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In a lesson to defense attorneys, an L.A. judge has denied an anti-SLAPP motion filed by producers of The Doctors — in response to a fitness influencer’s suit over a botched butt implant removal procedure — because it was filed too early.
Jenelle Butler on Jan. 15, 2020 sued Stage 29 Productions and alleged that she suffered “horrendous injuries” because producers were negligent in choosing the doctor who performed her surgery.
Stage 29 on Feb. 3, 2020 filed an anti-SLAPP motion to strike the complaint, arguing that the suit arises from conduct in furtherance of its right of free speech on a matter of public interest (producing the show) and that she couldn’t show a probability of succeeding on her claims, in part, because she signed a waiver of rights that specifically included negligence and medical malpractice.
L.A. County Superior Court Judge John P. Doyle in November denied the motion as premature, but allowed further briefing on the matter. Ultimately, though, he stuck with his initial ruling.
Anti-SLAPP motions aim to bring an early end to frivolous litigation arising from protected conduct like the exercise of free speech, but the statute itself is specific about the timing of the motion and Doyle found that attempt can be made too early. The statute states: “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.”
Here, the complaint wasn’t served on defendants before Stage 29 filed its anti-SLAPP motion.
“Defendant argues that it made a general appearance by filing an anti-SLAPP motion and cites Code Civ. Proc. § 410.50(a) which provides that a ‘general appearance by a party is equivalent to personal service of summons on such party. There are two problems with this argument,” writes Doyle in his November 13 order, which is posted below. “First, it conflates the imposition of personal jurisdiction with the time period in which an anti-SLAPP motion can be filed. … Second, this argument contravenes the plain language of Code Civ. Proc. § 425.16(f) which identifies ‘service of the complaint’ as the relevant date for commencing the 60–day period for filing a special motion to strike.”
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