Judge: Gregory Keosian, Case: 22STCV23285, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV23285    Hearing Date: March 21, 2023    Dept: 61

Plaintiffs Seth Cohen and September Rea’s Motion to Compel Compliance with Subpoena to Charter Communications Inc. is GRANTED.

Plaintiffs to provide notice.

I.                   MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

“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).) A party may bring a motion under this section. (Code Civ. Proc. § 1987.1, subd. (b)(1).)

Plaintiffs Seth Cohen and September Rea (Plaintiffs) move to compel the compliance of third party Charter Communications Inc. (Charter) with a subpoena for business records issued to it on November 1, 2023, seeking documents and communications reflecting the subscriber information relating to the IP addresses 172.116.163.98 and 107.77.229.125. (Motion Exh. G.) Charter responded to this subpoena indicating that the second of these addresses did not belong to it, but stating that it would comply with the subpoena for the first address if a court order was issued as required under the Communications Act of 1934, 47 U.S.C. § 551. (Mandell Decl. ¶ 7, Exh H.) Plaintiffs in this motion thus seek only the documents related to the first IP address: 172.116.163.98.

Under the Communications Act of 1934, personal identifying information of subscribers is protected from disclosure:

(1) Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

(2) A cable operator may disclose such information if the disclosure is--

. . .

(B) subject to subsection (h), made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed[.]

(47 U.S.C. § 551, subd. (c)(1), (2)(B).)

Here, since Plaintiffs seeks the identifying information of a presently anonymous web user, 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.)

Plaintiffs here present the following evidence in support of their claims and of their request for relief under the subpoena. Plaintiff Rea testifies to receiving text messages purporting to be from people with whom Plaintiff Cohen had had romantic affairs and then harassed, also insinuating that Cohen had been unfaithful to her. (Rea Decl. ¶¶ 3–4, 8–10.) When Rea attempted to reach the numbers texting her, but the number was disconnected when she called. (Rea Decl. ¶¶ 8.) The texts were received before Rea embarked on travel, indicating that the texter was familiar with her plans. (Rea Decl. ¶ 10.) Rea also states that after receiving the texts, she received emails indicating that Cohen had created profiles on a number of dating websites, using Cohen’s private contact information, and once more falsely indicating that Cohen had been unfaithful to her. (Rea Decl. ¶ 6.) Rea later received a notification that someone had attempted to hack into her Apple account and change her personal information. (Rea Decl. ¶ 11.) Cohen testifies that the contents of the text messages received by Rea are false. (Cohen Decl. ¶¶ 4, 8–9.)

Plaintiffs submit the declaration of Christopher Mattioli, CEO of Fitness-Singles.com, one of the websites in which a profile for Cohen had been created. (Mattioli Decl. ¶¶ 3–4.) A search of the email address associated with the account — “September.Rea@gmail.com — revealed the IP address that Plaintiffs seek in the present motion: 172.116.163.98. (Mattioli Decl. ¶ 5.)

Plaintiffs’ claims are for defamation, false light, invasion of privacy, stalking, internet impersonation, and unauthorized computer access. “Defamation “involves (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.” (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970.)

Plaintiffs have here demonstrated a prima facie case for defamation. Rea received text messages from an individual identifying themselves as a romantic partners of an unfaithful Cohen, and also victims of his harassment. Cohen testifies that the assertions made in the text are false. Plaintiffs characterize the texts as part of a larger campaign of internet harassment, involving the sending of emails to Rea asserting Cohen’s membership in a number of dating sites, including Fitness-Singles.com. The profile for Cohen was registered under an email address nominally associated with Rea. Thus Plaintiffs have shown the existence of a publication that is false, defamatory, unprivileged, and has a natural tendency to injure Cohen’s reputation.

Plaintiffs have also shown a prima facie case for civil harassment and stalking under Civil Code § 1708.7.

(a) A person is liable for the tort of stalking when the plaintiff proves all of the following elements of the tort:

(1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff. In order to establish this element, the plaintiff shall be required to support his or her allegations with independent corroborating evidence.

(2) As a result of that pattern of conduct, either of the following occurred:

(A) The plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this subparagraph, “immediate family” means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff's household.

(B) The plaintiff suffered substantial emotional distress, and the pattern of conduct would cause a reasonable person to suffer substantial emotional distress.

(3) One of the following:

(A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with either (i) the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member, or (ii) reckless disregard for the safety of the plaintiff or that of an immediate family member. In addition, the plaintiff must have, on at least one occasion, clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff's communication of the demand impractical or unsafe.

(B) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting any act described in subdivision (a).

(Civ. Code, § 1708.7, subd. (a).)

Plaintiffs have shown that the anonymous defendant has engaged in a pattern of conduct intended to surveil or harass the Plaintiffs. Plaintiffs testify that this pattern of conduct, including the use of their personal information and travel plans, made them fear for their safety, and caused them substantial emotional distress. Defendant has expressed in their messages an intent to “meet” Rea, and has demonstrated by their conduct knowledge of their personal information, and has engaged in attempts to obtain more of such information. (Rea Decl. ¶ 3.)

Plaintiffs shall also, pursuant to the provisions of the Communications Act of 1934, have notice sent to Defendant of this request for this information, as no disclosure of the information sought shall occur unless “the subscriber is notified of such order by the person to whom the order is directed.” (47 U.S.C. § 551, subd. (c)(2)(B).)

Accordingly, the motion to compel compliance is GRANTED. Charter is ordered to provide all documents and communications reflecting the subscriber information relating to the IP addresses 172.116.163.98 as set forth in the subpoena.