Judge: Frank M. Tavelman, Case: 22STCV27509, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV27509    Hearing Date: February 8, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR PRELIMINARY INJUNCTION

ALLEGATIONS: 

Akop “Jack” Torosian (“Jack”) brought this action against Elda Madatyan (“Elda”) and Edgar Madatyan seeking damages from the posting of videos on social media which harmed Jack’s personal reputation and business from their defamatory nature. The complaint asserts causes of action for Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress (“NEID”).

Jack now moves for a preliminary injunction requesting the following:

1.     Removal of Elda’s June 14, 2022 Instagram and TikTok posts containing private video of plaintiff at home;

2.     Removal of Elda’s November 2, 2022 post on her Instagram, which Jack asserts are defamatory;

3.     That Elda cease and desist from disclosing plaintiff’s private information online;

4.     That Elda cease and desist from publishing defamatory statements regarding plaintiffs.  

Evidentiary Objections

Elda’s evidentiary objections to the Declaration of Akop “Jack” Torosian are SUSTAINED as to Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14 and OVERRULED as to Nos. 3, 12, and 14.

Jack’s evidentiary objections to the Declaration of Elda Madatyan are OVERRULED as to Nos. 1, 2, 3, 7, 12, and 13 and SUSTAINED as to Nos. 4, 5, 6, 9, 10, and 11.

Jack’s eighth evidentiary objection to the declaration of Elda Madatyan is SUSTAINED with respect to the statement that Jack knows the posts were not there or removed, and OVERRULED with respect to the statement that there are no postings on Elda’s social media accounts.

Jack’s evidentiary objections to the Declaration of Lucy Minasyan are OVERRULED as to Nos. 1, 2, and 3.

Jack’s evidentiary objection to the entire Declaration of Armen Shaghzo is OVERRULED.

REQUEST FOR JUDICIAL NOTICE

Defense requests the court to take judicial notice pursuant to Evidence Code §§ 452(d) and 453 to:

1.      Criminal Case Docket in Miami-Dade County Clerk of the Courts, (Case Number F-23-001353, filing date January 20, 2023, Charges Assault/Aggravated/Deadly Weapon, The People of the State of Florida vs Akop Torosian.   

2.     A video footage from Hollywood Unlocked on Instagram depicting 1 Defendant Akop Torosian's physical ftght with Prince from Lovetl'zHip Hop. 2 RPReplay Fina11675702040.mov.

The Court declines to do so.   As to item #1, this is not a certified document from the Miami-Dade clerk but does appear to be from the website of that court.  The Court declines to take Judicial Notice pursuant to Evidence Code § 452(d) (Court may take judicial notice of the records of any court of record of any state).  The Defendant has not sufficiently shown the person listed in that court docket is the Plaintiff in this matter. (EC §453(b)).  

As to item #2, the matter is not appropriate for Judicial Notice under the Evidence Code.

PROCEDURAL CONCERNS

Elda has filed an objection and request to strike Plaintiff’s Reply as untimely. Elda reasons that the reply was not served upon her by January 5, 2023, pursuant to court order issued on December 22, 2022. However, the Court subsequently issued an order transferring the matter to this department and vacating the January 12, 2023, hearing date. The hearing date was thereafter set for February 8, 2023. Elda states in her objection that Plaintiff served her on December 23, 2022. As such the Court does not find the Plaintiff’s reply to be untimely.

ANALYSIS: 

I.          LEGAL STANDARD 

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See¿Scaringe¿v.¿J.C.C. Enterprises, Inc.¿(1988) 205 Cal.App.3d 1536.)  It requires the use of competent evidence creating a sufficient factual showing grounds for relief. (ReadyLink¿Healthcare v. Cotton¿(2005) 126 Cal.App.4th 1006, 1016;¿Ancora-Citronelle Corp. v. Green¿(1974) 41 Cal.App.3d 146, 150.) Because competent evidence is mandated, injunctive relief may be granted from verified complaint only if it contains sufficient evidentiary proof and not ultimate, facts; therefore, a pleading alone rarely suffices. (Code Civ. Proc. § 527(a).)

The moving party, in this instance the Plaintiff, bears the burden of proof. (O’Connell v. Superior Court¿(2006) 141 Cal.App.4th 1452, 1481.) Plaintiff must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526(4);¿Thayer Plymouth Center, Inc. v. Chrysler Motors¿(1967) 255 Cal.App.2d 300, 307.) 

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a);¿Husain v. McDonald’s Corp.¿(2012) 205 Cal.App.4th 860, 866-67.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at 867.)¿¿¿ 

II.        MERITS 

Requests for Injunction 3 and 4

Jack’s third and fourth requests ask the Court to issue an injunction which would inhibit Elda’s ability to post online. Such a pretrial injunction based on the content of speech constitutes a prior restraint prohibited by law, and is contrary to the Court of Appeals ruling in Evans v. Evans. (Balboa Island Village inn, Inc. v. Lemen, (2007) 40 Cal.4th 1141, 1159-60; Evans v. Evans, (2008) 162 Cal.App.4th 1157, 1168.) In Evans the court found improper a preliminary injunction enjoining a police officer’s former wife from making allegedly defamatory online statements. The Evans court concluded that “a court may not unconstitutionally prevent a person from uttering a defamatory statement before it has been determined at trial that the statement was defamatory.” (Id. at 1169.)

Evans makes clear that Jack’s requested order is considered a prior restraint, and the requested restrain is only permissible if the statement was previously ruled defamatory at trial. As such, Jack’s request that Elda cease and desist from posting allegedly defamatory statements regarding him online would be an unconstitutional restriction of her rights.  While the Court understands Jack’s position concerning the potential harm from such statement, and Jack may ultimately be able to recoup damages as the result of any statements deemed defamatory but injunctive relief is not available to him.

Jack similarly requests an order that Elda cease and desist posting his private information online. A limited preliminary injunction is available to prevent a defendant from publishing confidential personal information (address, social security number) on the internet.  (Evans v. Evans, supra, 162 Cal.App.4th at 1170.) However, Jack’s request is far from narrowly tailored. The motion fails to specify which information Elda is prevented from disclosing or is it just limited to the two videos posted to her social media accounts. Without specific mention of sensitive public information, such as address, social security number, or bank account information, the Court finds that Jack’s request is overbroad and would constitute an unconstitutional prior restraint.

Request for Removal of June 14 and November 2 Videos

In Jack’s motion, he requests an order that Elda remove a June 14, 2022 video posted to her Instagram and TikTok accounts.  This video purportedly reveals Jack engaging in domestic abuse of Elda in their home. Jack asserts that this video has been widely circulated and caused his reputation and his business irreparable harm. However, the Court finds that Jack’s submitted exhibits do not evidence the current existence of this video on Elda’s Instagram or TikTok accounts. Jack provides a series of screenshots in which the video has been reposted on other Twitter and Instagram accounts, but none showing that the video is currently posted on Elda’s accounts. The evidence which Jack submits with respect to the November 2, 2022 video is a typed transcript. This transcript does not evidence the existence of the video on Elda’s Instagram page.   

In Elda’s opposition and declaration, she argues the videos are not on her Instagram or TikTok accounts. Further, Elda asserts that the November 2, 2022 video posted by Jack’s current wife, and not created by Elda. Elda claims she simply reposted this video to her Instagram story, but that it disappeared after 24 hours, as Instagram stories are designed to do.

Injunctive relief may be granted only if sufficient evidentiary facts are presented to the Court. Here Jack has failed to produce evidentiary facts that either video is posted to Elda’s Instagram and TikTok accounts. Jack does submit evidence that a fake account he claims is managed by either Elda or those associated with her may exist; however, he fails to provide sufficient evidence that Elda actually has direct or indirect control over the page.

Pursuant to case law, the Court finds that conclusory statements of falsehood are insufficient to sustain an injunction for removal without a determination of falsity on the merits.

III.       CONCLUSION 

The Court finds that Jack’s request for injunctive relief is not supported with sufficient evidentiary facts. The injunctive relief Jack requests would constitute a prior restraint on Elda’s speech and the request is so overbroad as to be inconsistent with Constitutional protections. As such, the Court DENIES Jack’s request for injunctive relief.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Akop “Jack” Torosian’s Motion for Preliminary Injunction came on regularly for hearing on February 8, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR PRELIMINARY INJUNCTION IS DENIED. 

DATE:  February 8, 2022                               _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles