Case Number: BC645561??? Hearing Date: April 24, 2017??? Dept: 58
JUDGE JOHN P. DOYLE
DEPARTMENT 58
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Hearing Date: Monday, April 24, 2017
Calendar No: 12
Case Name: Nelson v. Robin, et al.
Case No.: BC645561
Motion: Motion to Quash Deposition Subpoenas
Moving Party: Defendant ?Chantelle Robin?
Opposing Party: Plaintiffs Jeff Nelson and Mostly Magic, Inc., dba VegSource Interactive
Tentative Ruling: Motion to quash subpoenas is granted. No sanctions are awarded.
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On 1/4/17, Plaintiff Jeff Nelson filed this action arising out of published videos and comments on social media concerning Plaintiff?s business and family. On 3/2/17, a First Amended Complaint was filed which included Mostly Magic, Inc. dba VegSource Interactive as a plaintiff and attributed videos and comments to Doe Defendants using pseudonym names, screen names, and email addresses (specifically, Chantelle Robin, Tzm Rbe, Rons Double Ds, GisforGary, and veganmediafyi@gmail.com). Plaintiffs assert causes of action for (1) defamation, (2) false light, (3) intentional and negligent infliction of emotional distress, (4) intentional and negligent interference with prospective economic advantage, and (5) unfair competition. CMC and OSC re: proof of service are set for 4/24/17.
Motion to Quash Deposition Subpoenas ?
On 1/4/17, the Court granted Plaintiff?s ex parte application for leave to conduct immediate discovery, permitting Plaintiff to serve deposition subpoenas on Google, Tumbler, YouTube, and Twitter to identify the true identities of defendants. On 2/22/17 and 3/6/17, the Court granted ?specially appearing anonymous individuals? extensions to file a motion to quash deposition subpoenas and stayed enforcement of the deposition subpoenas until such motion was decided. On 4/3/17, a motion to quash deposition subpoenas was filed by an individual referred to pseudonymously as ?Chantelle Robin.?
1. Robin?s Subscribed Declaration
Preliminarily, Plaintiffs argue that Robin?s originally filed declaration was not signed and does not contain a perjury declaration pursuant to CCP ? 2015.5, filing an ?application to strike and evidentiary objections? on 4/14/17. But on 4/17/17, Robin filed a subscribed version of the declaration which contains Robin?s pseudonymous signature and complies with CCP ? 2015.5. Plaintiffs argue that the subscribed declaration does not indicate the place where it was executed. But CCP ? 2015.5(b) does not require the place to be indicated. To the extent Plaintiffs object to the subscribed declaration as being untimely, the Court notes that the subscribed declaration is identical to the original declaration in all material respects except as to the signature and perjury declaration, and further that Plaintiffs fail to establish any resulting prejudice. And if Robin had failed to file the subscribed declaration or it remained insufficiently certified, the Court would merely continue the hearing on this matter to give Robin an opportunity to cure such defects. Because the subscribed declaration complies with CCP ? 2015.5 and is substantively identical to the originally filed declaration, the Court will consider it.
Plaintiffs also argue that Robin?s subscribed declaration should not be considered because it only contains Robin?s pseudonymous signature. At issue here is whether the rules permitting a plaintiff to use a fictitious name should be extended to this case. In Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767, a plaintiff was permitted to bring a mandamus action using a fictitious name because the plaintiff (a teacher) was being accused of being mentally unfit to teach. Citing to Lincoln Unified, the Court of Appeal also permitted a plaintiff to execute a verification using a fictitious name because the plaintiff was a rape victim. Doe v. Superior Court (2011) 194 Cal.App.4th 750, 754. Plaintiffs argue that both cases are distinguishable because they involved plaintiffs whose actual identities were known by the parties and who had generally appeared such that the Court had jurisdiction to sanction them for possible misconduct such as perjury, unlike the situation here. But Plaintiffs fail to establish that Robin will be insulated from any sanctions merely because Robin has only made a special appearance and has submitted the declaration pseudonymously. Additionally, Plaintiffs? argument would effectively require Robin to disclose her identity in order to bring this motion to quash deposition subpoenas which seeks her actual identity. This would be self-defeating and would circumvent the procedural protections involved in this motion (as further discussed below). Therefore, the Court concludes that Robin is entitled to sign the declaration pseudonymously.
2. Objections
Both Plaintiffs and Robin have objected to the declarations of Robin and Nelson and exhibits attached thereto. Plaintiffs? general objections to Robin?s declaration are not persuasive for the reasons stated above. All other objections (i.e., based on relevancy, authentication, foundation, and hearsay) essentially reflect the parties? dispute as to the weight and characterization of the evidence. Therefore, all objections are overruled.
3. Robin
Robin?s motion and Plaintiffs? opposition raises the competing (i) legitimate interest of Plaintiffs? right to discover an anonymous speaker?s identity in order to employ the judicial process, and (ii) Robin?s First Amendment right to remain anonymous. Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1310-11 (citing Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1163, 1165). On this motion to quash, Plaintiffs? must make a prima facie showing to support their defamation claim based on facts accessible to Plaintiffs. Krinsky, 159 Cal.App.4th at 1171-72, n.12.
Plaintiffs submit the following alleged actionable statements by Robin:
? Posting a YouTube video stating that Nelson and VegSource?s ?diet? causes ?mouth sores? and ?mouth herpes & uncontrollable lying? and included doctored photographs of Nelson?s family members appearing to have oral herpes (Nelson Decl. ? 15)
? Posting a comment to the YouTube video stating that ?there was a disease outbreak of anal fissures? after a VegSource party at Nelson?s home? which has not been substantiated and is not known to be true (id. ? 16, Ex. A)
? Posting a comment on YouTube stating that Nelson?s family ?vilely attack all kinds of others . . . [n]ot to mention the family gangbang on . . . a young girl.? (id. ? 18)
? Posting a comment to a YouTube channel stating that Nelson inherited money from Armour Meat Packing ?filth? which preyed on animals and people and that ?[e]very dime they stole should have been returned to the American people they hurt? (id. ? 20)
? Posting a comment on YouTube stating that Nelson used his money to ?hire a convicted felon named Charles Marlowe to harass vegans and shut down vegan channels? (id. ? 22) and that Marlowe is a criminal used by Nelson to harm people whom Nelson does not approve (id. ? 23)
? Posting a comment on Twitter stating that Nelson is using the VegSource expo convention to ?promote his racists bully boy & try to hide truth? (id. ? 25)
? Posting a comment on a YouTube channel stating that Nelson?s family have attacked many people on YouTube and social media with the ?most disgusting filth, threats, obscenity, statements about knowing wher epeople work or live? and that the ?slick image they create for the very artifical Vegsource is not what they are? (id. ? 26)
? Posting a comment on a Tumblr blog post stating that Nelson?s ?partner has been engaging in soliciting death threats and rape threats and doxing of vegans? (id. ? 27)
? Posting a comment on a YouTube video that Nelson has a history of attaching and trying to hurt vegans and has a criminal on felony probation who is willing to stalk and hurt people and silence them and has his own history of trolling against vegans and filing false complaints to get vegan websites and forums shut down who dared to talk critically of Vegsource (id. ? 28)
? Posting a comment on a YouTube video stating that Nelson?s mission is ?to do battle against vegans who are interested in animal rights? and has a long history of trolling and harassing vegans, making a false complaint to the IPS of a non-profit vegan website and has found a felon with 20 arrests behind him willing to stalk and harass vegans on YouTube by death threats, rape threats, doxing, smear (id. ? 29)
? Posting a comment on YouTube stating that Nelson enjoys ?the blood money? of his inheritance and instead of starting a foundation to teach about vegan issues, has a commercial for-profit company called Vegsource and spends much of his time trolling and pursuing his enemies for 20 years (id. ? 30)
Plaintiffs also submit that an email was sent from veganmediafyi@gmail.com to speakers and presenters at VegSource?s 2016 expo which linked a YouTube video posted by Robin stating attendees of the expo ?are at risk? warning ?trouble coming? and stating that attendees would experience ?Identity theft, stalking, harassment, smear, wrecking vegan business, death threats, ebook theft, copyright theft, obscene photos, burglary, forgery by anti vegans against vegans? and that Nelson endorsed and approved inappropriate comments made by others on their social media broadcasts (id. ? 42).
Whether an alleged defamatory statement is a statement of fact or a statement of opinion is a question of law to be decided by the Court pursuant to a ?totality of the circumstances? test. Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260. First, the Court examines the language of the statement to determine whether the words are reasonably understood in a defamatory sense; second, the Court considers the context of the statement by looking ?at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.? Id. at 260-61.
After review of the statements attributable to Robin and considered in the context of the parties? social media presence, the Court concludes that the statements are non-actionable statements of opinion from the perspective of a reasonable recipient. Doe 2, 1 Cal.App.5th at 1312-13. Here, it is apparent that the context of the statements attributable to Robin — that there is an ongoing battle between Plaintiffs and Robin over the manner in which Plaintiffs have expressed their opinions by which both Robin and Plaintiffs have accused each other of personal attacks and bullying — are in the nature of opinions. See Nelson Decl. ?? 9-12 (notably conceding that Marlowe has a criminal record); Robin Decl. ?? 3-6, 8-13; see also Robin Decl. ?? 14-28 (explaining that all of her statements were opinions, satire, or criticism). All of Robin?s statements are alleged to have been made through YouTube videos, or comments to YouTube videos or Twitter and Tumblr posts. Although unquestionably vulgar, crude, and insulting in some measure (Krinsky, 159 Cal.App.4th at 1177-78), these statements are more similar to ?true rants and raves? and do not consist of tone and content of a serious nature. Robin does not represent herself as ?unbiased? and ?having specialized knowledge,? nor does she characterize her videos or comments as ?Research Reports? or ?bulletins? or ?alerts? (see generally Bently Reserve L.P. v. Papaliolios (2013) 218 Cal.App.4th 418, 433), and the social media used was not like Yelp (id. at 433) or RipoffReport.com (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 864) in which statements could reasonably be understood as conveying facts.
Plaintiffs argue that this motion to quash can only apply to the defamation claim. But the gravamen of all of Plaintiffs? claims arise out of Robin?s published statements, resulting in all claims implicating First Amendment protection regardless of label. Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1044-45.
4. Other Defendants
Plaintiffs have argued that notwithstanding Robin?s possibility of defeating this motion, the subpoenas should not be quashed as to the other defendants. But simply because the other defendants have not filed a motion to quash does not mean that the Court should not consider whether the subpoenas should be maintained as to the other defendants. While Robin?s motion logically focuses on the statements attributed to her, the Court concludes that her motion sufficiently raises the issue of whether Plaintiffs have set forth a prima facie claim as against other defendants in light of the same First Amendment rights that all defendants share herein.
Plaintiffs? evidence concerning the statements by other defendants includes GisforGary posting a YouTube comment stating ?I think Jeff fucks Charlie in the ass till he calls him daddy? (Nelson Decl. ? 51), Rons Double Ds posting a YouTube comment stating ?Nelson is paying them to do his dirty work, total dirtbag? and ?paying off congasm and weezie to troll people for him? (id. ? 52), and Tzm Rbe posting a YouTube comment stating that Nelson?s family ?are scum. satinsits practice bestiality and paedophilia [sic] and incest . . . noticed that time when jeff used one of his daughters bare arse cheeks as a thumb-nail on his video? (id. ? 53). As with the statements attributable to Robin, these statements are also non-actionable statements of opinion.
5. Ruling
Therefore, the motion to quash is granted. Robin has requested sanctions pursuant to CCP ? 1987.2, but the apparently genuine legitimate competing interests between Robin?s First Amendment rights and Plaintiffs? understandable offense taken as a result suggests that Plaintiffs? opposition to this motion (and Plaintiffs? subpoenas) was not made in bad faith or without substantial justification such that the Court declines to award any sanctions.