Judge: Daniel S. Murphy, Case: 22STCV04218, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV04218    Hearing Date: December 7, 2022    Dept: 32

BACKGROUND

            On February 3, 2022, Plaintiffs Jack Barakat, Rian Dawson, Alex Gaskarth, Zack Merrick, and ATL Touring, Inc. filed this complaint for libel per se and intentional interference with prospective economic advantage. Plaintiffs are members of the rock band All Time Low (ATL). The complaint arises from written posts on social media wherein anonymous individuals accused Plaintiffs of committing or being complicit in grooming and sexually assaulting fans, including minors.

One of these accusations was posted on Twitter by Doe 2, an anonymous individual with the handle “@atlstatement,” who claimed that Plaintiff Barakat sexually assaulted her over a period of years beginning when she was a minor. Plaintiffs served a subpoena to Twitter seeking “DOCUMENTS sufficient to show all user identification information, including the user’s names, any physical address(es), any telephone number(s), any associated IP address(es) with corresponding date(s) and time(s), and any email address(es) associated with the Twitter account @atlstatement.” (Tantalo Decl., Ex. 3.) Plaintiffs seek to identify Doe 2 so as to serve her with the lawsuit and proceed with litigation. In accordance with its internal policy, Twitter declined to release the information without a court order.    

LEGAL STANDARD

“[T]he constitutional right to publish anonymously has long been recognized as an aspect of the freedom of speech protected by the First Amendment.” (ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 611.) However, “the First Amendment's speech protections do not extend to defamation.” (Ibid.) When a plaintiff sues for defamation based on an anonymous statement, it “presents a conflict between a plaintiff's right to employ the judicial process to discover the identity of an allegedly libelous speaker and the speaker's First Amendment right to remain anonymous.” (Id. at p. 610.) To address this conflict, our Court of Appeal has devised a test for the compulsory disclosure of an anonymous speaker’s identity.

First and foremost, “a plaintiff seeking compulsory disclosure of an allegedly libelous speaker's identity must state a legally sufficient cause of action against the defendant, and must make a prima facie showing of the elements of that cause of action.” (ZL Technologies, supra, 13 Cal.App.5th at p. 613.) This showing requires “evidence ‘that … will support a ruling in favor of [the plaintiff] if no controverting evidence is presented. It may be slight evidence which creates a reasonable inference of [the] fact sought to be established but need not eliminate all contrary inferences.’” (Id. at p. 612, citing Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1172, fn. 14.) “A plaintiff need produce evidence of only those material facts that are accessible to her . . . In an Internet libel case, that burden should not be insurmountable . . . .” (Krinsky, supra, 159 Cal.App.4th at p. 1172.) It is sufficient to present “evidence of the allegedly libelous statement, its falsity, and its effect on the plaintiff.” (ZL Technologies, supra, 13 Cal.App.5th at p. 612.)

Additionally, “a court must ensure reasonable efforts are made to notify the defendants, permitting them an opportunity to respond, before disclosure of their identities may be compelled.” (ZL Technologies, supra, 13 Cal.App.5th at p. 615.) It is for “the trial court to determine in the circumstances of each case who should notify the anonymous defendant of the efforts to discover his identity . . . .” (Ibid.)

DISCUSSION

I. Prima Facie Case

            A prima facie case in this context requires the plaintiff to state a valid claim and provide evidence of its elements. (ZL Technologies, supra, 13 Cal.App.5th at p. 613.)

Defamation consists of “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “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.” (Civ. Code, § 45.) “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face.” (Id., § 45a.) “[T]he words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 635.)

Here, the complaint states a valid claim because it sets forth the exact statements alleged to be defamatory (Compl., Ex. B), alleges that they are false (id., ¶ 16), and alleges that Defendants made the statements with actual malice (id., ¶ 25). Damage is presumed without the need for proof in libel per se cases where a statement is defamatory on its face, such as accusations of sexual assault. (See Hawran v. Hixson (2012) 209 Cal.App.4th 256, 290.) Nonetheless, Plaintiffs allege that they have lost reputation, goodwill, and lost revenue. (Compl. ¶¶ 26-27.) Therefore, the complaint states a valid claim for libel per se.

Plaintiffs also submit uncontested declarations as proof of the statements and their falsity. (Tantalo Decl., Ex. 1.) Plaintiffs deny under oath the accusations made in Doe 2’s Twitter post. (See Declarations of Barakat, Dawson, Gaskarth, Merrick, Moses.) At this stage, Plaintiffs have demonstrated a prima facie case with “those material facts that are accessible to [them].” (See Krinsky, supra, 159 Cal.App.4th at p. 1172.) The declarations include categorical denials of the accusations made in Doe 2’s Twitter post, but also specific facts demonstrating why the statements made in the post are false. This is sufficient to “create[] a reasonable inference of [the] fact sought to be established,” particularly as “no controverting evidence is presented.” (ZL Technologies, supra, 13 Cal.App.5th at p. 612.) Plaintiffs need not “eliminate all contrary inferences.” (Ibid.)  

The Court finds that Plaintiffs have established a prima facie case.

II. Notice

            The trial court has discretion to “determine in the circumstances of each case who should notify the anonymous defendant of the efforts to discover his identity.” (ZL Technologies, supra, 13 Cal.App.5th at p. 615.) “As between the plaintiff seeking to discover the identity of the anonymous commenter, and the website host that presumptively knows the identity or has access to information that may reveal it, it makes little sense to place the burden of notification on the former. And placing the burden on the website host seems especially appropriate in circumstances such as these, where the host is depending on the rights of the anonymous commenter as the basis for defending the discovery request.” (Yelp Inc. v. Superior Court (2017) 17 Cal.App.5th 1, 14.)

            In this case, it is reasonable to require Twitter to provide notice to Doe 2. Twitter confirms that it has served notice to Doe 2 and that the time for filing a motion to quash has passed. (Schwartz Decl. ¶ 5; Twitter Response Brief (Brief) at p. 7, fn. 3.) The Court finds that Doe 2 has been adequately notified and given an opportunity to respond.

III. Balancing Test

            Twitter claims that the Court must balance the “compelling need for discovery with the privacy rights of the anonymous speaker.” (Brief at 9:18-22.) According to Twitter, Plaintiffs “must show that it is unable to obtain the identifying information from any other source.” (Id. at 10:13-14.)

However, the proper balancing is inherent in the test established above, and no further balancing is needed. (See ZL Technologies, supra, 13 Cal.App.5th at p. 617.) The weighing process Twitter references “is usually invoked when a party is seeking the identity of third parties.” (Id. at p. 633.) By contrast, “the need to know the identity of the defendant in order to pursue a claim will usually be deemed ‘essential to a fair resolution of [a] lawsuit.’” (Ibid., citing Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 230.) A compelling need is not required in every case (see Williams v. Superior Ct., 3 Cal.5th (2017) 531, 557), but even if it is required here, the standard would be met because Plaintiffs cannot proceed with litigation without identifying Doe 2.

Lastly, the Court of Appeal has expressly rejected the argument that a plaintiff “should be obligated to exhaust every conceivable option for identifying defendants before it can obtain the information through a subpoena.” (ZL Technologies, supra, 13 Cal.App.5th at p. 617, fn. 7.) Twitter suggests that Plaintiffs could have ascertained the necessary information from their subpoena to TikTok, but Plaintiff’s counsel has confirmed that “[t]he only meaningful information provided in TikTok’s BSI for Doe 2 was an IP address that traced back to a data service center and information indicating that Doe 2 registered for TikTok through Doe 2’s Twitter account.” (Tantalo Decl. ¶ 6.) Given these circumstances, there is “little point in requiring the plaintiff to travel more circuitous trails in search of Doe's identity.” (ZL Technologies, supra, 13 Cal.App.5th at p. 617, fn. 7.) Twitter should provide the information as requested in the subpoena.

CONCLUSION

            Plaintiffs’ motion to compel compliance with subpoena is GRANTED. Within 10 days, Twitter is to provide the requested identifying information for Doe 2.