Judge Upinder S. Kalra, Case 22STCP02593 2022-09-29 Tentative Ruling

1. An
order granting the application for Andrew Stebbins appear as counsel pro hac
vice

On July 8, 2022, Petitioner Dr. Misha Mutizwa filed a
Petition to Enforce Interstate Subpoena Pursuant to CCP § 2029.600. In the
Petition, Dr. Mutizwa asks the court to require non-party Twitter to comply
with the subpoena.

On August 5, 2022, Petitioner Mutizwa filed an Application
to be Admitted Pro Hac Vice.

Pursuant
to California Rules of Court 9.40, an application for appearance pro hac

vice must
be served on all parties who have appeared
in the case and on the State Bar of California at its San Francisco office,
with payment of a $50.00 fee.

2. The courts to which the applicant has
been admitted to practice and the dates of admission;

5. The title of court and cause in which the
applicant has filed an application to appear as counsel¿pro hac vice¿in this state in the preceding two years,
the date of each application, and whether or not it was granted; and

6. The name, address, and telephone number
of the active member of the State Bar of California who is attorney of record.

Petitioner
Dr. Misha Mutizwa moves to have Andrew Stebbins appear pro hac vice in the
current matter. Movant has provided all the information required under
California Rules of Court 9.40 in the application to appear pro hac vice.

On July 8, 2022, Petitioner Dr. Misha Mutizwa (“Petitioner”) filed the instant “Petition to Enforce Interstate Subpoena Pursuant to CCP 2029.600 et seq.” (the “Petition”) against Respondent Twitter, Inc., a Delaware corporation (“Twitter”).

The Petition alleges the following. Petitioner is the plaintiff in an out-of-state action filed in Ohio (the “Ohio Action”). Twitter is a non-party to the Ohio Action and operates the website twitter.com. Beginning in and around January 2022, the defendants in the Ohio Action used anonymous Twitter accounts to invade the Petitioner’s privacy and publish false, defamatory, and derogatory statements about him on Twitter. However, Petitioner has been unable to find out the identity of those defendants. On February 22, 2022, Petitioner served a subpoena on Twitter seeking account data of the Ohio Action defendants. Twitter objected, contending that Petitioner had not satisfied the constitutional requirements for unmasking anonymous individuals. In addition, it stated it would comply with the subpoena only if a California court issues an order finding that Petitioner has satisfied those requirements.

Petitioner asks the Court to issue an order directing Twitter’s compliance with his subpoena.

Under the California Interstate and International Depositions and Discovery Act (Code Civ. Proc., §§ 2029.100–2029.700) (the “Act”), a party to a proceeding in a foreign jurisdiction may obtain discovery in California. The party may (1) request the superior court in the county where the discovery is sought to issue a subpoena or (2) hire a local attorney to issue the subpoena. (Code Civ. Proc., §§ 2029.300, subd. (a)-(b), 2029.350, subd. (a).)

If a dispute arises relating to discovery under the Act, “any request for a protective order or to enforce, quash, or modify a subpoena, … may be filed in the superior court … and, if so filed, shall comply with the applicable rules or statutes of this state.” (Code Civ. Proc., § 2029.600, subd. (a).) Such relief “shall be referred to as a petition notwithstanding any statute under which a request for the same relief would be referred to as a motion ….” (Code Civ. Proc., § 2029.600, subd. (b).)

If a subpoena requires … the production of … documents, [or] electronically stored information …, the court, upon motion reasonably made by any person [including a party] … 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.

The court may also “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.” (Civ. Code Proc. § 1987.1, subd. (a).)

Constitutional Requirements for Unmasking the Identities of Anonymous Individuals

“Judicial recognition of the constitutional right to publish anonymously is a longstanding tradition.” (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1163 (“Krinsky”).) “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.’ [Citations.]” (Ibid.)

“When vigorous criticism descends into defamation, however, constitutional protection is no longer available.” (Krinsky, supra, 159 Cal.App.4th at p. 1164.)

“[T]he viability of [a] subpoena [seeking information of an anonymous individual is] … determined by weighing [the anonymous individual’s] First Amendment right to speak anonymously against [a] plaintiff’s interest in discovering [the] identity [the individual] in order to pursue her claim.” (Krinsky, supra, 159 Cal.App.4th at p. 1165 [emphasis added].)

In Krinsky, the California Court of Appeal considered how this “weighing process should be approached.” (Krinsky, supra, 159 Cal.App.4th at p. 1165.)

The Court of Appeal “concluded that [a] plaintiff had to satisfy two requirements to overcome the defendant’s constitutional right to preserve his or her anonymity.” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 634 (“Glassdoor”), citing Krinsky, supra, 159 Cal.App.4th at p. 1171.)

“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, supra, 9 Cal.App.5th at p. 634.)

“Second, the plaintiff must ‘make a prima facie showing that a case for defamation exists’ [citation], by ‘setting forth evidence that a libelous statement has been made’ [citation].” (Glassdoor, supra, 9 Cal.App.5th at p. 634.) However, even if an action “does not sound in libel, … the same principles apply.” (Ibid.) “In any action predicated on anonymous speech, regardless of legal theory, 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 pp. 634-635.)

Here, the parties do not dispute that Petitioner made reasonable efforts to provide notice to the defendants in the Ohio Action.

However, they dispute whether Plaintiff has made a prima facie showing of his claims.

“‘Prima facie evidence is that which will support a ruling in favor of its proponent if no controverting evidence is presented. [Citations.]” (Krinsky, supra, 159 Cal.App.4th at p. 1172, fn. 14 [emphasis added].) “It may be slight evidence which creates a reasonable inference of fact sought to be established but need not eliminate all contrary inferences. [Citation.]’ [Citations.]” (Ibid. [emphasis added].)

In Krinsky, the California Court of Appeal applied Florida (instead of California) law to determine whether the plaintiff met his prima facie burden because the underlying action was based in Florida. (Krinsky, supra, 159 Cal.App.4th at p. 1173 [“In examining the law of defamation, the court correctly determined that plaintiff’s prima facie burden must be defined and satisfied according to Florida law”].)

Accordingly, the Court will apply Ohio law in examining whether Petitioner has met his prima facie burden.

Petitioner asserts four causes of action in the Ohio Action: (1) publication of private facts, (2) invasion of privacy – intrusion upon seclusion, (3) invasion of privacy – false light, and (4) defamation and defamation per se. (See Petition, declaration of Andrew C. Stebbins (“Stebbins Decl.”), ¶ 4; Exhibit A – a copy of the Ohio Action complaint (the “Complaint”).)

Petitioner (“Plaintiff” in the Complaint) is a practicing physician that sees patients in Ohio and Pennsylvania. (Compl., ¶ 4.) Plaintiff is also an avid fan of a reality television series (the “Reality TV Series”) and is an active participant of the series online, including on Twitter. (Compl., ¶ 4.)

The majority of Plaintiff’s interactions with other fans of the Reality TV Series comes through his anonymous account (the “Reality TV Account”). (Compl., ¶ 5.) However, Plaintiff has maintained another personal Twitter account since 2012 for his own use. (Compl., ¶ 5.)

Defendants – Does 1 (@DrMutizwa), 2 (@YNK1805), 3 (@savsbravopolls), and 4 (@srykyleyoulose) – are also avid fans of the Reality TV Series and participate in the same forums and discussions as Plaintiff. (Compl., ¶ 6.)

Plaintiff amassed a large following on Twitter due to his commentary regarding the Reality TV Series. (Compl., ¶ 7.) Due to that large following, Plaintiff refrained from publishing any identifying information regarding his personal life on his Reality TV Account. (Compl., ¶ 7.)

However, as the number of Plaintiff’s fans grew, so did those that disagreed with his opinions and commentaries regarding the Reality TV Series. (Compl., ¶ 8.) Over time, those disagreements became more personal, and Plaintiff became aware that there were some in the Twitter community attempting to obtain his personal information and identity. (Compl., ¶ 9.)

Beginning in January 2022, some Twitter accounts began attacking Plaintiff. (Compl., ¶ 10.)

Specifically, on January 28, 2022, Does 2-4 (@YNK1805, @savsbravopolls, and (@srykyleyoulose) went on Twitter’s livestream and began telling their followers that they had “discovered” Plaintiff’s identity and suggested that they would be disclosing that information. (Compl., ¶ 11.) On January 30, 2022, Does 2 and 4 (@YNK1805 and @srykyleyoulose) published “tweets” that included Plaintiff’s first name, signaling that Plaintiff’s identity had been disclosed to defendants. (Compl., ¶ 12; see the Complaint’s Exhibits, Exhibit (“Exh.”) 1 – a copy of the tweets.) On or about February 5, 2022, Doe 1 (@DrMutizwa) created a Twitter account impersonating Plaintiff and included information regarding Plaintiff’s practice, employer, address, and other identifying information. (Compl., ¶¶ 13-14.) Doe 1 subsequently deleted that account, but immediately after deletion, Does 2-4 screenshotted the account and published it on Twitter. (Compl., ¶¶ 14-15.) Thereafter, Does 2-4 continued to publish tweets spreading Plaintiff’s personal information and continued tweeting regarding the profile created by Doe 1 as if it was Plaintiff’s actual profile. (Compl., ¶ 18; Exh. 4.) Additionally, the Defendants began posting false and defamatory statements regarding Plaintiff, including that Plaintiff had made racists, sexist, and other derogatory statements to other people in the Realty TV Series community. (Compl., ¶ 19; Exh. 5.)

As a result of the defendants’ conduct, Plaintiff began receiving numerous calls and emails from people directly affiliated with the defendants. (Compl., ¶ 22.) Defendants’ statements were seen, believed, and believed by numerous people within Plaintiff’s personal and professional communities, destroying Plaintiff’s reputation within both communities. (Compl., ¶ 29.)

Under Ohio Law, “[t]he tort of invasion of privacy includes four distinct causes of action: [1] intrusion into the plaintiff’s seclusion, solitude, or private affairs; [2] public disclosure of embarrassing private facts about the plaintiff; [3] publicity that places the plaintiff in a false light; and [4] appropriation of the plaintiff's name or likeness for the defendant’s advantage.” (Piro v. Franklin Twp. (Ohio Ct. App. 1995) 102 Ohio App.3d 130, 144.)

Here, Petitioner asserts only the first three causes of action against the defendants in the Ohio Action.

“[I]n order to establish a claim for public disclosure of private facts, a plaintiff must prove: ¶ ‘(1) that there has been a public disclosure; (2) that the disclosure was of facts concerning the private life of an individual; (3) that the matter disclosed would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) that the disclosure was intentional; and (5) that the matter publicized is not of legitimate concern to the public.’ [Citations.]” (Templeton v. Fred W. Albrecht Grocery Co. (Ohio Ct. App. 2017) 72 N.E.3d 699, 701 (“Templeton”).)

Petitioner alleges the following under the first count for publication of private facts. Doe 1 intentionally and maliciously discovered Petitioner’s identity and published it along with Petitioner’s website and employer’s name through the Twitter account @DrMutizwa. (Compl., ¶ 36.) Does 2-4 intentionally and maliciously spread that information through “retweeting” screenshots of the @DrMutizwa profile at large. (Compl., ¶ 37.) Prior to the creation of the @DrMutizwa account, Petitioner’s identity to the Reality TV Series community online had not been made public. (Compl., ¶ 38.) The defendants published Petitioner’s identity and personal information with the intent to humiliate, harass, and cause harm to the Petitioner. (Compl., ¶ 39.) The Petitioner’s involvement in the Reality TV Series community was a private matter and not of public concern. (Compl., ¶ 40.) Posting of the Petitioner’s identity and employment information was highly offensive to the Petitioner because he reasonably expected his identity to remain private and his speech anonymous. (Compl., ¶ 41.)

To prove those allegations, Petitioner submits his declaration which attests to the facts above. (Petition, Stebbins Decl.”), ¶ 4; Exhibit C, the declaration of Dr. Misha Mutizwa (“Dr. Mutizwa Decl.”), ¶¶ 14-18, 20-22.) Petitioner also states in his declaration that his duty as a physician requires him to provide objective and competent medical care to all persons regardless of their race or gender. (Mutizwa Decl., ¶ 23.) Therefore, the defendants’ false statements (e.g., he was a racist or misogynist) have destroyed the “foundation of trust” he has with his patients (i.e., that he will not discriminate against them). (Mutizwa Decl., ¶ 23.)

Twitter argues that “simply associating Plaintiff with the Twitter account offering commentary on Reality TV does not rise to the threshold of a ‘highly offensive’ publication ….” (Opposition, p. 13-15.)

For a conduct “to be highly offensive, the plaintiff must be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. [Citation.] The statement must be ‘such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected.’ [Citation.]” (Dudee v. Philpot (Ohio Ct. App. 2019) 133 N.E.3d 590, 605 [discussing the “highly offensive to a reasonable person” element of an invasion of privacy cause of action].)

For example, disclosure of “unauthorized, unprivileged disclosure of medical information to a third party when the medical information is gained in the course of the physician-patient relationship” would be highly offensive. (Templeton, supra, 72 N.E.3d at p. 702.)

Here, while the Court agrees that many would find it objectionable that their identity and personal identifying information was disclosed, Petitioner fails to show how the publication of his real name, website, and employer’s address on Twitter was a major misrepresentation of his character, history, activities, or beliefs such that a serious offense may reasonably be expected. Petitioner himself testifies that he is a practicing and licensed physician in good standing with the Pennsylvania State Board of Medicine specializing in dermatology. (Mutizwa Decl., ¶ 3.) More to the point, such information is hardly highly offensive to a reasonable person in the community.

Accordingly, the Court finds that Petitioner has not met his prima facie burden for his first count for publication of private facts.

“‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” (Retuerto v. Berea Moving Storage & Logistics (Ohio Ct. App. 2015) 38 N.E.3d 392, 406 (“Retuerto”).)

“The intrusion must be into a plaintiff's private affairs and the plaintiff must have a ‘reasonable expectation of privacy’ in the area allegedly intruded. [Citation.]” (Retuerto, supra, 38 N.E.3d at p. 406.)

“The intrusion must [also] be wrongful, as well as done in a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” (Retuerto, supra, 38 N.E.3d at p. 407.) For example, “‘wiretapping [and] watching or photographing a person through windows of his residence,’” would be wrongful. (Ibid.)

Here, Petitioner alleges that “Defendants wrongfully accessed [his] private information, including his identity and employment information.” (Compl., ¶ 44.) In addition, that those “actions [of] publishing [his] identity and employment information constitute[] …wrongful intrusion into [his] personal life, as [he] had a reasonable expectation that his identity would remain private.” (Compl., ¶ 45.)

However, Petitioner does not submit any evidence of how Defendants “wrongfully accessed” his identity and employment information (e.g., through hacking his personal Twitter account). He also fails to show how he had a reasonable expectation of privacy in that information when he argues, alleges, and testifies that the information was accessible through Google search results. (Petition, p. 5:4-6; Compl., ¶ 21; Mutizwa Decl., ¶ 20.) Lastly, as discussed above, Petitioner fails to show how his identity and employment information is “highly offensive” to a reasonable person.

Accordingly, the Court finds that Petitioner has not met his prima facie burden for his second count for invasion of privacy – intrusion upon seclusion.

“In 2007, the Ohio Supreme Court recognized the tort of false-light invasion of privacy and adopted Restatement of the Law 2d, Torts, Section 652E.” (Mangelluzzi v. Morley (Ohio Ct. App. 2015) 40 N.E.3d 588, 599 (“Mangelluzzi”)

Under the state’s law, “‘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 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.’” (Ibid.)

For example, “[f]alsely accusing someone of inappropriate conduct with children, let alone being a pedophile, whether expressly or by innuendo, ‘would be highly offensive to a reasonable person.’” (Hersh v. Grumer (Ohio Ct. App. 2021) 176 N.E.3d 1135, 1148.)

Here, Petitioner alleges that the defendants place him “before the public in a false light as they make accusations that Plaintiff made racist and misogynistic attacks against Defendants, which did not occur.” (Compl., ¶ 49.) “The false light in which [he] has been placed would be highly offensive to a reasonable person in [his] position.” (Compl., ¶ 51.)

In his declaration, Petitioner attests to the facts above and adds that he is “neither a racist or misogynist or otherwise engaged in the harassment of individuals in the community.” (Compl., Mutizwa Decl., ¶¶ 18, 22.) He adds, that his “current and prospective patients, employer, colleagues, and other members of the medical community have seen the false statements in Defendants’ Tweets. As a result, [his] reputation within [those] communities has been irreparably damaged.” (Mutizwa Decl., ¶ 26.)

Even assuming that the defendants painted Petitioner as a “racist and misogynist,”(See Mutizwa Decl., ¶ 18; Exhibits attached to Mutizwa’s Decl. (“Mutizwa’s Exhibits”), Exh. E)[1], there is a crucial element still missing from the Petition.

Read in context, the tweets attacks Petitioner for allowing a posted reply of a monkey on his Twitter account remain without removing it or criticizing it and thus, suggesting that Petitioner was giving tacit approval of the content of the message. Based upon Petitioner’s omissions, the series of tweets at issue here were posted. There is simply no evidence that suggests that the posters had knowledge of or acted in reckless disregard as to the falsity of the publicized matter i.e. that Petitioner’s omissions make him a racist and misogynist.

Accordingly, the Court finds that Petitioner has not met his prima facie burden of his third count for invasion of privacy – false light.

“[T]o establish a claim for defamation, a plaintiff must show: (1) a false statement of fact was made about the plaintiff, (2) the statement was defamatory, (3) the statement was published, (4) the plaintiff suffered injury as a proximate result of the publication, and (5) the defendant acted with the requisite degree of fault in publishing the statement.” (Mangelluzzi, supra, 40 N.E.3d at pp. 595–596.)

“Written defamation is known as libel; spoken defamation is known as slander.” (Gosden v. Louis (Ohio Ct. App. 1996) 116 Ohio App.3d 195, 206 (“Gosden”).)

“There are two kinds of defamation and, therefore, two kinds of libel. Defamation per se occurs when material is defamatory on its face; defamation per quod occurs when material is defamatory through interpretation or innuendo.” (Gosden, supra, 116 Ohio App.3d at p. 206.)

Here, Petitioner alleges that the Doe defendants made false and defamatory “statements” that he “[was] racist, misogynistic, and engages in continuous online harassment.” (Compl., ¶ 56.)

“A statement is defamatory if it tends to injure a person’s reputation or exposes him or her to public hatred, contempt, ridicule, shame, or disgrace.” (Anderson v. WBNS-TV, Inc. (Ohio Ct. App. 2020) 165 N.E.3d 790, 799.)

Here, the Court has reviewed the copies of tweets attached to the Petition. It seems obvious that the stated purpose of the poster was to subject Petitioner to public hatred, contempt, ridicule, shame, or disgrace. But it is not the intent of the poster that controls. Even if the postings actually tended to injure Petitioner’s reputation or expose him to public hatred, contempt, ridicule, shame, or disgrace, of the kind contemplated in defamation causes of action, that is not enough to satisfy Petitioner’s burden. Rather, Petitioner needs to demonstrate that a reasonable person would find the postings stated actionable facts and not protected opinions.

The Ohio Supreme Court has “adopted a totality of the circumstances test to be used when determining whether a statement is fact or opinion.” (Vail v. The Plain Dealer Publishing Co. (1995) 72 Ohio St.3d 279, 282.) It held that a “should consider: [1] the specific language used, [2] whether the statement is verifiable, [3] the general context of the statement, and [4] finally, the broader context in which the statement appeared.” (Ibid.)

Here, viewed in context, it cannot be reasonably concluded that the tweets are statements of facts. Both the forum—a chat room for passionate reality tv fans— and the content of the messages—a heated and caustic series of tweet— support the conclusion that Petitioner has failed to make a prima facie showing that the tweets are anything more than opinions of zealous reality tv fans. Stated otherwise, a reasonable person who reviewed the tweets would believe that the statements are at most strongly held opinions and not statements of fact.

Accordingly, the Court finds that Petitioner has not met his prima facie burden of his fourth count for defamation and defamation per se.

[1]The Exhibit includes three dialogues or “tweets.” (Mutizwa’s Exhibits, Exh. E, p. 1.):

The first tweet in the Exhibit, at the bottom of the first page, is a cropped image of a monkey cartoon posted by a person with the Twitter account “@MPagetBrewster.” According to the Respondent, Petitioner is the owner of that account, which happens to be the Reality TV Account. (See Opposition, p. 6:11-12.)

The middle tweet is by a person with the Twitter account @joyrosenberg, a non-party, who appears to be replying to Petitioner’s tweet above by saying: “His stalker message proves it, yannick and Judy aren’t very smart.”

The last and top-most tweet by Doe 2 (@YNK1805) concludes the Twitter thread as follows: “And you let him putting a gif referring Judy and I two mixed race persons as Monkeys! Like girl you are not against racism you are for racism! And that is disgusting and shameful for a mother to do that. You are not a good example. #PagetisOverParty.”