Filed 9/9/26 Carter v. The Buzbee Law Firm CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SHAWN CARTER, B347898
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 24SMCV05637)
v.
THE BUZBEE LAW FIRM et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark H. Epstein, Judge. Affirmed.
Sidley Austin, David R. Carpenter, Collin P. Wedel,
Madeleine Joseph; Horvitz & Levy, Felix Shafir, Mark A. Kressel,
Jeremy B. Rosen and Marshall Grasty for Plaintiff and
Appellant.
Sheppard, Mullin, Richter & Hampton, Camille M.
Vasquez, J. Randall Boyer, Samuel A. Moniz, Melissa Medhat
Mikail and Valerie E. Alter for Defendants and Respondents.
____________________
Plaintiff Shawn Carter, more commonly known as Jay-Z, is
a world-famous rapper and businessman. He brought this action
against attorney Anthony G. Buzbee and his law firm the Buzbee
Law Firm (collectively, Buzbee) alleging Buzbee civilly extorted
Carter, defamed him, and intentionally inflicted emotional
distress upon him.
Carter appeals the trial court’s order granting Buzbee’s
special motion to strike all his causes of action under the anti-
SLAPP statute. (Code Civ. Proc.,1 § 425.16.) Finding no error, we
affirm.
FACTUAL BACKGROUND
Because this appeal arises from an order granting an anti-
SLAPP motion, we base this background upon “ ‘the pleadings,
and supporting and opposing affidavits upon which the liability
or defense is based.’ ” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3.)
In September 2024, rapper Sean Combs, more commonly
known as Diddy, was indicted in a highly publicized prosecution
involving charges of racketeering, sex trafficking, and
transportation for purposes of prostitution. The indictment
alleged Combs, for decades, had coerced individuals into
performing sex acts at “freak off” parties.
Buzbee practices law in Houston, Texas. AVA Law Group
(AVA) is a firm that practices law in multiple states. After
Combs’s indictment, Buzbee and AVA began representing alleged
victims of Combs’s crimes.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
In September and October 2024, Buzbee issued press
releases, held press conferences, and went on talk shows to
discuss his and AVA’s work on the Combs matter. In various
social media posts and press interviews, Buzbee represented that:
(1) other celebrities committed the crimes with Combs; (2) his
firm would sue and identify these perpetrators; (3) if his clients
were comfortable, his firm would identify these individuals to the
authorities; and (4) he had sent demand letters to these
individuals.
According to Buzbee, during his firm’s investigation, clients
and potential clients identified Carter as an accomplice to Combs
and a perpetrator himself. One of these clients was Jane Doe,
who initially retained AVA to pursue claims against Combs and
Carter. Buzbee began representing Jane Doe after receiving a
referral from AVA. Another client who retained Buzbee to sue
Combs and Carter was John Doe.
On October 20, 2024, Jane Doe, through Buzbee, filed a
lawsuit in the United States District Court for the Southern
District of New York (New York Action) accusing Combs and a
“Celebrity A” of rape.
On November 5, 2024, Buzbee sent “Mediation Demand”
letters (Demand Letters) to Carter on behalf of Jane and John
Doe. The Demand Letters claimed Carter sexually assaulted Jane
Doe when she was 13 and John Doe when he was 16 while they
were at Combs’s parties. The “demand” section of the Demand
Letters stated: (1) Buzbee had recommended Jane and John Doe
to immediately sue but they were not interested in causing a
“public spectacle”; (2) Jane and John Doe “want something of
substance done”; (3) they demand that Carter participate in
3
mediation; (4) they will sue if Carter refused; and (5) once they
have sued, other victims will likely come forward.
PROCEDURAL HISTORY
I. Carter’s Complaint
Carter refused the requests to mediate and anonymously
commenced this lawsuit on November 18, 2024, alleging civil
extortion and intentional infliction of emotional distress (IIED).
On December 8, 2024, Jane Doe amended the complaint in
the New York Action to explicitly name Carter as “Celebrity A.”
On December 20, 2024, Carter amended the complaint in
this action to sue under his own name and add a defamation
cause of action. In the first amended complaint (FAC), Carter
alleged Buzbee extorted him with the Demand Letters. Carter
further alleged Buzbee falsely accused him of rape in social
media posts and media interviews. The FAC identified the
following statements as underpinning his defamation cause of
action:
Statement A: “On or around October 2, [2024,] Buzbee
stated on the Stephen A. Smith Show: ‘I want to make sure
I capture a wide net and capture everybody involved, and that’s
what I’m . . . trying to do. And part of the . . . purpose of the press
conference was to encourage people that witnessed some of these
events to come forward, and that’s happening now. I want to
make sure that anyone that facilitated this, egged it on,
participated, benefited from, profited from, they’re involved too
because that’s really . . . what needs to happen here. It happens
. . . in other cases like that. You want to make sure that you
include everyone, especially those that enabled and were
complicit.’ He even admitted: ‘You know, obviously, a lot of this is
hard to corroborate.’ ”
4
Statement B: “On or around October 3, [2024,] on the Chris
Hansen Show, Buzbee accused ‘facilitators’ of misconduct,
claiming they ‘should be prosecuted and put underneath [sic] the
jail.’ He further said: ‘I expect the [Combs] indictment and the
charges in the indictment will grow. I expect other people will be
implicated, so I think that, like I say, I think we’re only seeing
the tip of the iceberg here.’ ” (First brackets added.)
Statement C: “On or around October 7, [2024,] on the
Shaun Attwood Podcast, Buzbee threatened that ‘there are going
to be some people named in these cases that are going to raise
some eyebrows . . . if you were a bank and you were somehow
facilitating this by allowing, you know, hundreds and hundreds of
thousands of dollars of cash to be withdrawn to be used for
various things, or you were some sort of pharmacy that ordered
large volumes of particular drugs were being purchased or maybe
you were a hotel or a club or this type of activity was taking
place, you’re going to be named.’ ”
Statement D: “On or around October 8, [2024,] in an
interview with Piers Morgan, Buzbee stated: ‘It may not be big
names at first, but . . . we have a long list of names.’ ”
Statement E: “On November 18, 2024, Buzbee referred to
his client in the New York [A]ction as a ‘sexual assault
survivor[],’ which is reasonably understood to refer to . . . Carter
as the perpetrator of the alleged assault.” (First brackets added.)
Statement F: “On December 10, [2024,] TMZ reported that
‘Buzbee said he’s not ruling out filing rape charges against
[Carter] with New York authorities,’ and further stated, ‘What
happens next is up to my client. It’s her case and what she
decides to do you will find out in due course.’ The article also
noted, ‘[Carter’s] rape accuser might take the music mogul’s
5
advice and file a criminal complaint against him after slapping
him with a civil suit alleging sexual assault, according to . . .
Buzbee.’ ”
II. Buzbee’s Anti-SLAPP Motion
On January 17, 2025, Buzbee filed an anti-SLAPP motion
seeking to strike the FAC in its entirety. Buzbee supported his
motion with his own declaration, and later with a declaration
from an AVA attorney, attesting: (1) Buzbee and AVA screened
and interviewed clients who accused Carter of sexual assault;
(2) their due diligence led Buzbee to genuinely believe Carter
sexually assaulted individuals at Combs’s parties, including Jane
and John Doe; and (3) Buzbee sent the Demand Letters on behalf
of his clients in good faith anticipation of litigation.
On February 10, 2025, Carter opposed the motion. Carter
supported his opposition by submitting, among other things, a
declaration refuting Jane and John Doe’s accusations, transcripts
of Buzbee’s press interviews, and an expert declaration opining
the Demand Letters “crossed ethical lines” and Buzbee failed to
adequately investigate the claims.
On February 14, 2025, Jane Doe dismissed the New York
Action with prejudice in exchange for Carter’s promise that
neither he nor his agents would harass or further interact with
her.
On February 25, 2025, the trial court held its first hearing
on the motion. At the hearing, Carter’s attorney informed the
court Carter had just obtained new evidence relevant to the
motion. The court took the matter under submission.
On March 5, 2025, Carter filed an ex parte application
asking the trial court to consider new statements made by Jane
6
Doe, or, in the alternative, to lift the discovery stay so he could
depose Jane Doe and Buzbee.
Briefing on the application revealed that on February 21,
2025, investigators “indirectly” acting on Carter’s behalf visited
Jane Doe at her home in Alabama and surreptitiously recorded2
an interview with her. After Jane Doe expressed surprise and
concern that someone had discovered her identity and address,
the investigators claimed they were “independent hires” there to
help her. They also promised Jane Doe she would remain
anonymous and be left alone if she cooperated. The investigators
then extensively questioned Jane Doe regarding her
communications with Buzbee. During the questioning, the bulk of
which consisted of one-word responses to the investigators’
questions, Jane Doe admitted the following: (1) she met with
Buzbee for the first time to discuss her case around the same
time he had her flown to Houston to do an interview with NBC3;
(2) during that meeting with Buzbee, she told him Combs raped
her at one of his parties; (3) Carter was present at the party but
did not rape her; (4) Buzbee suggested to her that Carter also
raped her and pushed her to make that claim; (5) lawyers at
Buzbee’s firm told her that if she pursued Carter she would
receive a payout; and (6) she dismissed the New York Action
2 In Alabama, only one party’s consent is necessary to record
a conversation. (See Ala. Code, § 13A-11-30.)
3 Carter contended that if this was true, it would mean Jane
Doe first discussed the case with Buzbee around December 11,
2024, as that was the date NBC conducted the interview. Buzbee
contended that she had earlier conversations with other members
of the legal team in October 2024.
7
because Buzbee and lawyers at his firm told her Carter had
threatened to kill her.
Carter’s application also argued that to the extent Jane
Doe’s statements were hearsay, the trial court should consider
them pursuant to Sweetwater Union High School Dist. v. Gilbane
Building Co. (2019) 6 Cal.5th 931 (Sweetwater).
Buzbee opposed Carter’s application on March 11, 2025. He
submitted declarations from Jane Doe, wherein she stated:
(1) she felt intimidated when she was confronted by the
investigators at her home; (2) her allegations were true and she
only dismissed the New York Action because of fear of retaliation;
(3) her lawyers extensively interviewed her about her claims; and
(4) she authorized Buzbee to send the demand letter to Carter
and to initiate the New York Action. Buzbee also submitted
declarations from lawyers at his firm, AVA, and a third firm that
worked on Jane Doe’s case, attesting: (1) Jane Doe was referred
to Buzbee’s firm by AVA in October 2024, following which she
hired Buzbee and AVA to pursue claims against Combs and
Carter; (2) in November 2024, she authorized Buzbee’s firm to
send the demand letter; and (3) her lawyers dismissed the New
York Action on her behalf because that was in the parties’ best
interests rather than because they did not believe in the claims.
On June 30, 2025, the trial court granted the anti-SLAPP
motion. The court first ruled the statements Jane Doe made to
the investigators were inadmissible hearsay, it could not consider
the statements pursuant to Sweetwater, and limited discovery
would be inappropriate. The court then ruled the anti-SLAPP
statute and litigation privilege protected the Demand Letters.
The court next ruled the defamation cause of action lacked
minimal merit because Carter failed to show either that
8
Statements A through D concerned Carter or that Buzbee made
Statements E and F with actual malice. Finally, the court struck
the IIED cause of action for the same reasons it struck the other
claims.
Carter timely appealed.
DISCUSSION
I. Overview of Anti-SLAPP Principles and Standard of
Review
The anti-SLAPP statute “provides a procedure for weeding
out, at an early stage, meritless claims arising from protected
activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, italics
omitted (Baral).)
The court’s ruling on an anti-SLAPP motion entails a two-
step procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) If
the defendant makes such a showing, at the second step the
“burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Ibid.) Without resolving
evidentiary conflicts, the court determines “whether the
plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment.” (Ibid.)
We review an order granting an anti-SLAPP motion de
novo and in so doing, conduct the same two-step analysis.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) We
review the court’s evidentiary rulings in connection with an anti-
SLAPP motion for an abuse of discretion. (Morrow v. Los Angeles
Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.)
9
II. The Trial Court Properly Granted the Anti-SLAPP
Motion
A. The Trial Court Properly Struck the First
Cause of Action for Extortion
Carter first argues the trial court erroneously struck the
cause of action for extortion because the anti-SLAPP statute and
litigation privilege do not protect the Demand Letters. We
disagree.
1. The Demand Letters Are Protected
Prelitigation Communications
“Prelitigation communications may qualify for [protection
under the anti-SLAPP statute] so long as they ‘ “concern[] the
subject of the dispute” and [are] made “in anticipation of
litigation ‘contemplated in good faith and under serious
consideration . . . .’ ” ’ ” (Flickinger v. Finwall (2022)
85 Cal.App.5th 822, 832–833.)
Here, Buzbee satisfied his moving burden of showing the
Demand Letters are protected. The Demand Letters concerned
the subject of the parties’ dispute, Carter’s alleged sexual assault
of Jane and John Doe. The Demand Letters offered a common
prelitigation alternative dispute resolution process, mediation,
and threatened a lawsuit. Buzbee’s and Jane Doe’s declarations
indicated litigation was genuinely contemplated in good faith.
And Jane Doe sued Carter after he declined to mediate.
Carter argues Buzbee did not meet his first-step burden
because the record, construed in his favor, shows the Demand
Letters were not made in good faith anticipation of litigation. But
at the first step, the only issue is whether Buzbee made a prima
facie case that the activity underlying Carter’s claims is
statutorily protected, not whether his actions were ultimately
10
lawful. (Curtin Maritime Corp. v. Pacific Dredge & Construction,
LLC (2022) 76 Cal.App.5th 651, 664.) Buzbee met this burden.
2. The Demand Letters Were Not
Extortionate as a Matter of Law
Before moving to the second step of the anti-SLAPP
analysis, Carter argues the Demand Letters are not protected
because they constituted extortion. This argument relies on our
Supreme Court’s decision in Flatley v. Mauro (2006) 39 Cal.4th
299, 320 (Flatley).
The narrow exception described in Flatley does not apply
here. The plaintiff in Flatley sued an attorney for engaging in
extortionate communications, and the attorney moved to strike
the complaint under the anti-SLAPP statute. The California
Supreme Court held the motion was properly denied. The anti-
SLAPP statute is not available to strike a complaint when the
moving defendant concedes, or the evidence conclusively
establishes, that the allegedly protected speech was illegal as a
matter of law. (Flatley, supra, 39 Cal.4th at p. 320.)
Here, Buzbee did not concede he engaged in extortionate
conduct, and Carter submitted no evidence to prove illegality
conclusively. The Demand Letters and Buzbee’s conduct bear
little resemblance to those the Supreme Court in Flatley held to
be illegal as a matter of law. (See Flatley, supra, 39 Cal.App.4th
at pp. 330–332.) Even drawing all inferences in favor of Carter’s
interpretation, the Demand Letters fall into the category of
prelitigation threats which Flatley has held not to constitute
extortion. (Id. at p. 332, fn. 16 [“our opinion should not be read to
imply that rude, aggressive, or even belligerent prelitigation
negotiations, whether verbal or written, that may include threats
to file a lawsuit, report criminal behavior to authorities or
11
publicize allegations of wrongdoing, necessarily constitute
extortion”].)
3. The Litigation Privilege Applies to the
Demand Letters
The litigation privilege precludes liability for a publication
made in or in the initiation of a judicial proceeding. (Civ. Code,
§ 47, subd. (b).) “[T]he privilege is ‘an “absolute” privilege, and it
bars all tort causes of action except a claim of malicious
prosecution.’ ” (Flatley, supra, 39 Cal.4th at p. 322, italics added.)
“ ‘Any doubt about whether the privilege applies is resolved in
favor of applying it.’ ” (Fazel v. Pete Fowler Construction Services,
Inc. (2026) 121 Cal.App.5th 315, 320.)
“ ‘A prelitigation communication is privileged only if it
“relates to litigation that is contemplated in good faith and under
serious consideration” . . . . The requirement of good faith
contemplation and serious consideration provides some assurance
that the communication has some “ ‘ “connection or logical
relation” ’ ” to a contemplated action and is made “ ‘ “to achieve
the objects” ’ ” of the litigation.’ ” (Malin v. Singer (2013)
217 Cal.App.4th 1283, 1300–1301, citation omitted.)
“[C]ommunications made in connection with litigation do not
necessarily fall outside the privilege simply because they are, or
are alleged to be, fraudulent, perjurious, unethical, or even
illegal,” assuming of course they are “ ‘logically related’ to the
litigation.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892,
920.) An “ ‘attorney demand letter threatening to file a lawsuit if
a claim is not settled’ ” is a “ ‘classic example’ ” of a
communication to “ ‘which the privilege would attach.’ ”
(Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 682.)
12
The litigation privilege applies to the Demand Letters. As
discussed in part II.A.1., ante, the evidence shows the Demand
Letters related to litigation contemplated in good faith, Buzbee
sent the Demand Letters to resolve his clients’ claims against
Carter, and the communications bore a logical relation to the
litigation threatened against Carter.
Carter fails to show there is a triable issue. First, Carter
makes much of the fact that John Doe did not submit a
declaration stating he genuinely contemplated suing Carter. But
Buzbee and Jane Doe submitted declarations stating litigation
was contemplated in good faith, thus providing evidence the
Demand Letters were not merely empty threats. Buzbee
specifically testified two of his clients “were prepared to assert
civil claims against Carter” and authorized him to send the
Demand Letters in “serious, good faith anticipation of litigation.”
Although Buzbee did not specify one of the clients was John Doe,
Buzbee attached the demand letter sent on John Doe’s behalf to
this same paragraph of testimony. Buzbee did not need to submit
a declaration from John Doe himself to show John Doe seriously
contemplated litigation. (See Neville v. Chudacoff (2008)
160 Cal.App.4th 1255, 1259, 1269 [declaration from attorney
stating he prepared letter accusing his client’s former employee of
misappropriation of trade secrets at his client’s request created
inference the client contemplated litigation seriously and in good
faith].) At oral argument, Carter’s counsel conceded an attorney
may submit a declaration testifying as to their client’s intent.
Second, Carter contends a jury could infer John and Jane
Doe did not seriously consider suing him because John Doe never
sued and Jane Doe ultimately dismissed the New York Action.
But this does not necessarily show John and Jane Doe did not
13
genuinely contemplate suing. (See Aronson v. Kinsella (1997)
58 Cal.App.4th 254, 271–272 (Aronson) [that the defendant “did
not thereafter file a complaint . . . does not raise a triable issue of
fact as to whether [the defendant] made the statements in good
faith and serious contemplation of litigation”].)
Third, Carter claims the Demand Letters’ request for
mediation and statement that Jane and John Doe had “no real
interest” in “filing a public lawsuit” confirm they did not
contemplate litigation. The actual contents of the demands reveal
otherwise. Buzbee stated in the Demand Letters he had
recommended Jane and John Doe to “immediately file suit” and
they “will do so”; the only reason they had not sued yet was
because they did not want to cause a public spectacle. Nothing
about these statements show Jane and John Doe were not
seriously considering suing Carter. The dispute had “ripened into
a proposed proceeding” sufficient to trigger the litigation
privilege. (Edwards v. Centex Real Estate Corp. (1997)
53 Cal.App.4th 15, 39.)
Finally, Carter argues it can be inferred that Jane Doe’s
demand letter was a negotiating tactic because when Buzbee sent
the “pre-suit demand,” Jane Doe had already filed the New York
Action accusing a “Celebrity A” of sexual assault. Although
Carter claims this was done to “goad” him “into making a pay-off
to avoid ‘a public spectacle’ ” and to leave open the option of
extorting others, he fails to point to any evidence to support this
interpretation of Jane Doe’s actions.
14
B. The Trial Court Appropriately Struck the
Second Cause of Action for Defamation
With respect to the cause of action for defamation, Carter
does not dispute it arises from protected activity. He only
contends he made a prima facie case of defamation. We disagree.
Any plaintiff suing for defamation is constitutionally
required to show “the statement on which the claim is based . . .
specifically refer[s] to, or [is] ‘of and concerning,’ the plaintiff in
some way.” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033,
1042.) That is, the plaintiff must be “identified . . . expressly or by
clear implication.” (Id. at p. 1044.) “Whether defamatory
statements can reasonably be interpreted as referring to [the]
plaintiff[] is a question of law for the court.” (Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 146.)
When the plaintiff is a public figure, which Carter does not
dispute he is, he must also “ ‘show, by clear and convincing
evidence, that the defamatory statement was made with actual
malice—that is, with knowledge that it was false or with reckless
disregard of whether it was false.’ ” (Sanchez v. Bezos (2022)
80 Cal.App.5th 750, 763, fn. 4 (Sanchez).) The reckless disregard
standard “does not mean gross or even extreme negligence, but
requires actual doubt concerning the truth of the publication.”
(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244,
259, fn. 11 (Reader’s Digest).)
Here, the trial court correctly found Carter failed to show
Statements A through D concerned Carter. In these statements,
Buzbee told the press he wanted to cast a wide net and “capture”
other perpetrators, he expected “other people will be implicated,”
some of the people named will “raise some eyebrows,” and the
names may not be big at first but he has a “long list of names.”
15
These general statements cannot be reasonably read to refer to
Carter.
Resisting this conclusion, Carter argues Buzbee linked him
to Statements A through D by “liking” an X post on November 19,
2024. But the post and the circumstances surrounding it reveal
otherwise. After Carter anonymously sued Buzbee on November
18, Buzbee posted on X that a perpetrator had sued him.
Thereafter, a user made a post correctly guessing the plaintiff
was Carter. Buzbee “liked” the user’s post, which could be read as
confirming Carter was the plaintiff and the perpetrator
mentioned in Buzbee’s November 18 post. The user’s post,
however, did not connect Carter to the statements Buzbee
previously made to the press. Thus, the user’s post and Buzbee’s
“liking” of it did not link Carter to Statements A through D.
As for Statements E and F, which implicated Carter as the
person who sexually assaulted Jane Doe, the trial court correctly
concluded Carter failed to show Buzbee made those statements
with actual malice. The record contains no evidence Buzbee
accused Carter of raping Jane Doe while knowing those
statements to be false or with reckless disregard as to whether
they were true. To the contrary, Buzbee submitted declarations
showing his firm’s and AVA’s investigations led him to
subjectively believe in the truth of the accusations.
Carter’s arguments do not support a contrary conclusion.
First, he contends the clients and potential clients Buzbee relied
on to substantiate the accusations against Carter were
“obviously” unreliable sources. Specifically, he argues a jury could
infer “any accuser” was unreliable because Buzbee’s sexual abuse
hotline asking for Combs’s victims to come forward had received
more than 15,000 calls. But those accusations were not all
16
directed at Carter, and in any event, the record shows Buzbee
attempted to weed out frivolous claims and only believed Carter’s
accusers after “extensive” interviews. Carter also argues that
because Jane and John Doe alleged Carter sexually assaulted
them in 2000 and 2015 respectively, the passage of time
inherently rendered them unreliable. Not so. Just because a
sexual assault happened years ago does not mean that the
accuser is unreliable.
Second, Carter argues Buzbee and his law firm failed to
adequately investigate the claims against Carter. But “a
defendant’s failure to investigate an issue will not, alone, support
a finding of actual malice.” (Collins v. Waters (2023) 92
Cal.App.5th 70, 73.) This is so even if the failure to investigate
amounts to gross or extreme negligence. (Reader’s Digest, supra,
37 Cal.3d at p. 259, fn. 11.) Instead, Carter must show Buzbee
had “actual doubt[s]” about the truth. (Ibid.) Carter argues there
is evidence of that here because Buzbee relied on unreliable
sources without further investigation. As just detailed, there is no
evidence Buzbee’s sources were inherently unreliable.
At oral argument, Carter’s counsel additionally argued
there is at least a triable issue as to whether Buzbee accused
Carter of raping John Doe with actual malice because the record
is devoid of any evidence Buzbee investigated John Doe’s claims.
This is a moot point because none of the statements
underpinning the defamation cause of action concerns the
accusation that Carter raped John Doe.
C. The Trial Court Appropriately Struck the Third
Cause of Action for IIED
Carter recognizes his cause of action for IIED rises and
falls with his causes of action for extortion and defamation.
17
Because we have concluded the trial court properly struck the
latter causes of action, we also conclude the court appropriately
struck the cause of action for IIED.
III. The Trial Court Did Not Err in Excluding Carter’s
New Evidence
Carter next argues that even if the trial court correctly
granted the anti-SLAPP motion based on the evidence it
considered, the court should have considered Jane Doe’s
interview with the investigators as it would have allowed Carter
to meet his second-step burden.
As a preliminary matter, we note there are many issues
with the interview separate from those addressed by the trial
court. First, although Carter and his counsel never admitted to
sending the investigators and never disclosed who did, the
investigators said they were acting “indirectly” on Carter’s
behalf. If any of Carter’s counsel were involved, this would have
been a violation of rule 4.2 of the Rules of Professional Conduct,
which prohibits direct or indirect contact with a represented
party. Second, the investigators’ questions regarding Jane Doe’s
communications with Buzbee deliberately invaded the attorney-
client privilege. (Evid. Code, § 954.) Carter claims Jane Doe
waived the privilege, but the circumstances surrounding the
interview, where two investigators surprised her at her home and
told her they would leave her alone and let her remain
anonymous if she cooperated, call into question whether the
alleged waiver was “voluntary.” (Roberts v. Superior Court (1973)
9 Cal.3d 330, 343.) Third, for the same reasons, the
circumstances surrounding the interview raise serious doubts
regarding the reliability of Jane Doe’s alleged admissions. (See
People v. Chhoun (2021) 11 Cal.5th 1, 47 [statements only
18
constitute declarations against interest if they are reliable].)
Finally, the interview was conducted on February 21, 2025,
four days before the hearing on the anti-SLAPP motion, but
Carter waited until March 5, 2025, to disclose the interview had
occurred and March 14, 2025, to produce a copy of the interview
transcript, which also revealed investigators had recorded the
interview.
Even assuming these issues do not prohibit consideration of
Jane Doe’s interview, the trial court properly concluded Jane
Doe’s statements were inadmissible hearsay and not curable
under Sweetwater.
A. The Trial Court Acted Within Its Discretion in
Concluding Jane Doe’s Statements Were
Inadmissible Hearsay
An out-of-court statement “offered to prove the truth of the
matter stated” is hearsay and inadmissible unless authorized by
a recognized exception. (Evid. Code, § 1200, subds. (a), (b).)
Evidence Code section 1230 makes an exception for declarations
against interest.
The “against interest” issue is a foundational matter for the
trial court to determine. (Evid. Code, § 405.) “In determining
whether a statement is truly against interest within the meaning
of Evidence Code section 1230, and hence is sufficiently
trustworthy to be admissible, the court may take into account not
just the words but the circumstances under which they were
uttered, the possible motivation of the declarant, and the
declarant’s relationship to the defendant.” (People v. Frierson
(1991) 53 Cal.3d 730, 745.) We may reverse the trial court’s
finding on this issue only if there is an abuse of discretion. (Ibid.)
19
Here, the trial court did not err in concluding Carter
offered Jane Doe’s statements for their truth. The statements
would only support Carter’s contention that Buzbee did not send
the Demand Letters in good faith anticipation of litigation and
acted with actual malice if it was true that (1) Jane Doe told
Buzbee that Carter did not rape her; (2) Buzbee nevertheless
pushed her to accuse Carter and promised her a payout; and
(3) Buzbee pushed her to dismiss the New York Action.
The trial court also reasonably rejected Carter’s argument
that Jane Doe’s statements were against her interest. The court
listened to the audio of the interview and placed itself in Jane
Doe’s shoes.4 As noted by the court, the investigators told Jane
Doe they believed she was a victim and was being taken
advantage of by Buzbee. The court reasonably found the tone of
these statements gave Jane Doe the impression that if she
supported the investigators’ narrative—that Buzbee pushed her
to falsely accuse Carter—she need not worry about legal action
from Carter. Further, the court noted that although the tone of
the interview appeared to be polite and friendly, the investigators
surprised her at her front door and told her they were acting
“indirectly” on Carter’s behalf. Coupled with the fact that one of
the investigators also told Jane Doe “if you cooperate and kind of
tell us what’s going on, everything remains a Jane Doe,” the court
reasonably concluded Jane Doe felt she needed to cooperate and
help Carter if she wanted to remain anonymous and not be sued.
The record supports the court’s determination that Jane Doe’s
4 Carter lodged the audio recording of this interview as
exhibits with the trial court. The parties have lodged the
recording with this court, and we have also listened to the audio
to assess the trial court’s ruling.
20
statements actually advanced her interests and thus its ruling
did not “ ‘exceed the bounds of reason, all of the circumstances
before it being considered.’ ” (Denham v. Superior Court (1970)
2 Cal.3d 557, 566.)
B. Carter Misapplies Sweetwater
Carter argues even if Jane Doe’s statements were hearsay,
the trial court should have considered them because it is
reasonably possible they will be admitted at trial. Because
Carter’s argument is based on a misreading of Sweetwater, we
disagree.
In Sweetwater, the California Supreme Court held that “in
determining [whether a plaintiff can satisfy the second-step of
the anti-SLAPP analysis], the court may consider statements
that are the equivalent of affidavits and declarations because they
were made under oath or penalty of perjury in California,” like
plea forms and grand jury testimony transcripts, even though
they technically constituted hearsay because of the manner in
which they were presented. (Sweetwater, supra, 6 Cal.5th at
p. 945, italics added.) However, that holding did not end the
inquiry because the defendants argued the plaintiff was required
to satisfy other preconditions to admissibility at the anti-SLAPP
hearing. Rejecting this argument, the court held “evidence may
be considered at the anti-SLAPP motion stage if it is reasonably
possible the evidence set out in supporting affidavits, declarations
or their equivalent will be admissible at trial.” (Id. at p. 947,
italics added.)
Here, unlike the guilty plea forms and grand jury
testimony proffered in Sweetwater, Jane Doe’s statements were
not made under oath or penalty of perjury. Thus, they were not
“the equivalent of affidavits and declarations.” (Sweetwater,
21
supra, 6 Cal.5th at p. 945.) For this same reason, they were not
“curable” hearsay identified in Sweetwater. (Id. at pp. 947, 949;
see also Sanchez, supra, 80 Cal.App.5th at p. 759 [holding same].)
Even assuming Carter is correct Sweetwater is not limited
to statements made under oath, Carter’s argument as to how the
statements can come in at trial is unpersuasive. According to
Carter, Jane Doe would most certainly testify at trial, and, while
on the stand, she would either confirm the statements or deny
them and be impeached. Our Division One colleagues rejected a
similar preemptive use of the prior inconsistent hearsay
exception, and we reject it here, too. (Sanchez, supra,
80 Cal.App.5th at p. 776 [allowing a plaintiff to preemptively
assert the inconsistent statement exception would “eviscerate the
hearsay rule for purposes of anti-SLAPP proceedings”].)
IV. The Trial Court Reasonably Denied Carter’s Request
for Limited Discovery
Finally, Carter argues even if the trial court properly
excluded Jane Doe’s statements, it should have lifted the
discovery stay to let him depose Jane Doe and Buzbee. We
conclude the trial court did not abuse its discretion.
When a defendant files an anti-SLAPP motion, all
discovery proceedings are automatically stayed pending a
decision on the motion. (§ 425.16, subd. (g).) The statute “permits
the trial court to lift this [stay] upon a showing of good cause”
(The Garment Workers Center v. Superior Court (2004)
117 Cal.App.4th 1156, 1161), but the court must ensure that
discovery does not delay the resolution of a motion unnecessarily.
“[T]o allow [the plaintiff unduly] extensive discovery would
subvert the intent of the anti-SLAPP legislation.” (Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247.) We
22
review a court’s decision to deny relief from the discovery stay for
abuse of discretion. (Balla v. Hall (2021) 59 Cal.App.5th 652,
692.)
Carter argues the trial court abused its discretion in
denying grant his request for discovery because he can only
obtain evidence of actual malice by deposing Jane Doe and
Buzbee regarding their states of mind. We agree that discovery
may be appropriate in cases involving actual malice. (See
Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995)
37 Cal.App.4th 855, 868, superseded by statute on other grounds
as stated in Damon v. Ocean Hills Journalism Club (2000)
85 Cal.App.4th 468, 478.) But several reasons support the court’s
decision to deny Carter discovery here.
First, Carter’s request to lift the discovery stay—which
came eight days after the initial anti-SLAPP hearing and almost
two months after Buzbee filed his motion—was not a “timely and
properly noticed motion for discovery” as required by
section 425.16, subdivision (g). (Braun v. Chronicle Publishing
Co. (1997) 52 Cal.App.4th 1036, 1052.) Carter argues the court
had inherent power to excuse his untimely request. But “the anti-
SLAPP statute prescribed the court’s power to allow or proceed
with discovery proceedings, and the court lacked inherent power
to act directly contrary to the statutory mandate.” (Britts v.
Superior Court (2006) 145 Cal.App.4th 1112, 1129.)
Second, the trial court reasonably concluded depositions
would be inappropriate because Jane Doe and Buzbee already
presented sworn testimony on the subject of Carter’s proposed
inquiry. Discovery may not be obtained under the anti-SLAPP
statute “merely to ‘test’ the opponent’s declarations.” (1-800
Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)
23
Third, even if Carter had been given an opportunity to
depose Jane Doe and Buzbee, the attorney-client privilege would
foreclose him from asking them about their communications.
(Evid. Code, § 954.)
Fourth, depositions of Jane Doe and Buzbee to obtain direct
evidence of their states of mind were not absolutely necessary
because a plaintiff can prove actual malice with circumstantial
evidence. (See Reader’s Digest, supra, 37 Cal.3d at p. 257.)
Finally, the record supports the trial court conclusions that
the depositions would not be narrowly tailored and that they
would infringe on Jane Doe’s privacy rights. The pleadings below
were contentious and rife with irrelevant accusations, and the
court reasonably concluded the depositions would be no different.
Further, in light of the fact that Jane Doe had agreed to dismiss
the New York Action based on the promise that neither Carter
nor his agents would harass or further interact with her, the
court did not abuse its discretion in considering her privacy
rights as a third party and victim of a serious crime by Combs,
whether or not she was also a victim of Carter’s.
DISPOSITION
The order is affirmed. Buzbee is entitled to costs on appeal.
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J.
GOORVITCH, J.
24