Reade v. New York Times Company ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 TARA READE, No. 2:22-cv-00543 WBS KJN 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND SPECIAL 15 THE NEW YORK TIMES COMPANY, MOTION TO STRIKE 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Tara Reade brought this action against 20 defendant The New York Times Company challenging the alleged 21 publication of a photograph containing her Social Security number 22 in defendant’s newspaper, The New York Times (the “Times”). (See 23 Compl. (Docket No. 1-1 at 5-9).) Plaintiff’s complaint includes 24 three claims under California law: (1) violation of California 25 Civil Code § 1798.85, (2) public disclosure of private fact, and 26 (3) negligence. Defendant now moves both to dismiss plaintiff’s 27 claims under Federal Rule of Civil Procedure 12(b)(6) and to 28 strike them via special motion under California’s anti-SLAPP 1 statute, Cal. Code Civ. P. § 425.16. (See Mot. to Dismiss 2 (Docket No. 10); Mot. to Strike (Docket No. 11).)1 3 I. Factual and Procedural Background2 4 During the 2020 United States presidential campaign, 5 plaintiff publicly accused then-candidate Joe Biden of having 6 sexually assaulted her in the 1990s, while plaintiff was working 7 at the United States Senate. (See Compl. at ¶¶ 7-12.) The Times 8 investigated plaintiff’s allegations and, to corroborate them, 9 plaintiff provided the Times with a photograph of her federal 10 identification card from her time with the Senate. (See id. at 11 ¶¶ 9-11.) That ID card included what turned out to be the upper 12 portion of plaintiff’s Social Security number. (Id. at ¶ 12.)3 13 The Times published an article about plaintiff’s 14 allegations in April of 2020, in which it included the photo of 15 her ID card, though plaintiff had not expressly given the Times 16 consent to publish the photo. (Id. at ¶¶ 11-13.) The Times 17 1 Defendant’s motions appear to be identical, except for 18 portions addressing the respective legal standards for a motion to dismiss under Rule 12(b)(6) and for a special motion to strike 19 under the anti-SLAPP statute. (See Mot. to Dismiss; Mot. to Strike.) Accordingly, except where relevant to the special 20 motion to strike, which as explained below has additional requirements beyond those of a motion to dismiss, the court cites 21 to the motion to dismiss and not to the special motion to strike. 22 2 All facts described in this section are as alleged in 23 plaintiff’s complaint, except as otherwise noted. 24 3 Although the Complaint suggests the whole number was visible, counsel for plaintiff acknowledged at oral argument that 25 this was not the case. This is confirmed by the unredacted copy of the image as it was provided to the Times, which has been 26 filed under seal, as well as a partially redacted version with 27 only the final four digits of the number visible, attached to this Order as Exhibit A, pursuant to Local Rule 140(a)(iii) and 28 Federal Rule of Civil Procedure 5.2(a)(1). 1 removed the photo after roughly nine hours, after plaintiff 2 demanded its removal. (Id. at ¶¶ 14-15.) Plaintiff alleges that 3 the photo was viewed thousands or millions of times before it was 4 removed and that there have since been hundreds of attempts to 5 steal her identity using her Social Security number. (Id. at 6 ¶¶ 15-16.) 7 Plaintiff alleges that defendant employs an extensive 8 editing process prior to publishing articles on the Times website 9 and that its publication of the photo in spite of this process 10 shows the publication of the photo was either intentional or 11 reckless. (Id. at ¶¶ 18-19.) She alleges that as a result of 12 the photo’s publication, she has suffered financial and emotional 13 harm. (Id. at ¶ 17.) Plaintiff filed this action in the 14 Superior Court of the State of California, in and for the County 15 of Nevada, on February 22, 2022. (Compl. (Docket No. 1-1 at 5).) 16 Defendant removed to this court on May 24, 2022. (Notice of 17 Removal at 1 (Docket No. 1).) 18 II. Discussion 19 A. Motion to Dismiss 20 Federal Rule of Civil Procedure 12(b)(6) allows for 21 dismissal when the plaintiff’s complaint fails to state a claim 22 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 23 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 24 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry 25 before the court is whether, accepting the allegations in the 26 complaint as true and drawing all reasonable inferences in the 27 plaintiff’s favor, the complaint has alleged “sufficient facts 28 . . . to support a cognizable legal theory,” id., and thereby 1 stated “a claim to relief that is plausible on its face,” Bell 2 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding 3 such a motion, all material allegations of the complaint are 4 accepted as true, as well as all reasonable inferences to be 5 drawn from them. Id. 6 Courts are not, however, “required to accept as true 7 allegations that are merely conclusory, unwarranted deductions of 8 fact, or unreasonable inferences.” Sprewell v. Golden State 9 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl., 550 10 U.S. at 555. Accordingly, “for a complaint to survive a motion 11 to dismiss, the non-conclusory ‘factual content,’ and reasonable 12 inferences from that content, must be plausibly suggestive of a 13 claim entitling the plaintiff to relief.” Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009)). 16 1. California Civil Code § 1798.85 17 Plaintiff first alleges violation of § 1798.85 of the 18 California Civil Code, which in pertinent part provides that, 19 except under specified circumstances, “a person or entity may not 20 . . . [p]ublicly post or publicly display in any manner an 21 individual’s social security number.” Cal. Civ. Code 22 § 1798.85(a)(1). The statute defines “[p]ublicly post” and 23 “publicly display” to mean “to intentionally communicate or 24 otherwise make available to the general public.” Id. 25 Defendant seeks dismissal of plaintiff’s § 1798.85 26 claim on the grounds that (1) the statute creates no private 27 right of action and, (2) even assuming it does, plaintiff 28 nonetheless fails to allege that defendant “intentionally” 1 communicated or displayed her Social Security number when 2 publishing the photo. (Mot. to Dismiss at 11-16.)4 3 a. Existence of Private Right of Action 4 “A violation of a state statute does not necessarily 5 give rise to a private cause of action.” Lu v. Hawaiian Gardens 6 Casino, Inc., 50 Cal. 4th 592, 596 (2010) (citation omitted). 7 “Whether a party has a right to sue depends on ‘whether the 8 Legislature has manifested an intent to create such a private 9 cause of action under the statute.’” Fresno Motors, LLC v. 10 Mercedes Benz USA, LLC, 771 F.3d 1119, 1132 (9th Cir. 2014) 11 (quoting Lu, 50 Cal. 4th at 596). To find such a legislative 12 intent, courts must first look to the language of the statute and 13 then to its legislative history. Id. (citing Lu, 50 Cal. 4th at 14 596); see San Diegans for Open Gov’t v. Pub. Facilities Fin. 15 Auth. of City of San Diego, 8 Cal. 5th 733, 739 (2019). 16 In examining the language of a statute, the court must 17 look for signals such as an “express[ ] state[ment] ‘that a 18 person has or is liable for a cause of action for a particular 19 violation,’” “a remedy or means of enforcing its substantive 20 provisions,” or other “obvious,” “‘clear, understandable, [and] 21 unmistakable terms which strongly and directly indicate’ an 22 23 4 In its motions, defendant also argues that the Social Security number depicted in the ID photo is not plaintiff’s 24 current Social Security number, and that § 1798.85 only applies to current Social Security numbers. (Mot. to Dismiss at 14.) 25 However, in its reply defendant indicates that it no longer seeks to pursue this argument in light of an affidavit from plaintiff 26 stating that the Social Security number is in fact current. 27 (Reply at 2 n.1 (Docket No. 16); see Reade Aff. (Docket No. 15- 3).) Accordingly, the court will not address this asserted basis 28 for dismissal. 1 intent to create a private cause of action.” Fresno Motors, 771 2 F.3d 1132-33 (quoting Lu, 50 Cal. 4th at 597). Section 1798.85 3 does clearly state that a person or entity “may not” publicly 4 post or display an individual’s Social Security number, but it 5 does not contain either any language establishing that 6 individuals whose Social Security numbers are publicly posted or 7 displayed have a cause of action against the offending party or 8 warning that persons who violate the statute are liable for a 9 cause of action based on the statute itself. Nor does it contain 10 any language explaining what remedies would be available to a 11 plaintiff bringing suit for violation of the statute. See Lu, 50 12 Cal. 4th at 597 (listing examples of statutory language courts 13 have found expressly create causes of action, none of which are 14 present in § 1798.85). 15 Because § 1798.85 contains no “obvious language” 16 indicating that cause of action exists, the court turns to 17 legislative history. To demonstrate the existence of a cause of 18 action, the legislative history must offer a “clear indication 19 that the Legislature intended to create a private cause of action 20 under the statute.” Id. at 600. 21 In support of her argument that the statute creates a 22 private right of action, plaintiff points to two portions of a 23 report on the law by the Assembly Committee on Banking and 24 Finance (Docket No. 15-1).5 She first points to the report’s 25 5 Plaintiff has attached the report to her opposition. Although not framed as such, the court construes this as a 26 request for judicial notice of the statements contained in the 27 report. So construed, plaintiff’s request for judicial notice is granted. Defendant does not contest that the statements are 28 authentic, see Fed. R. Evid. 201(b)(2); indeed, defendant seeks 1 statement that the law represents “a modest effort to allow the 2 victim to assertively deal with the consequences of identity 3 theft.” (Id. at 3.) Although this statement suggests the 4 Committee’s view that the law could assist victims of identity 5 theft in addressing the effects of such theft, its meaning is 6 clarified when read in context with the second portion plaintiff 7 identifies. There, the Committee recommends that the bill’s 8 “author . . . consider specific causes of action and monetary 9 sanctions for violations” and that such sanctions include “costs 10 and attorney fees to the prevailing plaintiff.” (Id.) This 11 language makes plain the Committee’s understanding that the 12 statute, as written, did not provide a cause of action for 13 violations, hence the Committee’s recommendation that one or more 14 causes of action be added. That recommendation was never 15 adopted. 16 In light of those statements, this court cannot 17 conclude that the report’s vague reference to victims 18 “assertively deal[ing] with the consequences of identity theft” 19 constitutes a “clear indication that the Legislature intended to 20 create a private cause of action under the statute.” Lu, 50 Cal. 21 4th at 600. Likewise, that the report lists the statute’s 22 projected “fiscal effect” as “None,” (Docket No. 15-1 at 2), 23 provides too weak an inference of intent to create a cause of 24 action for the court to recognize one here. Although plaintiff 25 judicial notice of the contents of the same document, (Docket No. 12-13). Defendant’s request, insofar as it seeks such notice, is 26 granted. Defendant’s request is denied in all other respects, 27 however, as consideration of the other documents for which defendant seeks notice is unnecessary to the resolution of the 28 instant motions. 1 argues the lack of a projected fiscal impact indicates that the 2 legislature did not intend for the state Attorney General to 3 enforce the law, and that individuals whose Social Security 4 numbers are published therefore must be able to enforce the law 5 themselves, (Opp. at 11 (Docket No. 15)), this rationale is far 6 too speculative to represent a “clear indication” of legislative 7 intent. Moreover, it appears that the Attorney General has 8 indeed sought to enforce this statute on at least one occasion, 9 via an action brought under California’s Unfair Competition Law, 10 Cal. Bus. & Prof. Code § 17200, indicating that a means of 11 enforcing the law does in fact exist. (See Docket No. 12-12.)6 12 Plaintiff also cites an unpublished California Superior 13 Court decision, Skylight Advisors, LLC v. Does 1-25, 20-SMC-cv- 14 01175, at 13 (Cal. Super. Ct. May 24, 2021) (Docket No. 15-2), 15 attached to her opposition, in arguing that a cause of action 16 exists.7 There, the court stated that, “[a]s a remedial statute, 17 the Court believes that there is a manifest intent to allow a 18 private right of action” in § 1798.85. (Docket No. 15-2 at 13.) 19 However, that conclusion is expressly qualified by the court’s 20 statement that “[n]o party provide[d] the Court with the full 21 legislative history, including what the Legislative Analyst or 22 23 6 Although not part of the Complaint, the court takes judicial notice of the fact that the state brought this claim, in 24 a case in the Superior Court of the State of California, in and for the County of Alameda, in January of 2014. (See id.) 25 26 7 As with the legislative analysis of § 1798.85, the court construes this as a request for judicial notice of the 27 document’s contents. (See supra n.5.) So construed, plaintiff’s request for judicial notice is granted, as defendant does not 28 contest the document’s authenticity. 1 Counsel stated about [the existence of a] claim (if anything),” 2 and that “the Court [was] open to persuasion on this point at a 3 later stage of the proceedings, perhaps with a better recitation 4 of Legislative history.” (Id. at 13-14.) This discussion makes 5 clear that that court did not consider the legislative materials 6 that this court has reviewed. Skylight Advisors is therefore 7 unpersuasive. 8 Accordingly, the court concludes that, based on the 9 statutory text and the legislative history identified by 10 plaintiff, § 1798.85 does not create a cause of action. Accord 11 Fine v. Cambridge Int’l Sys., 12-cv-165 WQH (BGS), 2012 WL 12 2871656, at *5 (S.D. Cal. July 11, 2012) (citation omitted), 13 rev’d in part on other grounds, 584 F. App’x 695 (9th Cir. 2014); 14 see San Diegans for Open Gov’t, 8 Cal. 5th at 739 (“The burden of 15 persuasion is with the party claiming a statutory right to sue.”) 16 (citation omitted). Plaintiff’s § 1798.85 claim therefore cannot 17 succeed. 18 b. Requisite Allegations of Intent 19 Even if a cause of action existed, plaintiff’s claim 20 fails for another, independent reason. Section 1798.85 includes 21 an intent component, prohibiting “person[s] or entit[ies]” from 22 “intentionally communicat[ing] or otherwise mak[ing] available to 23 the general public” another person’s Social Security number. 24 Cal. Civ. Code § 1798.85(a)(1) (emphasis added). 25 As a threshold matter, the parties dispute whether the 26 provision requires general or specific intent -- in other words, 27 whether a person or entity violates the statute any time it 28 intentionally communicates material that happens to contain 1 another person’s Social Security number, or whether the person or 2 entity must specifically intend to communicate the Social 3 Security number itself. A plain reading of the statute 4 demonstrates that the latter interpretation is correct. As 5 noted, the statute provides that “a person or entity may not 6 . . . [p]ublicly post or publicly display in any manner an 7 individual’s social security number” and defines “[p]ublicly 8 post” and “publicly display” to mean “to intentionally 9 communicate or otherwise make available to the general public.” 10 Cal. Civ. Code § 1798.85(a)(1). Reading these provisions of the 11 statute together, it prohibits persons or entities from 12 “intentionally communicat[ing] or otherwise mak[ing] available to 13 the general public,” “in any manner[,] an individual’s social 14 security number.” Id. The terms “communicate” and “make 15 available” apply directly to “an individual’s social security 16 number,” making clear that the intent requirement, which modifies 17 “communicate” and “make available,” applies to disclosure of the 18 number itself. 19 The allegations in plaintiff’s complaint relevant to 20 intent are that defendant (1) “has an extensive editing process 21 before publication on its website,” making it “very unlikely that 22 the disclosure was inadvertent, as several people must have seen 23 the photo before it was published”; (2) “acted recklessly or 24 intentionally in disclosing Plaintiff’s Social Security Number”; 25 and, similarly, (3) “intentionally or recklessly violated 26 California law in publicly posting or displaying Plaintiff’s 27 Social Security Number.” (Compl. at ¶¶ 18-19, 24.) 28 These allegations are insufficient to plausibly suggest 1 that defendant intentionally displayed plaintiff’s Social 2 Security number when it chose to publish the photo of her ID. 3 The court has reviewed an unredacted image of the photo, which 4 the court has separately ordered to be sealed, and it is not at 5 all obvious that the number is in fact a Social Security number.8 6 Only the top half of the digits are visible at the bottom of the 7 image, and it is not even clear what numbers they are. The two 8 dashes typically separating the digits are also absent from the 9 photo. The mere fact that defendant has a practice of reviewing 10 photos before publishing them online does not plausibly suggest 11 that its inclusion of a portion of plaintiff’s Social Security 12 number was intentional. See Sprewell, 266 F.3d at 988 (courts 13 not “required to accept as true allegations that are merely . . . 14 unwarranted deductions of fact[ ] or unreasonable inferences”). 15 Plaintiff’s other allegations on this point are mere 16 conclusory statements that defendant acted either recklessly or 17 intentionally. These allegations are unsupported by any factual 18 allegations -- other than the above-noted allegation regarding 19 defendant’s editing process -- supporting an inference that the 20 inclusion of plaintiff’s Social Security number was intentional. 21 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet 22 that a court must accept as true all of the allegations contained 23 in a complaint is inapplicable to legal conclusions. Threadbare 24 recitals of the elements of a cause of action, supported by mere 25 conclusory statements, do not suffice.”). 26 There is no suggestion as to how defendant would have 27 8 As noted, see supra n.3, a partially redacted copy of 28 the image is attached at Exhibit A. 1 known that portions of what appear to be numbers on what was 2 represented to be plaintiff’s identification badge as an employee 3 of the United States Senate were in fact her Social Security 4 number. Moreover, the Complaint does not even definitively state 5 that defendant’s publication of the Social Security number was, 6 in fact, intentional, but rather alleges that the publication may 7 instead have been reckless. Because the statute specifies that 8 intentional display or dissemination is required, recklessness is 9 insufficient. 10 Because section 1798.85 does not create a cause of 11 action and, in any event, plaintiff fails to plausibly allege 12 that defendant’s publication of her Social Security number was 13 intentional, plaintiff’s first claim will be dismissed. 14 2. Public Disclosure of Private Fact 15 To state a claim for public disclosure of private facts 16 under California law, a plaintiff must allege: “(1) public 17 disclosure (2) of a private fact (3) which would be offensive and 18 objectionable to the reasonable person and (4) which is not of 19 legitimate public concern.” Shulman v. Grp. W Prods., Inc., 18 20 Cal. 4th 200, 214 (1998). This type of claim arises from 21 California’s common law right to privacy. See Diaz v. Oakland 22 Trib., Inc., 139 Cal. App. 3d 118, 125-26 (1st Dist. 1983); see 23 also id. at 125 n.10 (noting claim may also arise under 24 California Constitution’s right to privacy) (citing Cal. Const. 25 Art. I, § 1).9 As the Ninth Circuit has noted regarding common 26 9 The other tort claims arising under the common law 27 right to privacy in California are “(1) intrusion upon plaintiff’s solitude or into his or her private affairs; 28 (2) ‘false light’ publicity; and (3) appropriation of plaintiff’s 1 law privacy claims, although California courts “ha[ve] not 2 explicitly required a finding of intentional conduct as a 3 prerequisite for the cause of action to be asserted,” they “have 4 yet to extend the cause of action to include accidental or 5 negligent conduct.” Ruiz v. Gap, Inc., 380 F. App’x 689, 692-93 6 (9th Cir. 2010). 7 Defendant argues that plaintiff fails to state a claim 8 because public disclosure of another’s Social Security number is, 9 as a matter of law, not “offensive and objectionable to the 10 reasonable person,” citing a series of cases from other district 11 courts in California. (See Mot. to Dismiss at 17.) These 12 decisions state that “[e]ven disclosure of personal information, 13 including social security numbers, does not constitute an 14 ‘egregious breach of the social norms’ to establish an invasion 15 of privacy claim.” E.g., Low v. LinkedIn Corp., 900 F. Supp. 2d 16 1010, 1025 (N.D. Cal. 2012). All appear to cite Ruiz v. Gap, 17 Inc., 540 F. Supp. 2d 1121 (N.D. Cal. 2008), aff’d, 380 F. App’x 18 689, for this proposition, or other decisions that did so. See 19 Schmitt v. SN Servicing Corp., 21-cv-3355 WHO, 2021 WL 3493754, 20 at *7 (N.D. Cal. Aug. 9, 2021) (citing In re iPhone Application 21 Litig., 844 F. Supp. 2d 1040, 1063 (N.D. Cal. 2012), which relied 22 upon Ruiz); Low, 900 F. Supp. 2d at 1025 (citing Ruiz); White v. 23 Soc. Sec. Admin., 111 F. Supp. 3d 1041, 1053 (N.D. Cal. 2015) 24 (citing Low and Ruiz); Del Llano v. Vivint Solar Inc., 17-cv-1429 25 AJB MDD, 2018 WL 656094, at *5 (S.D. Cal. Feb. 1, 2018) (citing 26 White); Barry v. Wells Fargo Home Mortg., 15-cv-4606 BLF, 2016 WL 27 name or likeness to the defendant’s advantage.” Diaz, 139 Cal. 28 App. 3d at 126 (citations omitted). 1 4242237, at *4 (N.D. Cal. Aug. 11, 2016) (citing Low); 2 Bongiovanni v. State Farm Fin. Servs., F.S.B., 15-cv-556 MWF 3 (SSx), 2015 WL 13916261, at *9 (C.D. Cal. July 22, 2015) (citing 4 Low); Mitchell v. Reg’l Serv. Corp., 13-cv-4212 JSW, 2014 WL 5 12607809, at *5 (N.D. Cal. Apr. 23, 2014) (citing Low); 6 Belluomini v. Citigroup, Inc., 13-cv-1743 CRB, 2013 WL 3855589, 7 at *6 (N.D. Cal. July 24, 2013) (citing Ruiz). 8 The decision in Ruiz was based upon the peculiar facts 9 in that case, and the court there did not purport to hold that 10 disclosure of Social Security numbers may never form the basis 11 for public disclosure claims. Although the cases following Ruiz 12 do not fully articulate the rationale for their conclusion that a 13 public disclosure claim may not be predicated simply upon 14 disclosure of a Social Security number, there is a sound 15 underlying reason to reach such a conclusion. California courts 16 have frequently described the scope of the right of action for 17 public disclosure of private facts as protecting against 18 disclosure of “intimate details of [a] plaintiff’s private life.” 19 Fellows v. Nat’l Enquirer, Inc., 42 Cal. 3d 234, 251 n.13 (1986) 20 (en banc); Kapellas v. Kofman, 1 Cal. 3d 20, 35 (1969) (en banc); 21 Coverstone, 38 Cal. 2d at 322-23; see also, e.g., Taus v. Loftus, 22 40 Cal. 4th 683, 717-18 (2007) (right covers disclosure of 23 “sufficiently sensitive or intimate private fact[s]”). 24 The history of this tort sheds light on its reach. The 25 California Supreme Court has noted that California courts’ 26 initial recognition of the tort stemmed from the Restatement of 27 Torts and from a seminal article on privacy law by Dean William 28 Prosser. Shulman, 18 Cal. 4th at 214 (citing Restatement 1 (Second) of Torts § 652A-E (Am. Law Inst. 1977); William Prosser, 2 Privacy, 48 Cal. L. Rev. 381 (1960)); see Miller v. Nat’l 3 Broadcasting Co., 187 Cal. App. 3d 1463, 1482 (2d Dist. 1986) 4 (“The Prosser analysis has been widely adopted . . . . Recent 5 California decisions have also employed it.”) (citing Prosser, 6 supra at 389). Although the Restatement in relevant part refers 7 only to disclosure of “matter[s] concerning the private life of 8 another,” Restatement (Second) § 652D, Prosser’s article 9 identified the tort as “Public disclosure of embarrassing private 10 facts about the plaintiff.” Prosser, supra at 389, 392 (emphasis 11 added). It went on to discuss the tort in depth, citing, as the 12 tort’s basis, a variety of decisions involving dissemination of 13 scandalous stories or lurid details about individuals’ private 14 lives that were likely to cause embarrassment. Id. at 392-98 15 (collecting cases).10 16 One such early case addressed a challenge to a 17 magazine’s publication of a photograph in which plaintiffs 18 alleged they were depicted in an “uncomplimentary pose” and that 19 their “right of privacy was thereby invaded and plaintiffs were 20 subjected to humiliation and annoyance.” Gill v. Hearst Pub. 21 Co., 40 Cal. 2d 224, 227 (1953) (en banc) (internal quotation 22 marks omitted). The California Supreme Court, in reviewing a 23 dismissal of the plaintiffs’ claim, concluded in pertinent part 24 that the image contained nothing “uncomplimentary or 25 10 See also id. at 397 (“The law of privacy is not intended for the protection of any shrinking soul who is 26 abnormally sensitive about . . . publicity. It is quite a 27 different matter when the details of sexual relations are spread before the public gaze, or there is highly personal portrayal of 28 his intimate private characteristics or conduct.”). 1 discreditable,” distinguishing the case from others “where the 2 right of privacy has been enforced with regard to the publication 3 of a picture which was shocking, revolting or indecent in its 4 portrayal of the human body.” Id. at 230-31. Because the 5 disclosure in Gill did not rise to that level, it was 6 insufficient “to shock the ordinary sense of decency or 7 propriety” as was necessary to give rise to “an actionable 8 invasion of the right of privacy.” Id. at 231. 9 California courts continue to speak of the tort in 10 terms of whether the private facts disclosed were embarrassing, 11 uncomplimentary, discreditable, indecent, derogatory, or 12 reprehensible. See Forsher v. Bugliosi, 26 Cal. 3d 792, 808 13 (1980) (addressing invasion of privacy claim in which plaintiff 14 alleged “that private embarrassing facts about him were revealed 15 and that his personal character was thereby injured”); Diaz, 139 16 Cal. App. 3d at 125 (referring to privacy right at issue as “the 17 right to be free from public disclosure of private embarrassing 18 facts”). 19 Courts in other jurisdictions have described the common 20 law public disclosure tort in a similar fashion. See Cottrell v. 21 Smith, 299 Ga. 517, 532 (2016) (referring to tort as “public 22 disclosure of embarrassing private facts” and explaining, “[t]he 23 interest protected [by the tort] is that of reputation, with the 24 same overtones of mental distress that are present in libel and 25 slander”) (citing Cabaniss v. Hipsley, 114 Ga. App. 367, 372-73 26 (1966), which likewise relied on Prosser’s article); Busse v. 27 Motorola, Inc., 351 Ill. App. 3d 67, 72 (1st Dist. 2004) (public 28 disclosure tort applies to disclosure of individuals’ private 1 conduct, such as “family problems, romantic interests, sex lives, 2 [and] health problems,” but not of personal identifying 3 information) (citation omitted); see also Dept. of Labor v. 4 McConnell, 305 Ga. 812, 819 n.7 (2019) (“[T]he subject matter of 5 other cases involving this tort includes the disclosure of 6 extramarital affairs and the publication of a partially nude 7 photograph.”) (citations omitted). 8 In sum, this court concludes that, under existing 9 California law, to state a claim for public disclosure of private 10 facts a plaintiff must allege disclosure not merely of facts she 11 would prefer to keep private, but rather of private facts that 12 rise to such a level as could be characterized as embarrassing in 13 nature, such as would adversely affect her personal or 14 professional reputation if disclosed. Personal identifying 15 information such as a Social Security number, standing alone, 16 clearly does not qualify because it discloses nothing about the 17 individual’s conduct or personal life that would adversely affect 18 her reputation if made known to others.11 19 Accordingly, because plaintiff’s public disclosure 20 claim is predicated solely upon the alleged disclosure of her 21 Social Security number, that claim must fail.12 22 11 In Re iPhone Application Litigation supports this 23 conclusion. There the court held that disclosure of identifying information contained in cell phones, including users’ “unique 24 device identifier number, personal data, and geolocation information,” is not an “egregious breach of social norms.” 844 25 F. Supp. 2d at 1063 (citing Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986, 992 (2d Dist. 2011)). A Social Security 26 number is similar in its ability to identify and reveal basic 27 information about individuals. 28 12 Additionally, because the court has concluded that 1 3. Negligence 2 In her claim for negligence, plaintiff alleges that 3 defendant’s disclosure caused her “significant damages,” and the 4 Complaint elsewhere clarifies that these consist of “financial 5 and emotional damages.” (Compl. at ¶¶ 24, 36.) It is well 6 established, however, that plaintiffs may not recover damages 7 solely for economic losses in negligence claims. See E. River 8 S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 874-76 9 (1986); Union Oil Co. v. Oppen, 501 F.2d 558, 563-64 (9th Cir. 10 1974); Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 915 11 (2022). 12 An exception to this rule may apply in rare cases where 13 there exists a “special relationship” between the parties. S. 14 Cal. Gas Leak Cases, 7 Cal. 5th 391, 400 (2019). However, 15 plaintiff has not alleged that a special relationship existed 16 between her and defendant, nor does precedent suggest that their 17 relationship would qualify. See, e.g., J’Aire Corp. v. Gregory, 18 24 Cal. 3d 799, 804-05 (1979) (restaurant operator’s contract to 19 renovate restaurant created special relationship with contractor, 20 thus allowing recovery for purely economic loss caused by 21 contractor’s negligent failure to complete construction on time); 22 Biakanja v. Irving, 49 Cal. 2d 647, 650-51 (1958) (notary’s 23 preparation of will created special relationship with plaintiff, 24 an intended beneficiary, such that plaintiff could recover for 25 notary’s negligent omission from will of assets that would 26 plaintiff has failed to allege that defendant intentionally 27 disclosed her Social Security number, plaintiff’s public disclosure claim fails for this independent reason as well. See 28 Ruiz, 380 F. App’x at 692-93. 1 otherwise have passed to plaintiff). 2 Precedent also establishes that allegations of 3 “increased risk of identity theft,” standing alone, are 4 insufficient to show actual damages. See Holly v. Alta Newport 5 Hosp., Inc., 2:19-cv-07496 ODW (MRWx), 2020 WL 6161457, at *4 6 (C.D. Cal. Oct. 21, 2020). Although plaintiff alleges that there 7 have been attempts to steal her Social Security number since the 8 photo was published, she does not allege that her Social Security 9 number was actually stolen or that she suffered harm as a result. 10 To the extent that plaintiff seeks damages for 11 emotional harm based on negligence, the California Supreme Court 12 has stated that there generally “is no duty to avoid negligently 13 causing emotional distress to another.” See Potter v. Firestone 14 Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993). Plaintiff, 15 however, points to the statement of a California Court of Appeal: 16 California courts have limited emotional suffering damages to cases involving either physical impact and 17 injury to plaintiff or intentional wrongdoing by defendant. Damages for emotional suffering are 18 allowed when the tortfeasor’s conduct, although negligent as a matter of law, contains elements of 19 intentional malfeasance or bad faith. 20 Quezada v. Hart, 67 Cal. App. 3d 754, 761 (2d Dist. 1977). 21 Relying on this “intentional wrongdoing” exception, 22 plaintiff argues that because defendant intentionally published 23 her Social Security number, she may recover in negligence for 24 emotional harm. As explained above, however, the Complaint fails 25 to adequately allege that defendant’s publication of plaintiff’s 26 Social Security number was intentional. Accordingly, the 27 exception identified in Quezada does not apply. Moreover, the 28 court in Quezada cited no precedent in support of the existence 1 of this exception, and it is not clear that the exception remains 2 viable today. 3 Because plaintiff therefore cannot recover in 4 negligence for either type of alleged harm, her negligence claim 5 will be dismissed. 6 B. Special Motion to Strike 7 Under California’s Strategic Lawsuit Against Public 8 Participation (“anti-SLAPP”) statute, a defendant in a civil 9 action may file a special motion to strike claims “arising from 10 any act of [the defendant] in furtherance of [the defendant’s] 11 right of petition or free speech” under the United States or 12 California constitutions. Cal. Code Civ. P. § 425.16(b)(1); see 13 Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 14 890 F.3d 828, 832-33 (9th Cir. 2018). The motion is available to 15 litigants proceeding in federal court. Thomas v. Fry’s Elecs., 16 Inc., 400 F.3d 1206, 1206–07 (9th Cir. 2005). 17 “A court considering a motion to strike under the anti- 18 SLAPP statute must engage in a two-part inquiry.” Vess v. Ciba- 19 Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). The 20 defendant must first show “that the plaintiff’s suit arises from 21 an act by the defendant made in connection with a public issue in 22 furtherance of the defendant’s right to free speech under the 23 United States or California Constitution.” Batzel v. Smith, 333 24 F.3d 1018, 1024 (9th Cir. 2003), superseded in part by statute on 25 other grounds as stated in Breazeale v. Victim Servs., Inc., 878 26 F.3d 759, 766–67 (9th Cir. 2017). “The burden then shifts to the 27 plaintiff,” id., who “must show a reasonable probability of 28 prevailing in [her] claims for those claims to survive 1 dismissal.” Planned Parenthood, 890 F.3d at 833 (quoting 2 Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 3 2001)) (internal quotation marks omitted). 4 Where an anti-SLAPP motion is made at the pleading 5 stage, challenging the legal sufficiency of a claim, the second 6 part of the analysis is identical to the analysis performed in 7 evaluating a motion to dismiss under Rule 12(b)(6). Id. at 834. 8 Accordingly, where a court concludes that a plaintiff’s complaint 9 fails to satisfy the 12(b)(6) standard, the only remaining 10 question is whether the suit arises from “an act by the defendant 11 made in connection with a public issue in furtherance of the 12 defendant’s right to free speech.” 13 Such an “act” includes, as relevant here, “any written 14 or oral statement or writing made in a place open to the public 15 or a public forum in connection with an issue of public interest” 16 and “any other conduct in furtherance of the exercise of the 17 constitutional right of petition or the constitutional right of 18 free speech in connection with a public issue or an issue of 19 public interest.” Cal. Code Civ. P. § 425.16(e)(3)-(4). 20 “[P]ublic issues,” in turn, include “statements concerning a 21 person or entity in the public eye” and “topic[s] of widespread, 22 public interest.” Sarver v. Chartier, 813 F.3d 891, 901 (9th 23 Cir. 2016) (citation and internal quotation marks omitted, 24 alteration adopted). To be of “public interest,” a topic must be 25 “of concern to a substantial number of people.” Id. (quoting 26 Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (3d Dist. 27 2003)). The terms “public issue” and “public interest” must be 28 “construed . . . broadly in light of the statute’s stated purpose 1 to encourage participation in matters of public importance or 2 consequence.” Id. (citations omitted, alteration adopted). 3 The publication of the photo, which plaintiff 4 voluntarily provided to the newspaper that she knew intended to 5 write a story about her, was clearly done in connection with a 6 public issue in furtherance of the newspaper’s constitutional 7 right to free speech. California courts have on multiple 8 occasions held that similar conduct was in furtherance of 9 defendants’ free speech rights. See Taus, 40 Cal. 4th at 713 10 (journalistic investigation, writing, and publishing are conduct 11 in furtherance of free speech rights); Lieberman v. KCOP 12 Television, Inc., 110 Cal. App. 4th 156, 165–66 (2d Dist. 2003) 13 (newsgathering is conduct in furtherance of free speech rights). 14 Moreover, in the article in which the photo was published, the 15 Times was reporting on plaintiff’s accusation that a leading 16 candidate for President of the United States had sexually 17 assaulted her. Such an accusation would certainly have been of 18 interest to a substantial number of people. 19 Plaintiff argues that the article could have told the 20 story just as effectively without the photo or if the editors had 21 omitted the number segments from the bottom of it. First, since 22 it was plaintiff who submitted the photo with the partial number 23 visible on the bottom to the Times, presumably she agreed that 24 both the photo and the numbers had some relevance to the article 25 in that they corroborated her claim that she had worked for the 26 Senate. More importantly, the test is not whether the article 27 could have been written or presented differently, but rather only 28 whether the defendant has shown that its actions were “in eee en een ene nn on nn en on nn nn I ee 1 furtherance of” its constitutional right of free speech in 2 connection with a public issue. Cal. Code Civ. P. 3 $ 425.16(e) (4). Defendant has met that burden. 4 IT IS THEREFORE ORDERED that defendant’s Motion to 5 Dismiss (Docket No. 10) be, and the same hereby is, GRANTED. 6 AND IT IS FURTHER ORDERED that defendant’s Special 7 Motion to Strike (Docket No. 11) be, and the same hereby is, 8 GRANTED. 9 Plaintiff has twenty days from the date of this Order 10 to file an amended complaint, if she can do so consistent with this Order. dh ble (hi. 12 | Dated: June 30, 2022 Pt theta Vim Lehn 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 EXHIBIT A nnn NR EEE I OI OI RII OE en fa a a ¢ bj □ i = = di i a 2 = □ >| ‘ ~ = pr Pi aaa — = ; |: - ‘i ia |