Judge: Latrice A. G. Byrdsong, Case: 22STCV19747, Date: 2023-11-15 Tentative Ruling

Case Number: 22STCV19747    Hearing Date: November 15, 2023    Dept: 25

Hearing Date:                         Wednesday, November 15, 2023

Case Name:                             Tom Maksemous v. Automattic Inc., and Jazmin Escobar

Case No.:                                22STCV19747

Motion:                                   Defendant Jazmin Escobar’s Motion for Judgment on the Pleadings

Moving Party:                         Defendant Jazmin Escobar

Responding Party:                   Plaintiff Tom Maksemous

Notice:                                    OK

Recommended Ruling:           Defendant Jazmin Escobar’s Motion on the Pleadings is GRANTED in part and DENIED in part. The Motion is granted as to the first, second, fourth, fifth, and sixth causes of action. It is denied as to the third cause of action. 

 

 

BACKGROUND

 

This case stems from an online interaction between Tom Maksemous (“Plaintiff”) and Jazmin Escobar (“Defendant”). Plaintiff filed an initial Complaint on June 16, 2022, which was followed by a First Amended Complaint (“FAC”), here the operative Complaint, on February 10, 2023. Plaintiff and Defendant were classmates at the same high school and reconnected on the internet dating site “okcupid.com”. (FAC, ¶ 1.)

 

Plaintiff alleges that Defendant made the claim that if Plaintiff did not visit her on her birthday, Defendant would “masturbate herself into a coma”. (Id.) Plaintiff then alleges that several months later, he repeated the statement in jest, along with a recommendation that Defendant seek a gastrectomy. (Id.) Plaintiff then alleges that Defendant posted a screenshot of the conversation on her Tumblr blog which was accessible via a Google search. (FAC, ¶ 2-3.)

 

After Plaintiff was notified by colleagues, family, and friends, Plaintiff requested that Defendant and Automattic Inc., – owner of the Tumblr website – remove the post, but to no avail. (FAC, ¶ 3.) Plaintiff then filed suit. The FAC contains seven causes of action:

 

1.      Violation Of California Penal Code § 632.7

2.      Intrusion Into Private Affairs In Violation Of §1708.8

3.      False Light In Violation Of § 1802

4.      Public Disclosure Of Private Facts In Violation Of § 1801

5.      Misappropriation Of Plaintiff’s Name And Likeness At Common Law

6.      Intentional Infliction Of Emotional Distress In Violation Of § 1600

7.      Civil Extortion In Violation Of California Penal Code § 524

 

The seventh cause of action was struck in the Court’s prior ruling on the Special Motion to Strike filed pursuant to the anti-SLAPP statute. Automattic Inc., was later dismissed, leaving Jazmin Escobar, as the only defendant. Defendant filed the instant Motion for Judgment on the Pleadings (“MJOP”) on July 13, 2023. Plaintiff filed his Opposition Papers on August 4, 2023, and Defendant filed her Reply Papers on August 11, 2023. 

 

PRELIMINARY MATTERS

 

Request for Judicial Notice

 

Defendant requests this Court take judicial notice of the following:

 

1.                  the Notice of Ruling for Defendant’s anti-SLAPP motion, filed April 28, 2023;

2.                  a copy of Plaintiff’s motion to transfer, dated May 9, 2023; and

3.                  a copy of Plaintiff’s opposition to Defendant’s fee motion, dated June 27, 2023.

 

Pursuant to CEC § 452(d)(1), the Court will grant the request for judicial notice as to all three items.          

 

 

MOVING PARTY POSITION

 

Defendant argues that because of this Court’s holding in the anti-SLAPP Motion to Strike Order dated April 26, 2023, the six causes of action that remain from Plaintiff’s FAC all fail because this Court noted that Plaintiff did not have an “objectively reasonable” expectation of privacy when sending his messages (citing Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774.)

 

OPPOSITION

 

Plaintiff’s Opposition Papers argue that the Frio test should apply to the messages exchanged, which would entitle Plaintiff to have a reasonable expectation of privacy, and therefore, his six remaining causes of action would stand.

             

REPLY

 

In her Reply Papers, Defendant reiterates that the Court has already decided that an “objectively reasonable” expectation of privacy did not exist, therefore the six causes of action fall to the instant Motion.

 

DISCUSSION

 

Legal Standard

 

“The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061, disapproved on other grounds by Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, 815 n.8. Accord  Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1202,  disapproved on other grounds by Noel v. Thrifty Payless, Inc. (2019) 7 Cal. 5th 955, 986; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)

 

A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061,  disapproved on other grounds by  Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, 815 n.8; Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064.) In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. (Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-53.) A motion for judgment on the pleadings does not lie as to only part of a cause of action. (Fire Ins. Exch. v. Sup. Ct. (2004) 116 Cal.App.4th 446, 452.) “[A] motion for judgment on the pleadings performs the office of a general, not a special, demurrer...” Fabbro v. Dardi & Co. (1949) 93 Cal. App. 2d 247, 252.)

 

Analysis

 

Before addressing the parties’ contentions, the Court will reiterate the ruling made on the Special Motion to Strike (Defendant’s Anti-SLAPP Motion) on April 26, 2023. Specifically, that it would not be “objectively reasonable” for Plaintiff to believe the conversation was private at the time he sent the messages. With this in mind, we must acknowledge that any cause of action with privacy as an element will fall to the instant Motion. Therefore, as explained below, the Court will grant the Motion in part, and deny the Motion in part. The instant Motion is granted as to causes of action one, two, four, five and six, however, it is denied as to the third cause of action for false light.

 

The causes of action for (1) Violation of California Penal Code § 632.7 (2) Intrusion into Private Affairs, (4) Public Disclosure of Private Facts fail.

 

Causes of action one, two, and four all fail because each has an element that there be a reasonable expectation of privacy.

 

California Penal Code § 632.7 reads in pertinent part:

 

“Every person who, without the consent of all of the parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars…”


As this Court noted in its ruling on the anti-SLAPP motion, Plaintiff cites to no case authority addressing how the screenshotting and then posting of messages exchanged on a dating website fall within its purview. Therefore, the cause of action fails.

 

Intrusion into private affairs and public disclosure of private facts both contain the element of privacy. “The common law cause of action for invasion of privacy based upon intrusion ‘has two elements: (1) [intentional] intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.’” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 422.)

 

To prevail on a claim for invasion of privacy by means of the publication of private facts, plaintiff must prove (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to a reasonable person and (4) which is not of legitimate public concern. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1440.)

 

As noted, it would not be “objectively reasonable” for Plaintiff to believe the conversation was private when he sent those messages to Defendant. Therefore, both the cause of action for intrusion into private affairs and public disclosure of private facts are missing the privacy element and must fail.

 

The fifth cause of action for misappropriation fails because there is no sufficient allegation of Defendant obtaining a commercial advantage or otherwise

 

“To sustain a common law cause of action for commercial misappropriation, a plaintiff must prove: (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.” (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679, quotation marks omitted.) California law also provides a statutory claim for commercial misappropriation under Civil Code section 3344, which requires that the plaintiff “prove all the elements of the common law cause of action” as well as “allege a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.” (Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at p. 679.)

 

Defendant argues that Plaintiff will be unable to demonstrate lack of consent or resulting injury. First, Plaintiff has made clear that he did not consent to Defendant using his name nor screenshots of the conversation on her Tumblr blog. (See generally the FAC and Opposition Papers.) Second, the resulting injury is one that is speculative in nature, however, in awarding future damages, a fact finder necessarily engages in a certain degree of speculation, but speculation cannot be solely relied upon. (See 23 Cal. Jur. 3d Damages § 29.) Plaintiff alleges that he has suffered emotional, monetary, and vocational damages as a result of the Tumblr post. (See Opposition Papers, pg. 2.) In awarding damages, it is possible that the fact finder may rely on whether Plaintiff’s future earning may be affected. (Burr v. Gross (1949) 91 Cal.App. 2d 351, 356.) Damages that are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 602.) However, here, not only is it possible that the damages may be ascertained with some degree of certainty, but monetary damages are not the only remedy Plaintiff is requesting. Plaintiff also requests an injunction, requiring Defendant to take down the post. (See FAC, Prayer for Relief.)

 

The fifth cause of action does not fail for reasons of failure to demonstrate lack of consent or resulting injury, it fails because Plaintiff has not alleged in which way Defendant has benefited, commercially or otherwise. In his Opposition Papers, Plaintiff argues that “The incomplete and out-of-context conversation puts Defendant Escobar in an advantageous position because she appears to be rejecting Plaintiff’s advances.” This fails to satisfy the second element to this cause of action. Therefore, the Motion will be granted as to this cause of action. 

 

The sixth cause of action for intentional infliction of emotional distress fails

 

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

 

This cause of action fails because it does not allege any facts demonstrating extreme and outrageous conduct. A defendant's conduct is considered to be outrageous if “it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051, 95 Cal.Rptr.3d 636, 209 P.3d 963; see Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795; see also Rest.2d Torts, § 46, com. d, p. 73.) California's definition of extreme and outrageous conduct is based on comment d to section 46 of the Restatement Second of Torts. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” (Rest.2d Torts, § 46, com. d, p. 73.) (Also see Crouch v. Trinity Christian Center of Santa Ana, Inc., (2019), 39 Cal.App.5th 995 at 1007.)

 

Here, Defendant screenshotted messages of her conversation with Plaintiff and posted them on a public blog. Plaintiff points to no caselaw that demonstrates this, or any similar act is considered outrageous or that it exceeds all bounds usually tolerated in a civilized community. Therefore, as this first element remains unsatisfied, the cause of action falls to the instant Motion.

 

            The third cause of action for false light withstands the instant Motion

 

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 397, quotations marks omitted.)

 

Although false light is a species of invasion of privacy, the elements do not require that the information being cast falsely be enclosed with an objectively reasonable expectation of privacy. Contrary to what Defendant argues here, just because the Court found there to be no reasonable expectation of privacy between the parties’ conversation, does not mean that the cause of action for false light must fail. The Supreme Court case of Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 (“Masson”) is instructive here. In Masson, a psychoanalyst sued a magazine for misquoting passages from a recorded interview and omitting a portion of another. (Masson, supra, at 502.) The Masson Court concluded that an exact quotation out of context can distort the meaning. (Id. at 505.) Those quotations were already public. Balla v. Hall (2021) 59 Cal.App.5th 652, which cites Masson follows suit. When two city council members brought a case against an opponent who unsuccessfully ran and argued that the campaign advertisement used by the opponent quoted language out of context, the Balla Court agreed, even though the language had already been made public.

 

Here, the Court can analogize Masson and Balla to the instant case. Although there was no expectation of privacy in the conversation, Plaintiff alleges that the sexual comments directed at Defendant were in jest and were first made by Defendant towards Plaintiff. A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer, meaning the Court must take the facts plead as true. Here, the first element has been satisfied, Plaintiff argues that the out-of-context screenshot makes Plaintiff seem cruel and sexually perverted. Defendant’s post implies the same: “I was really struggling with this response today. I went to high school with Tom Maksemous. He was always kind. He found me on OKC and when I didn’t want to be his sexual play thing, THIS is how he treat me. #BYFELIPE.”

 

The second element is fulfilled if, as alleged, Defendant in fact knew that she had made the comment first and that Plaintiff was simply repeating it in jest. Therefore, the third cause of action for false light withstands the instant Motion.    

 

Conclusion

 

Accordingly, Defendant Jazmin Escobar’s Motion on the Pleadings is GRANTED in part and DENIED in part. The Motion is granted as to the first, second, fourth, fifth, and sixth causes of action. It is denied as to the third cause of action. 

 

Counsel for the Moving Party is ordered to give notice.