HASSELL v. BIRD

Appellant’s Petition for Review

Cal.July 18, 2016

S838E9S38 SUPREME COURT OFrecn Case No. S JUL 18 2016 IN THE SUPREME COURT Frank A. McGuire Clerk OF THE STATE OF CALIFORNIA Deputy DAWN HASSELL,etal. Plaintiffs and Respondents, VS. AVABIRD, Defendant, YELP INC., Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court of the County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith PETITION FOR REVIEW DAVIS WRIGHT TREMAINE LLP THOMASR. BURKEthomasburke@dwt.com (SB# 141930) *ROCHELLE L. WILCOX rochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHURaschur@yelp.com (SB# 229566) 140 New MontgomeryStreet, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN HASSELL,et al. Plaintiffs and Respondents, vs. AVABIRD, Defendant, YELP,INC., Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court of the County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith PETITION FOR REVIEW DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLEL. WILCOXrochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHUR aschur@yelp.com (SB# 229566) 140 New Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. IL. Til. IV. TABLE OF CONTENTS ISSUES PRESENTED 000.0... ceccessseseesessesssseseseseesssscsecsusstcavsaceesatans 1 REASON REVIEW SHOULD BE GRANTED... cccccsesccsssesscesesseee 2 STATEMENTOF FACTS AND PROCEDURE ......cccccsseccssssssoseeees 7 A. — Yelp’s Website Publishes Tens of Millions Of Third- Party Consumer ReviewS...........ccccsscssesscescscesesesescssscsccsceseaces 7 B. Hassell Obtains An Injunction Against Yelp Without Giving It Any Notice. .........ccccccccsssssessssscssscscsesessssescscsrssesesees 8 1. Third-Party Users Write Critical Reviews About Hassell Law Group On Yelp........cccccccccccssscesesescsceeses 8 2. Hassell Sues Bird And Obtains A Default Judgment, Which Includes An Injunction Against VIP.eee ecescsesesesseeeesesseseceseetecesseeasececscarsusacerarsvatenasaees 9 C. The Trial Court Denies Yelp’s Motion To Vacate The PNJUMCHION. oooee eeeeseseteeeecscssssessscsesvssseccsscasecarersasacavarsesssveens 10 D. The Court Of Appeal Affirms The Trial Court’s Decision... 11 REVIEW IS NECESSARY TO RESOLVE TWO QUESTIONS VITAL TO WEBSITES THAT PUBLISH THIRD-PARTY CONTENT1... cccssccsscsescseeescsesesesecsssscssesessssssscscsssssavscsesesssasarasaavavenes 14 A. This Court Should Accept Review To Establish That Website Publishers Are Entitled To Notice And An Opportunity To Be Heard Before They Are Ordered To Remove Content. ..0.0.....sccccsssscesssssscsssssssesstssesesesesestscsseesacees 14 1. Due Process Requires Notice And An Opportunity To Be Heard Before Being Subject To An Order Affecting Rights. .0.....c.ccccscssssssssscscsscssessereccssscscssseees 15 2. The Court Of Appeal Grossly Diminished Fundamental Due Process Protections By Expanding A Narrow Rule Allowing Courts To Enjoin Aiders, Abettors, And Agents OfParties....... 19 This Court Should Accept Review To MakeClear That Section 230 Bars Injunctions Against Website Publishers Related To Third-Party Content. ......0.0.0.cccccccscsssscssssssssseessees 26 1, Congress Enacted Section 230 To Protect Website Publishers From Claims Like Those Asserted FETE.ooo.eee ceeeeeecessscscsesesesesscsesesscssesesecscseacesseaceacacaces 28 ii 2. The Court OfAppeal’s Superficial Analysis And Failure To Follow Section 230’s Plain Terms Create Tremendous Uncertainty in California As To The Scope OfImmunity Under The CDA............ 29 V. CONCLUSION oo... eececcccsssssssssssessussscessasssessessssucssesesseesseeseseceececc. 35 iil TABLE OF AUTHORITIES Page(s) Cases Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141occcsccsscesssccssescessccessesecceeceee 13, 25, 26 Barrett v. Rosenthal (2006) 40 Cal.4th 33.00...ccccescesssscecesssecsscccsssessstseeccesccssecspassim Berger v. Superior Court (1917) 175 Cal. 719eccccccssscseceesssesssssessscsesscevestessesecsessee. 11, 21 In re Berry (1968) 68 Cal.2d 137.00... cccceceecesssscscsecesesecssesteseesecseccecsccce. 22, 23 Blockowicz v. Williams (N.D. Ill. 2009) 675 F.Supp.2d 912, affd (7th Cir. 2010) 630 F.8d 5638.0...ccc eccesssscsssssssscsssscscsersscescessssascssessscsssstesesesceceesceess 2l1 Carafano v. Metrosplash.com Ince. (9th Cir. 2003) 339 F.8d 1119.0... ecesccssesssscsssssssesoseseceecececcesses 28 Doe IT v. MySpace Ine. (2009) 175 Cal.App.4th 561 ......ccccccccecscccsscesecceeeeeneeeeseeeesteteeeenes 27, 31 Edwardsv. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014)... cccccscecceccsscesssesssesesseccesescesescecccess5 Estate ofBuchman (1954) 123 Cal.App.2d 546 ....cccccceseccssecsssecssesssesseseseecceccecees 15, 16 Fazzi v. Peters (1968) 68 Cal.2d 590 0...ec csceessscesesssesssecssssecsssseresescsecescccces 16, 25 Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816.0...ccsecescesecssessscsssscsssreceesecccccececeees30 Hardin v. PDX, Inc. (2014) 227 Cal.App.4th 159.0... cccccscsesecsscesesscscssssessececceccesceces,27 Heller v. New York (1973) 413 U.S. 483...escesescctsessecsssssssessessectesescece.aL7, 18 iv Kathleen R. v. City of Liverpool (2001) 87 Cal.App.4th 684.........cccescscsscsseesssssssssseessssecsssseseseeseesecccce30 In re Lennon (1897) 166 U.S. 548.0. ecccsesessessscssscesseecssesssaessaassssararesseceseececee.20 M.A. ex rel. PK. v. Village Voice Media Holdings, LLC (E.D. Mo. 2011) 809 F.Supp.2d 1041.......eseeeenssecasecccessaeecessssasecesesces33 Marcusv. Search Warrants (1961) 867 U.S. 717oe cecccccccecccssscscscesececsatecstsressssseseceseseeseesececce. 18, 17 Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727 (Fla. Dist. Ct. App., 201A)...eee ececcsessserscecessssrccoeeees 33 Noah v. AOL Time Warner,Inc. (E.D. Va. 2003) 261 F.Supp.2d 532,aff'd, 2004 WL GO2711 (4th Cir, 2004) oooeeececscsessscsescscssssessesensessessesssseseseccesesesecs 30 People v. Conrad (1997) 55 Cal.App.4th BIG... eececseeeeeeseeteeeteneseeseeeesseeaseceseccuseees 21, 32 People v. Lucas (2014) 60 Cal.4th 153... eccccccssscsssssssecsssessesstsescsesesescevsececesecescce. 25 People v. Ramirez (1979) 25 Cal.3d 260 ou... eecccscsscssssssssssesscsesasssestssssssssseseseesecececcess. 16 People v. Romero (2015) 62 Cal4th Lienccccscssssssssssseeessssestsstsrsssssssssseseesesesesces.25 People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090.0... ccccccsessessssssssssesessssssesssscsscascssesesececescess. 22 People ex rel. Gwinn v. Kothari (2000) 83 CalApp.4th 759........ccecscccssssssccsssssesscstsscscsssesereeseseccececcce. 20 Planned Parenthood Golden Gate v. Garibaldi (2003) 107 CalApp.4th 345.0... ccccccceccssessestesssscsesseeseccecececee, 21, 23 PVLittle Italy, LLC v. MetroWork Condominium Ass’n (2012) 210 CaLApp.4th 132......cccscssssssssscessssessessescrssssseeseesecceseecs, 12 Regal Knitwear Co. v. N.L.R.B. (1945) 824 ULS. 9.0.ccescsssssssssssecescssesecssessssessstevsseceseeceeses 16, 20, 24 Ross v. Superior Court (1977) 19 Cal.3d 899 0... eccccccccscscssessestsescssesssssssesssessecteseseeceeee. 11, 22 Sikhs for Justice “SFJ”, Inc. v. Facebook,Inc. (N.D. Cal. Nov. 18, 2015) 144 F.Supp.3d 1088 .........cccccccccessscceeeces. 32 Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 CalApp.4th 110... .ecccccsssessssessssessessssssessssssesseeeseescecccccee. 25 Statutes 47 U.S.C. § 280oecece seesssesesesesescssssesssesecssssssvssatstsaessesssseseveeterececsesee.passim § 2B0(C)(1) ooeceeesssecssesesssscssesesseseceessussssesussessesesesasevecsececeespassim A510)(=) 5)seeeseeeeens 1, 29, 31, 32 Other Authorities California Rules of Court, Rule 8.500(D)(1)....ee cecssssscesssscssscscsscsserssecssssacsessessssesessveseesececeeces. 3,5 California Appellate Court Decision Forces Yelp to Remove Defamatory Review, Defamation Removal Law, available at http://www.defamationremovallaw.com/2016/07/14/cali fornia-appellate-court-decision-forces-yelp-remove- Aefamatory-review]! ..0......sccccsesessssssssssssssssstssscscsssstacsaesecaveseseescseseees. 26 Eric Goldman, WTF Is Going On With Section 230? — Cross v. Facebook, Technology & Marketing Law Blog, June 7, 2016, available at . http://blog.ericgoldman.org/archives/2016/06/wtf-is- going-on-with-section-230-cross-v-facebookhtm ......cccccccccceseceececeee. 26 Eric Goldman, Yelp Forced to Remove Defamatory Reviews—Hassell v. Bird, Tech. & Mark. Law Blog, June 8, 2016, available at http://blog.ericgoldman.org/archives/2016/06/yelp- forced-to-remove-defamatory-reviews-hassell-v- birdWtan.....ecescecsscssscssssesssesssssseseessssussussssscsissssesssesessestesseseceseesecce, 3, 26 vi The Latest In Reputation Management: Bogus Defamation Suits From Bogus Companies Against Bogus Defendants, Mar. 22, 2016, available at https://www.techdirt.com/articles/20160322/102600339 81/latest-reputation-management-bogus-defamation- suits-bogus-companies-against-bogus- defendants.shtmlocccccscesscessssssesscseecesscssesesesescsesecsesseseccecseecs29 One Injunction To Censor Them All: Doe Injunctions Threaten Speech Online, June 1, 2016, available at http:/www.knightfoundation.org/blogs/knightblog/201 6/6/1/one-injunction-censor-them-all-doe-injunctions- threaten-speech-onlined/.............cccccccsssseseseeseceessesssecssssesssesecceseeseceeces 29 This Would Make Me Yelp!, 111 North Hill Street, A Blog of California Civil Procedure, July 10, 2016, available at http://caccp.blogspot.com/2016/07/this-would-make- me-yelp.html?m=1 oo.ecececcssssecsssssssesecseseceesscsssssessssesessecsecceccecees24 Vii I. ISSUES PRESENTED 1. This Court has recognized a narrow exception to the requirementthat a non-partyto litigation receive notice and an opportunity to be heard before an order is entered that may be applied to that non-party, limiting that exception to cases wherethe non-partyis acting in concert with a party, or the party can only actthrough others (such as a union that can only act through its members). Can that narrow exception be extended to a non-party without any factual findings to support that extension, thus allowing courts to deprive online publishers of notice andtheright to be heard before infringing their First Amendmentrights by ordering them to remove online content? 2. 47 U.S.C. § 230(c)(1) and (e)(3) prohibit courts from treating any “provider... of an interactive computerservice ... as the publisher or speaker of any information provided by another content provider,” and, separately, from permitting a “cause ofaction [to] be brought” or “liability [to] be imposed”ifit is “inconsistent with this section.” Despite Section 230’s statutory immunity, may a court enjoin a website publisher and require it to remove third-party-created content from its website—and impose contemptcitations andrelatedliabilities that might flow from a failure to abide by such an injunction—merely because the plaintiff chose not to namethe website publisheras a party in the litigation? Il. REASON REVIEW SHOULD BE GRANTED Occasionally a legal principle adopted to prevent abuse gets transformed through misinterpretation into a weapon for abuse. Whenthat happens in California,it falls to this Court to step in and correct such misuse. This is such atime. In a published decision, the Court of Appealfor the First Appellate District, Division Four, affirmed an injunction, entered without notice or an opportunity to be heard, against Yelp. The injunction required Yelp—a non-party in the litigation—to remove reviews from its website Yelp.com (along with Yelp’s related websites and mobile applications, referred to simply as “Yelp’””). Without meaningful analysis, and dismissing Yelp’s First Amendmentright to control its website, the appellate court invoked a commonlawprinciple created to prevent parties from evading an injunction through gamesmanship(i.e., by acting in collusion with non-parties). The court did not find, or even consider whether, Yelp had engaged in such conduct. The appellate Opinion contemplates contempt and sanctions proceedingsagainst Yelpif it refuses to comply, although Yelp has no material connection to the enjoined party and engaged in no wrongful conduct. This Court’s review ofthe court of appeal’s due process analysis is “necessary to secure uniformity of decision [and]to settle an important question of law”—whether non-parties are entitled to notice before being 2 subject to an injunction thatinfringes their rights, including, as here, fundamentalFirst Amendmentrights. Cal. R. Ct. 8.500(b)(1). The appellate Opinion drastically expands the narrow exception to due process invokedbythe court, applyingit to a novel factual scenario without any ' evidence that the exception should apply—and, indeed, expressly disclaiming the need for any evidence. Op. 21. In effect—and without analyzing whether these cases should be extended to this very different factual scenario—the court turned a narrow exception into a general rule, which now allows courts across California to expressly namenon-parties in injunctions without any factual findings of misconduct. Cf Eric Goldman, Yelp Forced to Remove Defamatory Reviews—Hassell v. Bird, Tech. & Mark. Law Blog, June 8, 2016, available at http://blog.ericgoldman.org/archives/201 6/06/yelp-forced-to- remove-defamatory-reviews-hassell-v-bird.htm (“Goldman IP’) (“I guess California courts havevirtually unlimited discretion to apply injunctions to non-parties as they see fit?”). In doing so, the court rendered meaningless the careful guidelines California courts have adoptedto limit the scope of this narrow exception, giving litigants nationwide an incentiveto forum shop in California and a roadmap to circumvent due processrights here. The court of appeal combinedits unwarranted expansion ofthis limited commonlawprinciple, with an unprecedented narrowing of the protection provided by the Communications Decency Act, 47 U.S.C. § 230 3 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. Addressingthis issue forthefirst time in California, the court exalted the form of the action——namely, the fact that Yelp was tactically not named as a party—overthe substance of Section 230 and Congress’ clearintent in enactingit to protect websites from actions that treat them as publishers or distributors of third-party content. Section 230 immunityplaysa vital role in the legal landscapethat has allowed the Internetto flourish. As this Court noted a decade agoin its sole decision evaluating Section 230,“[t]he provisions ofsection 230(c)(1), conferring broad immunity onInternet intermediaries, are [] a strong demonstration of legislative commitmentto the value of maintaining a free market for online expression.” Barrett v. Rosenthal (2006) 40 Cal.4th 33, 56 (“Barrett”). In Barrett, this Court made clear that Section 230 immunizes website operators from actions by disgruntled businesses hoping to punish them for allowingthird-party content—even defamatory content—to remain on their websites. Jd. at 39-40. The court of appeal followed Barrett in name alone. Op.at 27. It narrowlyinterpreted Section 230 to give plaintiffs a means ofdirectly punishing website publishers for displaying third party content. In doingso,it created a clear conflict betweenits holding andthe broadinterpretation of Section 230thatthis Court recognized in Barrett. The Section 230 ruling is particularly problematic becauseitis utterly inconsistent with the court’s due process tuling. Section 230(c)(1) broadly mandatesthat “[n]o provider or user of an interactive computer service shall be treated as the publisheror speakerof any information provided by another information content provider.” Yet here, the court affirmed an injunction imposed on Yelp by stretching due process law to concludethat Yelp wasacting “with orfor” Bird (Op. 30-31)}—treating Yelp as standing in Bird’s shoes solely based on Yelp’srole as an online publisherofher alleged content. This contradiction injects confusion into each ofthese legal principles. This Court’s review in this matter is “necessary to secure uniformity of decision [and]to settle an important question of law”—should California courts continue to adhereto the broadinterpretation of Section 230 thatthis Court approved in Barrett? Cal. R. Ct. 8.500(b)(1). The impact ofthe court of appeal’s due process and Section 230 decisionsforthe vitality of online speech is immense. Viewed only through the prism of review websites such as Yelp,this is a tremendously important issue because of the high valuethat easy access to consumer reviewsoffers to the general public. E.g., Edwards vy. District ofColumbia, 755 F.3d 996, 1006 (D.C. Cir. 2014) (“[fJurther incentivizing a quality consumerexperience are the numerous consumer review websites, like Yelp ..., which provide consumersa forum to rate the quality of their 5 experiences”). If Yelp andentities like it are denied their right to exercise editorial control in publishing consumer reviews—providing businesses an effective tool to removecritical commentary—consumerswill suffer. But the appellate decision reaches far beyondthis single area, vast though it may be. A wide array of website publishers display third-party content, includingpolitical organizations, media entities, and repositories of creative content such as YouTube, to nameonly a few. Someofthis content entertains or educates, while some simultaneously offends, and muchof it walks a line between protected and unprotected speech. The value of such contentlies in diversity, and websites benefit from offering these disparate views and opinionsto their users. This doesnot leaveplaintiffs like Hassell without a remedy— althoughif it did it would not matter because Congress’ intent controls. For twenty years, Congress hasinsisted that plaintiffs look to the content creator alone for a remedy, through tools such as judgmentliens and contempt proceedings—post-judgmentoptions that Hassell never pursued here. During those twenty years, no court has approved Hassell’s stratagem of denying a website publisherits due processrights in order to tactically avoid the immunity Congress established through Section 230. The appellate court’s blessing of the injunction entered against Yelp, following an uncontested hearing to prove up the default judgment against Bird (A00213), is a loophole that future plaintiffs will exploit to escape Section 230’s broad immunity. Yelp and other websites will suffer as a result of this Opinion. But more importantly, membersofthe public that rely on the wealth of online third-party commentary—to aid decision-making on myriad issueslike consumer purchases,politics, and employment— will be harmed as subjects of criticism follow Hassell’s example: intentionally sue the commenter alone, perhaps in a manner that maximizes the chancethat he or she will be unable or unwilling to defend the lawsuit regardlessofits underlying merit, and then after a default judgmentpresentthe injunction to the website publisher as an unassailablefait accompli. The issues presented in this case are unresolved in California. Together, the court of appeal’s holdings threaten to underminethe validity andefficacy of the information available to consumers, and online speech - generally. On each of these questionsoffirst impression in California, the court of appeal reached the wrongresult. Yelp requests, therefore, that this Court accept review and resolve the importantissues presented. Il. STATEMENT OF FACTS AND PROCEDURE A. Yelp’s Website Publishes Tens of Millions Of Third-Party ConsumerReviews. Yelp allows any memberofthe public to read and write online reviews aboutlocal businesses, governmentservices, and otherentities. A00240. Yelp is available to the public at no charge and without any registration requirement. Jd. Those whoregister by creating an account may write reviews about businesses andservice providers, and thus contribute to a growing bodyoftens ofmillions of publicly-available consumer reviews. Jd. Tensofmillions of other users read the reviews on Yelp when making a wide range of consumer andother decisions. Jd. The businesseslisted on Yelp also can create free accounts, which allow them to publicly respond to any review, with such a response appearing next to the original review. Jd. Reviewers on Yelp can removetheir reviewsat any time. A00841. As Yelp’s website explains,it applies automated software to all reviews posted in an attempt to provide the most helpful reviews to consumers. A00519. B. Hassell Obtains An Injunction Against Yelp Without Giving It Any Notice. 1. Third-Party Users Write Critical Reviews About Hassell Law Group OnYelp. Hassell, a San Francisco attorney, owns The Hassell Law Group, P.C. A00006. According to Hassell’s Complaint, Bird suffered a personal injury on June 16, 2012,and retained The Hassell Law Group. A00002-3. After a few months, Hassell ended the attorney-client relationship. Jd. On January 28, 2013 a user with the screen name “Birdzeye B.” posted a one- | star review of The Hassell Law Group on Yelp, complaining about Hassell’s legal services. A00018. Believing that “Birdzeye B.” was Bird, Hassell sent Bird an email that day, requesting she removethe“factual inaccuracies and defamatory remarks” from Yelp. A00005. Bird replied the next day, complaining about Hassell’s representation. A00348. 2. Hassell Sues Bird And Obtains A Default Judgment, Which Includes An Injunction Against Yelp. On April 10, 2013, Dawn Hassell individually, and the Hassell Law GroupP.C., filed a complaint against Bird, but not Yelp, in San Francisco Superior Court. A00002. The suit asserted claims based on two allegedly defamatory reviews—one by Birdzeye B. and anotherby a reviewer identified as J.D. (A00004-5)!—and sought compensatory and punitive damages. It also soughtinjunctive relief against Bird only. A00013. Although the Birdzeye B. public accountprofile stated thatits creator lived in Los Angeles (A00091), Bird was served through substitute service on the ownerofthe Oakland home in which Bird was injured, whotold the process serverthat he had not seen Bird in months. A00026. On July 11, 2013, the court entered a default against Bird. A00023. On November1, 2013, Hassell filed a Summary ofthe Case in Support of Default Judgment and Request for Injunctive Relief. A00033- 36. Hassell significantly expanded thereliefbeing sought as described in the Complaint, adding another allegedly defamatory statement to her claim ' Hassell claimedthat “J.D.” was Bird based on the review’s use of capitalization, despite the content being at odds with the original challenged statement. A00034, A00099. (A00036, A00102)? and demandingforthe first time that the court “make an order compelling Defendant and Yelp to remove the defamatory statements, includingall entire posts, immediately. If for any reason Defendant does not remove them all by the Court-ordered deadline (which is likely given Defendant’s refusal to answerthe complaint), the Court should order Yelp.com to removeall 3 ofthem.” A00051 (emphasis in original). Plaintiffs’ Request for Judgment went even further, seeking “an Order ordering Yelp.com to remove the reviews and subsequent comments of the reviewer within 7 business daysofthe date of the court’s Order.” A00051. Hassell intentionally did not serve her application for default judgmenton Yelp orotherwise notify Yelp about it. A00243; see also 400837. The court granted the requested injunction, includingthe part directed to non-party Yelp.. A00213. The court madenofactual findings as to Yelp. Jd. Cc. The Trial Court Denies Yelp’s Motion To Vacate The Injunction. On January 28, 2014, Yelp’s registered agent for service of process received by maila letter enclosing a notice of entry ofjudgment or order and threatening Yelp with contempt proceedingsifit did not comply with the order. A00537-547. On February 3, 2014, Yelp responded to Hassell * She added another post from Birdzeye B.that primarily criticized the litigation. A00036, A00102. 10 by letter, stating that as a non-party which did not receive notice or an opportunity to be heard, Yelp was not boundbytheterms of the Judgment. A00548-550. Yelp further explained that Section 230 precludes enforcementof the injunction,or liability as to Yelp. A00549. Hassell did not respond until April 30, 2014. She claimed that her office was “currently setting a motion to enforce the court’s order against Yelp,” but did not respond substantively to Yelp’s position. A00551. On May23, 2014, Yelp movedto vacate the Judgment. A00225- 470. Hassell opposed Yelp’s Motion to Vacate. A00471-572, On September 29, 2014, the trial court denied Yelp’s Motion. A00808. It quoted from Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (“Ross”), and Berger v. Superior Court (1917) 175 Cal. 719, 721 (“Berger”), to hold that injunctions mayrunto non-parties whoare aiding and abetting an enjoined person to violate an injunction, and concludedthat Yelp fit within this exception to general due process requirements. A00808-809. It did not address Yelp’s claim to immunity under Section 230. D. The Court OfAppeal Affirms The Trial Court’s Decision. In a published decision, the court of appeal affirmedthe trial court’s conclusion that Yelp was boundbytheinjunction. Op. 1-2. As relevant here, the court characterized the order requiring Yelp to remove content from its website as a “removal order”—notan injunction (Op. 1)—and treated the “removal order”asif it were separate from the Judgment(e.g., li Op. 10-11 (concluding that Yelp wasnot aggrieved by the default judgment, but was aggrieved by the removalorder)).° After evaluating Yelp’s standing to appeal (issues not raised here), the appellate court rejected Yelp’s argument that due process barred enforcementofthe injunction against it. Op. 18-23. The court noted, first, that “An Injunction Can Run Against a Nonparty.” Op. 18. Citing a handful of cases, the court concluded that “settled principles undermine Yelp’s theory that the trial court was withoutany authority to include a provision in the Bird judgment which ordered Yelp to effectuate the injunction against Bird by deleting her defamatory reviews.” Op. 19. Theappellate court did not discuss or apply any of the requirements that California courts have enunciated to justify extending an injunction to anon-party. Op. 19-21. Instead,it simply distinguished the cases Yelp cited, concluding that none presented facts similar to those presented here. Id. The court madeclearthat its decision did not turn on the facts of the case, and that the question of whether Yelp was“aiding and abetting” Bird’s violation of the injunction “has no bearing on the question whether * Someofthe court’s holdings seemedto grow outofthis novel characterization of the injunction against Yelp, and its Opinion ultimately turned onits conclusion that Yelp was not subjectto an injunctionatall. E.g., Op. 29 (“[a]gain though,the party that was enjoined from publishing contentin this case wasBird, ....”). But the “removal order”is a classic injunction andthecourt of appeal created uncertainty in the law by treating it as anything else. E.g., PVLittle Italy, LLC v. MetroWork Condominium Ass’n (2012) 210 Cal.App.4th 132, 143 n.5. 12 the trial court was without powerto issue the removal orderin the first instance.” Op. 21. The court next rejected Yelp’s argumentthat the First Amendment protects its right to distribute Bird’s speech. Op. 21-23. The court distinguished a U.S. Supreme Court case holding that book and magazine distributors are entitled to due process in connection with a seizure order. Op. 21-22, citing Marcus v. Search Warrants (1961) 367 U.S. 717 (“Marcus”). The court explainedthat “in this context, it appears to us that _ the removalorder doesnottreat Yelp as a publisher of Bird’s speech, but ratheras the administrator of the forum that Bird utilized to publish her defamatory reviews.” Jd. The court also suggested that the issue was whetheraprior hearing was required, and thatthis case differs from Marcus becausehere “specific speech has already been foundto be defamatory in a judicial proceeding.” Op. 23. Thecourt also rejected Yelp’s argumentthat the injunction is an unconstitutionalprior restraint. Op. 23-26. Expanding this Court’s decision in BalboaIsland Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 (“Balboa Island”), the court held that “the trial court had the power to make | the part of this order requiring Yelp to remove the [statements atissue] becausethe injunction prohibiting Bird from repeating those statements wasissued following a determinationattrial that those statements are defamatory.” Op.25. 13 Finally, the court held that Section 230 did notprotect Yelp from Hassell’s injunction. Op. 26-31. Its decision turned largely on the fact that Hassell intentionally chose not to sue Yelp,or even give it advancenotice ofher claims, which the court found “distinguish[ed] the present case from Yelp’s authority, all cases in whichcausesofaction or lawsuits against internet service providers were dismissed pursuantto section 230.” Op. 28 (citations omitted); see also id. 29-30 (distinguishing cases barring actions for injunctive relief because in each the claim wasasserted “against an Internet service provider defendantin a civil lawsuit”); id. 30-31 (“fi]f an injunctionis itself a form ofliability, that liability was imposedon Bird, not Yelp”). The court rejected each of Yelp’s arguments. Op. 29-31. Yelp did notfile a petition for rehearing. IV. REVIEW IS NECESSARY TO RESOLVE TWO QUESTIONS VITAL TO WEBSITES THAT PUBLISH THIRD-PARTY CONTENT A. This Court Should Accept Review To Establish That Website Publishers Are Entitled To Notice And An Opportunity To Be Heard Before They Are Ordered To Remove Content. The injunction here names Yelp—although it is not a party to this action—andspecifically orders Yelp to remove content from its website. Invoking whatit described as “settled principles”to reject Yelp’s due process arguments, the court insisted that a non-party may be subject to an injunctionifit is “acting in concert with the enjoined party andin support of its claims.” Op. 19 (citations omitted). 14 But noneofthe cases the court cited touches on the issue presented here: whethera non-party to litigation has a right to challenge an orderthat expressly names it and affects its own rights—here, Yelp’s right to maintain critical reviewson its website, often in conflict with the desires of businessesthat disavow thecriticism and aim to remove such commentary from public view.* And none allowed an injunction where the non-party has such a remote connection to the party enjoined. The only connection between Yelp and Birdis that Bird, like tens of millions of people, posts reviews on Yelp. The court’s application of an exceedingly narrow exception to fundamental due process requirements grossly expandedthat exception beyondits intent and purpose. 1. Due Process Requires Notice And An Opportunity To Be Heard Before Being Subject To An Order Affecting Rights. The requirements of notice and hearingare firmly rooted in the United States and California Constitutions. As the court made clearin Estate ofBuchman (1954) 123 Cal.App.2d 546, 559, “[t]he fundamental conception of a court ofjustice is condemnation only after notice and hearing.” Thus, “[t]he powervested in a judgeis to hear and determine,not “If Yelp immediately removed every review a business owner claimed was false or even defamatory, it soon would havenocritical reviews on its website. To maintainthe integrity of its website—forthe benefit of its users—Yelp must challenge claims such as Plaintiffs’ claims here. 15 to determine without hearing,” and the Constitution requires a fair hearing. Id. at 560; see also People v. Ramirez (1979) 25 Cal.3d 260, 263-64, This Court long ago reaffirmedas a “seemingly self-evident proposition that a judgment in personam maynotbe entered against one not a party to the action.” Fazzi v. Peters (1968) 68 Cal.2d 590, 591 (“Fazzi”). As the U.S. Supreme Court has held, courts “may not grant an enforcement order or injunction so broad as to make punishable the conductofpersons whoact independently and whoserights have not been adjudged according to law.” Regal Knitwear Co. v. N.L.R.B. (1945) 324 U.S. 9, 13 (“Regal Knitwear’). Despite this settled constitutional principle, and without giving Yelp any notice,the trial court enjoined speech that Yelp displays and uses to provide an aggregate rating of the Hassell Law Group to consumers looking to hire lawyers. The court of appealaffirmed, declaring without analysis or supporting legal authority that the injunction “does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator ofthe forum that Bird utilized to publish her defamatory reviews.” Op. 22. This faulty reasoning ignores Yelp’s importantrole as an online publisherandits strong interest in developing and maintaining a trusted resource that provides helpful consumerreviewsto the public, includingcritical reviews that dissatisfied clients post. Yelp and other online forumslikeit are not merely the “administrators” of their websites—they are publishers and 16 editors whoseactions to disseminate speech are fully protected by the First Amendmentand dueprocessrights. Yelp, for example, has developed automated software designed to enhanceusers’ experiences by showcasing more helpful contentoverpotentially less helpful content(like fake or paid- for reviews). E.g., A00519. And Yelp maintains terms of service and content guidelines that, when violated, lead to the removal of offending content. A00561. To support its overreach, the court purported to distinguish Marcus, 367 U.S. 717, but it overlooked the fundamental point ofMarcus and the many other casesthat protect the right to distribute speech. Op. 22-23, citing Marcus, Heller v. New York (1973) 413 U.S. 483, 488. The U.S. Supreme Court recognized a First Amendmentright to distribute speech, separate from theright to make the speechin the first instance, which cannot be infringed withoutnotice and an opportunity to be heard. See Marcus, 367 U.S. at 731-732 (wholesale distributor of books and magazines hadright to prompt hearing in connection with seized materials); Heller, 413 U.S. at 489-490 (seizure withouta prior hearingis permissible only if adequate procedural safeguardsare followed). The court of appeal’s invocation ofHeller—which decided whether a party is entitled to an adversarial hearing before speech is seized—missed the point. Op. 23. Yelp did not receive any hearing; it had no opportunity to challengethetrial court’s conclusion—reachedin an uncontested 17 hearing following a default judgment—thatthe speech at issue was defamatory. Because Yelp has a separate First Amendment right to distribute speech,it was entitled to a hearing to oppose entry ofthe overbroad injunction that restrained speech on its website. See Heller, 413 U.S. at 489 (“because only a judicial determination in an adversary proceeding ensures the necessarysensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint” (citations, internal quotes omitted; emphasisin original)). The fiction adopted bythe court of appeal—inventing a role it coined “administrator of the forum,” which apparently has noneofthe constitutional protections granted to publishers—to brush aside Yelp’s clear interest in the integrity of its website led to an unprecedented travesty of justice here. With the court’s approval this shocking new framework to deprive online publishers of due process and First Amendment rights can be repeatedly applied throughout California. Hassell intentionally sought to abrogate Yelp’s due process rights when she movedfor a default judgment; as she put it she “anticipated that Defendant Bird would refuse to remove the Yelp review.” A00482.° The court of appeal approved this gambit, holding that Yelp wasnot entitled to notice. As shown below, however, the line of cases it invoked does not 5 Indeed,at the hearing on the motion to vacate, Hassell admitted that she did not name Yelp in her Complaint because Yelp is immune from suit under Section 230. A00837; see Section IV.B.1, infra. 18 support the broad abandonmentof due process that occurred here. This Court should accept review to correct this incredible overreach, and ensure that the narrow exceptionto black letter due process requirementsis appropriately limited. 2. The Court Of Appeal Grossly Diminished Fundamental DueProcess Protections By Expanding A Narrow Rule Allowing Courts To Enjoin Aiders, Abettors, And Agents Of Parties. The court of appeal rejected Yelp’s due process argument, invoking whatit characterized as “settled principles” of law that in limited circumstancesallow an injunction to “run to classes of persons with or through whom the enjoined party may act.” Op. 19. In doing so, the court invoked a narrow exception to the general due process requirement of notice and an opportunity to be heard, which allows an injunction to be enforced against a non-party who is not namedin the injunction based on evidence showing that the enjoined party and the non-party acted together to evade the injunction,or the enjoined party and non-party have a close relationship such as union and member. Op. 19-21. The appellate court distinguished Yelp’s cases and heldthat these “settled principles” authorized an injunction that expressly applies to Yelp, without any evidence that Yelp engagedin the type of conduct, or had the type of relationship with the enjoinedparty, that California courts consistently have required to apply an injunction to a non-party. Jd. 19 In reachingits strained conclusion, the appellate court stretched far beyondtheoriginal purpose of this commonlaw doctrine. In Regal Knitwear, 324 U.S.at 14, the U.S. Supreme Court explainedthe very narrow purpose ofthis exception—that successors and assigns may be boundbyaninjunctionifthey are “instrumentalities through which defendant seeks to evadean orderor [] come within the description of personsin active concert or participation with them in the violation of an injunction.” The Supreme Court did not decide if the non-parties there could be held liable for violating the injunction, although it cautionedthatit “dependson an appraisal ofhis relations and behavior and not upon mere construction of termsofthe order.” Jd. at 15; see also In re Lennon (1897) 166 U.S. 548, 554-555 (injunction againstrailroad company could be enforced against oneof its employees). As one California court has explained, under the “common practice” of “mak(ing] the injunction runalsoto classes of persons through whom the enjoinedparty mayact,” “enjoined parties may not play jurisdictional shell games; they maynotnullify an injunctive decree by carrying out prohibited acts with or through nonparties to the original proceeding.” People ex rel. Gwinnv. Kothari (2000) 83 Cal.App.4th 759, 766-767 (reversing injunction against property owners that also would bindall future owners of the property) (citations omitted; emphasis added). This rule allowscourts 20 to enjoin third parties whoare acting at the behest and forthe benefit of the third party, and not in pursuit of their own rights. Yelp is aware of only one case presenting similar facts, and that court rejected the argument Hassell makes here. Blockowicz v. Williams (N.D.Ill. 2009) 675 F.Supp.2d 912, aff'd (7th Cir. 2010) 630 F.3d 563. There, the court refused to enforce an injunction as to a non-party website hosting defamatory content, explaining that the website operator’s “only act, entering into a contract with the defendants, occurred long before the injunction was issued. Since the injunction wasissued, [the website operator] has simply donenothing, andit has certainly not actively assisted the defendants in violating the injunction.” Jd. at 916. In contrast, none of the cases the court of appeal invoked to support its holding enforced an injunction against a non-party on facts like those here. Op. 19. In most, the court refused to enforce an injunction against a non-party, finding thatthe relationship with the party was notclose enough to justify the attempt, or remanding for further consideration of the evidenceagainst the non-party. Berger, 175 Cal. at 719-720 (injunction against union and memberscould not be enforced against non-union member); Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 353 (refusing to enforce injunction against abortion protestors neither named individually or as class members); Peopley. Conrad (1997) 55 Cal.App.4th 896, 903-904 (injunction against anti- 21 abortion group could not be applied to separate group); Jn re Berry (1968) 68 Cal.2d 137, 155-156 (reversing injunction related to union activity because it enjoined persons acting “in concert among themselves”). The court of appeal cited only onedecision affirming enforcement of an injunction against a non-party. Op. 19,citing Ross, 19 Cal.3d at 905.° In Ross, this Court held that an injunction againsta state agency could be enforced against county agencies that served as agents in administering the program at issue. But that holding turnedontherelationship between the state and county agencies. Jd. at 907-908. The Court explained that becausethe state agency “could comply with the provisionsofthe ... order ... only through the actions of county welfare departments,it is clear that such counties could not disobey the order with impunity.” Jd. at 909. Here, in contrast, Bird herself could comply with the injunction at any time by removing the review from Yelp; no cooperation by Yelp is required to | effectuate the injunction against Bird. A00841. And needless to say, Yelp is not Bird’s agent. The court of appeal’s opinion skewsthis line of cases, drastically expanding them beyondtheir originalintent, in three fundamental ways. First, in none of the cases cited—andindeed, no case known to Yelp—did ° In addition, the court separately rejected Yelp’s reliance on People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1125, in which this Court affirmed a gang injunction against non-parties because “the gangitself, acting through its membership,[] was responsible for creating and maintaining the public nuisance”atissue. 22 the court approve an injunction that required a specifically-named non- party to act, or not act, as ordered. Each evaluated application of an injunction to a non-party not explicitly named. E.g., In re Berry, 68 Cal.2d at 155-156 (strikers, who were not members of enjoined union); Planned Parenthood, 107 Cal. App. 4th at 350-351 (abortion protestors). In explicitly directing the injunction to Yelp, the court treated Yelp as if it had been presentin the case all along with full opportunity to stand up forits rights as a publisher, ignoring the reality that Hassell intentionally prevented Yelp from learning aboutthe application for the injunction in the first place. The appellate court’s decision does not even mention the fact that the court was applying these cases to a completely different set offacts, or contemplate the implications of its decision to apply this line of cases to the different facts presented here. Its perfunctory analysis led to the wrong result. Second,the court madeclearthatit did not base its decision on any conduct by Yelp, explaining that the question of whether Yelp aided and abetted Bird’s alleged violation of the injunction was “potentially improper” and “has no bearing on the question whetherthetrial court was without powerto issue the [injunction] in the first instance.” Op. 21. Thus, the court affirmed the injunction against Yelp without any evidencethat Yelp engaged in the type of conduct that courts—including this Court— consistently require to justify applying an injunction to a non-party 23 allegedly colluding with the enjoined party. Op. 19; e.g., Regal Knitwear, 324 U.S.at 16 (a decision to enjoin a specific party as a successor or assign would require “a judicial hearing, in which their operation could be determined on a concrete set of facts”); see also id. at 15 (“whether a nonparty is bound ‘depends on an appraisalof his relations and behavior’”). Here, there was no appraisal of Yelp’s behavior or conduct before Yelp was explicitly namedin the injunction. A00211. Noprior case has goneso far.’ Moreover, the court reachedits decision without any analysis or appreciation of how its unfettered expansion ofthis formerly narrow exception to dueprocess will affect websites like Yelp, which publish content authored bytensofmillions of third parties, but which have no otherrelationships with those third parties that justify being treated as their agents. Third, the court ignored Yelp’s real interests in its own website— permitting California courts to view a non-party’s conductsolely through the lens of a plaintiff's unopposed characterizations of the defendant’s alleged conduct, without regard to the separate interests of the non-party (here Yelp, a publisher) in the conductor speech being enjoined. The court rejected the cases Yelp cited solely because they involved money ” See,e.g., This WouldMake MeYelp!, 111 North Hill Street, A Blog of California Civil Procedure, July 10, 2016, available at http://caccp.blogspot.com/2016/07/this-would-make-me-yelp.html?m=1 (“this one really managesto go off therails”). 24 judgments. Op. 20-21, citing Fazzi, 68 Cal.2d 590; Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 Cal.App.4th 110. The appellate court did not explain why Yelp should receive less protection against a prior restraint—which this Court has described as “one of the most extraordinary remedies known to our jurisprudence [which] carr[ies] a heavy burdenagainstconstitutional validity” (People v. Lucas (2014) 60 Cal.4th 153, 261, disapproved on other grounds, People v. Romero (2015) 62 Cal.4th 1; citation omitted)—thanit would against a mere money judgment. The court invoked Balboa Island to support its decision butthis too was an unwarranted expansion of existing law. In BalboaIsland, this Court held that a court may enjoin the repetition of a statement found to be defamatory at a contested trial. 40 Cal.4th at 1158. The court approved the injunction in part, although it also foundpart to be invalid becauseit applied to the defendant and “all other persons in active concert and participation with her,” but no evidencein the record supporteda finding that anyone else made defamatory statements. Jd. at 1160. Here, unlike in Balboa Island, the court approveda priorrestraint (i) against a non-party that had no notice or opportunity to opposethe injunction(ii) following a default judgment, not a contestedtrial, (iii) based on an Orderthat did not evaluate any of the individual statements to determineiftheyare false, defamatory, and unprivileged. A00211. Cf Barrett, 40 Cal.4th at 57 25 (“[d]efamation law is complex, requiring consideration of multiple factors”). Balboa Island does not support the prior restraint entered against Yelp here. Asdiscussed below,the court’s refusal to acknowledge Yelp’s interests in its own website led to the second issue raised for review—the court’s rejection ofthe statutory immunity that Section 230 guarantees Yelp and others that provide forumsfor third-party content. B. This Court Should Accept Review To Make Clear That Section 230 Bars Injunctions Against Website Publishers Related To Third-Party Content. This Court also should review—and reverse—the appellate court’s conclusion that Section 230 of the Communications Decency Act does not apply to an injunction entered against a non-party. Op. 28. According to a noted commentator,this is the worst recent Section 230 decision, and “opensup holes that everyone—users and non-users alike—can abuse.” See GoldmanII, supra (“I can’t stress enough howterrible this opinionis, and how muchdangerit poses to Section 230.”).° ® As Prof. Goldman proclaimed the same daythe appellate court issuedits decision, “[i}t’s been a tough year for Section 230.” Eric Goldman, WTFIs Going On With Section 230? — Cross v. Facebook, Technology & Marketing Law Blog, June 7, 2016, available at http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section- 230-cross-v-facebook.htm. In responseto the decision here, Prof. Goldman declared that “[t]oday’s opinion is worse than *all* of the cases I discussed yesterday—andyoubetter believe I don’t make that statementlightly!” GoldmanII, supra; see also California Appellate Court Decision Forces Yelp to Remove Defamatory Review, Defamation Removal Law,available 26 California’s courts of appeal have been increasingly inconsistent in their application of Section 230. In the past decade, most courts have routinely followed this Court’s mandate in Barrett to broadly construe Section 230 immunity. E.g., Doe IT v. MySpace Inc. (2009) 175 _Cal.App.4th 561, 563 (rejecting claims against Internet social networking site brought by teenagers who weresexually assaulted by adults they met through site). Recently, though, the First District Court ofAppeal has narrowly construed the statute to avoid immunity even wherethestatute applies underits plain language. Hardin v. PDX, Inc. (2014) 227 Cal.App.4th 159, 170 (misconstruingplaintiff's claims to hold that Section 230 did not immunize software provider that court incorrectly characterized as “participat[ing] in creating or altering content”). Yelp submits, respectfully, that this case presents the perfect opportunity for this Court to reconfirm the scope of Section 230 that Congress intended and appellate courts nationwide have repeatedly recognized. As it did a decade ago, this Court should makeclear that California courts must abide by Section 230’s grant of immunity to website at http://www.defamationremovallaw.com/2016/07/14/california-appellate- court-decision-forces-yelp-remove-defamatory-review/ (“[t]he case is significant and represents a departure from current legal precedent because Yelp was nevera party to the lawsuit, and typically most courts would have found the judgment unenforceable. The ruling marks yet another blow in recentcases that have begun to chip away at the protections provided to websites like Yelp by Section 230 ....”). 27 operators like Yelp, which protects them from all court orders designed to restrict the information they publish on their websites. 1. Congress Enacted Section 230 To Protect Website Publishers From Claims Like Those Asserted Here. The Internet has effected one ofthe greatest expansionsoffree speech and communicationsin history. This is no accident. In 1996,to promote the free flow of information on the Internet, Congress resolved to protect websites and other online providers from liability for their users’ content. Section 230 embodies that command, prohibiting courts from treating such a provider as the “publisher or speaker” of third-party content. 47 U.S.C. § 230(c)(1). Grounded in core First Amendment principles, Section 230 offers strong protection for innovation and expansion offree speech on the Internet. Sinceits enactment, federal and state courts have interpretedit to provide a “robust” immunity to companiesthat operate websites, such as Yelp, “from liability for publishing false or defamatory material so long as the information was providedby another party.” Carafanov. Metrosplash.com Inc. (9th Cir. 2003) 339 F.3d 1119, 1122-23. In Barrett, this Court affirmedthat the statute’s “blanket immunity” extendsto “those whointentionally redistribute defamatory statements on the internet.” 40 Cal.4th at 62-63. The Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any 28 A N E O E E S e R E information provided by another information contentprovider,” and separately precludes imposition ofany liability understate law inconsistent with its protections. 47 U.S.C. § 230(c)(1) & (e)(3). Under Section 230, a website operatorlike Yelp is immune from claimsif (1) it is a “provider or user of an interactive computer service” (whichall websites are); (2) the action seeksto punish it as a “publisher or speaker”; and (3) the action is based on “information provided by another information content provider.” Id. As shownbelow,Section 230 bars the injunction against Yelp, as well as anyliability for failing to comply. The appellate court’s decision to the contrary creates a gaping hole in Section 230 immunity that inevitably will be exploited to pursue the very actions Congressintendedto bar.’ 2. The Court Of Appeal’s Superficial Analysis And Failure To Follow Section 230’s Plain Terms Create Tremendous Uncertainty in California As To The Scope Of Immunity Under The CDA. The court of appealheld that the injunction “does not violate section 230 because it does not impose anyliability on Yelp,” elaborating that “Hassell filed their complaint against Bird, not Yelp; obtained a default * This is no empty prognostication. Innovative attorneys are seeking ways to obtain court orders for use in reputation management. E.g., The Latest In Reputation Management: Bogus Defamation Suits From Bogus Companies Against Bogus Defendants, Mar. 22, 2016, available at https://www.techdirt.com/articles/20160322/10260033981/latest- reputation-management-bogus-defamation-suits-bogus-companies-against- bogus-defendants.shtml; One Injunction To Censor Them All: Doe Injunctions Threaten Speech Online, June 1, 2016, available at http://www.knightfoundation.org/blogs/knightblog/2016/6/1/one- injunction-censor-them-all-doe-injunctions-threaten-speech-online/. 29 judgmentagainst Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.” Op. 28. The court invoked the unique procedural posture of this case—the result of Hassell’s intentional decision to deny Yelp the opportunity to defenditself—explaining that “[nJeither party cite[d] any authority that applies section 230 to restrict a court from directing an Internet service provider to comply with a judgment which enjoinsthe originator of defamatory statements posted on the service provider’s Website.” Jd. This circular reasoning only rewards Hassell’s disdain for due process. The court’s decisionis flatly contrary to other California decisions (as well as the many decisions of other courts that have considered and consistently applied Section 230). For example, in Kathleen R.v. City of Liverpool (2001) 87 Cal.App.4th 684, the court held that Section 230 precludes claims for injunctive relief, explaining that “byits plain language, § 230[(c)(1)] creates a federal immunity to any causeofaction that would make service providersliable for information originating with a third-party userofthe service.” Jd. at 692, 697-698 (citation, internal quotes omitted). Thus,plaintiff's equitable claims “contravene[d] section 230’s stated purpose of promoting unfettered developmentofthe Internet no less than her damage claims.” Jd.'°; see also Gentry v. eBay, Inc. (2002) 99 '° See, e.g., Noah v. AOL Time Warner, Inc. (E.D. Va. 2003) 261 F.Supp.2d 532, 540, aff'd, 2004 WL 602711 (4th Cir. 2004) (“given that 30 Cal.App.4th 816, 831 (“If by imposingliability ... we ultimately hold eBay responsible for content originating from other parties, we would betreating it as the publisher, viz., the original communicator, contrary to Congress’s expressedintent ...” (citations omitted)); Doe IT v. MySpace, 175 Cal.App.4th at 563, 572-573 (rejecting claims against Internet social networking site based on failure to adopt safety measures to protect against sexualpredators; “[a]t its core, appellants want MySpaceto regulate what appears on its Website” and “[t]hat type of activity—torestrict or make available certain material—is expressly covered by section 230”). The court of appeal drastically departed from these rulings by misreading subsection (e)(3) of Section 230 andtreating it as a limitation on the broad immunityestablished by subsection (c)(1). The court heldthat Section 230 did not apply to the prior restraint it imposed on Yelp “because [the court did] not imposeanyliability on Yelp,either as a speaker or a publisher of third party speech.” Op. at 29. But Yelp is named in the injunction only for its role as publisher of the third-party reviewsat issue, a straightforward contradiction of subsection (c)(1)’s prohibition on treating Yelp as the speaker or publisher of third-party content on its website. Subsection (e)(3) does not alter the broad immunity provided by subsection (c)(1), as the court of appeal implicitly held. It merely affirmsthe ability of the purposeof § 230is to shield service providers from legal responsibility for the statements of third parties, § 230 should not bereadto permit claims that request only injunctive relief’). 31 state courts to entertain state law claimsthatare “consistent” with Section 230, while makingclearthat “inconsistent” state law claimsandliability are barred, '! The court of appeal’s decision to treat subsection (e)(3) as establishing the scope of immunity undermines the broadprotectionthat Congressintendedfor online publisherslike Yelp. Atbottom,the court’s conclusionthat “[i]f an injunctionis itself a form ofliability, that liability was imposed on Bird, not Yelp” (Op.at 30)—telying on thefiction that the injunction against Yelp was not actually an injunction against Yelp (see footnote 3, supra)—exposes another fundamentalflaw in its decision. The court of appeal reachedits result only by violating subsection (c)(1) and treating Yelp asif it was the author (or “speaker”) of the reviewsat issue. It held that Yelp could be enjoined, without notice or an opportunity to be heard, undera limited legal principle that allows courts to extend injunctionsto non-parties who act on behalfof parties in violating the injunction, because Yelp purportedly was acting “with orfor” Bird as the publisher ofthe statements at issue. Op. 30-31, citing Conrad, 55 Cal.App.4th at 903; see Section A.2, supra. Thisis, atits core, treating Yelp asifit, rather than simply Bird, published the allegedly defamatory content. Thecourt of appeal’s due process and Section 230 "' Tf section (e) encapsulated Section 230 immunity, then Section 230 would not bar federal civil claims. Plainly, that is not the case. E.Z., Sikhsfor Justice “SFJ”, Inc. v. Facebook, Inc. (N.D. Cal. Nov. 13, 2015) 144 F. Supp.3d 1088 (Section 230 barred federal andstate claims). 32 holdings are fundamentally at odds with each other, resulting in a confusing and contradictory interpretation of each ofthese legal principles. “An action to force a website to remove content on the sole basis that the contentis defamatory is necessarily treating the website as a publisher, andis therefore inconsistent with section 230.” Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727, 731 (Fla. Dist. Ct. App., 2014) (dismissing plaintiffs’ claim for injunctive relief). Thus, “plaintiffs who contend they were defamedin an Internet posting may only seek recoveryfrom the original source ofthe statement” (Barrett, 40 Cal.4th at 40 (emphasis added)), because “Congress has decidedthat the parties to be punished and deterred are not the internet service providers but rather are those whocreated and postedtheillegal material” (WA. ex rel. P.K. v. Village Voice Media Holdings, LLC (E.D. Mo. 2011) 809 F.Supp.2d 1041, 1055). The court of appeal’s holding flies in the face of these and other cases barring claims against website publishers. Norisit relevant that many cases applying Section 230to defamation claims involve “allegations of defamatory conductbya third party, and not a judicial determination that defamatory statements had, in fact, been made bysuchthird party on the Internet service provider’s website.” Op. 30. This case wasable to proceedto a default judgment only because one of Hassell’s targets—the one that had the financial wherewithal to defend against her demand for an injunction—was 33 purposefully not named as a party or served with processin the case, and therefore could not prevent a result that is plainly barred by Section 230. In any event, the court’s reasoning ignores the language of the CDA, which assumesthat the statements are actually defamatory, but provides immunity regardless. See also Barrett, 40 Cal.4th at 39-40. This is a distinction withouta difference, which only serves to inject confusion and ambiguity into Section 230 jurisprudence. As Hassell admits, there is “vibrant, extensive nationaljurisprudence on section 230.” Respondents’ Appeal Brief (“R.A.B.”) at 43. Yet, Hassell did not cite a single case to support her proposition that the CDA allows interactive computer services to be subject to injunctions to removethird- party content so long as they are not namedin an action. Nota single court in any jurisdiction,state or federal, has so held—whichis notsurprising, given that Section 230(c)(1) flatly prohibits such a result, and plaintiffs typically satisfy the basic due process requirements that should have protected Yelp here. This Court’s admonition a decade agoin Barrett applies just as forcefully here. “The Court of Appeal gave insufficient consideration to the burden its rule would impose on Internet speech. ... Congress soughtto ‘promote the continued developmentofthe Internet and otherinteractive computer services’”by granting broad immunity to “Internet intermediaries” such as Yelp. 40 Cal.4th at 56 (citations omitted; emphasis 34 added). California should not break new ground to embrace such a skewed interpretation of Section 230—andinvite the many lawsuits that will be filed here by forum shoppingplaintiffs eager to force websites to remove critical content (contrary to this Court’s warning in Barrett, 40 Cal.4th at 58). This case requires a careful analysis of Section 230’s language and purpose. That analysis simply did not occur here, leading to the patently incorrect interpretation of Section 230 that the court of appeal adopted. V. CONCLUSION Forall of the foregoing reasons, Yelp respectfully requests that the Court grantits Petition for Review and, on review, reverse the orders ofthe trial court and appellate court, and direct those courts to enter an order granting Yelp’s Motion to Vacate the Judgment. Dated: July 18, 2016 DAVIS WRIGHT TREMAINE LLP ThomasR. Burke Rochelle L. Wilcox By: /s/ Rochelle L. Wilcox Rochelle L. Wilcox Attorneys for Non-Party Appellant YELP INC. 35 CERTIFICATE OF WORD COUNT (Cal. Rules of Court 8.504(d)) Thetext of this brief consists of 8,396 words as counted by the Microsoft Word word-processing program usedto generatethis brief, including footnotes but excluding the tables,the cover information required underrule 8.204(b)(10), the court of appeal opinion,this certificate, and the signature block. Dated: July 18, 2016 DAVIS WRIGHT TREMAINELLP Thomas R. Burke Rochelle L. Wilcox By:/s/ Deborah A. Adler Deborah A. Adler Attorneys for Non-Party Appellant YELP INC. 36 COPY Filed 6/7/16 CERTIFIED FOR PUBLICATION THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR DAWNHASSELLet al., Plaintiffs and Respondents, Vv. 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)' obtained a judgment holding defendant AvaBird liable for defamation andrequiring her to remove defamatory reviews she posted about Hassell on Yelp.com, a Website owned by appellant Yelp, Inc. (Yelp). The judgment also contains an order requiring Yelp to remove Bird’s defamatory reviews from its Website (the removalorder). Yelp, who was not a party in the defamation action,filed a motion to vacate the judgment whichthetrial court denied. Onappeal, the parties raise numerousissues relating to the judgment against Bird, and the subsequent removalorder. Asto those issues, we concludeas follows:(1) Yelp is not “aggrieved”by the defamation judgment entered against Bird,butit is “aggrieved” ' Generally, we will refer to respondents collectively, using the singular, gender neutral pronoun form where appropriate. by the removal order; (2) Yelp’s trial court motion to vacate was not cognizable under Code of Civil Procedure section 6637; (3) Yelp has standing to challenge the validity of the removalorder as an “aggrieved party,” having brought a nonstatutory motion to vacate that order; (4) Yelp’s due process rights were not violated becauseofits lack of prior notice and a hearing on the removal order request; (5) the removal order does not violate Yelp’s First Amendmentrights 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 orderis 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 weaffirm the order denying Yelp’s motion to vacate the judgment, we will remand this case so that the trial court can narrow the termsofthe removal order in a mannerconsistent with this decision. il. 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 summerof2012. 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. direct communications with Bird by e-mail and phone andatleast 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 hadnotlost any rights or claimsrelating to her injury. Hassell further alleged that, on January 28, 201 3, Bird published a review on Yelp.comabout her experience with Hassell (the January 2013 review). Hassell attempted to contact Bird by phoneto discuss the publication, but she failed to return the call, so the firm sent her an e-mail “requesting she removethe 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 someoneelse. 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 aboutthe Hassell firm on Yelp.com (the February 2013 review). Hassell believed that Bird was “J.D.” because Hassell never representeda 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 ofprivacy, and intentional infliction of emotional distress. Ina fifth cause ofaction 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 goodwill, and that they were entitled to an injunction because there was no adequate remedyat Jaw to compensate them for their continuinginjuries. In their prayer forjudgment, Hassell sought general and special damages, eachin excess of $25,000, according to proof, and punitive damagesin an unspecified amount. Hassell also prayed for “injunctive reliefprohibiting Defendant Ava Bird from continuing to defameplaintiffs as complained of herein, and requiring Defendant Ava Bird to removeeach and every defamatory review published by her aboutplaintiffs, 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 wasposted 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 offive 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 muchfor her to handle.” The review also stated: “the hassell law group didn’ ]t ever speak with the insurance companyeither, neglecting their said responsibilities and not living upto 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 onestar rating and provided the following information: “Did notlike the fact that they charged metheirclient to make COPIES, send out FAXES, POSTAGE, AND FOR MAKINGPHONECALLSabout mycase!!! Isn’t that your job. That’s just ridiculous!!! They Deductedall 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 superior court clerk to enter a default against Bird, whohadfailed to answer Hassell’s complaint. Default was entered and filed on July 11, 2013. On November1, 2013, Hassell filed a notice of hearing ontheir application for default judgment and requestfor injunctiverelief. The application was supported by a “plaintiffs’ summary ofthe 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 ofits case. In support ofits request for injunctiverelief, Hassell argued that “oncethetrier 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 madeat a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctiverelief after a default prove-up hearing would meana plaintiff can be forced to suffer defamatory harm solong as the defendantrefuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to removethe defamatory reviews in the event that Bird failed to do so, which waslikely in light of her history of “flaunting” California’s court system. Throughdeclarations from Dawn Hassell and another Hassell attomey 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 statementby 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 overthis review,” and that she “tried to threaten, bully, intimidate, [and] harass me into removing the review!” BirdseyeB.also stated: “the staff at YELP has stepped up and is defending myright to post a review. once again, thanks YELP! ...” 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 andtestified, and,after considering all the evidence, the court entered judgmentagainst Bird. Hassell was awarded general and special damagesandcosts totaling $557,918.75, but was denied punitive damages. The Bird judgmentalso awarded Hassell injunctiverelief 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 aboutplaintiffs HASSELL LAW GROUP and DAWN HASSELLfrom {Y]elp.com and from anywhereelse they appear on the internet within 5 business days of the date of the court’s order. | “Defendant AVA BIRD,heragents, officers, employees or representatives, or anyoneacting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions ofDAWN HASSELLorthe HASSELL LAW GROUPonYelp.com or any other internet location or website. “Yelp.com is ordered to removeall reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments ofthese reviewers within 7 business days ofthe date of the court’s order.” "(Italics added.) . | On January 15, 2014, Hassell served Bird with notice of entry ofjudgment. Bird did not appeal, and the judgment becamefinal on March 16, 2014. (Cal. Rules of Court, rule 8.104.)3 > A “* “default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned,thetruth ofall materia] allegations contained in the complaintin the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.) D. Hassell’s Efforts to Enforce the Judgment On January 15, 2014, Hassell hand-delivered a copyofthe Bird judgmentto an attomey employed by Yelp named Laurence Wilson, along with a letter requesting that Yelp comply with the judgment. On January 28, Hassell caused the Judgmentto be personally served on Yelp’s national registered agent for service ofprocess. Ina 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 ofcontempt proceedings and a further lawsuit against Yelp if Yelp refuses to comply [with the judgment] as my businessis being further damaged.” Yelp’s seniordirectoroflitigation, 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 fromliability forit publication of a review; and (3) Hassell failed to properly serve Bird orproveits defamation claims against her. Schuralso informed Hassell that Yelp had madethe decision not to comply with the judgment, Stating: “the judgment and orderare rife with deficiencies and Yelp sees no reason atthis time to remove the reviews at issue. Ofcourse, Yelp hasnodesire to display defamatory content on its site, but defamation mustfirst be proven.” Schurstated that Yelp would “revisitits decision”if it was presented with stronger evidence. He also warnedthat Hassell’s “threats”oflitigation against Yelp were not well taken because Yelp would file a motion to dismiss and recover attorney fees underthe anti-SLAPPlaw, “as it has done in the past in similar cases.” In an April 30, 2014 letter to Schur, Dawn Hassell asked that Yelp reconsiderits position in light of the facts that Bird had refused to comply with the judgment, and, as a practical matter, she was judgmentproofbecause 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 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 reviewsfirst, above more recent, honest, positive reviews.” Finally, Dawn Hassell advised Schur ofherplan to file a motion to enforce the judgment. She reminded him that she had sought Yelp’s assistancebeforeinitiating litigation, but was informed by Yelp that her only recourse was against Bird. However, after obtaining a judgment against Bird, it was nowclear that the only remedyavailable 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 motionto set aside and vacate the Bird judgment pursuant to section 663 on the “groundsthat the legal basis for the decision is not consistent with or supported by the facts or applicable law.” Inits 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 thetrial court was required to vacate the Birdjudgment 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 judgmentviolated section 580 by awarding relief that Hassell did not request in their complaint; and (4) the judgment subverted Bird’s First Amendmentrights by suppressing speech that Hassell failed to prove was defamatory. OnJuly 8, 2014, the Honorable Ernest H. Goldsmith ordered Yelp’s motion off calendar and directed Yelp to reschedule its motion in a different departmentofthe 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.” OnJuly 23, 2014, Yelp filed a re-notice ofits motion to vacate andset aside the Bird judgment. Yelp’s re-notice did not reference section 663 or any other statutory groundfor the motion, but explicitly relied on the memorandum and other pleadings Yelp hadalready filed in support ofits motion to vacate, Furthermore, Yelp stated thatits motion wasbeing re-noticed in the same departmentas previously noticed, pursuant to the instruction ofthe 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 twosets of findings. First, regarding the judgmentitself, 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 removeher 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 nonpartybyvirtueofits relationship to an enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (Ross).) The secondset offindings in the September 2014 order pertained to “Hassell’s contention that Yelp is aiding andabetting Bird’s violation of the injunction.” The court found that the evidence showedthat(1) Yelp highlighted Bird’s defamatory reviews on Yelp.com by explicitly recommendingoneofher reviews, andalso by refusing to take accountofa “‘itany” of favorable reviews that users had posted whenit calculated a “star rating” for the Hassell law firm; (2) Yelp’s motion to vacate was notlimited 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 acknowledgeor abide by a judicial finding that Bird’s reviews are defamatory notwithstandingthat its own termsofservice require Yelp.com usersto agree not to post a “fake or defamatory review. ...” Based on these findings, the court concluded that “Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp has demonstrated a unity of interest with Bird.” Hil. 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 assumethat 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 contendsthat the trial court did not have “jurisdiction” to hear Yelp’s section 663 motion, to which Yelp respondsthat courts have inherent powerto set aside void judgments. To sort these issues andclarify the scope ofthis appeal, we begin by considering the two prerequisites for appellate standing. | , “Standing to appealis jurisdictional [citation] and the issue of whether a party has standing is a question oflaw [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.]” Un re Marriage ofBurwell (2013) 221 Cal.App.4th 1, 12-13; see also § 902 [“Any party aggrieved may appealin the casesprescribedin thistitle.”].) “[A] nonparty that is aggrieved by a judgment or order may becomea party of record and obtain a right to appeal by movingto 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 “Oneis considered ‘aggrieved’ whoserights or interests are injuriously affected by the judgment. (Citations.) Appellant’s interest ‘ “must be immediate, pecuniary, and substantial and not nominal or a remote consequenceofthe judgment.” ’ [Citation.]” (County ofAlameda 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 andinjunctive relief with respect to Bird’s 10 defamatory remarksdid not cause Yelpto suffer a substantial immediate pecuniary injury ofany kind. Bird wasthe party aggrieved by that judgmentand sheelected notto appeal. Onthe 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 proceedingsin the trial court and on appeal, Yelp has endeavored to blur the distinction between the judgmententered against Bird which awarded Hassell damagesand injunctiverelief, and the removal orderin the judgmentwhich directs Yelp to effectuate the injunction against Bird. For example, Yelp assertedtrial court standing to bring a motion to vacate on the groundthat “Yelp’s rights and interests to maintainits Site as it deems appropriate [were] injuriously affected by the Judgment.” However,this claimed injury did notresult from the judgmentitself, 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 Internetinjuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Website as it deems appropriate does not include the right to second-guess a final court judgmentwhich establishes that statements by a third party are defamatory and thus unprotected by the First Amendment. . Since Yelp was not aggrieved by the default judgmententered against Bird, it had no standingto challenge that judgmentin thetrial court. Thus,this court will not address arguments regarding the validity of the Bird judgmentitself including, for example, 1] 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.‘ 2. Yelp’s Motion to Vacate Was Not Authorized by Section 663 Asalready noted, a legally aggrieved nonparty to a judgment or decree may “becomea 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 upona decision by the court, or the special verdict of a jury, may, upon motion ofthe party aggrieved, beset aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantia] rights of the party and entitling the party to a different-judgment: [{] 1. Incorrect or erroneouslegal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgmentis set aside, the statement of decision shall be amended andcorrected. [{] 2. A judgmentor decree not consistent with or not supported bythe special verdict.” Section 663 “is designed to enable speedy rectification of a judgment rendered upon erroneous application ofthe law to facts which have been foundbythe 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 whena trial court drawsincorrect conclusions of law or renders an erroneous judgmenton 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 wheneverthetrial judge draws an 4 As noted, Bird elected notto appeal the judgment, but even if she had, Bird herself could not have challenged the sufficiency of the evidence to support theliability 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 authorizeits attempted challenge to the sufficiency of the evidence to support the judgmentagainst Bird. 12 incorrect legal conclusion or renders an erroneous judgment uponthe facts found by it to exist”].) However,reliefis 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 ona section 663 motion,“the court cannot ‘ “in any way changeanyfindingoffact.” ° [Citation.]” (Glen Hill Farm, LLC y. California Horse Racing Bad. (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 usedto secure additional findings that were not made before judgmentwasentered. (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 judgmentbe vacated, notthat it be corrected to conform to the findings ofthetrier offact. 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 wasnot aggrieved by the default judgmentagainst 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 offact in orderto resolve their collateral disagreement about whether Yelp became Bird’s aider and abettor afier the judgment wasentered. 3. Yelp’s Statutory Motion to Vacate Was Untimely In addition to the substantive flaws discussed immediately above, Yelp’s section 663 motion wasnottimely filed. Section 663a imposes timerestrictions on a party’s decision to file a motion to vacate a judgmentundersection 663, and onthetrial court’s ” authority to rule on such a motion. Twoprovisions ofsection 663a are pertinenthere. First, subdivision (a) requires “[a] party”to file a notice ofintentto file a section 663 motion within 15 days ofthe date it was served with notice of entry ofjudgment. Second, subdivision (b) states that “the powerofthe court to rule on a motionto set aside 13 and vacate a judgmentshall 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 beforefiling a notice of motion and motion to vacate the Bird judgment. Thus, Yelp not only failed to comply with the 15-day timelimit for filing a notice of intent to file a motion to vacate, its tardy decision to bring the motion precludedthetrial 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 judgmentrequiring the California Coastal Commission to issue a building permit. Before the commissionfiled its notice of appeal, an aggrieved neighborfiled a section 663 motion to vacate the judgment, whichthetrial court denied. On appeal, the respondent argued that the appellant-neighbor did not have standing because the commissionfiled its notice of appeal before thetrial 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 becamea party of record byfiling its section 663 motionandits “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 becauseit 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 becomea party of record until he filed his motion to vacate. (lbid.) If applied without reflection, Aries supports Yelp’s contention that it was not subject to the 15-day filing requirementin subdivision (a) of section 663a becauseit did 14 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 notraise any substantive concern aboutthe timeliness of the section 663 motionin that case, as it was filed before the commission filed a notice of appeal. (Aries, at p. 542.) Here, by contrast, Yelpfiled 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 judgmentbefore filing its motion to vacate, Yelp precludedthe trial court from complying with the 60-dayoutside timelimit to rule on the motionasset outin section 663a, subdivision (b). Wenote too that this latter time limit provision was added to the statute in 2012, several years after Aries was decided. (See 2012 Amendmentin Deering’s Ann. Code Civil Proc. (2015 ed.) foll. § 663a under heading Amendments, p. 363.) Unlike the 15-dayfiling rule in section 663a, subdivision (a), which expressly applies only to a “party,” the time limitation in subdivision (b) restricts the “powerofthe court to rule” on a section 663 motion, and uses mandatory languageto 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 doesnotcite any authority excepting it from the 60-day ruleset forth in section 663a, subdivision (b). Yelp takes the view that an aggrieved nonparty should be allowedtofile any type of statutory motion to vacate a judgmentwithin a reasonable time not exceeding six months from the entry ofjudgment. This argumentignores the authority of section 663a itself, and is based on an apparent misreading ofPlaza Hollister, supra, 72 Cal.App.4th 1. The Plaza Hollister court held that the appellant in that case had filed an invalid section 663 motionin thetrial court, butthatit had appellate standing pursuantto a nonstatutory motion to vacate that wasfiled 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 powerto 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 judgmentas void. “ ‘A stranger to an action whois aggrieved by a void judgment may moveto . vacate the judgment, and on denial of the motion may have the validity ofthe judgment reviewed upon an appeal from the order denying the motion. [Citations.]’ [Citation.] ... It has also been said: ‘[A] stranger may attack a void judgmentif someright or interest in him wouldbe affected by its enforcement. [Citations.]’ [Citation.]” (Plaza Hollister, supra, 72 Cal.App.4th at pp. 15-16.) Furthermore, the “grantingofrelief, 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 Mail IT v. Appellate Department (1996) 44 Cal.App.4th 1672, 1683 (“When a court grants relief whichit has no authority to grant, its judgmentis to that extent void.”].) This type of nonstatutory motion wasthe correct mechanism for Yelp to employto challenge a portion of the Birdjudgment on the groundthat it contains an allegedly void removalorder. Furthermore, treating Yelp’s motion as a nonstatutory motion eliminates Hassell’s concerns aboutits timeliness. “ ‘[A] judgmentor order, whichis in fact void for want ofjurisdiction, but the invalidity ofwhich does not appear from the judgment- roll or record, may be set aside on motion within a reasonable timeafter its entry, not exceeding the [six month] time limit prescribed by [former] section 473 of the Code of Civil Procedure; and an independentsuit in equity to set aside the judgmentor orderis 16 not necessary. [Citations.]’” (Plaza Hollister, supra, 72 Cal.App.4th at p. 19.) Here, Hassel] argues that Yelp’s motion wasnotfiled within a reasonable time, but therecord does not compel that conclusion. The considerationsoutlined abovelead to the following conclusions regarding Yelp’s standing to appeal: Yelp is aggrieved by the removalorderdirecting Yelp to remove Bird’s defamatory reviews from Yelp.com; Yelp becamea party ofrecordin this casebyfiling a nonstatutory motionto vacate the allegedly void order within a reasonable time after entry of the judgment; and, therefore, Yelp has standing to appeal the removalorder provision contained in the Bird judgment. The substantive issue raised by this appeal is whetherthetrial 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 removalorder (1) violates due process; (2) constitutes a prior restraint of speech; and (3) is barred by the CDA. Before considering these claimsoflegal error, we briefly address two circumstances that are mentioned abovein orderto further clarify the scope of our review. First, Yelp attempts to characterize the removalorder as an injunction against Yelp. Wedo not acceptthat characterization. The judgmentwasentered solely against Bird, and the injunctive order was directed solely at Bird’s defamatory speech.” The removal order waslimited to statements covered by that injunction, statements attributed to Bird which she had been ordered to remove. Thus, the removalorder does not impose any independentrestraint on Yelp’s autonomy. Underthese circumstances, charactering the removal orderas an injunction creates unnecessary confusion aboutthe clear distinction between the removal order and the underlying injunction against Bird. For reasonsalready discussed, Yelp cannot bootstrap its collateral attack of an allegedly void * “{O]nce a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation ofthat 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 judgmentitself. 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 neitherthe 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—-whetherit becamean aiderand abettor with respectto Bird’s postjudgmentviolation ofthe injunction—is a separate issue which may be relevant in a future contempt action against Yelp for disobedienceofthe judgment. But Judge Goldsmith’s adjudication ofthat issue was premature, and wasalso 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 becausethetrial 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 Amendmentright 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 thoserights in the past.’ [Citation.] Thus,it is well established that ‘injunctionsare 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 mayact. [Citations.] However,‘a theory of disobedience of the injunction cannot be predicated on the actof a person not in any wayincluded in its terms or acting in concert with the enjoined party andin support of his claims.’ [Citations.]” ’” (Planned Parenthood Golden Gatev, Garibaldi (2003) 107 Cal.App.4th 345, 352-353; see also People v. Conrad (1997) 55 Cal.App.4th 896, 902; Jn re Berry (1968) 68 Cal.2d 137, 155-1 56; Berger v. Superior Court (1917) 175 Cal. 719, 721.) _ Thesesettled principles undermine Yelp’s theory that the trial court was without any authority to includea 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 confirmedthatinjunctions can beapplied to nonpartiesin appropriate circumstances. (Ross, supra, 19 Cal.3d at p. 906.) “ ‘In matters of injunction . . . it has been a commonpractice to make the injunction run also to classes of persons through whom the enjoined person mayact, such as agents, servants, employees,aiders, abettors, etc., though notparties to the action, andthis practice has always been upheld by the courts, and any of such parties violating its terms with notice thereofare held guilty of contempt for disobedience ofthe judgment.” (Jbid.) Yelp contends that the rule permitting a court to enforcean injunction against a nonparty is limited to situations in which “a group or organization has been enjoined, so as to preventthe group’s individual members whoare not namedin the injunction from acting on behalfof that group.” As support for this claimedlimitation, Yelp cites People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (Acuna). Theissue in Acuna was whether designated membersof a criminal street gang who were named defendants in a public 19 nuisance action could be subject to an injunction because of the documentedactivities of the group to which they belonged. In approving such an injunction, the Acuna court did not imposeanyrestriction 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 contentionthat 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 damagesaction 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 judgmentof default was entered holding each ofthem individually and doing business as a copartnership jointly and severally liable for money damagesin the approximate amount of $49,000. (/d. at p. 592.) The Fazzi court reversed the default judgment against the appellant, applying “ ‘the generalrule that a judgment maynotbe enteredeither for or against a person whois not a party to the proceeding, and any judgment which doessois void to that extent.’ [Citations.]” (Jd. 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 anda roofing contractor. (/d. at p. 119.) After judgmentwasentered in favor ofthe roofing contractor, the trial court summarily granted the roofing contractor’s motion to amend the judgmentto add the general contractor’s insurer as an additional judgment debtor. On appeal, the Tokio Marine court reversed the Judgmentagainst the insurer, finding that the insurer was not a party in the action or an alter ego of the original defendant. Furthermore, the court foundthat the summary addition of the insurer as an additional judgment debtor violated due process. (Jd. 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 damagesportion of the judgment wasentered solely against Bird. Neither Fazzi nor Tokio Marine address whetheran injunction imposedagainst 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 evidencein this case does not “support the theory that Yelp was somehow ‘aiding and abetting’ Bird’s violation ofthe injunction.” This issue was a major dispute below. But as we have already discussed, it has no bearing on the question whetherthetrial court was without powerto issue the removal orderin the first instance. The authority summarized above establishes that a trial court does have the powerto fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonpartyto the original proceeding. 2. Yelp’s First AmendmentRights Yelp’s second dueprocess theoryis 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 ofthe proceedings andan 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 forseizing allegedly obscene publications had been applied to them in a mannerwhich violated their due process rights. The evidencein that case showed thata police officer filed complaints stating that each appellantkept “obscene” publicationsfor sale; a circuit judge conducted an ex parte hearing on the complaints; and, without reviewing the allegedly obscene material, thejudge issued warrants authorizing anyofficer in the state to search for and seize obscene materials from appellants’ premises. The warrants were subsequently executed by different officers who seizedall publications which, in their judgment, were obscene. Thirteen dayslater, 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 wereto be returnedto appellants. (Jd. 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 Amendmentprotection. (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 allegationsofa single officer without actually reviewing any of the allegedly obscene material; the warrants gave officers broad discretion to use individual judgment to determine whatmaterial 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. (/d. at pp. 731-733.) These circumstances demonstrated that Missouri’s procedure lacked sufficient safeguards to justify conferring discretion on law enforcementto 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 Amendmentto prevent erosion of the constitutional guarantees.” (/d. at p. 733, fn. omitted.) Wedisagree 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 engagedin protected speech activities by selling books, magazines and newspapers. In orderto claim a First Amendmentstakein this case, Yelp characterizesitself as a publisher or distributor. But, at other times Yelp portraysitself as more akin to an Internet bulletin board—a host to speakers, but in no way a speakeritself. Of course, Yelp mayplaydifferent roles depending on the context. However,in this context it appears to us that the removal order does nottreat 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 Bs N o * NE A a a R n Second, even if Yelp’s operation of an interactive websiteis construed as constitutionally protected speech by a distributor, Marcus does not support Yelp’s broad notion that a distributor ofthird party speech has an unqualified due processright to notice and a hearing before distribution ofthat speechcan be enjoined. In Marcus, the use of an ex parte hearing to secure search warrants was only one ofmany problems with the Missouri procedure which culminatedin the ruling that appellants’ due process rights were violated. (Marcus, supra, 367 U.S.at pp. 731-733.) Indeed, ina subsequentcase in which Marcus wasdistinguished, the SupremeCourt clarified that “[t]his Court has never held, or even implied,that there is an absolute First or Fourteenth Amendmentrightto a prior adversary hearing applicable to all cases where allegedly obscene materialis 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 progenypertain to attempts to suppress speech thatis 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 notcite any authority which confers a constitutional rightto a prior hearing before a distributor can be ordered to comply with an injunction that precludes re-publication of specific third party speech that hasalready been adjudged to be unprotected andtortious. C. The Constitutional Bar Against Prior Restraints Yelp also contends the trial court was without authority to issue the removal order becauseit constitutes a prior restraint of speech. 1. Applicable Law “Anorder prohibiting a party from making or publishing false statements is a classic type of an unconstitutionalpriorrestraint. [Citation.] ‘While [a party may be} held responsible for abusing his right to speak freely in a subsequenttort 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 orderissuedaftera trial prohibiting the defendantfrom repeating specific statements foundattrial to be defamatory... .” (/d. at 23 p. 1168, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 114], 1155-1156,italics omitted (Balboa Island).) In Balboa Island, supra, 40 Cal.4th 1141, a restaurant ownerfiled a defamation action against a vocalcritic of the restaurant. After a benchtrial, the court issued a permanentinjunction which enjoined the defendant from engaging in variousactivities including repeating specifically identified defamatory statements abouttheplaintiff to third parties. (/d. at pp. 1145-1146.) The California Supreme Court held that the injunction was overbroad in somerespects, but that “a properly limited injunction prohibiting [the] defendant from repeating to third persons statements aboutthe [restaurant] that were determinedattrial 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 fundamentalright 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 recognizedthat this right is not absolute: “ ‘[TJhere 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, andare 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.]” (bid.) Because defamation is not protected by the First Amendment, the Balboa Island court concluded, “an injunction issued followinga trial that determined that the defendant defamedthe 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 attrial 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 noobjection to their subsequent suppression or prosecution.’ [Citations.}” (Ud. at pp. 1155-1156.) 2. Analysis The removal order directed at Yelp states: “Yelp.com is ordered to removeall reviews posted by AVA BIRD underuser names‘Birdseye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent commentsofthese reviewers within 7 business days of the date of the court’s order.” Underthe authority ofBalboa Island, supra, 40 Cal.4th at pages 1155-1156, the trial court had the powerto makethepart of this order requiring Yelp to removethe three specific statements that were set forth in the exhibit A attachmentto the Bird Judgment because the injunction prohibiting Bird from repeating those statements was issued following a determinationattrial that those statements are defamatory. However, to the extentthe trial court additionally ordered Yelp to remove subsequent commentsthat Bird or anyone else might post, the removal order is an overbroad priorrestraint 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 notrial and determination on the merits that any statement by appellant was defamatory].) Therefore, we will remandthis matter to the trial court with directions that it modify the removal order consistent with this limitation. Yelp contendsthat limiting the scope of the removal orderto statements that have already been adjudged as defamatory doesnotcure the constitutional problem because the findings that Bird’s reviews of Hassell were defamatory were not made by a jury. Accordingto Yelp, “the Supreme Court in Balboa Island carefully limited its narrow holding to judgments entered after ajury trial... .” (Originalitalics.) 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 Islandapplies in this context, the removal orderis 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 madea 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 Immunityfrom Tort Liability Finally, Yelp contends that the removal orderis 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 lability may be imposed under any State or local Jaw that is inconsistent with this section.” (§ 230(e)(3).) Section 230 was enacted as an amendmentto the CDA. Originally, the primary objective of the CDA wasto 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-commerceinterests 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 Sikhsfor 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 providerliable for its exercise of a publisher's traditional editorial functions— 26 such as deciding whether to publish, withdraw, postponeoralter content—are barred.” (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330 (Zeran).) Thejustification for this broad grantof immunity is thatit (1) encourages Internet service providers to self-regulate the dissemination ofoffensive material overtheir services, and (2) avoidsa chilling effect on Internet free speech that would result from exposing companiestotort liability for potentially harmful messagesthey 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; KathleenR. v. City ofLivermore (2001) 87 Cal.App.4th 684 (Kathieen R.).) In Barrett, supra, 40 Cal.4th 33, ourstate 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 thatthe statute “prohibits ‘distributor’ liability for Internet publications.” (Barrett, at pp. 39-40.) The court expressed concern aboutthe “disturbing implications”of the “prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet.” (/d, at p. 63.) However, the court observed that, “[a]t some point, active involvementin the creation of a defamatory Internet posting would expose a defendantto liability as an original source.” (dd. at p. 60, fn. 19.) Aside from that limitation, the court reasonedthat applying section 230 to exemptInternet intermediaries from defamationliability for republication furthers congressionalintent and that any expansionoftort liability beyondthe originator ofthe defamatory Internet publication “must await congressionalaction.” (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 computerservice; (2) the cause of action treat[s] the defendantas a publisher 27 or speaker of information; and (3) the informationat issue [is] provided by another information content provider.’ [Citation.]” (Jd. at p. 805.) 2. Analysis Yelp argues the authority summarized aboveestablishes that the removal orderis void. We disagree. The removal order does notviolate section 230 becauseit does not impose anyliability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgmentagainst Bird, not Yelp; and was awarded damages andinjunctive relief against Bird, not Yelp. These circumstancesdistinguish the present case from Yelp’s authority, all cases in which causesofaction or lawsuits against internet service providers weredismissed pursuantto 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 harmfulto the plaintiff]; Carafanov. Metrosplash.com. Inc. (9th Cir. 2003) 339 F.3d 1119, 1125 [“despite the serious and utterly deplorable consequencesthat occurred in this case, we conclude that Congress intended that service providers such as Matchmakerbe 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 Website]; Doe IT v. MySpace Inc. (2009) 175 Cal.App.4th 561 [sustaining demurrer to causes of action for negligence andstrict liability against social networking Website arising out of sexual assaults inflicted on minors who mettheir assailants on thesite]; Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398 [affirming order granting anti-SLAPP motionto strike claim that the defendant breached its Internet Web site user agreement]; Delfino, supra, 145 Cal.App.4th 790 [affirming summary judgment in favor ofemployer 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 Website. We note, 28 however,that section 230 explicitly provides that “{nJothingin this section shall be construed to prevent any State from enforcing anyState law that is consistent with this section.” (§ 230(e)(3).) As discussed above, California law authorizesa trial court to issue an injunction preventing the repetition of statements that have been adjudged to be defamatory bythetrier of fact. (Balboa Island, supra, 40 Cal.4th at p. 1160.) California law also empowersthe court to enforceits judgment by ordering that an injunction run to a non-party through whom the enjoined party mayact. (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 anyliability on Yelp, either as a speakeror a publisher ofthird party speech. Yelp mistakenly contendsthat 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 thetrial court that conducted the hearing on Yelp’s motion to vacate (Judge Goldsmith) found that Yelp wasan aider and abettor, we have already declaredthis finding not relevantto 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 findingofliability, and thus the injunction entered against Yelp cannotsurvivethe robust protection of the CDA.” Again though,theparty that was enjoined from publishing contentin 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 norole in the creation ofthat defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not imposeanyliability on Yelp. Yelp insists that “Section 230 immunity encompasses claims for injunctiverelief, and the cases do notdistinguish between defendants and non-parties.” However, each case cited for this proposition involved a failed claim for injunctiverelief that was alleged 29 against an Internet service provider defendantin 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 providerin 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 CDAby 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, Hassel] did not allege any cause ofaction seeking to hold Yelp liable for Bird’s tort. The removal order simply soughtto control the perpetuation ofjudicially 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 CDAcasesthat 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 Website. 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 injunctionis itself a form ofliability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially triggera different type of liability which implicates the contempt powerofthe court. Generally speaking, “a nonparty to an injunction is subject to the contempt powerofthe court when, with knowledgeofthe injunction, the nonparty violates its terms with or for those whoare restrained.” (People v. Conrad, supra, 55 Cal.App.4th at p. 903, italics omitted.) 30 Yelp does notcite 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 atall; it would not imposeliability on Yelp as a publisher or distributor ofthird party content. A “contempt proceedingis not a civil action butis ofa criminal nature even though its purpose is to impose punishmentfor violation of an order madein a civil action. [Citation.]” (Freeman y. Superior Court (1955) 44 Cal.2d 533, 536.) The cases we have found in whichInternet service providers were named in contempt proceedingsare 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.) Forall of these reasons, Yelp has failed to establish that section 230 or anyother law barredthetrial court from issuing the removalorder under the circumstancesofthis 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 judgmentis affirmed, but this case is remandedto thetrial 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 ofthat judgment. Theparties are to bear their own costs of appeal. . 3] RUVOLO,P.J. Weconcur: RIVERA,J. STREETER,J. A143233, Hassell v. Bird 32 Trial Court: Trial Judge: Counsel for Appellant: Counsel for Respondents: A143233, Hassell v. Bird San Francisco Superior Court Hon. Donald J. Sullivan David Wright Tremaine, Thomas R. Burke and Deborah A. Adler Duckworth Peters Lebowitz Olivier, Monique Olivier 33 PROOF OF SERVICE I, Mary Land, declare under penalty of perjury underthe lawsofthe State of California that the following is true and correct: I am employedin the City and County of San Francisco, State of California. I am overthe ageofeighteen(1 8) years, and not a party to or interested in the within-entitled action. I am an employee of Davis Wright Tremaine LLP, 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533. I caused to be served a true and correct copy ofPETITION FOR REVIEW oneach person onthe attachedlist by the following means: On July 18, 2016, I enclosed a true and correct copy ofsaid documentin an envelope with postage fully prepaid for deposit in the United States Postal Service. I placed such envelope(s) with postage thereon fully prepaid for deposit in the United States Mail in accordance with the office practice of Davis Wright Tremaine LLP,for collecting and processing correspondence for mailing with the United States Postal Service. — I declare under penalty ofperjury, under the laws ofthe State of California, that the foregoing is true and correct. Executed on July 18, 2016 at San Francisco, California. SERVICE LIST MoniqueOlivier, Esq. ’ Attorneys for Duckworth Peters Lebowitz Olivier LLP Plaintiffs and Respondents 100 Bush Street, Suite 1800 DawnHassell, et al. San Francisco, CA 94104 Email: Monique@dplolaw.com Nitoj Singh, Esq. Dhillon Law GroupInc. 177 Post Street, Suite 700 San Francisco, CA 94108 Email: nsingh@dhillonsmith.com Hon. Ernest Goldsmith Case No.: CGC-13-530525 Dept. 302 San Francisco Superior Court Civic Center Courthouse 400 McAllister Street San Francisco, CA 94102-4514 Court of Appeal Case No. A143233 First Appellate District, Div. Four 350 McAllister Street San Francisco, CA 94102