Judge: H. Jay Ford, III, Case: 22STCV14186, Date: 2022-07-28 Tentative Ruling

Case Number: 22STCV14186    Hearing Date: July 28, 2022    Dept: O

  Case Name:  Doe v. Lovett, et al.

SUBJECT:                 MOTION FOR RECONSIDERATION (DEEMED THE MOTION TO QUASH PER 7-1-22 ORDER)

MOVING PARTY:   Non-party Twitter, Inc.

RESP. PARTY:         Plaintiff Jane Doe

TENTATIVE RULING

            Non-party Twitter, Inc.’s Motion for Reconsideration - Deemed Motion to Quash by the Court with the stipulation of the parties- is DENIED. 

            Twitter originally moved for reconsideration of the Court’s 6-6-22 Order granting Plaintiff’s ex parte application for expedited discovery, etc.  At the Court’s invitation, the parties agreed on 7-1-22 that the request for reconsideration would be construed as a motion to quash, mooting any issues of notice as discussed below, and would be considered by the Court without prejudice to any of the findings the Court previously made in its order granting Plaintiff’s request for expedited discovery. 

I.  Under Krinsky, Plaintiff fails to overcome the First Amendment rights of the accountholder of @comingsoon as a defendant.

Twitter moves to quash the subpoena propounded by Plaintiff seeking the “account information” for the User of the Twitter account @comingsoon.  Discovery of an anonymous defendant’s identity and account information is governed by Krinsky v. Doe 6 (2008) 159 Cal.App.4^th 1154, 1165.

            “Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”  Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1163. 

            “When vigorous criticism descends into defamation, however, constitutional protection is no longer available.  It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Id. at 1164. 

            Thus, in determining the validity of a subpoena seeking the identity of an anonymous account user, the “viability of the subpoena should be determined by weighing [defendant’s] right to speak anonymously against plaintiff’s interest in discovery his identity in order to pursue her claim.”  Id. at 1166.  Under Krinsky, a plaintiff subpoenaing an anonymous account user’s information must (1) attempt to notify the defendant user and (2) make a prima facie showing of the causes of action for which plaintiff seeks the subpoenaed information.  Id. at 1171-1172.

            Notice.  The first requirement has already been satisfied.  As noted in Krinsky, when the ISPs and message board sponsors themselves notify the defendant that disclosure of his or her identity is sought, notification by the plaintiff should not be necessary.  Id. at 1171.  Twitter gave notice of Plaintiff’s Order and Subpoena to the affected account holder on 6-17-22.  See Dec. of J. Schwarz, ¶16. 

            Prima facie showing.  In order to overcome a motion to quash seeking the identity of an anonymous accountholder who is a defendant, the plaintiff must make a prima facie showing of the elements of plaintiff’s claims.  See Krinsky, supra, 159 Cal.App.4^th at 1171-1172.  Where it is clear to the court that discovery of the defendant’s identity is necessary to pursue the plaintiff’s claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence of the defendant’s wrongful conduct.  Id. at 1172. 

            “Prima facie evidence is that which will support a ruling in favor of its proponent if no controverting evidence is presented.  It may be slight evidence which creates a reasonable inference of fact sought to be established but need not eliminate all contrary inferences.”    Id. at 1172, fn. 14. 

            Plaintiff alleges five causes of action based on Defendants’ distribution of intimate photographs of Plaintiff’s person on the Internet, specifically the website statewinz.pk.  The elements of the causes of action alleged are as follows:

·       Ca. Civ. §1708.85:  “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other's consent, if (1) the person knew, or reasonably should have known, that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.”

·       The elements of the public disclosure tort are: “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.”  Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214 (summary judgment of public disclosure tort properly granted as to plaintiff’s public disclosure tort; TV broadcast of video footage showing plaintiff’s extraction from car accident, including her dialogue with rescue workers, was newsworthy as a matter of law and of legitimate public concern). 

·       To state an IIED claim, the plaintiff must allege facts showing: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  See Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (plaintiff alleged outrageous conduct based on three racially offensive statements made by defendant’s employee before 50 of plaintiff’s coworkers and 3 of his supervisors); Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct).

·       “A common law misappropriation claim is pleaded by “alleging: ‘(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97.

·       Civil Code §3344:  “Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.”  Civil Code §3344.  In addition to the common law elements, section 3344 requires “a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.”  Local TV, LLC v. Superior Court (2016) 3 Cal.App.5th 1, 13. 

            Plaintiff submitted a declaration in support of her original ex parte application to conduct discovery, which the Court granted on 6-6-22.  Plaintiff’s declaration fails to establish a prima facie case under CC §1708.85 against any defendant.  Plaintiff’s declaration fails to establish that the “Content” “exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration.”  CC §1708.85.  Plaintiff testifies that the Content “depicted me in various states of undress and/or otherwise in intimate or sexual contexts.”  See Plaintiff’s Redacted Declaration filed on 6-3-22, ¶6. 

            Plaintiff’s evidence also fails to establish a prima facie case of common law misappropriation against any defendant.  Plaintiff fails to present any evidence that Defendants appropriated plaintiff's name or likeness to their advantage, commercially or otherwise.  See Plaintiff’s Redacted Declaration filed on 6-3-22.  There is no evidence establishing that any of the Defendants’ appropriated Plaintiff’s image for their advantage. 

            Plaintiff’s evidence does establish a prima facie case of public disclosure of private facts and intentional infliction of emotional distress (IIED) against Defendant Lovett and the operators of Statewinz.pk.  Plaintiff testifies that the Content was published on Statewinz.  See Plaintiff’s Redacted Declaration filed on 6-3-22, ¶4.  A reasonable juror could find that public disclosure of photos and videos of Plaintiff in various states of undress and intimate and/or sexual settings by Plaintiff’s former boyfriend would be highly offensive to reasonable person.  Plaintiff testifies that she only shared the Content with Lovett during their relationship, they agreed that the Content would not be distributed to parties outside of their relationship and after the parties’ tumultuous breakup, Plaintiff deleted all the Content.  See Plaintiff’s Redacted Declaration filed on 6-3-22, ¶7.  Plaintiff submits circumstantial evidence from which a reasonable trier of fact could find that Lovett distributed or participated in the distribution of Plaintiff’s photos in violation of her consent.  Plaintiff also establishes that the conduct caused her severe emotional distress.  See Plaintiff’s Redacted Declaration filed on 6-3-22, ¶8.  A reasonable juror could find that the Defendants’ conduct was outrageous.  Plaintiff presents a prima face case of public disclosure of private facts and IIED against Lovett. 

            However, Plaintiff fails to establish a prima facie case of any cause of action against the accountholder of @comingsoon.  While she has established a prima facie case against Lovett and Statewinz.pk, she has not established that the accountholder of @comingsoon engaged in any wrongful conduct.  According to Plaintiff’s counsel, a link to the @comingsoon account is embedded in the statewinz.pk website where the Content is posted.  See Dec. of C. Ford ISO of Plaintiff’s Opposition to Non-party Twitter’s Motion to Quash, ¶¶4-5.  Plaintiff does not claim, nor does she present evidence that The Content was ever posted on the @comingsoon account or that the accountholder of @coming is Lovett.  Plaintiff also fails to present any evidence that the accountholder of @comingsoon is also the operator of statewinz.pk.  The mere fact that a link to @comingsoon is embedded on the Statewinz website does not establish that the accountholder of @comingsoon posted the Content. 

            Plaintiff’s counsel’s testimony on the connection between the accountholder of @comingsoon and the Statewinz website lacks foundation. Counsel testifies that, “[u]pon information and belief, by embedding the Twitter account in its website, Statewinz was indicating that it was a viable contact point for the website and/or operated by the same individual.”  See Dec. of C. Ford, ¶5. 

            In addition, Twitter submits copies of the postings on the @comingsoon Twitter account.  See Dec. of J. Schwartz, ¶12.  There is only one post on the account from February 2008 stating, “comingsoon.. :P”.  Id. at ¶12, Ex. G.  The Content does not appear on the account, nor is there anything on the account connecting the accountholder to Statewinze, dissemination of the Content or doxing.  Id. 

            Plaintiff fails to demonstrate a prima face case of her claims against the accountholder of @comingsoon.  Plaintiff therefore fails to make the necessary showing under Krinsky to overcome the accountholder’s First Amendment Right to anonymity as a defendant. 

II.  Twitter fails to establish that the deposition subpoena should be quashed based on Twitter’s or the accountholder’s First Amendment right to anonymous speech or right to privacy

            Plaintiff fails to cite any authority applying or extending the requirements of Krinsky to discovery of an anonymous accountholder’s identity as a potential witness.  Krinsky and its progeny only address the First Amendment rights of a defendant accountholder’s right to anonymity.  See Krinsky, supra, 159 Cal.App.4^th at 1177-1178 (motion to quash of DOE 6 properly granted where plaintiff failed to demonstrate a prima facie case of defamation or intentional interference with contract based on statements attributable to DOE 6); ZL Technologies, Inc. v. DOES 1-7 (2017) 13 Cal.App.5^th 603, 607-608 (plaintiff established prima facie case of defamation against six out of seven DOE defendants based on individual DOE defendants’ postings and was entitled to order compelling website operator’s disclosure of those six DOE defendants’ identities); Glassdoor, Inc. v. Supr. Ct. (2017) 9 Cal.App.5^th 623, 625 (plaintiff failed to establish prima facie case of breach of nondisclosure agreement by DOE defendant; trial court erred in granting motion to compel publisher’s compliance with deposition subpoena seeking DOE defendant’s identity).  Krinsky therefore does not apply to Plaintiff’s deposition subpoena to the extent it seeks the identity of the accountholder of @comingsoon as a witness. 

            The anonymity of the accountholder of @comingsoon is protected by the First Amendment and the California constitutional right of privacy.  See Krinsky, supra, 159 Cal.App.4^th at 1163; Ca. Const. Art. 1, §1; Digital Music News LLC v. Sup. Ct. (2014) 226 Cal.App.4^th 216, 228 (disapproved of on other grounds by Williams v. Sup. Ct. (2017) 3 Cal.5^th 531, 557 (noting that right to speak anonymously “draws its strength” from both First Amendment and California constitution right of privacy).  “The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment's freedom of speech and the right of privacy in article I, section 1 of the California Constitution.”  Rancho Publications v. Supr. Ct. (1999) 68 Cal.App.4th 1538, 1540–1541 (speculative relationship between anonymous speech and other statements which were allegedly defamatory did not justify judicially compelled disclosure of author’s identity by newspaper).

            Plaintiff does not dispute that the accountholder’s anonymity is protected by the First Amendment or the right to privacy under the California Constitution.  Plaintiff argues that the accountholder’s First Amendment right is overcome by her showing of a prima facie case against Lovett and Statewinz under Krinsky.  However, as discussed above, Krinsky only sets forth the analytical framework for a court to compel disclosure of a defendant’s identity upon showing of a prima facie case against that defendant.  Plaintiff failed to establish a prima facie case against the accountholder as a defendant under Krinsky.

            Neither the First Amendment nor the right to privacy is absolute.  See Mitchell v. Supr. Ct. (1984) 37 Cal.3d 268, 276 (“We cannot ignore or subordinate the First Amendment values furthered by the protection of confidential sources and information; at the same time, we must recognize the parallel importance of the policy favoring full disclosure of relevant evidence”)(discussing qualified reporter’s privilege); Britt v. Superior Court (1978) 20 Cal.3d 844, 855 (“Of course, as with all other First Amendment rights, the right of associational privacy is not absolute, and past cases recognize that under some circumstances disclosure may permissibly be compelled.”). 

“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, Emphasis added.). The party asserting privacy protection need only establish a compelling privacy interest where an obvious invasion of an interest “fundamental to personal autonomy,” such as freedom from sterilization, is involved.  Id.

            “In general, the court should not proceed to balancing unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it negates any of the three required elements. A defendant can also prevail at the balancing stage. An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. (Hill, at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Conversely, the invasion may be unjustified if the claimant can point to “feasible and effective alternatives” with “a lesser impact on privacy interests.” County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.

            However, where third party employees’ names, addresses and contact information is sought as relevant on other grounds, e.g. seeking other potential plaintiffs in a class action employment lawsuit, a party may be compelled to disclose that information after giving notice to those third parties.  See Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 Cal.4th 360, 367, (in order to determine suitability of potential class action, manufacturer of allegedly defective DVD players could be compelled to disclose identities of purchasers who had complained to manufacturer, after they were notified and given an opportunity to object to such disclosure); but see Life Technologies Corp. v. Sup.Ct. (Joyce) (2011) 197 Cal.App.4th 640, 655, 130 CR3d 80, 92 (disapproved on other grounds by Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 C5th 531, 557, 220 CR3d 472, 494 & fn. 8) (where providing third parties' contact information would necessarily disclose confidential information in which third parties had right of privacy, third parties had substantial interest in the privacy of contact information).

            Twitter argues a compelling interest must be demonstrated to require disclosure of the accountholder’s information under Williams, because the First Amendment is a fundamental right. The flaw with Twitter’s argument is that it assumes a compelling interest must be shown anytime a person seeks to unmask the identity of an anonymous Twitter account holder.  The is the same flaw the California Supreme Cour found in Williams, and was the basis the Court disapproved a long line of cases, including Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216 relied on by Twitter. The Court explained:

“A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 340–342, 66 Cal.Rptr.2d 210, 940 P.2d 797.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires. What suffices to justify an invasion will, as Marshalls recognizes, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”

Williams, supra, 3 Cal.5th at 557

            Twitter establishes that the accountholder has a legally protected interest in the requested information (the accountholder’s identity) and that the accountholder has an objectively reasonable expectation of privacy under the circumstances.  Twitter, however, fails to establish that the threatened intrusion is serious.  Plaintiff’s subpoena is narrowly tailored to the accountholder information of @comingsoon.  The Twitter page of @comingsoon only contains one tweet stating “comingsoon., :p”.  Disclosure of the identity of the accountholder would not be a serious invasion of the privacy interest.

            Similarly, not every unmasking of an anonymous user’s identity will violate that user’s right to speak anonymously.  As explained in ZYL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 632–634, extending the protection of freedom to speak anonymously “protects the speech and privacy rights of individuals who wish to promulgate their information and ideas in a public forum while keeping their identities secret….We are faced, however, with an increasing number of cases involving this new species of “Cybersmear” or “CyberSLAPP”… [and] “there is reason to believe that [at least some] defamation plaintiffs bring suit merely to unmask the identities of anonymous critics,” “ ‘the primary goal being to silence John Doe and others like him.’ ” (Citation.) We do not here suggest that this is ZL's motivation; we are merely attempting to craft a means, consistent with due process, of filtering out those cases that are being filed primarily—or solely—as an instrumentality for identifying an anonymous speaker. Some minimal precautions should be undertaken to protect the right of a speaker to put ideas into the public marketplace without fear of harassment or retaliation.”  Again, Twitter fails to make a threshold showing that the anonymous post “coming soon” is public speech that puts the accountholder at risk of its identity is disclosed.  Nor does Twitter make any showing how disclosing the name of the accountholder harms its first amendment rights or rights of privacy.

            Finally, Twitter gave notice to the accountholder of Plaintiff’s Subpoena and the 6-6-22 Order on 6-17-22.  See Dec. of J. Schwartz ISO Motion for Reconsideration filed on 6-20-22.  Twitter acknowledges that Notice expired on 7-7-21.  Id. Despite notice of the subpoena seeking information regarding the accountholder’s identity, the accountholder did not file a motion to quash nor did the accountholder serve any objection on the Plaintiff.  The accountholder’s failure to file a motion to quash or to assert any kind of objection weighs against finding that serious invasion of privacy is threatened. 

            Twitter fails to make the threshold showing required under Williams.  As such, the Court need not balance any competing interests.  Plaintiff’s showing establishes the relevance of the accountholder’s identity under the broad scope of discovery allowed under CCP §2017.010.  The motion to quash is DENIED.