Judge: Upinder S. Kalra, Case: 23STCP00424, Date: 2023-06-29 Tentative Ruling
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Case Number: 23STCP00424 Hearing Date: June 29, 2023 Dept: 51
Tentative
Ruling
Judge Upinder S. Kalra, Department 51
HEARING
DATE: June 29, 2023
CASE NAME:
Dr. Misha Mutizwa v.
Twitter, Inc.
CASE NO.:
23STCP00424
PETITION TO ENFORCE INTERSTATE
SUBPOENA
MOVING PARTY: Petitioner
Dr. Misha Mutizwa
RESPONDING PARTY(S): Respondent Twitter, Inc.
TENTATIVE RULING: Petition is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR
PROCEEDINGS:
On July 8, 2022, Petitioner Dr. Misha Mutizwa (“Petitioner”)
filed a Petition in 22STCP02593the 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 alleged 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.
On September 14, 2022, Twitter filed its opposition to
the Petition.
On September 21, 2022, Petitioner filed his reply.
On September
29, 2022, the Court Denied the Petition without prejudice.
On
February 7, 2023, Petitioner filed the instant Petition once again serving a
subpoena duces tecum on Twitter. This Petition is narrower in scope than the
prior Petition, as only requesting information as to John Doe 1.
LEGAL STANDARD
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).)
Under Code of Civil Procedure
section 1987.1, subdivision (a) (emphasis added):
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).)
ANALYSIS:
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.
Applicable
Law for Prima Facie Case
“‘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.
Whether
Petitioner has Met his Prima Facie Burden
Petitioner asserts two causes of action in the Ohio
Action: (1) invasion of privacy – publication of Private Facts; and, (2)
invasion of privacy – intrusion upon seclusion. (“Stebbins Decl.”), ¶ 12; Exhibit B – a copy of the Ohio Action complaint (the
“Complaint”).)
1. Allegations in the Ohio Action’s 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.)
2. Invasion of Privacy Torts
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.
First Count for Public
Disclosure of Private Facts
“[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.)
Once again, the Court agrees. As the Court stated before, for 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.
Second Count for Invasion
of Privacy – Intrusion Upon Seclusion
“‘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.)
Previously, the Court concluded that Petitioner had failed to submit any
evidence of how Defendants “wrongfully accessed” his identity and employment
information (e.g., through hacking his personal Twitter account). In this renewed
Petition, Plaintiff still has failed to present any direct evidence as to this
element. However, Plaintiff has presented circumstantial evidence supporting
this inference. Plaintiff outlines the great lengths he went to shield his identity
and to prevent parties from connecting his posts to his true identity. (Stebbins
Dec. ¶¶7-9.) The Court agrees that this additional investigation is sufficient
to satisfy Petitioner’s burden at this stage. Previously, the Court concluded
that Petitioner had failed to show how he had a reasonable expectation of
privacy in that information. With the supplemental declaration of Petitioner
and counsel, the Court is satisfied that Petitioner has satisfied this
requirement as well. Lastly, to the final element that the intrusion must be
highly offensive, while it is similar to the “highly offensive” element of
disclosure of private facts, it is not the same. The private affairs here is the
fact that Petitioner sought to shield his identity in making posts in his
recreational account. In this modern era of social media, such an expectation of
privacy is objectively reasonable and in this context alleged in the complaint,
Petitioner has satisfactorily demonstrated that the release of this private information
was designed to cause mental suffering, shame or humiliation. Thus, Petitioner
has met his prima facie
burden for his second count for invasion of privacy – intrusion upon seclusion.
Conclusion
For the foregoing
reasons, the Court decides the pending motion as follows:
The Petition to Enforce
Interstate Subpoena is GRANTED.
Moving
party to give notice.
IT IS SO
ORDERED.
Dated: June 29, 2023 ___________________________________
Upinder S.
Kalra
Judge of the
Superior Court