Judge Christopher K. Lui, Case Number: 24STCV20245, Date: 2024-10-16 Tentative Ruling

Judge: Christopher K. Lui, Case: 24STCV20245, Date: 2024-10-16 Tentative Ruling

Case Number: 24STCV20245 Hearing Date: October 16, 2024 Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:26 p.m. on October 15, 2024.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on October 15, 2024.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument will not be permitted.

Plaintiff alleges that he was accused by an unknown person via Instagram messages of being a pedophile.

Plaintiff moves the Court for leave to engage in limited-expedited discovery against non-party deponent Google, Inc. and Instagram, LLC.

TENTATIVE RULING

Plaintiff’s motion for leave to engage in limited-expedited discovery against non-party deponent Google, Inc. and Instagram, LLC is DENIED without prejudice.

ANALYSIS

Motion For Limited-Expedited Discovery

Discussion

Plaintiff moves the Court for leave to engage in limited-expedited discovery against non-party deponent Google, Inc. and Instagram, LLC (collectively “Non-party Deponents”).

Non-party Meta Platforms, Inc. opposes the motion on the grounds that the subpoena to Meta is invalid as premature, and Plaintiff has not obtained leave before serving the subpoena on Meta pursuant to Civ. Proc. Code, § 2025.210(b). However, § 2025.210 is inapposite, as it pertains to notices of oral depositions (which may not be used to compel the deposition of non-parties) not business record subpoenas (which may be used to compel the deposition of non-parties).

Section 2025.210 provides:

Subject to Sections 2025.270 and 2025.610, an oral deposition may be taken as follows:

(a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first.

(b) 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.

(Civ. Proc. Code, § 2025.210.)

Meta also argues that Plaintiff must demonstrate that (1) he has attempted to notify the account holders and (2) there is a prima facie cause of action for defamation. This argument is persuasive.

[W]e concluded that the plaintiff had to satisfy two requirements to overcome the defendant’s constitutional right to preserve his or her anonymity. First, if the defendant has not received notice of the attempt to lift the shield of anonymity, the plaintiff must make reasonable efforts to provide such notice. (Id. at p. 1171.) Second, the plaintiff must “make a prima facie showing that a case for defamation exists” (ibid.; see id. at p. 1172), by “setting forth evidence that a libelous statement has been made” (id. at p. 1172, fn. omitted). We described the required quantum of evidence as “‘that which will support a ruling in favor of [the plaintiff] if no controverting evidence is presented. [Citations.] It may be slight evidence which creates a reasonable inference of fact sought to be established but need not eliminate all contrary inferences. [Citation.]’” (Id. at p. 1172, fn. 14, quoting Evans v. Paye (1995) 32 Cal.App.4th 265, 280, fn. 13 [37 Cal. Rptr. 2d 915].)

Although the present case does not sound in libel, we see no reason to doubt that the same principles apply. In any action predicated on anonymous speech, regardless of legal theory, the plaintiff should not be able to discover the speaker’s identity without first making a prima facie showing that the speech in question is actionable. Here this means a prima facie showing that Doe’s review contained statements that had the effect of disclosing confidential information, as defined by the nondisclosure agreement. The showing must be sufficient to “support a ruling in favor of [MZ].” (Krinsky, supra, 159 Cal.App.4th at p. 1172, fn. 14, quoting Evans v. Paye, supra 32 Cal.App.4th 265, 280, fn. 13.)

(Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 634-35 [bold emphasis added].)

Here, Plaintiff must demonstrate reasonable efforts to provide notice of the attempt to lift the shield of anonymity, logically, via Instagram. Second, Plaintiff must make a prima facie showing that a case for defamation exists.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.] Civil Code section 45 provides, ‘Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 [117 Cal. Rptr. 3d 747].)

“ ‘The sine qua non of recovery for defamation … is the existence of falsehood.’ [Citation.] Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 [64 Cal. Rptr. 3d 467] (McGarry).)

“That does not mean that statements of opinion enjoy blanket protection. [Citation.] On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.] The critical question is not whether a statement is fact or opinion, but ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” ‘ “ (Wong v. Jing, supra, 189 Cal.App.4th at p. 1370.)

“To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. [Citation.] Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. … [¶] Next, the context in which the statement was made must be considered.’” (McGarry, supra, 154 Cal.App.4th at p. 113.)

“The ‘crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. [Citation.]’ [Citation.] ‘Only once the court has determined that a statement is [*863] reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. [Citations.]’ [Citation.] The question is ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. …” ‘ “ (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696 [142 Cal. Rptr. 3d 40] (Summit Bank).)

(Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862-63.)

“Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed.” (Bindrim v. Mitchell (1979) 92 Cal. App. 3d 61, 79, overruled on other grounds in McCoy v. Hearst Corp. (1986) 42 Cal. 3d 835, 846 n. 9.)

Here, Plaintiff alleges that he received messages on Instagram from Defendants. (Complaint, ¶¶ 12, 13.) However, private messages are not publications for purposes of a defamation cause of action. Likewise, text messages from an anonymous number (Complaint, ¶¶ 15, 16) are not publications for purposes of a defamation cause of action.

¶ 14 alleges the Defendants posted a message about Plaintiff by using their Instagram profile @leogossette and tagging @rocketkid91, that Plaintiff is a freak and posted these screenshots accusing him of liking younger boys, that they didn’t doubt it is true and they’re glad the accusations have come to light. Quite simply, Plaintiff must provide a screenshot of this message to show the actual message and its context.

Likewise, even as to the Civil Harassment in violation of Civ. Proc. Code, § 527.6 and infliction of emotional distress causes of action, Plaintiff must present screenshots as evidence that the statements were made, and the possible person to whom such statements might be attributed.

As such, the motion for leave to engage in limited-expedited discovery against non-party deponent Google, Inc. and Instagram, LLC is DENIED without prejudice.