Judge Stephen I. Goorvitch, Case Number: 24STCV16518, Date: 2024-08-21 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCV16518, Date: 2024-08-21 Tentative Ruling

Case Number: 24STCV16518 Hearing Date: August 21, 2024 Dept: 82

Agape Hospice & Palliative Care, LLC v. Does 1 through 1000

Case No. 24STCV16518

[Tentative] Order Discharging Order to Show Cause re: Preliminary Injunction

and Dissolving Temporary Restraining Order

INTRODUCTION

Agape Hospice & Palliative Care, LLC (“Plaintiff”) filed this complaint alleging that it has been “a victim of a coordinated and extended period of online anonymous defamation by one or more individuals hiding behind false usernames” on Google Maps. (First Amended Complaint (“FAC”) ¶ 2.) Unaware of the true names of the alleged perpetrators of the alleged defamatory posts, Plaintiff sued the defendants under the fictitious names Does 1 through 1000.

On January 29, 2024, Plaintiff filed an ex parte application for a temporary restraining order (“TRO”) and order to show cause why a preliminary injunction should not issue. Following a hearing, the court issued a TRO ordering certain Doe defendants “not to post false comments or reviews on Plaintiff’s Google Maps business listing pending the hearing on the order to show cause why a preliminary injunction shall not issue.” (Court’s Minute Order, dated July 30, 2024.) The court also issued an order to show cause (“OSC”) why a preliminary injunction should not issue in two respects: (1) “a preliminary injunction prohibiting those using the email addresses at issue to post false comments/reviews on Plaintiff's Google Maps business listing”; and (2) “a preliminary injunction requiring those using the email addresses at issue to remove the reviews at issue.” (Ibid.)

On August 9, 2024, Plaintiff filed a supplemental memorandum of points and authorities and a supplemental declaration of its chief operations officer, Mark Louka. Defendants have not made an appearance or filed an opposition to the order to show cause.

LEGAL STANDARD

The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. (Major v. Miraverde Homeowners Ass’n. (1992) 7 Cal. App. 4th 618, 623.) In deciding whether or not to grant a preliminary injunction, the court looks to two factors, including “(1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) However, the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.) Irreparable harm may exist if the plaintiff can show an inadequate remedy at law. (Code Civ. Proc. § 526(a).)

DISCUSSION

A. Service of the Summons, Complaint, and the OSC

Code of Civil Procedure section 527(d) provides in pertinent part: “The party who obtained the temporary restraining order shall, within five days from the date the temporary restraining order is issued or two days prior to the hearing, whichever is earlier, serve on the opposing party a copy of the complaint if not previously served, the order to show cause stating the date, time, and place of the hearing, any affidavits to be used in the application, and a copy of the points and authorities in support of the application.” (Code Civ. Proc. § 527(d)(2).) “When the matter first comes up for hearing, … if the party has failed to effect service as required by paragraph (2), the court shall dissolve the temporary restraining order.” (Code Civ. Proc.

§ 527(d)(3).)

“An OSC must be used when a temporary restraining order (TRO) is sought, or if the party against whom the preliminary injunction is sought has not appeared in the action. If the responding party has not appeared, the OSC must be served in the same manner as a summons and complaint.” (California Rules of Court, Rule 3.1150(a).) Generally, in California, there are four basic methods of serving a summons and complaint: (1) personal delivery to the defendant; (2) substitute service; (3) service by mail coupled with acknowledgment of receipt; or (4) service by publication. (See Code Civ. Proc. §§ 415.10, 415.20, 415.30, 415.50; see Crane v. Dolihite (2021) 70 Cal.App.5th 772, 786.) Here, Plaintiff has not filed a proof of service showing that Plaintiff served the summons, complaint, or OSC on any of the Doe Defendants by one of these four methods.

B. The Request for a Mandatory Injunction is Moot

On August 8, 2024, after the TRO was issued, the specific reviews at issue in Plaintiff’s ex parte application were removed from Google Maps by Google for violating Google’s terms of service. (Suppl. Louka Decl. ¶ 3.) Accordingly, Plaintiff’s application for a mandatory injunction directing the Doe Defendants to remove such reviews is moot.

C. The Court Denies a Preliminary Prohibitory Injunction

To the extent the court reaches the merits, the request for a preliminary prohibitory injunction is denied. As discussed, Plaintiff admits that all of the reviews at issue in the ex parte application have been removed. (Suppl. Louka Decl. ¶ 3.) Plaintiff has not presented sufficient evidence from which the court could find that future comments or reviews on Plaintiff’s Google Maps business listing by any defendant necessarily would be false or defamatory. Thus, Plaintiff has not shown that a preliminary injunction enjoining future speech should be granted. (See Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167-1168 [“An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint” and cannot be granted unless there has been a trial on the merits of the defamation claim]; accord Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1148 [preliminary injunction prohibiting publication of defamatory statements was invalid prior restraint].) In addition, the requested preliminary injunction is too vague to be enforceable in a contempt proceeding. (See Evans, supra, 162 Cal.App.4th at 1169 [preliminary injunction prohibiting deputy sheriff’s former wife from publishing any “false and defamatory” statements on the internet was unconstitutionally vague because it failed to delineate which of the defendant’s future comments might lead to contempt of court]; see also California Rules of Court, Rule 3.1150(c) [“The OSC must describe the injunction to be sought at the hearing.”].)

The two main cases discussed by Plaintiff in its supplemental brief analyze the circumstances in which a court may compel an online publisher to disclose the identity of the author of an anonymous online review. (See Glassdoor, Inc. v. Superior Court (2017) 9 Cal. App. 5th 623, 634-635; Krinsky v. Doe 6 (2008)159 Cal. App. 4th 1154, 1164-66.) Here, the court is not considering a motion to compel Google or another online provider to disclose the identities of the Doe Defendants. Rather, the court is considering whether a preliminary injunction should issue with respect to future speech of the Doe Defendants. Evans v. Evans appears to be on point and was not addressed in Petitioner’s supplemental brief.

CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1. The court discharges the order to show cause re: preliminary injunction.

2. The court dissolves the temporary restraining order.

3. The court advances and vacates the status conference set for August 23, 2024, in Department 48.

4. The court orders Plaintiff’s counsel to serve the summons and complaint, or file a request for dismissal, within thirty (30) days.

5. The court sets a case management conference in Department 48 for October 28, 2024, at 8:30 a.m.

6. The court’s clerk shall serve this order upon Plaintiff’s counsel. Plaintiff’s counsel shall provide notice upon service of the summons and complaint.