Judge: Gregory Keosian, Case: 21STCP03057, Date: 2022-10-17 Tentative Ruling

Case Number: 21STCP03057    Hearing Date: October 17, 2022    Dept: 61

Plaintiff J.D.F.’s Motion for Limited Expedited Discovery is DENIED.

Plaintiff to provide notice.

I.                   MOTION TO PERMIT EXPEDITED DISCOVERY

Plaintiff moves for an order permitting him to issue a subpoena against nonparty Name.com, Inc. seeking information identifying the owner or operator of the website “sar.network,” the website for Defendant Sino American Reunion. (Motion at p. 3, Exh. A.) The subpoena was issued on August 1, 2022, against Name.com, but the deponent has not responded to the subpoena or Plaintiff’s meet-and-confer efforts. (Atrizadeh Decl. ¶ 10.)

“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.” (Code Civ. Proc., § 2025.210, subd. (b).) Although this language by its terms refers only to deposition notices, courts have applied the same timing requirements to deposition subpoenas issued against nonparties. (See California Shellfish Inc. v United Shellfish Co. (1997) 56 Cal.App.4^th 16, 22–23.)

Although framed as a motion under the above standards, this motion is not one for expedited discovery within the meaning of the above authority, as Plaintiff does not identify what discovery deadline or failure of service currently prevents obtaining the requested information.

This motion is properly construed as one to compel compliance with a subpoena under Code of Civil Procedure § 1987.1. That statute states:

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc. § 1987.1, subd. (a).)

Here, since Plaintiff seeks the identifying information of a presently anonymous website host, based on comments and content hosted on the website, two requirements must be met: 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.” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 634.) Second, “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.” (Id. at p. 635.) The showing must be sufficient to support a ruling in the plaintiff’s favor. (See ibid.)

Here, Plaintiff has made no prima facie showing that the speech in question is actionable. Plaintiff provides a declaration stating only, “Defendants have sent threats, posted private text messages and engaged in other types of anti-social behavior on the aforesaid website.” (JDF Decl. ¶ 8.) Plaintiff makes no attempt to show that the statements satisfy the elements of any of his claims.

The motion is DENIED.