even if the California statute did apply, Mr. Ratner could

satisfy his burden under the anti-SLAPP statute. .................... 16

IV. CONCLUSION............................................................................................. 18

i
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 4 of 26 PageID #: 142

TABLE OF AUTHORITIES
Cases

Ashcroft v. Iqbal,
556 U.S. 662 (2009).........................................................................................6

Beauharnais v. Illinois,
343 U.S. 250 (1952)...................................................................................8, 18

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).........................................................................................6

Carey v. Piphus,
435 U.S. 247 (1978).........................................................................................7

Chi v. Loyola Univ. Med. Ctr.,

787 F. Supp. 2d 797 (N.D. Ill. 2011)...................................................... 13, 14

Christian Research Inst. v. Alnor,

55 Cal. Rptr. 3d 600 (Ct. App. 2007) ............................................................11

Cianci v. N.Y. Times Publ’g Co.,

639 F.2d 54 (2d Cir. 1980) ..............................................................................8

Cisneros v. Trans Union, LLC,

293 F. Supp. 2d 1167 (D. Haw. 2003).............................................................5

Clougherty v. Lonsdale,
2015 WL 2062476 (N.D. Cal. Apr. 30, 2015).................................................9

Diamond Ranch Academy, Inc. v. Filer,

117 F. Supp. 3d 1313 (D. Utah 2015) .................................................... 13, 14

Doe v. United States,

58 F.3d 494 (9th Cir. 1995) ...........................................................................12

Dowkin v. Honolulu Police Dep’t,

2010 WL 4961135 (D. Haw. Nov. 30, 2010)..................................................7

Eldorado Stone, LLC v. Renaissance Stone, Inc.,

2006 WL 4569360 (S.D. Cal. Feb. 6, 2006)....................................................9

ii
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 5 of 26 PageID #: 143

Elias v. Rolling Stone LLC,

872 F.3d 97 (2d Cir. 2017) ..............................................................................8

Erickson v. Pardus,
551 U.S. 89 (2007)................................................................................ 5, 8, 10

ESG Capital Partners, LP v. Stratos,

828 F.3d 1023 (9th Cir. 2016) .........................................................................5

Gold v. Harrison,
962 P.2d 353 (Haw. 1998)...............................................................................7

Gonsalves v. Nissan Motor Corp in Haw., Ltd.,

58 P.3d 1196 (Haw. 2002)...............................................................................7

Intercon Solutions, Inc. v. Basel Action Network,

969 F. Supp. 2d 1026 (N.D. Ill. 2013)...........................................................15

Isaac v. Daniels,
WL 2962890 (D. Haw. June 23, 2017) ...........................................................8

Jenkins v. Whittacker,
785 F.2d 720 (9th Cir. 1986) .........................................................................13

Klaxon v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941).......................................................................................13

Kosegarten v. Dep’t of the Prosecuting Att’y,

892 F. Supp. 2d 1245 (D. Haw. 2012)...........................................................10

Lacey v. Maricopa Cnty.,

693 F.3d 896 (9th Cir. 2012) .........................................................................12

Lee v. Bankers Tr. Co.,

166 F.3d 540 (2d Cir. 1999) ..........................................................................13

Lee v. City of Los Angeles,

250 F.3d 668 (9th Cir. 2001) ...........................................................................1

Man v. Raymark Indus.,

728 F. Supp. 1461 (D. Haw. 1989)................................................................13

iii
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 6 of 26 PageID #: 144

Navellier v. Sletten,
52 P.3d 703 (Cal. 2002).................................................................................17

OSU Student All. v. Ray,

699 F.3d 1053 (9th Cir. 2012) .......................................................................12

Overstock.com, Inc. v. Gradient Analytics, Inc.,

61 Cal. Rptr. 3d 29 (Ct. App. 2002) ..............................................................17

Partington v. Bugliosi,
825 F. Supp. 906 (D. Haw. 1993)....................................................................7

Perry v. Perez-Wendt,
294 P.3d 1081 (Haw. Ct. App. 2013) ............................................................15

Peters v. Peters,
634 P.2d 586 (Haw. 1981).............................................................................13

Phillips v. KIRO-TV, Inc.,

817 F. Supp. 2d 1317 (W.D. Wash. 2011) ....................................................12

Pond v. Gen. Elec. Co.,

256 F.2d 824 (9th Cir. 1958) ...........................................................................5

Sateriale v. R.J. Reynolds Tobacco Co.,

697 F.3d 777 (9th Cir. 2012) ...........................................................................6

Smallwood v. NCSOFT,
2010 WL 727715 (D. Haw. Feb. 26, 2010)...................................................12

Soukup v. Law Offices of Herbert Hafif,

139 P.3d 30 (Cal. 2006).................................................................................17

Vess v. Ciba–Geigy Corp. USA,

317 F.3d 1097 (9th Cir. 2003) .......................................................................12

Williams v. Gorton,
529 F.2d 668 (9th Cir. 1976) ...........................................................................5

Statutes

Cal. Civ. Proc. Code § 425.16 ...................................................................................1

iv
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 7 of 26 PageID #: 145

Cal. Civ. Proc. Code § 425.16(b)(1) ........................................................................16

Cal. Civ. Proc. Code § 425.16(b)(2) ........................................................................16

Haw. Rev. Stat. § 634F-1.........................................................................................15

Rules

Fed. R. Civ. P. 12(b)(6)..........................................................................................1, 5

Fed. R. Civ. P. 8(a)(2)................................................................................................5

Other Authorities

5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure: Civil § 1245 (3d ed. 1998) ........................5

v
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 8 of 26 PageID #: 146

PLAINTIFF BRETT RATNER’S MEMORANDUM IN OPPOSITION TO

DEFENDANT MELANIE KOHLER’S MOTION TO DISMISS AND
MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017

Plaintiff BRETT RATNER, by and through his undersigned attorneys,

submits this Memorandum in Opposition to Defendant MELANIE KOHLER’s

Motion To Dismiss and Motion To Strike the Complaint Filed November 1, 2017

(the “Motion”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

and section 425.16 of the California Code of Civil Procedure. Mr. Ratner

respectfully requests that this Court deny Defendant’s motion because (i) the

Complaint contains sufficient factual matters that, if accepted as true, state a claim

to relief for defamation against Defendant that is plausible on its face; (ii)

California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, does not apply

here; and (iii) even if the California anti-SLAPP statute did apply, Mr. Ratner

could demonstrate, through admissible evidence, a probability of prevailing on his

claim for defamation per se.1

1
Mr. Ratner contends that the California anti-SLAPP statute does not apply
here for the reasons explained in section III.B, infra. It was improper for
Defendant to submit evidentiary materials in connection with a motion to dismiss.
See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“As a general
rule, a district court may not consider any material beyond the pleadings in ruling
on a Rule 12(b)(6) motion.”) (internal quotations omitted). So as not to burden the
Court or run afoul of the Federal Rules, Mr. Ratner did not submit extrinsic
evidence to refute Defendant’s anti-SLAPP portion of the Motion. However, if the
Court is inclined to allow Defendant to proceed with a California anti-SLAPP
motion, Mr. Ratner respectfully requests permission from the Court to submit
evidentiary material in connection with a supplemental opposition thereto.

1
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 9 of 26 PageID #: 147

I. INTRODUCTION

This case is very simple. On or about October 20, 2017, Defendant publicly

accused Mr. Ratner of raping her—an allegation which he vehemently denies. As

a result, Mr. Ratner filed this lawsuit against Defendant for defamation based on

her false accusation of rape. In her Motion, Defendant tries to overly complicate

the issues by including extraneous and irrelevant information and material that is

not found within the four corners of the Complaint and arguing that Mr. Ratner

failed to allege enough specific facts to support his claim for relief. However,

under federal pleading standards, Mr. Ratner provided Defendant with more than

enough information to put her on notice of the claim. Among other things,

Mr. Ratner identified Defendant as the person who published the defamatory

statements, he provided the date on which Defendant published the statements, he

indicated the manner of publication, identified the recipients of the defamatory

statements, and alleged that he was damaged by the false accusations Defendant

leveled against him. As explained further below, there can be no real dispute that

Mr. Ratner adequately pleaded a cause of action for defamation in light of these

allegations all set forth in the Complaint.

In addition to seeking dismissal under the Federal Rules of Civil Procedure,

Defendant improperly attempts to strike the Complaint by invoking the protections

of California’s anti-SLAPP statute, notwithstanding the fact that Defendant admits

2
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 10 of 26 PageID #: 148

she is a resident of Hawaii and issued the false and defamatory statements from

Hawaii. The Court need not even consider Defendant’s purported anti-SLAPP

motion because the case is governed by Hawaii—not California—law, and

Defendant is not entitled to the protections afforded under California law. Hawaii

has a strong interest in having its own anti-SLAPP statute apply to statements

issued within Hawaii by Hawaii citizens. As Defendant acknowledges, Hawaii’s

anti-SLAPP statute does not cover the statements at issue here because they were

not made to a governmental body or in connection with a governmental

proceeding. Even if California’s broader anti-SLAPP statute applied, Mr. Ratner

easily could satisfy his burden of demonstrating a likelihood of prevailing on the

merits of his defamation claim. Mr. Ratner could and would submit evidence to

show that Defendant has changed her rape story multiple times since she initially

published it, and even took down her Facebook post when confronted about her

inconsistent statements and implausible story.

Defendant’s Motion is frivolous and unsupported both factually and legally.

Mr. Ratner respectfully requests that the Court deny the Motion in its entirety and

allow the parties to proceed with discovery.

3
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 11 of 26 PageID #: 149

II. RELEVANT BACKGROUND

Defendant is a resident of Hawaii. (Compl. [ECF No. 1] ¶ 5; Def.’s Mem.

[ECF No. 26-1] at 8, 23-24.) On or about October 20, 2017, while living in

Hawaii, “Defendant recklessly and/or intentionally posted a statement on her

Facebook page” falsely accusing Mr. Ratner of raping her “about 12 years ago.”

(Compl. ¶¶ 1, 7; see Def.’s Mem. at 24 (“Kohler now lives in Hawaii and wrote her

[Facebook post] from Hawaii”).) Specifically, as alleged in the Complaint,

Defendant wrote and published: “Brett Ratner raped me.” (Compl. ¶ 7.)

Defendant also expressly referred to Mr. Ratner as a “rapist.” (Id.)

Mr. Ratner disputes and denies Defendant’s outrageous allegation and

contends that her entire statement is “false, fabricated, and fictional.” (Id. ¶ 8.) As

alleged in his pleading, Mr. Ratner further contends that Defendant published her

statement “with knowledge of its falsity, maliciously, and with the intent to harm

[his] reputation and standing.” (Id. ¶ 9.) Mr. Ratner never consented to the

publication of Defendant’s false and defamatory statement, nor was Defendant’s

publication of the statement legally privileged. (Id. ¶ 11.) As a result of the

publication, Mr. Ratner “suffered injuries to his personal and professional

reputations” and suffered damages in the form of “emotional distress, worry,

anger, and anxiety,” both “in amounts to be proven at trial.” (Id. ¶¶ 12-13.)

4
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 12 of 26 PageID #: 150

III. ARGUMENT

A. The Court Should Deny Defendant’s Motion To Dismiss Under

Rule 12(b)(6).

1. Motions to dismiss are disfavored in federal courts; notice

pleading is all that is required.

“Ordinarily a motion to dismiss should be disfavored, and doubts should be

resolved in favor of the pleader.” Williams v. Gorton, 529 F.2d 668, 672 (9th Cir.

1976); accord Cisneros v. Trans Union, LLC, 293 F. Supp. 2d 1167, 1177-78

(D. Haw. 2003) (citing Pond v. Gen. Elec. Co., 256 F.2d 824, 826-27 (9th Cir.

1958); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure: Civil § 1245 (3d ed. 1998). The Federal Rules of Civil Procedure

authorizes the Court to dismiss a complaint only when it fails “to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is read

in conjunction with Rule 8(a), which merely requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Id. 8(a)(2). Unless the

plaintiff has pleaded a claim for fraud, no particularized allegations are required.

See ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1032 (9th Cir. 2016)

(“Non-fraud claims must survive the minimal notice pleading requirements of Rule

8(a)(2) and provide a short and plain statement to survive a motion to dismiss.”);

see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not

5
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 13 of 26 PageID #: 151

necessary; the statement need only ‘give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.’”) (internal citations omitted).

In resolving a Rule 12(b)(6) motion, the Court must construe the complaint

in the light most favorable to the plaintiff and accept all well-pleaded factual

allegations as true. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th

Cir. 2012). The complaint “must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at 677.

2. Here, the allegations in the Complaint satisfy the notice

pleading standard used in federal courts.

Contrary to Defendant’s argument that federal pleading standards now

require a plaintiff to “allege his claim with particularity” (Def.’s Mem. at 1, 11),

the Complaint is sufficiently pleaded to place Defendant on notice of the

defamation claim Mr. Ratner asserted against her. The Complaint does not fail

under Twombly, Iqbal, or their progeny because there is enough information and

allegations set forth in the Complaint to enable Defendant to respond to the claim.

There is no requirement under federal law for Mr. Ratner to anticipate Defendant’s

potential affirmative defenses, to supply her with additional facts, and/or to

6
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 14 of 26 PageID #: 152

elaborate upon those facts with legal conclusions. The only issue here is whether

Defendant recklessly and/or knowingly published a non-privileged, false and

defamatory allegation of criminal misconduct when she accused Mr. Ratner of

rape. That issue will have to be decided at trial.

a. Mr. Ratner has adequately pleaded a cause of action

for defamation.
Under Hawaii law, the four elements for a defamation claim are: (1) a false

and defamatory statement concerning another; (2) an unprivileged publication to a

third party; (3) fault amounting to at least negligence on the part of the publisher;

and (4) actionability of the statement irrespective of special harm (i.e., where, as

here, the statement is defamatory per se). Gonsalves v. Nissan Motor Corp in

Haw., Ltd., 58 P.3d 1196, 1218 (Haw. 2002); Gold v. Harrison, 962 P.2d 353, 359

(Haw. 1998). Defamation per se is a special character of defamation that consists

of four distinct categories: (a) imputation of a serious crime involving moral

turpitude; (b) possession of a loathsome disease; (c) attack on the plaintiff’s

competency in his business, trade, or profession; or (d) unchastity in women. See

Dowkin v. Honolulu Police Dep’t, No. CIV 10-00087 SOM/LE, 2010 WL

4961135, at *10 (D. Haw. Nov. 30, 2010) (citing Carey v. Piphus, 435 U.S. 247,

263 n. 18 (1978)). The first of these categories is relevant in this case. See

Partington v. Bugliosi, 825 F. Supp. 906, 915 (D. Haw. 1993) (“Under Hawaii law,

defamation per se includes statements that impute to a person the commission of a

7
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 15 of 26 PageID #: 153

crime . . . .”) (internal quotation marks omitted); see also Isaac v. Daniels, Civ.

Case No. 16-00507 DKW-RLP2017, WL 2962890, at *6 (D. Haw. June 23, 2017)

(finding that plaintiff sufficiently pleaded a cause of action for defamation per se

because defendant publicly accused plaintiff of “several sexual crimes”).

Here, Defendant’s published statements accusing Mr. Ratner of rape (see

Compl. ¶¶ 1, 7-9) are defamatory per se because they falsely impute criminal

conduct to him. See Beauharnais v. Illinois, 343 U.S. 250, 257-58 (1952) (“[I]t is

libelous falsely to charge another with being a rapist . . . .”); Elias v. Rolling Stone

LLC, 872 F.3d 97, 105 (2d Cir. 2017) (reversing district court’s order dismissing

defamation claims on the grounds that rape accusations against fraternity members

were defamatory per se and were of an concerning the plaintiffs); Cianci v. N.Y.

Times Publ’g Co., 639 F.2d 54, 60 (2d Cir. 1980) (reversing district court’s order

dismissing defamation claims on the grounds that rape allegations in article were

“reasonably susceptible of a defamatory connotation”). The allegations set forth in

the Complaint here, i.e., that Defendant accused Mr. Ratner of raping her 12 years

ago and that her allegation is false, fabricated and fictional (Compl. ¶¶ 7-8), are

sufficient to survive a motion to dismiss under the Federal Rules of Civil

Procedure. See Erickson, 551 U.S. at 93 (holding that pleading “specific facts” is

“not necessary” to survive a motion to dismiss).

8
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 16 of 26 PageID #: 154

There are several recent cases from district court within this circuit that are

instructive. For instance, in Clougherty v. Lonsdale, No. C 15–00382 WHA, 2015

WL 2062476 (N.D. Cal. Apr. 30, 2015), the district court denied a motion to

dismiss the counterclaimant’s defamation claims based on false allegations of

sexual assault finding that the claims at issue were pleaded with sufficient

particularity, such that they were plausible on their face. Id. at *2. The Clougherty

court held that the counterclaimant adequately alleged (i) who made the

defamatory statement; (ii) to whom the statement was made; (iii) when the

statement was made; and (iv) the content of the defamatory statement, i.e., that

Lonsdale committed “sexual assault.” Id. Similarly, in Eldorado Stone, LLC v.

Renaissance Stone, Inc., No. 04–CV–2562, 2006 WL 4569360 (S.D. Cal. Feb. 6,

2006) the district court there denied a motion to dismiss a libel claim on the

grounds that the pleading adequately “set forth the time period of the statement . . .

the recipients of the statement, and the substance of the allegedly libelous

statement (i.e., that [counterclaimant] was a thief).” Id. at *4 (holding “[n]othing

else is required to state a libel claim.”).

Here, Mr. Ratner pleads these requisite elements. First, he identifies

Defendant as the person who published the defamatory statement. (Compl. ¶¶ 1,

5, 7.) Next, he alleges the approximate date on which the statement was widely

published and alleges the manner of publication. (Id. ¶ 7.) Finally, Mr. Ratner

9
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 17 of 26 PageID #: 155

alleges the substance of the libelous statement (i.e., that defendant falsely accused

him of rape). (Id. ¶¶ 1, 7-8). Under the Supreme Court’s holding in Erickson and

the cases that follow, these allegations are sufficient to survive a motion to dismiss

under the Federal Rules. 551 U.S. at 93.

b. The issue of actual malice cannot be disposed of on a

motion to dismiss.
Defendant argues that the Court must dismiss the Complaint because

Mr. Ratner purportedly fails to allege that Defendant acted with actual malice

when she falsely accused him of rape. (Def.’s Mem. at 16.) Defendant is wrong.

Although Mr. Ratner specifically alleges in the first paragraph of his Complaint

that Defendant’s accusations were “deliberately false” and “malicious”

(Compl.¶¶ 1, 9), “[n]othing . . . requires that a plaintiff plead the word ‘malice’ in

the complaint. Under the dismissal standard, all that is required is that the plaintiff

plead[s] sufficient factual matter, accepted as true, to state a plausible argument

that the defendant acted with malice.” Kosegarten v. Dep’t of the Prosecuting

Att’y, 892 F. Supp. 2d 1245, 1265 (D. Haw. 2012). Mr. Ratner clearly has done

that here. (See Compl. ¶¶ 1, 7-9 (alleging that Defendant’s accusations of rape are

false and Defendant knew they were false when she published them and intended

to publish false statements about Mr. Ratner).

Even if Mr. Ratner ultimately would need additional facts to prove that

Defendant acted with constitutional malice, disposing his claim on a motion to

10
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 18 of 26 PageID #: 156

dismiss would be improper. As the Ninth Circuit has concluded, “the issue of

‘actual malice’ (or, to put it another way, intent to convey the defamatory

impression) cannot be properly disposed of by a motion to dismiss in this case,

where there has been no discovery.” See Metabolife Int’l, Inc. v. Wornick, 264

F.3d 832, 848 (9th Cir. 2001) (emphasis added) (reversing district court’s order

dismissing defamation action). “Actual malice is a subjective standard that turns

on the defendant’s state of mind; it is typically proven by evidence beyond the

defamatory publication itself.” See Flowers v. Carville, 310 F.3d 1118, 1131 (9th

Cir. 2002) (citing Metabolife, 264 F.3d at 848); see also Christian Research Inst. v.

Alnor, 55 Cal. Rptr. 3d 600, 612 (Ct. App. 2007) (concluding that discovery may

be necessary to establish actual malice in a defamation action). Accordingly,

because no discovery has yet occurred in this action, it is premature for the Court

to examine whether Defendant acted with the requisite intent when she published

the false and defamatory statements about Mr. Ratner.

3. To the extent the Court is inclined to dismiss the Complaint,

it should do so without prejudice and grant Mr. Ratner
leave to amend.

While no amendment of the Complaint should be necessary, if the Court

does require Mr. Ratner to plead additional facts pertaining to Defendant’s

malicious publication of the false and defamatory statements about him, it should

grant him leave to amend. When a court dismisses a complaint pursuant to Rule

11
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 19 of 26 PageID #: 157

12(b)(6), it should grant the plaintiff leave to amend the complaint unless the

pleading cannot be cured by new factual allegations. OSU Student All. v. Ray, 699

F.3d 1053, 1079 (9th Cir. 2012). “We have adopted a generous standard for

granting leave to amend from a dismissal for failure to state a claim, such that ‘a

district court should grant leave to amend even if no request to amend the pleading

was made, unless it determines that the pleading could not possibly be cured by the

allegation of other facts.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 926 (9th Cir.

2012) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see also

Smallwood v. NCSOFT, No. CIV. 09–00497 ACK-BMK, 2010 WL 727715, at *11

(D. Haw. Feb. 26, 2010) (“Dismissals for failure to comply with . . . Rule 12(b)(6)

should ordinarily be without prejudice and ‘leave to amend should be granted if it

appears at all possible that the plaintiff can correct the defect.’”) (quoting Vess v.

Ciba–Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003)).

B. The Court Should Deny Defendant’s Anti-SLAPP Motion

Because California Law Does Not Apply Here.

While the Court need not even consider Defendant’s anti-SLAPP motion

because it was improperly filed as part of her 12(b)(6) motion to dismiss, see

Phillips v. KIRO-TV, Inc., 817 F. Supp. 2d 1317, 1328 (W.D. Wash. 2011)

(“Defendant [improperly] filed the anti-SLAPP motion at the same time, and in the

same document, as the Rule 12(b)(6), without designating it as a motion in the

alternative.”), if the Court does consider the anti-SLAPP portion of the Motion, it

12
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 20 of 26 PageID #: 158

should summarily deny it on the grounds that the protections of California’s anti-

SLAPP statute, upon which Defendant relies, are not available to her here.

A federal court sitting in diversity applies the forum’s choice-of-law rules.

Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941). Hawaii has adopted

the “interest analysis” test in connection with conducting a choice-of-law analysis.

Man v. Raymark Indus., 728 F. Supp. 1461, 1468 n.9 (D. Haw. 1989) (citing

Peters v. Peters, 634 P.2d 586, 591-92 (Haw. 1981). Under this test, Hawaii law is

presumably applicable unless another state’s law would best serve the interests of

the states and parties involved. Id. (citing Jenkins v. Whittacker, 785 F.2d 720, 724

(9th Cir. 1986).

In general, to determine which state has the most significant interest in, or in

relationship to, the litigation, the Court should look chiefly to “the parties’

domiciles and the locus of the tort.” Lee v. Bankers Tr. Co., 166 F.3d 540, 545

(2d Cir. 1999). “[T]he place where the allegedly tortious speech took place and

the domicile of the speaker are central to the choice-of-law analysis on this issue.”

Chi v. Loyola Univ. Med. Ctr., 787 F. Supp. 2d 797, 803 (N.D. Ill. 2011). The

place where the injury may have occurred and the relationship of the parties have

“little, if any, relevance in this area of law.” Diamond Ranch Academy, Inc. v.

Filer, 117 F. Supp. 3d 1313, 1323 (D. Utah 2015).

13
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 21 of 26 PageID #: 159

Here, it is undisputed that Defendant is domiciled in Hawaii and that she

published her defamatory statements about Mr. Ratner while she was residing there

in October 2017. (Compl. ¶¶ 5, 7; Def.’s Mem. at 8, 23-24.) While Defendant

devotes several pages of her brief to a discussion about where Mr. Ratner resides,

and where the alleged assault 12 years ago supposedly occurred (see Def.’s

Mem. 6, 23-26), those arguments simply are not relevant to the choice-of-law

analysis. Diamond Ranch Academy, 117 F. Supp. 3d at 1323. Defendant admits,

but glosses over, the essential factors when she argues, “Ms. Kohler now lives in

Hawaii and wrote her FB Post from Hawaii.” (Def.’s Mem. at 24.) In light of this

admission, it is clear that Hawaii law applies here and that California’s anti-SLAPP

statute is not implicated, nor would Defendant, a Hawaii resident, be entitled to the

protections afforded by a California statute for defamatory statements that she

published from Hawaii.

“A state has a strong interest in having its own anti-SLAPP law applied to

the speech of its own citizens, at least when, as in this case, the speech initiated

within the state’s borders.” Chi, 787 F. Supp. 2d at 803 (emphasis added). This

approach is based on a recognition that the purpose of an anti-SLAPP law is to

encourage the exercise of free speech and that states have a strong interest in

having their own anti-SLAPP law applied to the speech of their own citizens.

Intercon Solutions, Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1035

14
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 22 of 26 PageID #: 160

(N.D. Ill. 2013). Given that Defendant is a citizen of Hawaii, and her defamatory

publication originated from Hawaii (Def.’s Mem. at 24), Hawaii has a strong

interest in having its anti-SLAPP statute applied for purposes of analyzing whether

Defendant is immune from liability for defamation. Id.

1. Hawaii’s anti-SLAPP statute does not protect Defendant

from the defamation claim at issue.

Defendant acknowledges, as she must, that Hawaii has its own anti-SLAPP

statute, but that the Hawaii statute does not cover the defamatory statements at

issue here. (Def.’s Mem. at 20, 22.) Hawaii’s anti-SLAPP statute applies only to a

lawsuit “that is solely based on the party’s public participation before a

governmental body.” Haw. Rev. Stat. § 634F-1 (emphasis added). The Hawaii

statute defines “public participation” as “any oral or written testimony submitted or

provided to a governmental body during the course of a governmental

proceeding.” Id. (emphasis added). Because Defendant’s defamatory allegations

about Mr. Ratner originally were published on her Facebook page and not

submitted or provided to a governmental body, or made during the course of a

privileged governmental proceeding, Hawaii’s anti-SLAPP statute provides no

protection to Defendant whatsoever. Perry v. Perez-Wendt, 294 P.3d 1081, 1086

(Haw. Ct. App. 2013) (affirming circuit court’s decision that “claims in the

Complaint did not constitute a SLAPP under HRS Chapter 634F”).

15
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 23 of 26 PageID #: 161

2. Even if the California statute did apply, Mr. Ratner could

satisfy his burden under the anti-SLAPP statute.
In the event the Court finds that the California anti-SLAPP statute applies

here, Mr. Ratner respectfully reserves the right to submit evidence demonstrating

that he has a probability of prevailing on the merits of his defamation claim. See

Cal. Civ. Proc. Code § 425.16(b)(1) (a cause of action based on defendant’s right

to free speech in connection with a public issue “is subject to a special motion to

strike unless the court determines that the plaintiff has established that there is a

probability that the plaintiff will prevail on the claim”). “In making its

determination, the court shall consider the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense is based.” Id.

§ 425.16(b)(2).

Mr. Ratner will demonstrate, through admissible evidence, that Defendant’s

published statements about him are false and defamatory and resulted in damage to

his personal and professional reputations. Among other things, Defendant has

changed her story multiple times since she originally published her false rape

allegations on Facebook. Initially, she claimed that Mr. Ratner raped her “12 years

ago.” Since then, she has backtracked on that claim telling George

Stephanopoulos in a televised interview with Good Morning America that it “might

have happened later.” Good Morning America: Filmmaker Sues Sex Assault

Accuser (ABC News broadcast Nov. 8, 2017), available at

16
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 24 of 26 PageID #: 162

https://www.youtube.com/watch?v=H6Xs7umx_CU. Defendant also has made

inconsistent statements about when she first told anyone about the alleged assault.

Originally, she said she did not tell anyone about the alleged incident until she

mentioned it to her husband the day she posted about it on Facebook. However,

she now claims that she told her “best friend at the time” about the alleged assault

shortly after it supposedly occurred. Id.

Under California law, such evidence would be sufficient to defeat an anti-

SLAPP motion. The threshold for showing a “probability of success” is quite

low—the plaintiff need only establish that his claim has “minimal merit” to avoid

being stricken as a SLAPP. Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30,

51 (Cal. 2006); see Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002) (“[P]laintiff

must demonstrate only that the complaint is legally sufficient and supported by a

prima facie showing of facts sufficient to support a favorable judgment if the

evidence submitted by plaintiff is credited.”). The court does not weigh credibility

or comparative strength of the evidence. Soukup, 139 P.3d at 51. Rather, the

court considers the defendant’s evidence only to determine if it defeats plaintiff’s

showing as a matter of law. Id.; see also Overstock.com, Inc. v. Gradient

Analytics, Inc., 61 Cal. Rptr. 3d 29, 38 (Ct. App. 2002) (“We do not weigh

credibility, nor do we evaluate the weight of the evidence . . . . [W]e accept as true

all evidence favorable to the plaintiff”).

17
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 25 of 26 PageID #: 163

The plain language of Defendant’s defamatory Facebook post is clear. She

unambiguously, and without any qualification, charged Mr. Ratner with a crime.

She wrote, “Brett Ratner raped me,” and expressly referred to him as a “rapist.”

(Compl. ¶¶ 1, 7.) No extrinsic facts or explanations are required to reasonably

understand the defamatory meaning of this statement. The false statement can only

be interpreted in one way, i.e., that Mr. Ratner is a rapist. As a matter of law, the

publication is libelous per se and is not protected by the First Amendment. See

Beauharnais, 343 U.S. at 257 (“[I]t is libelous falsely to charge another with being

a rapist . . . .”) Accordingly, Defendant’s procedurally improper anti-SLAPP

motion also must be denied on substantive grounds given that Mr. Ratner can and

will demonstrate a probability of prevailing on his sole claim for defamation, if the

Court so requires.

IV. CONCLUSION

Viewing the evidence in the light most favorable to Mr. Ratner, and drawing

all justifiable inferences in his favor, the Complaint contains sufficient factual

matters that, if accepted as true, state a claim to relief for defamation against

Defendant that is plausible on its face. As a result, the Court should deny

Defendant’s motion to dismiss, or at a minimum, grant Mr. Ratner leave to amend

the Complaint to plead additional facts.

18
Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 26 of 26 PageID #: 164

To the extent the Court decides Defendant’s procedurally improper anti-

SLAPP motion, it should deny that motion to strike on the grounds that California

law does not apply here, but even it did, Mr. Ratner can demonstrate a probability

of prevailing on his sole claim.

DATED: Los Angeles, California, January 22, 2018.

/s/ Andrew B. Brettler

ERIC A. SEITZ
DELLA A. BELATTI
MARTIN D. SINGER
ANDREW B. BRETTLER

Attorneys for Plaintiff

BRETT RATNER

19