Metropolitan News-Enterprise


Tuesday, November 14, 2017


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Yelp Remains Under Order to Reveal Poster’s Identity

Fourth District Court of Appeal Denies Writ of Mandate to Overturn Command That It Tell Who Critic of Accountant Is; Lifts Sanction for Noncompliance


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday denied a writ of mandate sought by Yelp, Inc. to overturn an order that it reveal the identity of an anonymous poster of a review on its website denigrating an accountant and his firm.

Div. Three, in an opinion by Presiding Justice Kathleen E. O’Leary, found that Yelp has standing to assert the First Amendment right of a user, but that the user’s right to anonymity is trumped by a prima facie showing that the statements are defamatory.

The appeals court, while denying the writ petition, reversed an order by Orange Superior Court Judge Andrew P. Banks imposing a $4,962.59 sanction imposed on the website proprietor based on nonproduction of subpoenaed documents. O’Leary explained that “given the dynamic nature of this area of law—the primary cases we rely upon were decided after the trial court issued its ruling—we…conclude Yelp’s opposition” to the plaintiff Gregory M. Montagna Sr.’s bid for discovery “was substantially justified.”

Poster’s Identity

Montagna suspects that the poster is Sandra Jo Nunis, a dissatisfied former client. He alleges that he quoted her a price of $200 for preparing her tax return, but matters were more than she had portrayed, and he charged $400.

The underlying action for defamation is against Nunis.

A poster, going by the name of Alex M., posted this on Yelp:

“Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.” 

Montagna contends that the allegations of the review—which has been removed—are provably false.

Yelp contended that Alex M. merely put forth opinions, but O’Leary countered that that the opinions imply the existence of facts which are damaging and which Montagna has stated in a declaration to be false, and if so, are actionable.

“[W]e conclude Montagna has demonstrated a sufficient prima facie case of defamation to justify an order compelling Yelp to produce information regarding the identity of Alex M.,” she declared.

Sixth District Opinion

With respect to standing, Yelp relied on the Sixth District’s 2006 opinion in Matrixx Initiatives, Inc. v. Doe. O’Leary responded by citing that district’s March 10 opinion in Glassdoor, Inc. v. Superior Court where the Glassdoor—a website that posts employees’ anonymous reviews of their employers—was seeking to resist discovery of the identity of posters.

Presiding Justice Conrad Rushing pointed out that in the 2006 case, a deponent who was accused of a posting was seeking the identity of the true poster. He wrote:

“Glassdoor is not an avowed stranger to the speaker, as was the objector in Matrixx. It is the acknowledged publisher of the speech at issue. Such a publisher has a strong interest in protecting the right of its users to speak anonymously.”

Glassdoor, he proclaimed, had standing.

“Although Montagna argues Glassdoor is wrongly decided for several reasons,” O’Leary said, “we find none of them persuasive.”

First District Opinion

O’Leary pointed to the First District’s July 19 opinion in ZL Technologies, Inc. v. Does 1-7. There, the question was whether Glassdoor could be compelled to reveal reviewers’ identities in an action for libel.

Acting Presiding Justice Maria Rivera of Div. Four wrote:

“Generally, the burden of proving falsity is not on the plaintiff if the alleged defamation does not involve a public figure or a matter of public concern. But the procedural posture of this case requires a different analysis, regardless of whether a matter of public concern is involved. The issue before us is not who has the burden of proof for purposes of liability, but whether there is reason to believe the lawsuit has sufficient merit to require the unmasking of the Doe defendants in the face of First Amendment and privacy rights.”

Rivera declared that “the constitutional protections weigh in favor of requiring the plaintiff to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant’s identity can be compelled.”

Amici curiae argued that a prima facie showing should not be enough, and that a further weighing should take place to determine if the plaintiff’s case is weightier than the reviewer’s interest in anonymity.

“[W]e decline to require the final balancing test,” Rivera said, and O’Leary, in yesterday’s opinion, indicated agreement.

O’Leary also pointed to the California Supreme Court’s July 13 decision in Williams v. Superior Court.

There, an employee was seeking disclosure of the identities of the company’s other employees. It disapproved earlier cases that “a compelling interest or compelling need automatically is required” to gain such information.

The case, O’Leary acknowledged, “is not directly on point.” She said, however, that “it strongly suggests our Supreme Court would agree with ZL Technologies’ conclusion that a separate compulsory ‘balancing test’ need not be applied in a case where the plaintiff has already demonstrated a prima facie case of defamation.”

Notice to Reviewer

O’Leary also agreed with Rivera that notice must be given to the anonymous poster by the website proprietor. She explained:

“As between the plaintiff seeking to discover the identity of the anonymous commenter, and the website host that presumptively knows the identity or has access to information that may reveal it, it makes little sense to place the burden of notification on the former. And placing the burden on the website host seems especially appropriate in circumstances such as these, where the host is depending on the rights of the anonymous commenter as the basis for defending the discovery request.”

Yelp asserted that Montagna cannot show falsity without showing that Alex M.’s does not accurately portray his or her particular experiences with him. O’Leary said this is “something he cannot do without first identifying the reviewer,” commenting that the “assertion amounts to bootstrapping.”

Plaintiff’s Candor

She went on to say:

“In this case, Montagna has been forthright in acknowledging he believes his former client Nunis is Alex M., and in alleging facts demonstrating that while there are some parallels between his experience with Nunis and the factual claims made by Alex M., those factual claims are false. Montagna has also made clear that if discovery reveals his reviewer is not Nunis (or someone connected to her), he intends to dismiss her as a defendant in the lawsuit, and to substitute the real Alex M. in her place.”

He is also suing for assault and battery, which is not within the scope of O’Leary’s opinion.

In arguing against the sanction award being affirmed, Yelp said:

“Courts have held that substantial justification exists to oppose a motion to compel where ‘novel questions’ are presented in a case or where there is ‘conflicting legal authority on an unsettled issue.’ ”

Agrees With Yelp

O’Leary replied:

“Here, as Yelp points out, even the trial court expressly acknowledged—both in its tentative and at the hearing—that the law governing Montagna’s motion to compel was an ‘evolving’ and ‘unsettled’ area of law. We certainly agree with that observation. In fact, the case law we have relied upon most heavily in this opinion, including Glassdoor, ZL Technologies, and Williams, was decided after the trial court issued its ruling. The evolution continues.

“Moreover, the trial court characterized the question of whether sanctions were appropriate as “a close one,” even as it also concluded Yelp lacked standing to even assert the First Amendment and privacy rights of its anonymous reviewer, Alex M. Had the trial court understood, as we conclude here, that Yelp did have standing, we doubt the trial court would have imposed the sanctions against it.

“In light of the complex issues presented in this case, the evolving state of the applicable law, and the fact the trial court erred in concluding Yelp lacked standing to make the arguments it did, we conclude the trial court erred by imposing monetary sanctions against it. Hence, we reverse that order.”

The case is Yelp v. Superior Court, 2017 S.O.S. 5487.


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