Department 58

Hearing Date: January 23, 2024

Case Name: Ziai v. Does 1-25

Case No.: 23STCV24180

Matter: Motion for Discovery under Code of Civil Procedures § 2025.210

Moving Party: Plaintiff Ali Ziai

Responding Party: None

Tentative Ruling: The Motion to Allow Discovery under Code of Civil Procedure section 2025.210 is granted.

This is a defamation action. Plaintiff Ali Ziai (Plaintiff) alleges that, for years, he has been subjected to a pervasive harassment and defamation campaign consisting of dozens of false online reviews that were intended to inflict emotional and monetary damage on him.

On October 17, 2023, Plaintiff filed a motion to conduct early discovery under Code of Civil Procedure section 2025.210, subdivision (b). No opposition was filed.[1]

The motion for leave to conduct discovery under Code of Civil Procedure section 2025.210 is granted.

DISCUSSION

Plaintiff seeks leave from the Court to serve deposition subpoenas for business records pursuant to Code of Civil Procedure section 2025.210, subdivision (b), on Yelp, Inc., Google, Inc, Microsoft, Inc., MH Sub I, LLC, Meta Platforms, Inc., International Association of Better Business Bureaus, and DOE Defendants’ ISPs.

Section 2025.210, subdivision (b), provides: “The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.”

Here, the Complaint alleges causes of action against Doe Defendants only. (Ziai Decl., ¶ 2.) No defendant has been served with a summons or the complaint, and no defendant has made an appearance in this action. (Ziai Decl., ¶ 2.) Plaintiff asserts that he has been unable to effectuate service because he is unable to ascertain the true identities of any of the Doe Defendants. (Ziai Decl., ¶ 2.)

In support of his motion, Plaintiff cites only to O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423 for the proposition that “where only DOE defendants are named in a complaint, the plaintiff must still seek leave from the court to serve deposition notices, even if it is only to ascertain the identities of the DOE defendants.” (Mot., p. 5:11-13.)

While this proposition is a correct interpretation of Code of Civil Procedure section 2025.210, subdivision (b), the O'Grady court did not make any determination on whether the trial court’s decision to allow early discovery under Code of Civil Procedure section 2025.210, subdivision (b) was correct. (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1454.) Thus, this case is really of no help to Plaintiff.

Nonetheless, Plaintiff’s argument and evidence are sufficient to demonstrate good cause to permit Plaintiff to serve third party subpoenas to obtain Defendants’ identities. Plaintiff cannot proceed in his litigation without first identifying the responsible defendants; Plaintiff submits evidence that he has no other means by which to obtain these identities. (Ziai Decl., ¶¶ 4-7.)

It is important to note that the Court is merely determining that requested subpoenas may be issued, not deciding whether the subpoenas should be quashed, or on the other hand, whether compliance should be compelled. Plaintiff need not make a prima facie showing of his claims in his request for a subpoena. (Tendler v. www.jewishsurvivors.blogspot.com (2008) 164 Cal.App.4^th 802, 808.) But Plaintiff will have to make a prima face showing as to his claims in order to overcome a motion to quash the subpoenas once served. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154; ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 611.) California courts have held that, to defeat a defendant’s motion to quash a subpoena seeking his or her identity, a plaintiff must make a prima facie showing of the elements of libel. (Krinsky, supra, 159 Cal.App.4th at p. 1172; see Yelp Inc. v. Superior Court (2017) 17 Cal.App.5th 1, 14 [“a plaintiff seeking discovery of the anonymous person's identity must first make a prima facie showing the comment at issue is defamatory”]; Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1305 [“First Amendment protection for anonymous speech requires a libel plaintiff seeking to discover an anonymous libel defendant's identity to make a prima facie showing of all elements of defamation”].) That determination is for another day.

CONCLUSION

Accordingly, the Court grants Plaintiff’s motion to obtain discovery under Code of Civil Procedure section 2025.210, subdivision (b).

[1] However, as noted below, no defendant has been served and this motion was not served on any party or non-party.