Multiversal Enterprises-Mammoth Properties, LLC v. Yelp, Inc.

Filed 1/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MULTIVERSAL ENTERPRISES- B305193
MAMMOTH PROPERTIES, LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC484055)
v.
YELP, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Affirmed.
Ervin Cohen & Jessup, Robert M. Waxman and David N.
Tarlow for Plaintiff and Appellant.
Davis Wright Tremaine, Thomas R. Burke, Nicolas A.
Jampol, Diana Palacios; and Aaron Schur for Defendant and
Respondent.
___________________________________
Yelp, Inc. (Yelp) operates a popular online Web site that
contains customer reviews of businesses. As part of the
operation, Yelp uses software designed to filter out unreliable or
biased reviews. (Hereafter “filter” or “recommendation
software.”) Multiversal Enterprises-Mammoth Properties
(Multiversal), which operates restaurants in Mammoth Lakes,
sued Yelp for an injunction under the unfair competition law
(UCL; Bus. & Prof. Code, § 17200 et seq.) and the false
advertising law (FAL; Bus. & Prof. Code, § 17500 et seq.) to
prevent Yelp from touting the accuracy and efficacy of its filter.
During a bench trial, the court excluded Multiversal’s principal,
James Demetriades, from a portion of the trial and denied
Multiversal’s motion to compel access to Yelp’s source code.
Multiversal contends these rulings were in error. We affirm.
BACKGROUND
We take the pertinent preliminary facts from our prior
opinion in this matter, Demetriades v. Yelp, Inc. (2014) 228
Cal.App.4th 294.
A. Yelp’s Web site
Yelp operates a free social media Web site and search
engine that is available to the public and has no registration
requirement. Users who do register may post reviews about local
businesses on the site using a five-star rating system. Yelp’s Web
site draws tens of millions of people each month who search for
and review the public ratings of businesses. Yelp sells
advertising on its site to generate revenue.
Yelp constantly battles the problem of unreliable reviews,
which generally are paid reviews, negative reviews written by
business competitors, or biased reviews written by friends,
employees or relatives of the business being reviewed. Yelp
2
developed filtering software with the aim of identifying reviews
likely to be unreliable. It started using the filter in 2005 and
employs a team of engineers to monitor and improve it.
The Yelp filter applies uniform rules to all reviews and does
not favor advertisers over nonadvertisers. Yelp does not use
filtered reviews in calculating a business’s rating, and they do not
appear on the main page, but are viewable on a special “filtered
review page.” Business owners can freely post responses to
reviews they receive and can contact reviewers privately to
engage in further dialogue. To promote the filter’s integrity, Yelp
businesses cannot delete, change, or reorder ratings or reviews.
Yelp admits that its filter is not foolproof, and expressly tells
users that “the filter sometimes affects perfectly legitimate
reviews and misses some fake ones, too. After all, legitimate
reviews sometimes look questionable, and questionable reviews
sometimes look legitimate.”
According to Yelp, in addition to relying on the filter, a site
user can judge how much weight to give to any particular review
by reading the reviewer’s profile and reviews, and by assessing
statistics regarding those reviews.
Yelp invested tens of millions of dollars and hundreds of
thousands of hours in developing and maintaining the filter,
which runs on hundreds of computers.
Yelp’s filter is proprietary software that is not distributed
or sold to third parties because disclosure would expose Yelp to
the risk of persons using the information to overcome the filter.
Yelp does not provide the source code or the algorithms to
business owners or the general public.
3
In 2010, Yelp created a cartoon video to educate and
contribute to the ongoing public dialog about the integrity of
online reviews.
On November 13, 2013, Yelp replaced the 2010 video on its
Web site with a new video which, among many other changes,
used Yelp’s updated terminology by, for example, referring to the
filter as “recommendation software.”
B. Demetriades and Multiversal
As previously noted, Demetriades is the principal of
Multiversal Enterprises-Mammoth Properties, LLC, which owns
businesses in Mammoth, California, including the restaurant
“Rafters.” Multiversal purchased a marketing package on Yelp’s
Web site.
Multiversal’s restaurants received several critical reviews
on Yelp, and the recommendation software removed several
positive reviews. On August 24, 2011, Multiversal’s attorney
wrote to Yelp and asserted that “Yelp’s review filter has
[improperly] filtered forty reviews out of Rafters’ Yelp profile.”
Before becoming a restaurant owner, Demetriades was a
software developer who, in his words, founded “the largest
integration software company in the world with a couple hundred
million, about the size of Yelp, couple hundred million in
revenue.” He has also owned or participated in other software
companies, and has “access to hundreds of developers.”
Demetriades took an interest in Yelp’s recommendation
software, explaining that, “since I’m a programmer and have the
largest software integration company in pretty much the world
with thousands of employees, I’m very familiar with the area of
software development. And I was very concerned with what I
was seeing[.]” During an interview on ABC News in 2018,
4
Demetriades demanded that Yelp override the operation of its
recommendation software and display reviews he deemed to be
“real and legitimate.”
In April 2012, Demetriades’s counsel demanded access to
“the source code and algorithm for the so-called filters,” and
demanded that Yelp change the results for Demetriades’s
restaurant. Yelp rejected these demands.
C. Complaint
In May 2012, Demetriades filed this action in his personal
capacity, asserting causes of action for false advertising and
unfair competition. Multiversal substituted in as plaintiff after
the prior appeal. Multiversal alleged that Yelp engaged in false
advertising by making five statements (the “Challenged
Statements”):
1. “Yelp uses the filter to give consumers the most
trusted reviews.”
2. “All reviews that live on people’s profile pages go
through a remarkable filtering process that takes the reviews
that are the most trustworthy and from the most
established sources and displays them on the business page.
This keeps less trustworthy reviews out so that when it comes
time to make a decision you can make that using information and
insights that are actually helpful.”
3. “Rest assured that our engineers are working to
make sure that whatever is up there is the most unbiased and
accurate information you will be able to find about local
businesses.”
4. “Yelp is always working to do as good a job as
possible on a very complicated task—only showing the most
trustworthy and useful content out there.”
5
5. “Yelp has an automated filter that suppresses a small
portion of reviews—it targets those suspicious ones you see on
other sites.” (Original boldface.)
Yelp made the first four of the Challenged Statements in
the 2010 video, and the fifth on its Web site.
Multiversal alleged the statements were untrue: Yelp did
not use the filter to give consumers the most trusted reviews, and
the filter neither accurately separated the most trustworthy
reviews from unreliable reviews nor posted reviews from trusted
sources. Instead, Yelp’s automated filter suppressed more than
only a small portion of reviews; allowed posts of the “most
entertaining” reviews to be shown on the unfiltered portion of the
Web site, regardless of the source; allowed posts of reviews to be
shown on the unfiltered portion of a local business page
regardless of whether the source was trustworthy or unbiased;
and suppressed a substantial portion of reviews that were
unbiased and trustworthy. Multiversal further alleged that
Yelp’s Web site contained reviews from persons who were biased
against the businesses they reviewed.
D. Trial
Pretrial discovery revealed that Demetriades was
dissatisfied with Yelp reviews of his restaurants and exhorted a
Multiversal director to “hire the people” who could write positive
reviews. At least one restaurant employee and one manager
submitted a review in violation of Yelp’s terms of service.
Specifically, in opposition to a motion to compel, Ian MacBean,
Yelp’s Director of User Operations, declared Yelp’s records
reflected that Jack Carter, a Rafters manager, submitted six
5-star reviews of Rafters within the space of three hours, five of
them under five assumed names.
6
Before trial, the court denied Multiversal’s motion to
compel production of Yelp’s source code and granted Yelp’s
motion to exclude Demetriades from portions of the trial where
the source code would be discussed. We discuss these
proceedings later in the opinion.
At a bench trial, Dr. David Stewart testified as a consumer
survey expert for Multiversal. Dr. Stewart testified he conducted
a survey that found the Challenged Statements were misleading
or deceptive because Yelp’s recommendation software (1) failed to
examine the content of reviews on its Web site; (2) had no
capability to examine the content of reviews on its Web site; (3)
failed to determine whether a review on its Web site was accurate
enough to be deemed “most trustworthy”; (4) failed to determine
whether a reviewer was honest before deeming a reviewer an
“established source.”
After trial concluded and additional briefing was
submitted, the court issued a statement of decision in which it
analyzed each Challenged Statement and found that neither
Multiversal’s survey nor any other evidence established that any
statement was false or misleading.
On the contrary, the court found that “Yelp’s evidence
established its filter determines which reviews can be categorized
as ‘most trusted.’ ” The court found “the evidence did not
establish that the unfiltered reviews Yelp posted on the business
pages came from less trustworthy reviews or from less
established sources,” and Yelp presented “substantial evidence of
the efforts made by Yelp employees, including engineers, to
ensure that real people with established profiles are writing the
top reviews, and that business owners and employees are not
writing their own biased or inaccurate reviews of their businesses
7
or the businesses of their competitors.” The court found that
“suppression of 25% of all of the reviews was a small portion of
the millions of reviews affected by Yelp’s filter.”
The court concluded that “the Challenged Statements did
not violate the UCL or the FAC,” and “there was no evidence that
Yelp acted ‘with the intent directly or indirectly . . . to make or
disseminate . . . before the public in this state . . . any advertising
device . . . which [was] known, or which by exercise of reasonable
care should [have been] known, to be untrue or misleading.’ ”
Accordingly, the court entered judgment for Yelp.
Multiversal appeals.
DISCUSSION
A. Motion to Compel
Multiversal contends the judgment should be reversed
because the trial court erred in denying its motion to compel
1
production of the source code. We disagree.
1. Relevant Proceedings
In 2010, the Office of the Attorney General of the State of
New York (NYAG) investigated Yelp’s recommendation software
to determine whether it favored advertisers, which would be
contrary to Yelp’s public statements that Yelp tried to display the
most trustworthy and unbiased reviews.
Yelp’s filter software was also investigated by the Federal
Trade Commission to ensure that in its statements to the public
Yelp accurately described the filter’s operation.
1
The parties do not dispute that Yelp’s source code
constitutes a trade secret within the meaning of Civil Code
section 3426.1.
8
Yelp prepared two presentations in response to those
investigations, which it provided to Multiversal in discovery.
These presentations described the components, factors, and rules
used by the recommendation software.
On May 15, 2016, Multiversal moved to compel production
of the source code for Yelp’s recommendation software. The trial
court denied the motion without prejudice, finding that Yelp had
made a “sufficient case that the information provided thus far,
plus appropriate depositions, may be all that is reasonable and
necessary to determine whether the more specific statements
made in the advertisement at issue are true.”
In November 2016, Jim Blomo, who managed the
engineering team responsible for Yelp’s recommendation
software, testified in deposition about the mechanics and
operation of the software and the presentations made for the
NYAG and Federal Trade Commission. Blomo testified that
reviewing the source code would not be the best way to determine
how the recommendation software evaluates data or whether it
worked properly, and specifically would provide no information
on whether the software “suppresses a small portion of reviews.”
On January 30, 2017, Multiversal renewed its motion to
compel production of Yelp’s source code for the recommendation
software.
The trial court held an evidentiary hearing on the matter
over two days.
At the hearing, Dr. Julian J. Bunn, a computational
scientist and Caltech professor, testified as Multiversal’s expert.
Dr. Bunn testified that access to Yelp’s source code was necessary
to test the recommendation software (1) to determine whether
Yelp’s review filter was designed to operate in a manner
9
consistent with Yelp’s statements, (2) to determine whether the
purported factors used to make filter determinations were
actually present, and (3) to confirm or deny the truth or falsity of
the Challenged Statements. He testified that to test the source
code would require that Yelp set up a secure environment with a
small piece of filtering code and about 100 reviews, and the entire
process would cost approximately $10,000.
However, Dr. Bunn also testified that: The Challenged
Statements contain subjective words that he would not know how
to “program . . . into a computer”; a review of the source code
would not tell him whether “Yelp’s website did, in fact, provide
users with the most trustworthy and reliable reviews in the
relevant time period[,]”; he did not know if he could evaluate the
veracity of the Challenged Statements based on the source code;
review of the source code would not tell him whether Yelp’s non-
filter efforts affected “the trustworthiness and reliability of
reviews on . . . Yelp’s website”; and there was no generally
accepted scientific metric to determine whether something was
trustworthy.
Dr. Bunn also testified he had no reason to doubt the
presentations Yelp provided to the NYAG or Federal Trade
Commission.
Mr. Blomo, as Yelp’s expert, testified it would be impossible
to take a “snapshot” of Yelp’s source code and related databases
at any given time to test the recommendation software because of
the “continuous processing that [was] going on some of these
systems.”
Blomo testified that to “recreate the setup that Yelp had at
the time, . . . you would want the operating system that the
software was running on and the libraries that are sometimes
10
outside of Yelp’s control that the recommendation software used
and you would want the data at the exact time that . . . software
was running.” It would therefore be impossible to recreate Yelp’s
recommendation software during the relevant period, or even to
limit the testing to a particular time, as any proper test would be
required to consider associated data, which could encompass
almost all the reviews and associated data on Yelp’s database at
the time. Such testing would be impossible given the dynamic
nature and the amount of data Yelp regularly analyzed during
the relevant period, which likely consisted of “at least ten
Libraries of Congress each week.”
Blomo testified that other methods than looking at the
source code were available to determine whether the
recommendation software worked.
After additional briefing from both parties, the trial court
found that “[w]hile Multiversal has established that the source
information is relevant to the issues in the case, it has not shown
that the source code is ‘necessary to the proof of a . . . material
element.’ ” The court explained that “Multiversal does not need
the source code to establish whether Yelp’s software considers
[certain] information, because it already has a comprehensive list
of the various factors that Yelp does consider.” The court found
that “potential harm . . . could come to Yelp if the source code
information was accessible to others, even if produced under a
protective order.”
The court therefore denied Multiversal’s motion to compel
production of Yelp’s source code.
Multiversal contends the court erred.
11
2. Applicable Law
The Civil Discovery Act provides litigants the right to broad
discovery. (Code Civ. Proc., § 2017.010.)
However, a party seeking discovery of trade secret
information, “must make a prima facie, particularized showing
that the information sought is relevant and necessary . . . and
that it is reasonable to conclude that the information sought is
essential to a fair resolution of the lawsuit. It is then up to the
holder of the privilege to demonstrate any claimed disadvantages
of a protective order. Either party may propose or oppose less
intrusive alternatives to disclosure of the trade secret, but the
burden is on upon the trade secret claimant to demonstrate that
an alternative to disclosure will not be unduly burdensome to the
opposing side and that it will maintain the same fair balance in
the litigation that would have been achieved by disclosure.”
(Bridgestone/Firestone, Inc. v. Superior Court (1992) 7
Cal.App.4th 1384, 1393 (Bridgestone).)
In Bridgestone, the plaintiffs sought the confidential rubber
formulas for tires alleged to be defective. (Bridgestone, supra, 7
Cal.App.4th at pp. 1388-1389.) The trial court ordered disclosure
of the formulas, subject to a protective order, but the Court of
Appeal vacated the order, holding that while the plaintiffs had
“plainly establish[ed] that the trade secret formulas would be
helpful to the analysis of the case,” they had not demonstrated
the necessity of the information to carry their burden of proof.
(Id. at p. 1397.)
We review a discovery order for abuse of discretion. (John
B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.)
12
3. Discussion
Here, the Challenged Statements boiled down to two
assertions: (1) Yelp’s filter results in “trusted,” “trustworthy,”
“unbiased,” “accurate” and “useful” reviews from “established
sources” (the “trustworthy” claim); and (2) the filter suppresses
only a small portion of “suspicious” reviews (the “scope” claim).
Dr. Bunn, Multiversal’s expert, testified that examination
of Yelp’s source code was necessary to determine (1) whether
Yelp’s review filter was designed to operate in a manner
consistent with its statements, i.e., whether the purported factors
used to make filter determinations were actually present, and (2)
to confirm or deny the truth or falsity of the Challenged
Statements.
Blomo testified that other methods than looking at the
source code were available to determine whether the
recommendation software worked. The trial court was entitled to
credit this testimony over Dr. Bunn’s assertion that he could
confirm the truth or veracity of the Challenged Statements only
by examining the source code. This is especially so because Dr.
Bunn admitted that a review of the source code would not tell
him whether Yelp’s Web site did, in fact, provide trustworthy and
reliable reviews because “trusted,” “trustworthy,” “unbiased,”
“accurate” and “useful” are subjective terms.
With respect to Yelp’s second Challenged Statement, that
its filter suppresses only a small portion of suspicious reviews,
examination of the source code could conceivably reveal the scope
of this suppression. But such an examination would have been ill
suited to determine whether the reviews suppressed were
“suspicious,” a subjective concept (the flip-side of “trustworthy”),
13
and Blomo testified that the task was infeasible and other
methods existed to evaluate the filter’s performance.
Given the mediocre value of information available from a
review of the source code, Blomo’s testimony that review of the
code was unnecessary, and the extensive information Yelp
forwarded to Multiversal concerning its recommendation
software (information it had already provided to the NYAG and
Federal Trade Commission), the trial court was within its
discretion to find that although Yelp’s source code might be
helpful in analyzing the Challenged Statements, it was not
necessary.
Multiversal argues it needed access to Yelp’s source code
because Yelp maintained no statistical analysis data with which
to make a historical analysis. However, Multiversal offers no
explanation why this data is relevant or would have been used to
establish the falsity of the Challenged Statements.
B. Exclusion of Demetriades During the Trade Secret
Portion of the Trial
Multiversal contends the judgment should be reversed
because the trial court erred in excluding Demetriades from that
portion of the trial where Yelp’s source code was discussed. We
disagree.
1. Relevant Proceedings
On December 21, 2018, Yelp filed a motion to exclude
Demetriades from that portion of the trial in which Yelp’s trade
secret information would be discussed, a motion Multiversal
vigorously opposed.
After a hearing, the trial court found that “Demetriades is a
software developer, and he was the CEO of ‘the largest
integration software company in the world with a couple of
14
hundred million, about the size of Yelp, couple hundred million in
revenue,’ ” and that “Demetriades has also owned and been on
the board of other software companies, ‘with access to hundreds
of developers.’ ” The trial court found it unlikely that
Demetriades needed to be present at trial to assist Multiversal’s
counsel with technical issues, as he had not been present at the
evidentiary hearing where those issues were discussed, and in
any event Multiversal’s expert would be allowed to attend the
trade secret portion of trial to assist Multiversal’s counsel with
technical matters. The court acknowledged Yelp’s concern that a
protective order restricting Demetriades from disclosing Yelp’s
trade secret information would be nearly impossible to enforce
because he could use the information to subvert Yelp’s
recommendation software without detection.
Accordingly, the court found “Yelp’s interests in protecting
its trade secret information outweighs Multiversal’s interest in
having Demetriades attend the trade secret portions of trial.”
The parties represented at oral argument that Bunn remained
subject to a protective order entered during discovery.
The court granted Yelp’s motion and ordered that
Demetriades be excluded from the portion of trial where
testimony of trade secret information was discussed. Mr.
Demetriades was allowed to attend the rest of the trial.
Multiversal was also entitled under the court’s order to have a
designated expert present during the trade secret portion of trial.
(It ultimately chose not to have an expert present.)
2. Applicable Law
The Sixth Amendment to the federal Constitution, which
pertains to criminal proceedings, “provides a number of rights
that together have been construed as establishing a [party’s]
15
2
right to be personally present” at a trial. (Arnett v. Office of
Admin. Hearings (1996) 49 Cal.App.4th 332, 338 (Arnett).)
However, the right is not absolute. (Ibid.) With respect to civil
proceedings, the federal and California Constitutions guarantee
only due process of law. (Ibid.)
“Due process guarantees ‘ “notice and opportunity for
hearing appropriate to the nature of the case.” ’ ” “ ‘How that is to
be achieved is to be determined by the exercise of discretion by
the trial court.’ ” (In re Jesusa V. (2004) 32 Cal.4th 588, 601
(Jesusa V.).)
Due process does not confer upon a civil party an absolute
right to be physically present at trial. (See Yarbrough v. Superior
Court (1985) 39 Cal.3d 197, 203-204.) On the contrary, a trial
court has discretion to exclude a party from trial. (See ibid.; see
also Code Civ. Proc., § 128, subd. (a)(3) [court bears inherent
power to administer the courtroom to ensure orderly
proceedings].)
In a civil matter, a party’s right to be present at trial can be
protected when the party is represented by counsel. (See, e.g.,
Arnett, supra, 49 Cal.App.4th at pp. 338-339; Morales v. 22nd
Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 536 (Morales);
2
The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed; which district shall have
been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for
his defence.” (U.S. Const., 6th Amend., pt. 1 of 17.)
16
Province v. Center for Women’s Health & Family Birth (1993) 20
Cal.App.4th 1673, 1686 (Province).)
To be sure, “ ‘[i]t seldom happens that a trial can be
properly had in the absence of the plaintiff [because] some matter
of vital importance is liable to be overlooked . . . until the trial
calls it to the recollection of the plaintiff . . .’[, but] the rule is not
absolute.” (Province, supra, 20 Cal.App.4th at p. 1686.) “The due
process right to be present during trial ‘may be sufficiently
protected in the party’s absence so long as the litigant is
represented by counsel.’ ” (Ibid.) The decision to exclude a party
from trial is left to the discretion of the trial court. (Ibid.)
“A ruling that constitutes an abuse of discretion” is one
“that is ‘so irrational or arbitrary that no reasonable person could
agree with it.’ ” (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773.)
3. Discussion
Here, Multiversal was represented by counsel and afforded
the right to have its expert present during the portion of trial
from which Demetriades was excluded, accommodations the
Supreme Court has deemed sufficient in civil proceedings. (See
Jesusa V., supra, 32 Cal.4th at p. 601.) Through Multiversal’s
attorney and expert, Multiversal had the opportunity to call
witnesses, to cross-examine adverse witnesses, and to make real-
time assistance available to counsel. Nothing in the record
suggests that any matter of importance was overlooked due to his
absence.
Further, the record reflects that Demetriades has a
background as a software developer and corporate executive, with
access to software companies and “hundreds of developers.” It
further reflects that he actively made successful efforts to
17
undermine Yelp’s review screening process by inducing
employees to submit false reviews. The trial court could
reasonably conclude that Demetriades would benefit from access
to Yelp’s trade secret information. We conclude that the court
could reasonably have found that excluding Demetriades from a
limited portion of the trial while safeguarding Multiversal’s right
to have other representatives present, measures similar to the
protective order entered during discovery, gave Multiversal
“notice and opportunity for hearing appropriate to the nature of
the case.” (Jesusa V., supra, 32 Cal.4th at p. 601; see also Civ.
Code, § 3426.5 [a trial court is authorized to “preserve the secrecy
of an alleged trade secret by reasonable means”].) Due process
required no more.
Moreover, Multiversal identifies no prejudice resulting
from this exclusion. “[A] judgment may not be reversed on appeal
unless, after an examination of the entire cause, including the
evidence, it appears that the error caused a miscarriage of
justice.” (Morales, supra, 1 Cal.App.5th at p. 536.) Multiversal
makes no attempt to show how any testimony at trial would have
been different absent Demetriades’s exclusion, nor how any error
affected the outcome of the case. It claims only that Demetriades
was in a position to provide “valuable assistance” in “navigating
the technical testimony.” But Multiversal, which declined to
have Demetriades present at a prior evidentiary hearing where
similar technical issues were discussed, had access to a technical
expert, and nothing in the record suggests that its counsel and
expert were incapable of addressing all issues raised without
Demetriades’s assistance.
Multiversal relies on NBC Subsidiary (KNBC-TV), Inc. v.
Superior Court (1999) 20 Cal.4th 1178 (NBC) for the proposition
18
that “before substantive courtroom proceedings are closed or
transcripts are ordered sealed, a trial court must hold a hearing
and expressly find that (i) there exists an overriding interest
supporting closure and/or sealing; (ii) there is a substantial
probability that the interest will be prejudiced absent closure
and/or sealing; (iii) the proposed closure and/or sealing is
narrowly tailored to serve the overriding interest; and (iv) there
is no less restrictive means of achieving the overriding interest.”
(Id. at pp. 1217-1218, fns. omitted.)
NBC is inapposite. There, the court in a civil trial excluded
the public and press from all courtroom proceedings held outside
the presence of the jury. (NBC, supra, 20 Cal.4th at p. 1181.)
Here, no substantive courtroom proceedings were closed—
Demetriades was merely excluded from them. As discussed
above, personal exclusion of a party from trial in a civil matter
rests within the sound discretion of the trial court, so long as the
party’s right to be present is protected by representation by
counsel.
Multiversal argues exclusion of Demetriades was an abuse
of discretion because it was based on the trial court’s implicit
finding not that he would likely misappropriate Yelp’s trade
secret information, but that the information would inevitably be
disclosed to third parties as a result of his normal work duties.
As Multiversal observes, the doctrine of inevitable disclosure has
been rejected in California as a basis for protecting trade secrets.
(Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1447.)
We reject Multiversal’s premise—the trial court made no
implicit finding that innocent disclosure of Yelp’s trade secret
information would be unavoidable were Demetriades to attend
the portion of trial where that information was discussed. On the
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contrary, at the hearing on Yelp’s exclusion motion the court
expressly stated it “did not base [its ruling] on the inevitable
disclosure doctrine.” The court excluded Demetriades to protect
against the risk of misappropriation of Yelp’s trade secret
presented by Demetriades’s desire and ability to circumvent
Yelp’s recommendation software, not against inevitable innocent
disclosure of trade secret information. (See Central Valley
General Hospital v. Smith (2008) 162 Cal.App.4th 501, 525
[distinguishing threatened misappropriation from inevitable
innocent disclosure].)
Multiversal argues the exclusion order was fatally defective
because it contained no findings supporting Demetriades’s
exclusion. This is so, Multiversal argues, because the court
merely acknowledged Yelp’s arguments—that Yelp’s interest in
protecting its trade secret information outweighed Multiversal’s
interest in attending portions of trial; that a protective order
would inadequately protect its interests because it would be
nearly impossible to enforce; and that Demetriades would use
Yelp’s trade secrets to evade its recommendation software
without detection—but made no affirmative findings regarding
them. We disagree. The court expressly found that the need for
Demetriades to be present when technical issues were discussed
was minimal given that he had not been present during an
evidentiary hearing on those issues, and given that Multiversal’s
expert could be present. Although the court did not expressly
find that a protective order in lieu of exclusion would be
ineffective, it did so implicitly when it acknowledged Yelp’s
concern on this issue and found that “based” on Yelp’s
arguments, the balancing of interests favored exclusion. These
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findings were specific enough to permit a reviewing court to
determine whether the exclusion order was properly entered.
Multiversal argues the exclusion order was improper under
Evidence Code section 777, which provides in pertinent part that
although “the court may exclude from the courtroom any witness
not at the time under examination so that such witness cannot
hear the testimony of other witnesses,” “[a] party to the action
cannot be excluded under this section.” (Evid. Code, § 777, subds.
(a) & (b).) Multiversal reads section 777 as prohibiting the
exclusion of a party, period. The argument is without merit.
Evidence Code section 777 prohibits exclusion only of a party who
could otherwise be excluded as a witness under that section. It
does not prohibit exclusion of a party for other reasons.
Relying on Payne v. Superior Court (1976) 17 Cal.3d 908,
914, Multiversal argues that because Demetriades’s
constitutional right to access the courts is fundamental, any
restriction on that access must be subjected to strict scrutiny,
under which the exclusion order here fails. We disagree.
As discussed above, in civil matters the California and
federal Constitutions guarantee a party only due process, which
does not grant a party the right to appear personally in court in
all circumstances. (See Payne, supra, 17 Cal.3d at p. 913 [“The
right to defend [against a civil lawsuit] has been tempered by
judicial determination that a prisoner has no right to appear
personally in court to protect his property”].) The manner in
which a court safeguards due process rights “is to be determined
by the exercise of discretion by the trial court.” (Id. at p. 927.)
In Payne, Torrey Wood Payne was convicted of receiving
guard dogs that had been stolen from a business competitor. He
was then sued civilly for damages arising from the theft of the
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dogs. (Payne, supra, 17 Cal.3d at p. 911.) Because Payne was
indigent, he could not afford an attorney. Because he was
incarcerated he could not be present at trial.
Holding that this “dual deprivation of appointed counsel
and the right to personal presence in court” (Payne, supra, 17
Cal.3d at p. 923) amounted to an infringement of a fundamental
right, an infringement that could be suffered only by a “limited
category of Californians” (id. at p. 911), our Supreme Court
applied a strict scrutiny test to determine whether the
deprivation was valid. (Id. at p. 914.)
Payne expressly stated its holding did not apply to simple
exclusion of a party from a civil trial: “What is at stake is neither
the abstract right of a prisoner to appointed counsel nor his right
to appear personally in court. Instead, the issue is the propriety
of depriving indigent prisoners of both those rights and thereby
virtually denying their access to the courts.” (Payne, supra, 17
Cal.3d at p. 913.) Payne therefore affords Multiversal no
assistance. (See Arnett, supra, 49 Cal.App.4th at p. 339 [in
Payne, the “California Supreme Court concluded that when an
indigent prisoner facing a bona fide lawsuit is deprived of both
personal attendance and representation by counsel, then he is
essentially denied access to the courts”].)
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DISPOSITION
The judgment is affirmed. Respondent is to recover its
costs on appeal.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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