Metropolitan News-Enterprise


Thursday, October 3, 2019


Page 1


Court of Appeal:

Granting of Anti-SLAPP Motion to Facebook Executives Was Error

Judge Did Not Base Ruling on Merits, but Granted Special Motion to Strike Because Plaintiff, In Incorporating Document by Reference in Opposition, Exceeded the 15-Page Limit


By a MetNews Staff Writer


The First District Court of Appeal has reversed an order granting an anti-SLAPP motion in favor of six Facebook officers including co-founder and chair Mark Zuckerberg because the judge’s ruling was based not on the merits, but on the fact that the opposition, in incorporating a document by reference, went over the 15-page limit.

Presiding Justice Stuart R. Pollak of Div. Four wrote an unpublished opinion, filed Tuesday, which reverses the action by San Mateo Superior Court Judge V. Raymond Swope. In light of the page-limit violation of a state court rule, Swope deemed the executives’ motion to be unopposed.

In the underlying lawsuit, Six4Three is suing Facebook over its 2015 act in blocking app developers from accessing users’ “friends” data. This disabled use of the plaintiff’s own app, “Pinkini,” which enabled Facebook users to locate shots of friends in bathing suits.

The action against Facebook was filed in 2015; in 2018, in a fifth amended complaint, it added Zuckerberg and the other executives as defendants.

Pollak’s Opinion

Pollak wrote:

“We do not question that the state court may…decline to consider arguments incorporated by reference if the incorporation enables the party to exceed applicable page limits without leave. But we do not agree that the court may, in the first instance, grant what in effect is a terminating sanction in response to the submission of such papers.

“A court presented with papers exceeding the page limit has many options, including ordering the offending papers to be stricken and requiring the submission of papers that conform to the rule or to a page limit specified by the court. But granting a case-dispositive motion without providing an opportunity to correct the deficiency is an abuse of the court’s discretion. California has a strong policy in favor of resolving cases based on their merits, not procedural deficiencies.”

He noted that Swope granted the special motion to strike the operative complaint despite noting its potential merit.

Facebook’s Delay

Pollak’s opinion affirms the denial of Facebook’s anti-SLAPP motion based on its tardiness.

In 2015, it chose to demur rather than file a motion pursuant to Code of Civil Procedure §425.16. It filed such a motion in 2017 in response to the fourth amended complaint.

On March 22, 2018, the California Supreme Court held in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism that an anti-SLAPP motion must normally be filed within 60 days of service of the first complaint containing the allegedly offending cause of action.

In July 2018, Swope heard Facebook’s anti-SLAPP motion brought in connection with the fourth amended complaint contemporaneously with that the executives filed in reaction to the fifth amended complaint. He denied Facebook’s motion based on Newport Harbor.

Facebook protested on appeal that it was unreasonable to apply the holding retroactively. Pollak disagreed, saying that doing so “did not create an unfairness affecting the outcome of the litigation.”

He pointed out:

“Facebook may still obtain any relief to which it is entitled through other pretrial motions, including summary judgment or summary adjudication motions, or eventually at trial.”

Excuse Presented

Pollak also wrote:

“Facebook asserts that its delay is excusable because ‘anti-SLAPP motions generally require the parties to marshal...evidence,’ which it was attempting to avoid doing. However, the purpose of an anti-SLAPP motion is to weed out frivolous suits by requiring the plaintiff to marshal sufficient admissible evidence to make a prima facie showing that its claims have potential merit.”

He continued:

“A defendant imposes that burden on a plaintiff simply by showing that the complaint on its face targets conduct ‘in furtherance of a person’s right of petition or free connection with a public issue.’ (Code Civ. Proc., § 425.16.) Here, Facebook’s counsel decided Facebook could better defeat the action by demurrer. That this assessment proved incorrect is no reason to allow Facebook to file a belated motion after the motion can no longer serve its intended purpose.”

International Concern

The opinion makes short shrift of a matter that attracted worldwide attention in the news media last year. While Facebook in 2015 blocked access to user data from app developers, proclaiming a concern for protecting users’ privacy, documents obtained by Six4Three in discovery showed that prior to 2014, Facebook had contemplated peddling such data.

While Six4Three founder Ted Kramer was in London, the House of Common’s sergeant-at-arms demanded that he provide the documents which were on his laptop; he refused; he was taken to the House of Commons—which was investigating Facebook—and told he would be imprisoned if he did not comply, and acquiesced.

Back in San Mateo, Swope demanded that he surrender the laptop and laced into Kramer for violating a court order by disclosing the sealed documents.

The judge told Kramer:

“What has happened here is unconscionable. Your conduct is not well-taken by this court. It’s one thing to serve other needs that are outside the scope of this lawsuit. But you don’t serve those needs, or satisfy those curiosities, when there’s a court order preventing you to do so.”

The case is Six4Three v. Facebook, A154890.


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