Hassell v. Bird ( 2016 )

Filed 6/7/16
CERTIFIED FOR PUBLICATION
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
DAWN HASSELL et al.,
Plaintiffs and Respondents,
v.
AVA BIRD, A143233
Defendant; (San Francisco City & County
YELP, INC., Super. Ct. No. CGC-13-530525)
Appellant.
I.
INTRODUCTION
Respondents Dawn Hassell and the Hassell Law Group (Hassell)1 obtained a
judgment holding defendant Ava Bird liable for defamation and requiring her to remove
defamatory reviews she posted about Hassell on Yelp.com, a Web site owned by
appellant Yelp, Inc. (Yelp). The judgment also contains an order requiring Yelp to
remove Bird’s defamatory reviews from its Web site (the removal order). Yelp, who was
not a party in the defamation action, filed a motion to vacate the judgment which the trial
court denied.
On appeal, the parties raise numerous issues relating to the judgment against Bird,
and the subsequent removal order. As to those issues, we conclude as follows: (1) Yelp
is not “aggrieved” by the defamation judgment entered against Bird, but it is “aggrieved”
1
Generally, we will refer to respondents collectively, using the singular, gender
neutral pronoun form where appropriate.
1
by the removal order; (2) Yelp’s trial court motion to vacate was not cognizable under
Code of Civil Procedure section 6632; (3) Yelp has standing to challenge the validity of
the removal order as an “aggrieved party,” having brought a nonstatutory motion to
vacate that order; (4) Yelp’s due process rights were not violated because of its lack of
prior notice and a hearing on the removal order request; (5) the removal order does not
violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s
defamatory reviews; (6) to the extent it purports to cover statements other than Bird’s
defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on
speech; and (7) Yelp’s immunity from suit under the Communications Decency Act of
1996 (the CDA), 47 United States Code section 230, does not extend to the removal
order.
Therefore, although we affirm the order denying Yelp’s motion to vacate the
judgment, we will remand this case so that the trial court can narrow the terms of the
removal order in a manner consistent with this decision.
II.
STATEMENT OF FACTS
A. The Complaint
Hassell’s April 2013 complaint against Bird arose out of Hassell’s legal
representation of Bird for a brief period during the summer of 2012. The complaint
alleged the following facts about that representation: Bird met with Hassell in July to
discuss a personal injury she had recently sustained. On August 20, Bird signed an
attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from
representing Bird because they had trouble communicating with her and she expressed
dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had
at least two communications with Allstate Insurance Company about Bird’s injury claim
and notified Bird about those communications via e-mail. Hassell also had dozens of
2
All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated.
2
direct communications with Bird by e-mail and phone and at least one in-person meeting.
When legal representation was withdrawn, Bird had 21 months before the expiration of
the statute of limitations on her personal injury claim, and had not lost any rights or
claims relating to her injury.
Hassell further alleged that, on January 28, 2013, Bird published a review on
Yelp.com about her experience with Hassell (the January 2013 review). Hassell
attempted to contact Bird by phone to discuss the publication, but she failed to return the
call, so the firm sent her an e-mail “requesting she remove the factual inaccuracies and
defamatory remarks from her Yelp.com written statement.” In an e-mail response, Bird
made derogatory comments about Dawn Hassell’s legal skills, refused to remove the
January 2013 review, and threatened to post an updated review and to have another
review posted by someone else.
According to the complaint, on February 6, 2013, Bird or her agent created a “fake
Yelp identity, using the pseudonym ‘J.D.,’ from Alameda,” to post another negative
review about the Hassell firm on Yelp.com (the February 2013 review). Hassell believed
that Bird was “J.D.” because Hassell never represented a client with the initials J.D., and
because the February 2013 review was posted shortly after the January 2013 review and
used similar language.
In their complaint, Hassell alleged causes of action against Bird for defamation,
trade libel, false light invasion of privacy, and intentional infliction of emotional distress.
In a fifth cause of action for injunctive relief, Hassell alleged that Bird’s ongoing
wrongful acts were the direct and proximate cause of substantial pecuniary losses and
irreparable injury to Hassell’s business reputation and good will, and that they were
entitled to an injunction because there was no adequate remedy at law to compensate
them for their continuing injuries.
In their prayer for judgment, Hassell sought general and special damages, each in
excess of $25,000, according to proof, and punitive damages in an unspecified amount.
Hassell also prayed for “injunctive relief prohibiting Defendant Ava Bird from
continuing to defame plaintiffs as complained of herein, and requiring Defendant Ava
3
Bird to remove each and every defamatory review published by her about plaintiffs, from
Yelp.com and from anywhere else they appear on the internet.”
B. Yelp Reviews about Hassell
The allegedly defamatory statements about Hassell that were posted on Yelp.com
were attached as exhibits to the Hassell complaint.
The January 2013 review was posted by a reviewer who used the name “Birdzeye
B. Los Angeles, CA.” It was identified by Yelp as one of “10 reviews for The Hassell
Law Group” that Yelp used to give Hassell an overall star rating of four and one-half out
of five stars. Birdzeye B., however, gave Hassell a rating of one out of five stars, and
stated that the law firm did not even deserve that. The reviewer’s critique was directed at
both the Hassell firm and Dawn Hassell personally, who was accused of “ma[king] a bad
situation worse for me,” and reneging on her obligations because “her mom had a broken
leg” and because “the insurance company was too much for her to handle.” The review
also stated: “the hassell law group didn[’]t ever speak with the insurance company either,
neglecting their said responsibilities and not living up to their own legal contract! nor did
they bother to communicate with me, the client or the insurance company AT ALL . . . .”
The February 2013 review was posted by a reviewer who used the name “J.D.
Alameda, CA.” It was identified by Yelp as one of “11 Filtered Reviews for The Hassell
Law Group.” Yelp posted a note advising its users that filtered reviews “are not factored
into the business’s overall star rating.” The user who posted the February 2013 review
gave Hassell a one star rating and provided the following information: “Did not like the
fact that they charged me their client to make COPIES, send out FAXES, POSTAGE,
AND FOR MAKING PHONE CALLS about my case!!! Isn’t that your job. That’s just
ridiculous!!! They Deducted all those expenses out of my settlement.” (Original
capitalization.)
C. The Default Judgment
On April 17, 2013, Hassell served Bird by substitute service with a summons, the
complaint, an alternative resolution package, a civil case information sheet, a statement
of damages and an attorney letter. On June 18, 2013, Hassell filed a request for the
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superior court clerk to enter a default against Bird, who had failed to answer Hassell’s
complaint. Default was entered and filed on July 11, 2013.
On November 1, 2013, Hassell filed a notice of hearing on their application for
default judgment and request for injunctive relief. The application was supported by a
“plaintiffs’ summary of the case,” which provided additional details about matters alleged
in the complaint, and also described a third review that Bird allegedly posted on
Yelp.com on April 29, 2013 (the April 2013 review).
Hassell’s case summary also argued the merits of its case. In support of its request
for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird]
made defamatory statements,” the court would have authority to issue an injunction, and
that if the same showing could be made at a prove-up hearing, a comparable injunction
would be proper. Hassell reasoned that denying injunctive relief after a default prove-up
hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the
defendant refuses to answer the complaint. Hassell requested that the injunction contain
a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed
to do so, which was likely in light of her history of “flaunting” California’s court system.
Through declarations from Dawn Hassell and another Hassell attorney named
Andrew Haling, Hassell filed extensive documentary evidence, including Bird’s attorney-
client agreement, correspondence between Hassell and Bird, evidence of damages, and
comments about Hassell that were posted on Yelp.com., including the April 2013 review
that Hassell identified in its case summary as another defamatory statement by Bird.
The April 2013 review was posted by “Birdseye B. Los Angeles, CA, and was
identified by Yelp as one of “11 reviews for The Hassell Law Group” that Yelp used to
calculate Hassell’s overall star rating. The reviewer described his or her statements as an
update to Birdseye B.’s earlier review and then stated that Dawn Hassell had filed a
lawsuit “against me over this review,” and that she “tried to threaten, bully, intimidate,
[and] harass me into removing the review!” Birdseye B. also stated: “the staff at YELP
has stepped up and is defending my right to post a review. once again, thanks
YELP! . . .”
5
On January 14, 2014, a default prove-up hearing was held before the Honorable
Donald Sullivan. Although a transcript of that hearing is not in the appellate record, the
court’s minute order reflects that Dawn Hassell and Andrew Haling appeared on behalf
of Hassell and there was no appearance by Bird. Dawn Hassell was sworn and testified,
and, after considering all the evidence, the court entered judgment against Bird. Hassell
was awarded general and special damages and costs totaling $557,918.75, but was denied
punitive damages. The Bird judgment also awarded Hassell injunctive relief pursuant to
the following provisions:
“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is
ordered to remove each and every defamatory review published or caused to be published
by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from
[Y]elp.com and from anywhere else they appear on the internet within 5 business days of
the date of the court’s order.
“Defendant AVA BIRD, her agents, officers, employees or representatives, or
anyone acting on her behalf, are further enjoined from publishing or causing to be
published any written reviews, commentary, or descriptions of DAWN HASSELL or the
HASSELL LAW GROUP on Yelp.com or any other internet location or website.
“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user
names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent
comments of these reviewers within 7 business days of the date of the court’s order.”
(Italics added.)
On January 15, 2014, Hassell served Bird with notice of entry of judgment. Bird
did not appeal, and the judgment became final on March 16, 2014. (Cal. Rules of Court,
rule 8.104.) 3
3
A “ ‘ “default judgment conclusively establishes, between the parties so far as
subsequent proceedings on a different cause of action are concerned, the truth of all
material allegations contained in the complaint in the first action, and every fact
necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141
Cal. App. 4th 110, 149.)
6
D. Hassell’s Efforts to Enforce the Judgment
On January 15, 2014, Hassell hand-delivered a copy of the Bird judgment to an
attorney employed by Yelp named Laurence Wilson, along with a letter requesting that
Yelp comply with the judgment. On January 28, Hassell caused the judgment to be
personally served on Yelp’s national registered agent for service of process. In a letter
served with the judgment, Dawn Hassell highlighted the following circumstances: Yelp
had failed to comply with the court deadline for removing Bird’s defamatory reviews;
Laurence Wilson had not replied to Dawn Hassell’s January 15 letter or returned phone
calls from Hassell; and “Yelp, Inc.’s non-compliance with the court’s order will become
the subject of contempt proceedings and a further lawsuit against Yelp if Yelp refuses to
comply [with the judgment] as my business is being further damaged.”
Yelp’s senior director of litigation, Aaron Schur, responded to Dawn Hassell in a
February 3, 2014 letter. Schur stated that Yelp objected to the judgment “to the extent
directed at Yelp itself” for three reasons: (1) Yelp was a nonparty to the litigation;
(2) Yelp was immune from liability for it publication of a review; and (3) Hassell failed
to properly serve Bird or prove its defamation claims against her. Schur also informed
Hassell that Yelp had made the decision not to comply with the judgment, stating: “the
judgment and order are rife with deficiencies and Yelp sees no reason at this time to
remove the reviews at issue. Of course, Yelp has no desire to display defamatory content
on its site, but defamation must first be proven.” Schur stated that Yelp would “revisit its
decision” if it was presented with stronger evidence. He also warned that Hassell’s
“threats” of litigation against Yelp were not well taken because Yelp would file a motion
to dismiss and recover attorney fees under the anti-SLAPP law, “as it has done in the past
in similar cases.”
In an April 30, 2014 letter to Schur, Dawn Hassell asked that Yelp reconsider its
position in light of the facts that Bird had refused to comply with the judgment, and, as a
practical matter, she was judgment proof because the award against her was
uncollectable. Dawn Hassell also objected to a recent decision by Yelp to recommend
one of Bird’s defamatory reviews. As Hassell explained, “I also take issue with the fact
7
that Yelp has now highlighted these defamatory reviews by user ‘Birdzeye B.’ (already
confirmed to be Defendant Bird) by listing them as ‘Recommended Reviews,’ so other
Yelp visitors see these defamatory reviews first, above more recent, honest, positive
reviews.”
Finally, Dawn Hassell advised Schur of her plan to file a motion to enforce the
judgment. She reminded him that she had sought Yelp’s assistance before initiating
litigation, but was informed by Yelp that her only recourse was against Bird. However,
after obtaining a judgment against Bird, it was now clear that the only remedy available
to Hassell was to have Yelp take down the reviews. Ms. Hassell stated that if Yelp
believed the injunction was too broad, she was “willing to discuss stipulating with you to
terms pertaining to Yelp that would be more agreeable, for settlement purposes only, and
before the motion to enforce the court’s order is heard.”
E. Yelp’s Motion to Set Aside the Judgment
On May 23, 2014, Yelp filed a notice of motion and motion to set aside and vacate
the Bird judgment pursuant to section 663 on the “grounds that the legal basis for the
decision is not consistent with or supported by the facts or applicable law.” In its
supporting memorandum, Yelp alleged it had standing to bring the motion as an
“aggrieved party,” even though it was a nonparty in the action. Yelp then argued the trial
court was required to vacate the Bird judgment because: (1) Hassell’s failure to name
Yelp as a party defendant violated Yelp’s right to due process; (2) Yelp was immune
from liability for posting Bird’s reviews pursuant to the CDA, 47 United States Code
section 230; (3) the judgment violated section 580 by awarding relief that Hassell did not
request in their complaint; and (4) the judgment subverted Bird’s First Amendment rights
by suppressing speech that Hassell failed to prove was defamatory.
On July 8, 2014, the Honorable Ernest H. Goldsmith ordered Yelp’s motion off
calendar and directed Yelp to reschedule its motion in a different department of the
superior court before Judge Sullivan, explaining: “The moving party seeks to vacate or
modify Judge Sullivan’s judgment and he should make the determination regarding the
propriety of that request.”
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On July 23, 2014, Yelp filed a re-notice of its motion to vacate and set aside the
Bird judgment. Yelp’s re-notice did not reference section 663 or any other statutory
ground for the motion, but explicitly relied on the memorandum and other pleadings Yelp
had already filed in support of its motion to vacate. Furthermore, Yelp stated that its
motion was being re-noticed in the same department as previously noticed, pursuant to
the instruction of the presiding judge of the superior court.
On August 27, 2014, Judge Goldsmith held a hearing on Yelp’s motion to vacate,
accepted evidence, entertained arguments and then took the matter under submission. On
September 29, 2014, the court filed an order denying Yelp’s motion to set aside and
vacate the judgment (the September 2014 order). The September 2014 order contains
two sets of findings.
First, regarding the judgment itself, the court found that Judge Sullivan
(1) conducted a court trial, (2) made a finding that Bird’s postings about Hassell on
Yelp.com were defamatory; (3) granted injunctive relief against Bird which required her
to remove her defamatory reviews from Yelp.com; and (4) also ordered nonparty Yelp to
remove the defamatory reviews. Judge Goldsmith then concluded that, under California
law, an injunction can be “applied to” a nonparty by virtue of its relationship to an
enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal. 3d 899, 906 (Ross).)
The second set of findings in the September 2014 order pertained to “Hassell’s
contention that Yelp is aiding and abetting Bird’s violation of the injunction.” The court
found that the evidence showed that (1) Yelp highlighted Bird’s defamatory reviews on
Yelp.com by explicitly recommending one of her reviews, and also by refusing to take
account of a “litany” of favorable reviews that users had posted when it calculated a “star
rating” for the Hassell law firm; (2) Yelp’s motion to vacate was not limited to its own
interests, but sought to vacate the entire Bird judgment by making arguments that
pertained only to the propriety of the judgment against Bird; and (3) Yelp refused to
acknowledge or abide by a judicial finding that Bird’s reviews are defamatory
notwithstanding that its own terms of service require Yelp.com users to agree not to post
a “fake or defamatory review. . . .” Based on these findings, the court concluded that
9
“Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp has
demonstrated a unity of interest with Bird.”
III.
DISCUSSION
A. Preliminary Considerations
In its opening brief on appeal, Yelp requests that this court “reverse and vacate the
trial court’s judgment.” Yelp appears to assume that the denial of its motion to vacate
conferred standing on it to appeal the entire Bird judgment. At the same time, however,
Yelp strenuously insists that it is not and never has been a “party” in this case. Adding to
the confusion, Hassell contends that the trial court did not have “jurisdiction” to hear
Yelp’s section 663 motion, to which Yelp responds that courts have inherent power to set
aside void judgments. To sort these issues and clarify the scope of this appeal, we begin
by considering the two prerequisites for appellate standing.
“Standing to appeal is jurisdictional [citation] and the issue of whether a party has
standing is a question of law [citation].” (People v. Hernandez (2009) 172 Cal. App. 4th
715, 719.) To “have appellate standing, one must (1) be a party and (2) be aggrieved.
[Citations.]” (In re Marriage of Burwell (2013) 221 Cal. App. 4th 1, 12-13; see also § 902
[“Any party aggrieved may appeal in the cases prescribed in this title.”].) “[A] nonparty
that is aggrieved by a judgment or order may become a party of record and obtain a right
to appeal by moving to vacate the judgment [citation].” (People v. Hernandez, at
pp. 719-720.)
1. Yelp Is Not “Aggrieved” By the Judgment Against Bird, But Is
“Aggrieved” By the Removal Order
“One is considered ‘aggrieved’ whose rights or interests are injuriously affected
by the judgment. [Citations.] Appellant’s interest ‘ “must be immediate, pecuniary, and
substantial and not nominal or a remote consequence of the judgment.” ’ [Citation.]”
(County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 737 (Carleson).)
Applying this test, we conclude that Yelp is not aggrieved by the default judgment
against Bird. Awarding Hassell damages and injunctive relief with respect to Bird’s
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defamatory remarks did not cause Yelp to suffer a substantial immediate pecuniary injury
of any kind. Bird was the party aggrieved by that judgment and she elected not to appeal.
On the other hand, the judgment contains an additional provision which expressly
requires Yelp to remove Bird’s reviews from Yelp.com. This removal order directly
affects the operation of Yelp’s business and potentially carries some pecuniary
consequence. Thus, Yelp was aggrieved by the removal order for purposes of
establishing standing.
Throughout proceedings in the trial court and on appeal, Yelp has endeavored to
blur the distinction between the judgment entered against Bird which awarded Hassell
damages and injunctive relief, and the removal order in the judgment which directs Yelp
to effectuate the injunction against Bird. For example, Yelp asserted trial court standing
to bring a motion to vacate on the ground that “Yelp’s rights and interests to maintain its
Site as it deems appropriate [were] injuriously affected by the Judgment.” However, this
claimed injury did not result from the judgment itself, but only from the removal order
requiring Yelp to effectuate the injunction against Bird. To the extent Yelp has ever
meant to contend that an injunction requiring Bird to remove defamatory statements from
the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining
Web site as it deems appropriate does not include the right to second-guess a final court
judgment which establishes that statements by a third party are defamatory and thus
unprotected by the First Amendment.
Since Yelp was not aggrieved by the default judgment entered against Bird, it had
no standing to challenge that judgment in the trial court. Thus, this court will not address
arguments regarding the validity of the Bird judgment itself including, for example,
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Yelp’s theory regarding perceived defects in Hassell’s complaint against Bird, and its
contention that Hassell failed to prove their defamation claim against Bird.4
2. Yelp’s Motion to Vacate Was Not Authorized by Section 663
As already noted, a legally aggrieved nonparty to a judgment or decree may
“become a party of record and obtain a right to appeal by moving to vacate the judgment
pursuant to Code of Civil Procedure section 663. [Citations.]” (Carleson, supra, 5
Cal.3d at p. 736.)
Section 663 states: “A judgment or decree, when based upon a decision by the
court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set
aside and vacated by the same court, and another and different judgment entered, for
either of the following causes, materially affecting the substantial rights of the party and
entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the
decision, not consistent with or not supported by the facts; and in such case when the
judgment is set aside, the statement of decision shall be amended and corrected.
[¶] 2. A judgment or decree not consistent with or not supported by the special verdict.”
Section 663 “is designed to enable speedy rectification of a judgment rendered
upon erroneous application of the law to facts which have been found by the court or jury
or which are otherwise uncontroverted. [Citation.]” (Forman v. Knapp Press (1985) 173
Cal. App. 3d 200, 203 (Forman).) Thus, “ ‘section 663 is a remedy to be used when a trial
court draws incorrect conclusions of law or renders an erroneous judgment on the basis of
uncontroverted evidence.’ [Citation.]” (Plaza Hollister Ltd. Partnership v. County of
San Benito (1999) 72 Cal. App. 4th 1, 14 (Plaza Hollister); see also Carleson, supra, 5
Cal.3d at p. 738 [§ 663 motion is properly “made whenever the trial judge draws an
4
As noted, Bird elected not to appeal the judgment, but even if she had, Bird
herself could not have challenged the sufficiency of the evidence to support the liability
findings in the default judgment. (Sporn v. Home Depot USA, Inc. (2005) 126
Cal. App. 4th 1294, 1303.) Clearly then, Yelp’s claimed injury from the removal order did
not authorize its attempted challenge to the sufficiency of the evidence to support the
judgment against Bird.
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incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to
exist”].)
However, relief is available under section 663 only where a “different judgment”
is compelled by the facts found by a judge or jury. (Payne v. Rader (2008) 167
Cal. App. 4th 1569, 1574; Plaza Hollister, supra, 72 Cal.App.4th at p. 14.) In ruling on a
section 663 motion, “the court cannot ‘ “in any way change any finding of fact.” ’
[Citation.]” (Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189
Cal. App. 4th 1296, 1302.) By the same token, section 663 does not authorize a challenge
to the sufficiency of the evidence to support the judgment. (Simac Design, Inc. v. Alciati
(1979) 92 Cal. App. 3d 146, 152-153.) Nor can the procedure be used to secure additional
findings that were not made before judgment was entered. (Mardesich v. C. J. Hendry
Co. (1942) 51 Cal. App. 2d 567, 576.)
In the present case, Yelp used its motion to vacate to seek relief that was not
available under section 663. First, Yelp requested that the entire judgment be vacated,
not that it be corrected to conform to the findings of the trier of fact. Second, many of
Yelp’s arguments were direct or indirect challenges to the sufficiency of the evidence to
support the Bird judgment. In addition to the fact that Yelp was not aggrieved by the
default judgment against Bird, these claims were not cognizable in the context of a
section 663 motion to vacate. Third, both Yelp and Hassell improperly used section 663
to seek additional findings of fact in order to resolve their collateral disagreement about
whether Yelp became Bird’s aider and abettor after the judgment was entered.
3. Yelp’s Statutory Motion to Vacate Was Untimely
In addition to the substantive flaws discussed immediately above, Yelp’s section
663 motion was not timely filed. Section 663a imposes time restrictions on a party’s
decision to file a motion to vacate a judgment under section 663, and on the trial court’s
authority to rule on such a motion. Two provisions of section 663a are pertinent here.
First, subdivision (a) requires “[a] party” to file a notice of intent to file a section 663
motion within 15 days of the date it was served with notice of entry of judgment.
Second, subdivision (b) states that “the power of the court to rule on a motion to set aside
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and vacate a judgment shall expire 60 days . . . after service upon the moving party by
any party of written notice of entry of the judgment . . . .” (§ 663a, subds. (a), (b).)
In the present case, Yelp’s agent for service of process was served with the
judgment on January 28, 2014. Yelp then waited 116 days before filing a notice of
motion and motion to vacate the Bird judgment. Thus, Yelp not only failed to comply
with the 15-day time limit for filing a notice of intent to file a motion to vacate, its tardy
decision to bring the motion precluded the trial court from ruling on it within the
statutory time period applicable to section 663 motions.
Yelp contends it was not subject to the time restrictions imposed by section 663a
because it was not a party of record when the judgment was entered. (Citing Aries Dev.
Co. v. Cal. Coastal Zone Conservation Com. (1975) 48 Cal. App. 3d 534, 542 (Aries).)
Aries was an appeal from a mandate judgment requiring the California Coastal
Commission to issue a building permit. Before the commission filed its notice of appeal,
an aggrieved neighbor filed a section 663 motion to vacate the judgment, which the trial
court denied. On appeal, the respondent argued that the appellant-neighbor did not have
standing because the commission filed its notice of appeal before the trial court ruled on
the section 663 motion, thereby divesting the trial court of authority to do so. The Aries
court disagreed, reasoning that the aggrieved neighbor became a party of record by filing
its section 663 motion and its “right of appeal could not be destroyed by the fact that a
subsequent event over which [it] had no control may have divested the court of
jurisdiction to rule on the merits of the motion.” (Aries, at p. 542.) More relevant to
Yelp’s appeal, the Aries court also rejected the respondent’s related theory that the
section 663 motion was untimely because it had not been filed “within the 15-day period
prescribed by” section 663a. (Aries, at p. 542.) The court reasoned that the 15-day time
limit only applies to “those who were parties of record when judgment was entered,” and
the appellant-neighbor did not become a party of record until he filed his motion to
vacate. (Ibid.)
If applied without reflection, Aries supports Yelp’s contention that it was not
subject to the 15-day filing requirement in subdivision (a) of section 663a because it did
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not become a “party” until it actually filed its motion to vacate. (Aries, supra, 48
Cal.App.3d at p. 542.) However, the procedural facts in Aries did not raise any
substantive concern about the timeliness of the section 663 motion in that case, as it was
filed before the commission filed a notice of appeal. (Aries, at p. 542.) Here, by contrast,
Yelp filed its motion to vacate after the time for Bird to appeal the judgment had expired.
Furthermore, by waiting more than 100 days after it was served with notice of entry of
the judgment before filing its motion to vacate, Yelp precluded the trial court from
complying with the 60-day outside time limit to rule on the motion as set out in section
663a, subdivision (b). We note too that this latter time limit provision was added to the
statute in 2012, several years after Aries was decided. (See 2012 Amendment in
Deering’s Ann. Code Civil Proc. (2015 ed.) foll. § 663a under heading Amendments,
p. 363.)
Unlike the 15-day filing rule in section 663a, subdivision (a), which expressly
applies only to a “party,” the time limitation in subdivision (b) restricts the “power of the
court to rule” on a section 663 motion, and uses mandatory language to set an outside
limit of 60 days from the date the moving party was served with written notice of entry of
judgment. Strictly enforcing this 60-day limitation is consistent with the function of this
specific type of statutory motion, which is to afford the decision maker a mechanism for
the speedy rectification of an easily correctible error in the judgment. (See Forman,
supra, 173 Cal.App.3d at p. 203.) Yelp does not cite any authority excepting it from the
60-day rule set forth in section 663a, subdivision (b).
Yelp takes the view that an aggrieved nonparty should be allowed to file any type
of statutory motion to vacate a judgment within a reasonable time not exceeding six
months from the entry of judgment. This argument ignores the authority of section 663a
itself, and is based on an apparent misreading of Plaza Hollister, supra, 72 Cal. App. 4th
1. The Plaza Hollister court held that the appellant in that case had filed an invalid
section 663 motion in the trial court, but that it had appellate standing pursuant to a
nonstatutory motion to vacate that was filed within a reasonable time after entry of
15
judgment. (Plaza Hollister, at p. 19.) Plaza Hollister reinforces our conclusion that,
under the circumstances presented here, Yelp was not entitled to relief under section 663.
4. Yelp Acquired Standing By Filing a Nonstatutory Motion to Vacate
Like the motion at issue in Plaza Hollister, supra, 72 Cal. App. 4th 1, Yelp’s trial
court motion to vacate was not based solely on section 663; Yelp also sought to invoke
the court’s inherent power to vacate a void judgment. Indeed, as discussed in our factual
summary, Yelp’s re-notice of its motion deleted any reference to section 663.
Furthermore, Yelp’s trial court pleadings repeatedly characterized the Bird judgment as
void.
“ ‘A stranger to an action who is aggrieved by a void judgment may move to
vacate the judgment, and on denial of the motion may have the validity of the judgment
reviewed upon an appeal from the order denying the motion. [Citations.]’ [Citation.]
. . . It has also been said: ‘[A] stranger may attack a void judgment if some right or
interest in him would be affected by its enforcement. [Citations.]’ [Citation.]” (Plaza
Hollister, supra, 72 Cal.App.4th at pp. 15-16.) Furthermore, the “granting of relief,
which a court under no circumstances has any authority to grant, has been considered an
aspect of fundamental jurisdiction for the purposes of declaring a judgment or order
void.” (Id. at p. 20; see Selma Auto Mall II v. Appellate Department (1996) 44
Cal. App. 4th 1672, 1683 [“When a court grants relief which it has no authority to grant,
its judgment is to that extent void.”].)
This type of nonstatutory motion was the correct mechanism for Yelp to employ to
challenge a portion of the Bird judgment on the ground that it contains an allegedly void
removal order. Furthermore, treating Yelp’s motion as a nonstatutory motion eliminates
Hassell’s concerns about its timeliness. “ ‘[A] judgment or order, which is in fact void
for want of jurisdiction, but the invalidity of which does not appear from the judgment-
roll or record, may be set aside on motion within a reasonable time after its entry, not
exceeding the [six month] time limit prescribed by [former] section 473 of the Code of
Civil Procedure; and an independent suit in equity to set aside the judgment or order is
16
not necessary. [Citations.]’ ” (Plaza Hollister, supra, 72 Cal.App.4th at p. 19.) Here,
Hassell argues that Yelp’s motion was not filed within a reasonable time, but the record
does not compel that conclusion.
The considerations outlined above lead to the following conclusions regarding
Yelp’s standing to appeal: Yelp is aggrieved by the removal order directing Yelp to
remove Bird’s defamatory reviews from Yelp.com; Yelp became a party of record in this
case by filing a nonstatutory motion to vacate the allegedly void order within a
reasonable time after entry of the judgment; and, therefore, Yelp has standing to appeal
the removal order provision contained in the Bird judgment.
The substantive issue raised by this appeal is whether the trial court had the legal
authority to make the removal order directing Yelp to remove Bird’s defamatory reviews
from Yelp.com. Yelp contends that Judge Sullivan did not have that authority because
the removal order (1) violates due process; (2) constitutes a prior restraint of speech; and
(3) is barred by the CDA. Before considering these claims of legal error, we briefly
address two circumstances that are mentioned above in order to further clarify the scope
of our review.
First, Yelp attempts to characterize the removal order as an injunction against
Yelp. We do not accept that characterization. The judgment was entered solely against
Bird, and the injunctive order was directed solely at Bird’s defamatory speech.5 The
removal order was limited to statements covered by that injunction, statements attributed
to Bird which she had been ordered to remove. Thus, the removal order does not impose
any independent restraint on Yelp’s autonomy. Under these circumstances, charactering
the removal order as an injunction creates unnecessary confusion about the clear
distinction between the removal order and the underlying injunction against Bird. For
reasons already discussed, Yelp cannot bootstrap its collateral attack of an allegedly void
5
“[O]nce a court has found that a specific pattern of speech is unlawful, an
injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is
not a prohibited ‘prior restraint’ of speech. [Citation.]” (Aguilar v. Avis Rent A Car
System, Inc. (1999) 21 Cal. 4th 121, 140.)
17
order into a substantive appeal of the default judgment itself. The question whether the
trial court should have granted an injunction against Bird is outside the scope of this
appeal.
Second, the September 2014 order denying Yelp’s motion to vacate the judgment
contains findings and a conclusion responsive to Hassell’s contention that Yelp was
aiding and abetting Bird’s violation of the judgment. However, it appears that neither the
trial court nor the parties ever considered whether that issue was cognizable in the context
of a motion to vacate a judgment. As we have explained, the only issue properly raised
by Yelp’s nonstatutory motion to vacate was whether Judge Sullivan was without power
to make the removal order that implemented the injunction against Bird. What Yelp did
after the judgment was entered—whether it became an aider and abettor with respect to
Bird’s postjudgment violation of the injunction—is a separate issue which may be
relevant in a future contempt action against Yelp for disobedience of the judgment. But
Judge Goldsmith’s adjudication of that issue was premature, and was also potentially
improper to the extent proceedings were conducted without the procedural safeguards
attendant to a contempt proceeding. In any event, findings of fact regarding Yelp’s
aiding and abetting are irrelevant to the issues properly raised in this appeal. Therefore,
those findings will have no bearing on our disposition of this appeal.
B. Due Process
Yelp contends that the removal order was barred by due process because the trial
court did not afford Yelp notice or a hearing before the order was entered. There are two
distinct prongs to Yelp’s due process theory: first, that the trial court could not order
Yelp to implement the injunction because it was not a party in the defamation action; and
second, that prior notice and a hearing were mandatory because the removal order
impinged on Yelp’s First Amendment right to “host” Bird’s reviews.
1. An Injunction Can Run Against a Nonparty
“ ‘ “ ‘An injunction is obviously a personal decree. It operates on the person of
the defendant by commanding him to do or desist from certain action.’ ” [Citation.]’
[Citation.] Indeed it may ‘deprive the enjoined parties of rights others enjoy precisely
18
because the enjoined parties have abused those rights in the past.’ [Citation.] Thus, it is
well established that ‘injunctions are not effective against the world at large. [Citations.]’
[Citations.] On the other hand, the law recognizes that enjoined parties ‘may not nullify
an injunctive decree by carrying out prohibited acts with or through nonparties to the
original proceeding. [Citations.]’ [Citation.] Thus, an injunction can properly run to
classes of persons with or through whom the enjoined party may act. [Citations.]
However, ‘a theory of disobedience of the injunction cannot be predicated on the act of a
person not in any way included in its terms or acting in concert with the enjoined party
and in support of his claims.’ [Citations.]” ’ ” (Planned Parenthood Golden Gate v.
Garibaldi (2003) 107 Cal. App. 4th 345, 352-353; see also People v. Conrad (1997) 55
Cal. App. 4th 896, 902; In re Berry (1968) 68 Cal. 2d 137, 155-156; Berger v. Superior
Court (1917) 175 Cal. 719, 721.)
These settled principles undermine Yelp’s theory that the trial court was without
any authority to include a provision in the Bird judgment which ordered Yelp to
effectuate the injunction against Bird by deleting her defamatory reviews. As Judge
Goldsmith observed in the order denying Yelp’s motion to vacate, our Supreme Court has
explicitly confirmed that injunctions can be applied to nonparties in appropriate
circumstances. (Ross, supra, 19 Cal.3d at p. 906.) “ ‘In matters of injunction . . . it has
been a common practice to make the injunction run also to classes of persons through
whom the enjoined person may act, such as agents, servants, employees, aiders, abettors,
etc., though not parties to the action, and this practice has always been upheld by the
courts, and any of such parties violating its terms with notice thereof are held guilty of
contempt for disobedience of the judgment.” (Ibid.)
Yelp contends that the rule permitting a court to enforce an injunction against a
nonparty is limited to situations in which “a group or organization has been enjoined, so
as to prevent the group’s individual members who are not named in the injunction from
acting on behalf of that group.” As support for this claimed limitation, Yelp cites People
ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090 (Acuna). The issue in Acuna was whether
designated members of a criminal street gang who were named defendants in a public
19
nuisance action could be subject to an injunction because of the documented activities of
the group to which they belonged. In approving such an injunction, the Acuna court did
not impose any restriction on a court’s authority to issue an injunction which runs also to
a nonparty. Nor did it even consider that question.
Yelp cites two additional cases to support its contention that the trial court could
not order a nonparty to effectuate the injunction against Bird: Fazzi v. Peters (1968) 68
Cal. 2d 590 (Fazzi) and Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp.
(1999) 75 Cal. App. 4th 110, 120-121 (Tokio Marine).
Fazzi, supra, 68 Cal.2d at page 591, was a damages action against a partnership.
The appellant was an alleged partner who had been served with process but had not been
made a party to the underlying action against the partnership. Neither the appellant, nor
his alleged copartner, nor the partnership appeared in the action, and a judgment of
default was entered holding each of them individually and doing business as a
copartnership jointly and severally liable for money damages in the approximate amount
of $49,000. (Id. at p. 592.) The Fazzi court reversed the default judgment against the
appellant, applying “ ‘the general rule that a judgment may not be entered either for or
against a person who is not a party to the proceeding, and any judgment which does so is
void to that extent.’ [Citations.]” (Id. at pp. 594-595, 598.)
Tokio Marine, supra, 75 Cal. App. 4th 110, involved a lawsuit to determine fault
for a fire as between a general contractor and a roofing contractor. (Id. at p. 119.) After
judgment was entered in favor of the roofing contractor, the trial court summarily granted
the roofing contractor’s motion to amend the judgment to add the general contractor’s
insurer as an additional judgment debtor. On appeal, the Tokio Marine court reversed the
judgment against the insurer, finding that the insurer was not a party in the action or an
alter ego of the original defendant. Furthermore, the court found that the summary
addition of the insurer as an additional judgment debtor violated due process. (Id. at
pp. 120-121.)
Fazzi and Tokio Marine are inapposite because both cases involved money
judgments that were entered against nonparties to the litigation. Here, by contrast, the
20
damages portion of the judgment was entered solely against Bird. Neither Fazzi nor
Tokio Marine address whether an injunction imposed against a party can be enforced
against a nonparty.
Yelp argues in the alternative that, even if the injunction against Bird could
properly be enforced against a nonparty like Yelp, the evidence in this case does not
“support the theory that Yelp was somehow ‘aiding and abetting’ Bird’s violation of the
injunction.” This issue was a major dispute below. But as we have already discussed, it
has no bearing on the question whether the trial court was without power to issue the
removal order in the first instance. The authority summarized above establishes that a
trial court does have the power to fashion an injunctive decree so that the enjoined party
may not nullify it by carrying out the prohibited acts with or through a nonparty to the
original proceeding.
2. Yelp’s First Amendment Rights
Yelp’s second due process theory is that the First Amendment protects Yelp’s
right “to distribute the speech of others without an injunction,” and “Yelp simply cannot
be denied those rights without notice of the proceedings and an opportunity to be heard.”
To support this argument, Yelp cites Marcus v. Search Warrants. (1961) 367 U.S. 717
(Marcus).
In Marcus, supra, 367 U.S. 717, wholesale distributors of books and magazines
alleged that Missouri’s procedure for seizing allegedly obscene publications had been
applied to them in a manner which violated their due process rights. The evidence in that
case showed that a police officer filed complaints stating that each appellant kept
“obscene” publications for sale; a circuit judge conducted an ex parte hearing on the
complaints; and, without reviewing the allegedly obscene material, the judge issued
warrants authorizing any officer in the state to search for and seize obscene materials
from appellants’ premises. The warrants were subsequently executed by different
officers who seized all publications which, in their judgment, were obscene. Thirteen
days later, appellants were afforded hearings on their motions to quash the search
warrants, suppress evidence, and return their property. More than two months after the
21
materials were seized, the circuit judge issued an opinion finding that 180 of the 280
seized items were not obscene and were to be returned to appellants. (Id. at pp. 723-724.)
The United States Supreme Court held that, as applied to the Marcus appellants,
Missouri’s procedure lacked due process safeguards to assure that non-obscene materials
were afforded First Amendment protection. (Marcus, supra, 367 U.S. at p. 731.)
“Putting to one side” the fact that appellants were not afforded an opportunity to
challenge the complaints filed against them prior to execution of the warrants, the court
highlighted several flaws in the Missouri procedure, including that the judge issued a
warrant based on cursory allegations of a single officer without actually reviewing any of
the allegedly obscene material; the warrants gave officers broad discretion to use
individual judgment to determine what material was obscene; the officers were provided
with no “guide to the exercise of informed discretion”; and two-thirds of the seized
publications which were not obscene were withheld from the market for over two
months. (Id. at pp. 731-733.) These circumstances demonstrated that Missouri’s
procedure lacked sufficient safeguards to justify conferring discretion on law
enforcement to seize allegedly obscene materials: “Procedures which sweep so broadly
and with so little discrimination are obviously deficient in techniques required by the Due
Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional
guarantees.” (Id. at p. 733, fn. omitted.)
We disagree that Marcus, supra, 367 U.S. 717 supports Yelp’s due process claim
for several reasons. First, Yelp’s factual position in this case is unlike that of the Marcus
appellants, who personally engaged in protected speech activities by selling books,
magazines and newspapers. In order to claim a First Amendment stake in this case, Yelp
characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as
more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself.
Of course, Yelp may play different roles depending on the context. However, in this
context it appears to us that the removal order does not treat Yelp as a publisher of Bird’s
speech, but rather as the administrator of the forum that Bird utilized to publish her
defamatory reviews.
22
Second, even if Yelp’s operation of an interactive website is construed as
constitutionally protected speech by a distributor, Marcus does not support Yelp’s broad
notion that a distributor of third party speech has an unqualified due process right to
notice and a hearing before distribution of that speech can be enjoined. In Marcus, the
use of an ex parte hearing to secure search warrants was only one of many problems with
the Missouri procedure which culminated in the ruling that appellants’ due process rights
were violated. (Marcus, supra, 367 U.S. at pp. 731-733.) Indeed, in a subsequent case in
which Marcus was distinguished, the Supreme Court clarified that “[t]his Court has never
held, or even implied, that there is an absolute First or Fourteenth Amendment right to a
prior adversary hearing applicable to all cases where allegedly obscene material is seized.
[Citations.]” (Heller v. New York (1973) 413 U.S. 483, 488.)
Third, and crucially, the due process problems explored in Marcus, supra, 367
U.S. 717, and its progeny pertain to attempts to suppress speech that is only suspected of
being unlawful. Here, we address the very different situation in which specific speech
has already been found to be defamatory in a judicial proceeding. Yelp does not cite any
authority which confers a constitutional right to a prior hearing before a distributor can be
ordered to comply with an injunction that precludes re-publication of specific third party
speech that has already been adjudged to be unprotected and tortious.
C. The Constitutional Bar Against Prior Restraints
Yelp also contends the trial court was without authority to issue the removal order
because it constitutes a prior restraint of speech.
1. Applicable Law
“An order prohibiting a party from making or publishing false statements is a
classic type of an unconstitutional prior restraint. [Citation.] ‘While [a party may be]
held responsible for abusing his right to speak freely in a subsequent tort action, he has
the initial right to speak freely without censorship.’ [Citation.]” (Evans v. Evans (2008)
162 Cal. App. 4th 1157, 1167-1168.) However, the constitutional bar against prior
restraint of speech “does not apply to an order issued after a trial prohibiting the
defendant from repeating specific statements found at trial to be defamatory. . . .” (Id. at
23
p. 1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal. 4th 1141,
1155-1156, italics omitted (Balboa Island).)
In Balboa Island, supra, 40 Cal. 4th 1141, a restaurant owner filed a defamation
action against a vocal critic of the restaurant. After a bench trial, the court issued a
permanent injunction which enjoined the defendant from engaging in various activities
including repeating specifically identified defamatory statements about the plaintiff to
third parties. (Id. at pp. 1145-1146.) The California Supreme Court held that the
injunction was overbroad in some respects, but that “a properly limited injunction
prohibiting [the] defendant from repeating to third persons statements about the
[restaurant] that were determined at trial to be defamatory would not violate [the]
defendant’s right to free speech.” (Id. at p. 1146.)
The Balboa Island court began with the foundational premise that freedom of
speech is a fundamental right protected against invasion by state action by both the First
and Fourteenth Amendments. (Balboa Island, supra, 40 Cal.4th at p. 1147.) But the
court also recognized that this right is not absolute: “ ‘[T]here are categories of
communication and certain special utterances to which the majestic protection of the First
Amendment does not extend because they “are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality.”
[Citation.] [¶] Libelous speech has been held to constitute one such category, [citation]
. . . .’ [Citations.]” (Ibid.)
Because defamation is not protected by the First Amendment, the Balboa Island
court concluded, “an injunction issued following a trial that determined that the defendant
defamed the plaintiff that does no more than prohibit the defendant from repeating the
defamation, is not a prior restraint and does not offend the First Amendment.” (Balboa
Island, 40 Cal.4th at p. 1148.) As the court explained, an injunction that is entered
following a determination at trial that the enjoined statements are defamatory does not
constitute a prohibited prior restraint of expression because “ ‘[o]nce specific
expressional acts are properly determined to be unprotected by the [F]irst [A]mendment,
24
there can be no objection to their subsequent suppression or prosecution.’ [Citations.]”
(Id. at pp. 1155-1156.)
2. Analysis
The removal order directed at Yelp states: “Yelp.com is ordered to remove all
reviews posted by AVA BIRD under user names ‘Birdseye B.’ and ‘J.D.’ attached hereto
as Exhibit A and any subsequent comments of these reviewers within 7 business days of
the date of the court’s order.”
Under the authority of Balboa Island, supra, 40 Cal.4th at pages 1155-1156, the
trial court had the power to make the part of this order requiring Yelp to remove the three
specific statements that were set forth in the exhibit A attachment to the Bird judgment
because the injunction prohibiting Bird from repeating those statements was issued
following a determination at trial that those statements are defamatory. However, to the
extent the trial court additionally ordered Yelp to remove subsequent comments that Bird
or anyone else might post, the removal order is an overbroad prior restraint on speech.
(Ibid.; see also Evans, supra, 162 Cal.App.4th at p. 1169 [preliminary injunction
prohibiting appellant from publishing any “false and defamatory” statements on the
Internet constitutionally invalid because there had been no trial and determination on the
merits that any statement by appellant was defamatory].) Therefore, we will remand this
matter to the trial court with directions that it modify the removal order consistent with
this limitation.
Yelp contends that limiting the scope of the removal order to statements that have
already been adjudged as defamatory does not cure the constitutional problem because
the findings that Bird’s reviews of Hassell were defamatory were not made by a jury.
According to Yelp, “the Supreme Court in Balboa Island carefully limited its narrow
holding to judgments entered after a jury trial . . . .” (Original italics.) We find nothing
in Balboa Island supportive of this contention. In fact, the injunction in that case was
issued after a bench trial. (Balboa Island, supra, 40 Cal.4th at p. 1144.)
Yelp argues that even if Balboa Island applies in this context, the removal order is
impermissibly overbroad because Hassell failed to actually prove that Bird wrote the
25
February 2013 review posted under the name “J.D. Alameda, CA,” or the April 2013
review posted under the name “Birdseye B. Los Angeles, CA.” However, the trial court
made a final judicial determination that Bird posted those reviews and, for reasons we
have already discussed, Yelp does not have standing to challenge that aspect of the
judgment.
D. Yelp’s Immunity from Tort Liability
Finally, Yelp contends that the removal order is barred by section 230 of the CDA,
47 United States Code section 230 (section 230). According to Yelp, section 230
prohibits courts “from ordering website providers like Yelp to remove content provided
by third parties.”
1. Applicable Law
Section 230 states, in pertinent part: “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.” (§ 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).)
Section 230 was enacted as an amendment to the CDA. Originally, the primary
objective of the CDA was to restrict the exposure of minors to indecent materials on the
Internet. However, through the addition of section 230, the CDA acquired a second
objective of furthering First Amendment and e-commerce interests on the Internet.
(Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1027-1028.)
Accordingly, section 230 has been construed broadly to immunize “providers of
interactive computer services against liability arising from content created by third
parties.” (Fair Housing Coun., San Fernando v. Roomamates.com (9th Cir 2008) 521
F.3d 1157, 1162, fn. omitted; see also Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.
(N.D.Cal. 2015) 2015 U.S. Dist. LEXIS 154716.) As elucidated in a leading decision by
the Fourth Circuit, section 230 also “precludes courts from entertaining claims that would
place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a
service provider liable for its exercise of a publisher's traditional editorial functions—
26
such as deciding whether to publish, withdraw, postpone or alter content—are barred.”
(Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).)
The justification for this broad grant of immunity is that it (1) encourages Internet
service providers to self-regulate the dissemination of offensive material over their
services, and (2) avoids a chilling effect on Internet free speech that would result from
exposing companies to tort liability for potentially harmful messages they do not create
but that are delivered by using their service. (Zeran, supra, 129 F.3d at p. 331.)
California courts have also construed section 230 to afford interactive service
providers broad immunity from tort liability for third party speech. (Barrett v. Rosenthal
(2006) 40 Cal. 4th 33 (Barrett); Delfino v. Agilent Technologies, Inc. (2006) 145
Cal. App. 4th 790, 802-804 (Delfino); Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816,
830; Kathleen R. v. City of Livermore (2001) 87 Cal. App. 4th 684 (Kathleen R.).)
In Barrett, supra, 40 Cal. 4th 33, our state Supreme Court followed Zeran and its
progeny. Concluding that section 230 confers “broad immunity against defamation
liability for those who use the Internet to publish information that originated from another
source,” the Barrett court held that the statute “prohibits ‘distributor’ liability for Internet
publications.” (Barrett, at pp. 39-40.) The court expressed concern about the “disturbing
implications” of the “prospect of blanket immunity for those who intentionally
redistribute defamatory statements on the Internet.” (Id. at p. 63.) However, the court
observed that, “[a]t some point, active involvement in the creation of a defamatory
Internet posting would expose a defendant to liability as an original source.” (Id. at p. 60,
fn. 19.) Aside from that limitation, the court reasoned that applying section 230 to
exempt Internet intermediaries from defamation liability for republication furthers
congressional intent and that any expansion of tort liability beyond the originator of the
defamatory Internet publication “must await congressional action.” (Id. at p. 63.)
Thus, “[t]here are three essential elements that a defendant must establish in order
to claim section 230 immunity” from California tort liability. (Delfino, supra, 145
Cal.App.4th at pp. 804.) “They are ‘(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
27
or speaker of information; and (3) the information at issue [is] provided by another
information content provider.’ [Citation.]” (Id. at p. 805.)
2. Analysis
Yelp argues the authority summarized above establishes that the removal order is
void. We disagree. The removal order does not violate section 230 because it does not
impose any liability on Yelp. In this defamation action, Hassell filed their complaint
against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was
awarded damages and injunctive relief against Bird, not Yelp.
These circumstances distinguish the present case from Yelp’s authority, all cases
in which causes of action or lawsuits against internet service providers were dismissed
pursuant to section 230. (See, e.g., Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096,
1098 [CDA “protects an internet service provider from suit” for failing to remove
material from its Web site that was harmful to the plaintiff]; Carafano v.
Metrosplash.com. Inc. (9th Cir. 2003) 339 F.3d 1119, 1125 [“despite the serious and
utterly deplorable consequences that occurred in this case, we conclude that Congress
intended that service providers such as Matchmaker be afforded immunity from suit’];
Goddard v. Google, Inc. (N.D.Cal. 2009) 640 F. Supp. 2d 1193 [dismissing complaint
against Internet service provider for allegedly fraudulent advertisement that appeared on
its Web site]; Doe II v. MySpace Inc. (2009) 175 Cal. App. 4th 561 [sustaining demurrer to
causes of action for negligence and strict liability against social networking Web site
arising out of sexual assaults inflicted on minors who met their assailants on the site];
Hupp v. Freedom Communications, Inc. (2013) 221 Cal. App. 4th 398 [affirming order
granting anti-SLAPP motion to strike claim that the defendant breached its Internet Web
site user agreement]; Delfino, supra, 145 Cal. App. 4th 790 [affirming summary judgment
in favor of employer that provided interactive computer service to employee who used
the system to make threats over the Internet].)
Neither party cites any authority that applies section 230 to restrict a court from
directing an Internet service provider to comply with a judgment which enjoins the
originator of defamatory statements posted on the service provider’s Web site. We note,
28
however, that section 230 explicitly provides that “[n]othing in this section shall be
construed to prevent any State from enforcing any State law that is consistent with this
section.” (§ 230(e)(3).) As discussed above, California law authorizes a trial court to
issue an injunction preventing the repetition of statements that have been adjudged to be
defamatory by the trier of fact. (Balboa Island, supra, 40 Cal.4th at p. 1160.) California
law also empowers the court to enforce its judgment by ordering that an injunction run to
a non-party through whom the enjoined party may act. (Planned Parenthood, supra, 107
Cal.App.4th at pp. 352-353.) It appears to us that these state law procedures are not
inconsistent with section 230 because they do not impose any liability on Yelp, either as a
speaker or a publisher of third party speech.
Yelp mistakenly contends that the “trial court” imposed liability on Yelp as an
aider and abettor of Bird’s defamatory postings. The “trial court” that conducted the
default prove-up hearing and entered judgment against Bird alone (Judge Sullivan) did
not find that Yelp was an aider and abettor or impose any liability on Yelp whatsoever.
Furthermore, although the trial court that conducted the hearing on Yelp’s motion to
vacate (Judge Goldsmith) found that Yelp was an aider and abettor, we have already
declared this finding not relevant to the issues before this court, and reiterate that it has
no bearing on our analysis.
Yelp also argues that “enjoining a party from publishing content is a remedy that
can only follow from a finding of liability, and thus the injunction entered against Yelp
cannot survive the robust protection of the CDA.” Again though, the party that was
enjoined from publishing content in this case was Bird, and that injunction did follow a
finding of Bird’s liability for publishing defamatory reviews about Hassell. Assuming, as
Yelp has maintained, that Yelp played no role in the creation of that defamatory speech,
an order directing Yelp to remove only those reviews that are covered by the injunction
does not impose any liability on Yelp.
Yelp insists that “Section 230 immunity encompasses claims for injunctive relief,
and the cases do not distinguish between defendants and non-parties.” However, each
case cited for this proposition involved a failed claim for injunctive relief that was alleged
29
against an Internet service provider defendant in a civil lawsuit. (Kathleen R., supra, 87
Cal. App. 4th 684; Noah v. AOL Time Warner, Inc. (E.D.Va. 2003) 261 F. Supp. 2d 532;
Smith v. Intercosmos Media Group (E.D.La. 2002) 2002 U.S. Dist. LEXIS 24251; see
also Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla. 2014) 152 So. 3d 727.)
Yelp argues that cases extending CDA immunity to claims for injunctive relief
that are alleged directly against a interactive service provider in a tort action must apply
with equal force to an injunction that binds a non-party. Otherwise, Yelp argues, “a
plaintiff who wants to enjoin an interactive computer service can nullify its immunity
under the CDA by suing the creator of the third-party content and then obtaining an
injunction binding the interactive computer service . . . .” This argument ignores the fact
that protection against third party liability is the foundation of CDA immunity. As we
have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable
for Bird’s tort. The removal order simply sought to control the perpetuation of judicially
declared defamatory statements. For this reason, Yelp seriously understates the
significance of the fact that Hassell obtained a judgment which establishes that three
reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes
an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed,
that injunction is a key distinction between this case and the CDA cases that Yelp has
cited, all of which involved allegations of defamatory conduct by a third party, and not a
judicial determination that defamatory statements had, in fact, been made by such third
party on the Internet service provider’s Web site.
Finally, Yelp contends that section 230 bars “any liability for failing to comply
with the injunction.” Once again, Yelp’s imprecision masks the real question. If an
injunction is itself a form of liability, that liability was imposed on Bird, not Yelp.
Violating the injunction or the removal order associated with it could potentially trigger a
different type of liability which implicates the contempt power of the court. Generally
speaking, “a nonparty to an injunction is subject to the contempt power of the court
when, with knowledge of the injunction, the nonparty violates its terms with or for those
who are restrained.” (People v. Conrad, supra, 55 Cal.App.4th at p. 903, italics omitted.)
30
Yelp does not cite any authority which addresses the question whether section 230
would immunize Yelp from being sanctioned for contempt. In our opinion, sanctioning
Yelp for violating a court order would not implicate section 230 at all; it would not
impose liability on Yelp as a publisher or distributor of third party content. A “contempt
proceeding is not a civil action but is of a criminal nature even though its purpose is to
impose punishment for violation of an order made in a civil action. [Citation.]”
(Freeman v. Superior Court (1955) 44 Cal. 2d 533, 536.) The cases we have found in
which Internet service providers were named in contempt proceedings are consistent with
this conclusion. (See, e.g., Blockowicz v. Williams (7th Cir. 2010) 630 F.3d 563; Arista
Records, LLC v. Vita Tkach (S.D.N.Y. 2015) 2015 U.S. Dist. LEXIS 107339.)
For all of these reasons, Yelp has failed to establish that section 230 or any other
law barred the trial court from issuing the removal order under the circumstances of this
case. Therefore, Yelp’s nonstatutory motion to vacate the Bird judgment was properly
denied.
IV.
DISPOSITION
The September 2014 order denying Yelp’s motion to vacate the Bird judgment is
affirmed, but this case is remanded to the trial court with the direction to narrow the
terms of the removal order in the January 2014 judgment by limiting it to the specific
defamatory statements that were listed on exhibit A of that judgment. The parties are to
bear their own costs of appeal.
31
_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
STREETER, J.
32
A143233, Hassell v. Bird
33
Trial Court: San Francisco Superior Court
Trial Judge: Hon. Donald J. Sullivan
Counsel for Appellant: David Wright Tremaine, Thomas R. Burke and
Deborah A. Adler
Counsel for Respondents: Duckworth Peters Lebowitz Olivier, Monique
Olivier
A143233, Hassell v. Bird
34