Judge Randolph M. Hammock, Case 22STCV19747 2022-12-21 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV19747, Date: 2022-12-21 Tentative Ruling

Plaintiff Tom Maksemous attended the same high school as Defendant Jazmin Escobar. Nearly a decade after graduating, the two connected on the internet dating website OKcupid.com. In a message to Defendant Escobar, Plaintiff made a sexual reference and commented on Defendant’s weight. In response, Escobar posted a screenshot of the conversation and posted it to her Tumblr blog. Plaintiff later learned that the screenshot depicting his lewd messages could be found by a Google search. Plaintiff now brings this action against Defendant Escobar and Tumblr’s owner, Defendant Automattic, Inc., for (1) distribution of revenge pornography, (2) intrusion into private affairs (3) false light, (4) public disclosure of private facts, and (5) misappropriation of Plaintiff’s name and likeness.

Defendant’s Demurrer to the Complaint is SUSTAINED. Consistent with the now stricken First Amended Complaint, Plaintiff is given leave to amend to include amended claims against Automattic for (1) Violation of California Penal Code section 632.7 and (2) misappropriation of Plaintiff’s name and likeness, only. [FN 1]

Under Code of Civil Procedure section 472, subdivision (a), a plaintiff may amend a complaint “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.” (Emphasis added.) An opposition must be filed “at least nine court days…before the hearing.” (CCP § 1005(b).)

Here, Plaintiff’s response to the demurrer was due on or about December 8, 2022. Plaintiff did not file his First Amended Complaint until December 15, 2022. Thus, the First Amended Complaint is untimely and ordered stricken as unilaterally filed without leave.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Plaintiff alleges that he and Defendant Escobar attended the same high school. (Compl. ¶ 1.) A decade after graduating, the two connected on the online dating website, OKcupid.com. (Id.) At some unspecified time, Plaintiff contends that Defendant Escobar told him if he “wouldn’t come over and have sex with her on her birthday,” she would “[m]asturbate herself into a coma.” (Id.) Plaintiff alleges he repeated this “joke” to Defendant a few months later on OKcupid. (Id.) The relevant exchange goes as follows:

Plaintiff alleges that Defendant took a screenshot of this message exchange and posted it on her Tumblr blog on April 18, 2015. She included the following caption: “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 treated me. #BYEFELIPE.” (Compl. ¶ 22, Exh. A.)

Plaintiff contends that he learned on February 3, 2022, through “colleagues, friends, and Family” that Defendant’s Tumblr post depicting him could be found via a Google Search. (Id. ¶ 3.) Plaintiff contacted both Defendants Jazmin Escobar and Automattic, Inc., Tumblr’s owner, asking them to remove the screenshot. (Id.) Both have refused. This action followed.

Defendant Automattic argues all claims against it fail as a matter of law under section 230 of the Communications Decency Act. “Congress enacted section 230 ‘for two basic policy reasons: to promote the free exchange of information and ideas over the internet and to encourage voluntary monitoring for offensive and obscene material.’ ” (Hassell v. Bird (2018) 5 Cal.5th 522, 534.) Section 230 provides in pertinent part that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (47 U.S.C. § 230(c)(1).) “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (§ 230(e)(3).) Thus, to claim section 230 immunity, a Defendant must show “(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.” (Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790, 804–05.)

Defendant argues it is an “interactive computer service” as that term is defined in the Act. The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” (§ 230(f)(2).) The term “information content provider” “means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” (§ 230(f)(3).)

Plaintiff alleges that Defendant Automattic is “a media corporation” that “owns and operates” Tumblr. (Compl. ¶¶ 5, 9.) Plaintiff alleges Tumblr “refused to remove the blog post,” and his demand letter to Automattic was “received and ignored.” (Id. ¶¶ 26, 30.) Automattic continues to “host and maintain” the blog post where it can be seen publicly. (Id. ¶¶ 52, 59, 70.) There are no allegations that Automattic itself (as opposed to Defendant Escobar) created or developed the blog post—only that Automattic refused to remove Defendant Escobar’s blog post from Tumblr.

“[L]awsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.” (Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).) Where an intermediary “goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.” (Hassell, supra, 5 Cal. 5th 522, 541.)

As currently pled—and without an opposition purporting to show otherwise—the allegations against Automattic fall squarely under section 230’s immunity. Automattic, as an “interactive computer service,” continues to host a blog post by an “information content provider”—in this case, Defendant Escobar. Defendant Automattic’s acts go “no further than the mere act of publication.” This applies to all causes of action against Automattic. (See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) [“In applying section 230, “what matters is not the name of the cause of action ... what matters is whether the cause of action inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another.”].)

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Looking to Plaintiff’s First Amended Complaint, Plaintiff now seeks to bring only two causes of action against Automatttic: a new cause of action for violation of California Penal Code section 632.7, and a common law cause of action for misappropriation of Plaintiff’s name and likeness. All other claims against Automattic have been abandoned by Plaintiff.

Section 230, subdivision (e)(2), states that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” At least one California authority has suggested that state claims based on name and likeness are “a form of intellectual property,” and therefore section 230 does not apply to bar such claims. (See Cross v. Facebook, Inc. (2017) 14 Cal. App. 5th 190, 208; see also Hepp v. Facebook, 14 F.4th 204, 212 (3d Cir. 2021) [holding § 230(e)(2) limitation applies to state intellectual property law, but recognizing federal split of authority].)

Based on the lack of opposition to the instant motion, the court finds all claims in the Complaint are barred by section 230. However, in seeking to include the claim for misappropriation of Plaintiff’s name and likeness—while dismissing the other claims—this court suspects that Plaintiff intends to argue such a claim can survive section 230. The court makes no determination at this time as to whether that position is correct, only that Plaintiff should be given the opportunity to present that position. For this reason, the court will grant Plaintiff leave to amend his misappropriation claim, if he so desires.

As to the other proposed claim, Penal Code section 632.7(a) provides, “Every person who, without the consent of all 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” in the manner the section proceeds to describe. (Smith v. LoanMe, Inc. (2021) 11 Cal. 5th 183, 191–92.)

This court is unaware of any authority discussing section 230’s application to Penal Code section 632.7. Based on section 632.7’s plain text, it is also unclear if it applies to the facts alleged here. Thus, the claim may not be a viable one. But rather than resolve the issue now, the “better course of action” is to permit the amendment, “and then let the parties test its legal sufficiency in other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 760.) The court will therefore grant leave to amend on this claim, once again, if Plaintiff so desires.

There is an old saying: “Be careful what you wish for, lest it come true!” Does the Plaintiff truly want to sue one of the more well-known internet companies in the world under these facts and circumstances? This Court would urge Plaintiff to careful reconsider this case, and what would be the likelihood of inevitable success against any of the Defendants in this case.

Of course, one could assert that it is either ironic or at perhaps foolhardy for a person, on one hand, to complain that one has been significantly injured [FN 3] by the actions taken by the Defendants in this case, yet on the other hand, continuing to allow these offending statements to promulgate even further in the public arena.

Judge of the Superior Court

FN 1 - These were the First and Fifth Causes of Action in Plaintiff’s stricken First Amended Complaint.

FN 2 - In contrast, Plaintiff’s current pleading asserts a statutory claim for misappropriation of his name and likeness under Civil Code section 3344. It’s unclear if this distinction makes any practical difference.

FN 3 - Of course, proving the actual nature and extent of the Plaintiff’s claimed damages remain to be seen.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.