HASSELL v. BIRDAppellant’s Reply Brief on the MeritsCal.March 16, 2017Case No. 8235968 S UPREME COURT FILED MAR 16 2017 IN THE SUPREME COURT . Jorge Navarrete Clerk r OF THE STATE OF CALIFORNIA i Deputy 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 REPLY BRIEF ON THE MERITS DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@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 Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. Case No. $235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN HASSELL,et al. Plaintiffs and Respondents, VS. AVA BIRD, 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 REPLY BRIEF ON THE MERITS DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLE L. 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 SCHURaschur@yelp.com (SB# 229566) 140 New MontgomeryStreet, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. TABLE OF CONTENTS I. INTRODUCTION 0...ee eecesesecesseesscsseseceeseeenaseensaeesneessneesseenseeeens 9 II. TRIAL COURTS MAY NOT ENJOIN NON-PARTIES, TAKING AWAY THEIR INDEPENDENTRIGHTS, ~ WITHOUT NOTICE AND AN OPPORTUNITY TO BE HEARD 1... .cccccesccceesseeeseeseeseneteesnecoeseecssiecesusesssesesseessaeeesseseeeseeeneeeess 11 A. Yelp Has A Due Process Right To Protect Its Website........ 11 B. Yelp Has A First Amendment Right To Publish Third Party Speech On Its Website. ........cceceseeeseeseeteteeeneseeeeeees 17 C. The Injunction Is An Unconstitutional Prior Restraint......... 23 D. Injunctions Cannot Bind Non-Parties Like Yelp Without Evidence OfAiding And Abetting The EnjoinedParty....... 25 II. PLAINTIFFS CANNOT EVADE SECTION 230 BY DENYING WEBSITE PUBLISHERS THEIR DUE PROCESS RIGHTS.00...ccccsesccessesessecsecceeecesseeeseseeeneesssseusesseeceesensueesnaesarenseeeseeees 33 A. The Injunction Against Yelp, Not Bird, Is At Issue Here.... 33 B. The Injunction Treats Yelp As The Publisher OfBird’s SPeech.oo. .esseeeescesscesesecsessscssssssessecsseeseeneseaeessesseseseenersneans 34 C. The Injunction Against Yelp Violates Section 230. ............. 38 TV. CONCLUSION .0...ccccececsccesseceeseecenecnscneeceseesesesenneeeensasenneseesnesenseees 42 TABLE OF AUTHORITIES Page(s) CASES Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc. (Fed. Cir. 1996) 96 F.3d 1390 oo... ccscesscesseseccesnscesececssaeeseeseeeeeseeeeeaeeeseeeesseeesesensaseseeaees26 Aevoe Corp. v. AE Tech Co., Ltd. (Fed. Cir. 2013) T27 F.3d 1375 vcecscssssssesssssscsesssessesesessesesssssnesssesesesesesenssesensesesenesseesenenseees 29. Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 occcccccccsssccsscccecsssessscsenecssneseseeeeesaeeeeeneeseseeeeeeeeses24 Airbnb, Inc. v. City & County ofSan Francisco (N.D. Cal. 11/8/16) 2016 USS. Dist. LEXIS 155039...cscescesseeeesensseeseeeeeeeteeeeesens 36, 37 Alemite Mfg. Corp. v. Staff(2d Cir. 1930) 42 F.2d 832 vo.ccccccceccsscsscssesssecesceessccscaecessessecsecsneceaseceeeeseeeeseeseseaeeseaeeaes26 Asetek Danmark A/S v. CMI USA, Inc. (Fed. 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President & Comm’rs ofPrincess Anne (1968) 393 U.S. 175 ccccccecccsssssscssecscseessecsssessecsececeesressceseseaeeeseeeeseessecssesseenseeeegs 19 Chase Nat’! Bank v. City ofNorwalk (1934) 291 U.S. 431 vccceccccccssessscccssceesceseceeeseeseeeeseeeeeeeseceessesessessesseessseaaseneaeeegs 16 Chicago Lawyers’ Committeefor Civil Rights Under Law, Inc. v. Craigslist, Inc. (7th Cir. 2008) SID F.3d 666 wooo... ceeecccsccsccscccecececseseesseecsseeeesessssenseceessscaaeeeeeeeeeensaes 18, 40 Delfino v. Agilent Tech., Inc. (2006) 145 Cal.App.4th 790... ccscsescecssessessesessesesssessessesecssseessessesaeeaneneseeeeaes 37 Denver Area Educ. Telecomms. Consortium, Inc. v. FCC (1996) 518 U.S. 727 coccccccccstsssseeeeeeeesdeceevevteceesscsscsssssesuseeesseceseesessssestaeeeesuscsaaaeess 18 Dillard v. McKnight (1949) 34 Cal.2d 209.0... .cccccececsscssseecssseeecsecsseceeseeeeeeesseeceseesecesesssesessacssessaseesses 16 DKNHoldings LLC v. Faerber (2015) 61 Cal.4th 813 cicccccccccccccsccssscccssesseseseessneeeseeeceeesasseaeeersersneesasonaes 9, 16 Doctor’s Assoc., Inc. v. Reinert & Duree, P.C. (2d Cir. 1999) 191 F.3d 297 voiccccccccccccssccsstecssscceessecssessessceneceeseeeseeeseesaresseessaeeeserseeeeeaes26 Ehrlich v. City ofCulver City (1996) 12 Cal.4th 854 wo..ccccccsccsssccssssessssessseeseeecseesseecseeseseesseessssesestneseneeeenes 12 Evans v. Hewlett-Packard Co. (N.D. Cal. 10/10/13) 2013 WL 5594717... cccccsscssscccessecesecescersceeeseessesesseceseceseessssessenssesssaneesnes 37 Fazzi v. Peters (1968) 68 Cal.2d 590... ccccccccsssccesseceessecessessaseecsedereseeesseneseseseesssesssessaeessaseenses 32 Flack v. Municipal Court (1967) 66 Cal.2d 981 oo. cccscccsssccesecesserecenecescesserseesescaeeeseasesessessesessenseesessssenaes24 Freeman v. Superior Court (1955) AA Cal.2d 533 ...ccccccccssccsccssecenscecssececseceeeeeeesseseeceseessseecssesesesasessessesssenenses39 G.&C. Merriam Co. v. Webster Dictionary Co. (Ast Cir. 1980) 639 F.2d 29 ecccccccccsssesesssscsssscesseecceseesseeseeeeeeesesseeseessecessussaresesesessesseeees27 Garcia v. Google, Inc. (9th Cir. 2015) 786 F.3d 733 (C71 DANC) ..scccescccessccessseesseeeesecsesenssceescnscesaseeaeeneeseaeeess 18, 24 Gompers v. Bucks Stove & Range Co. (1911) 221 U.S. 418 Loecccecccecsssesssccsssssscesssseccseessecsseeeseeessnsaessseesessscsssseeesaeenseasecs 34 Google, Inc. v. Hood (S.D. Miss. 2015) 96 F.Supp.3d 584, 593-94, rev’d on procedural grounds (Sth Cir, 2016) 822 F.3d 212eieessesssesseeesseeeesesseseteeneeeseseesseseeses 18 Greene v. Babbitt (9th Cir. 1995) 64 F.3d 1266... ccccccsesescceseeeseeeeeeseereeseeseesVeveeeseceneeaseeneeaaensenenseeeenaeenses 15 Greenup v. Rodman (1986) AD Cal.3d 822... .cccccccsccscccssecessscecssseseactsccesssseesseeerseceseeseseseecseeseseessesesseees 14 Heller v. New York (1973) 413 U.S. 483 voccccccccscsscsecsscesseeceneceareneesersessecsessaesseersessasesresstereeseeeaes 13, 23 Herbert v. Lando (1979) MAL U.S. 153 ceeccecccsccccsccssscessseesessesseessessecseceaeteeceseeaeceseeseeassssetenseesseneges 22 Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232.0... cccecescseseesesesesssessesssereaesseseseesesenetessesesseseeneens24 In re Berry (1968) 68 Cal.2d 137 .iccccccccccccsssecesssessessccsesseeeseeeeseeeeeeseseceseessseseeseesesseaseenenees30 Inre Lippel (1990) 51 Cal.3d 1160............fesseguseusescesesseeeaceecescecesaeeseeeaeeseeessssueesersesueeseseasees 14 In Re MR. (2013) 220 Cal.App.4th 49 .ccccccccsssssssscsssssssssnssssssssssssmsssesssssnsssssessessssuecessseeesee39 Jian Zhang v. Baidu.com, Inc. (S.D.N.Y. 2014) 10 F.Supp.3d 433, 438-30 occcesssscesesssseseneensessesessesseeeseereneessesarereses 18 Kash Enterprises, Inc. v. City ofLos Angeles (1977) 19 Cal.3d 294... cccscecccssccsecseeseeeesetecsscssnessaeseessusessssssessessecnessaneaes 18, 19 Keeton v. Hustler Magazine, Inc. (1984) A65 U.S. 770 vecccccccsscssseseccenecsseescseesessnecesceseneceseeessesessesssscsesserseseeecsseceneenas21 Kerry v. Din (2015) 135 S.Ct. 2128 ..oceccccccsccssecscesssseseseaceeseecereeeseeeeeseesessesssseseeseeesesseeseenees 12 Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263 .....cccsccsscsssscssscsscsessseeecseceeeesecseesescesaseessersesseeeseeessssseeesees37 Langdon v. Google, Inc. (D. Del. 2007) AT4 F.Supp.2d 622 .....ccccceccscsssssssssscseeessssesssscnsaseesesecseessesessesseneesesseneeaees 18 Lansing v. Southwest Airlines Co. (2012) 2012 IL App. (Ist) 101164oeccseeeeesceeeseesereeseesesserseseeseessseeneneens 36 Lee Art Theater, Inc. v. Virginia (1968) 392 US. 636 vcccccccccsssccsssssscsssecssecsececsensestecsacessessceessessssseseeeeseeuensereeseees 19 Marcus v. Search Warrant ofProperty (1961) 367 U.S. 717 ccccccsccscssessecscceceseesetseseeeersensesensasseessessssieneeeenseenees 12, 13, 23 Martin v. Carroll Graphics Corp. (M.D.Fla. 1992) B04 F.Supp. 31 Love cceececeeseseeeesssssessessssessscaseeessesecsesensnenseesenessenseserseenees28 Miami Herald Publ’g Co. v. Tornillo (1974) A1& US. 241 ecccccccessccssscessecsecseeeseeseseseecessecesaeesesssesssssecseeesseseeseeeenesenss 18 New York Times v. Sullivan (1964) 376 U.S. 254 vecccccscccscessecsssesssesecseeeeseescneceeeeesseecesuareecseeesssesentenes 20, 22, 25 Noah v. AOL Time Warner (E.D. Va. 2003) 261 F.Supp.2d 532,aff'd (4th Cir. 3/24/04) 2004 WL GOQTL woe ceeeescessescesssseccscceseecessessssseceaeceaeeeceeseeeeeseessecssssccesseeseaeseneeseeeenes40 O’Bannon v. Town Court Nursing Center (1980) MAT US. 773 cccccccsscccessccsessessscsseeecsececaeeseesenseeeesasenscesaneesesseesenaeeeasenseeeges 15 Oksner v. Superior Court (1964) 229 Cal.App.2d 672.....:cceccscecssssssesessessssssessssesssesseseeesessesseseesseeneneceeeaeeees34 Oneida Indian Nation v. Madison County (2d Cir. 2011) 665 F.3d 408 uuu. cececccssseccseceessesececseeseseetssceeeaaesssssssseeseesseeeeetenetecseeanens 14 Organizationfor a Better Austin v. Keefe (1971) 402 US. 415 ccccccccsesccccssseesseceeeseeeeeessevseensssseseesaeesssesscesseeenaeecestengeeensennes24 Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29.0... ce eccsescsssssssesscsesesssssessssesneessssensesseneesensenereeserenacaes 16 Philadelphia Newspapers, Inc. v. Hepps (1986) AT5 U.S. 767 vcccccscssscscssecesseeceeecsssesecsececceceneesecsssaseeasssseesseeeneaeeneenesseneansngey20 Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345... cecessssesssessssessesessessescsesseerseeaseeseens 28, 31, 32 Quantity ofCopies ofBooks v. Kansas (1964) 378 U.S. 205 .ccccccscsscsscsscesessecenceeecseeessssesesesssssessesessenseeesssssessessenseseseeeneney 19 Regal Knitwear Co. v. NLRB (1945) 324 U.S. 9 vcccccccscscssscssccsseeseceessecsereresnesssssessccseessseceneseeseneeseesenees 25, 31, 34 Reno v. American Civil Liberties Union (1997) 521 U.S. 844 cieccccccccsssecssecssessesecsseeeeessesseeesenaeseesseassaeeseaneesneenaeees 12,17 Shulman v. Group WProds., Inc. (1998) 18 Cal.4th 200 oo... ceccceccccsscssscessecsssseseeeeerseseeecesscsseserseneeessaeeesusesentenss 18 Steiner v. Superior Court (2013) 220 Cal.App.4th 1479... sccssscccsseeserssesssessesseneeeteecsrsteesereensnsenssseess24 Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 Cal.App.4th 110... ccccssssssenseenseeeseesenesenensneesssessssenesereceenenes32 U.S. v. Alvarez (2012) 567 U.S. 709, 132 S.Ct. 2537 ..cccccesseccsseesseceesesssesscesseeessasesenessesesneeneees22 United States Aid Funds, Inc. v. Espinosa (2010) 559 U.S. 260 uo. .cecccccsccccsssesesessssssssseeesseeeeceesseeeeeseesessseeesseeeesaeeessenseeseressees 13 United States v. Hall (5th Cir. 1972) A72 F.2d 261 ...ccccccsccescessssseccsccseceseenecsaeceneeseeeeeeaeseseeeeesesseeessssenessaseeseasens28 United States v. Paccione (2d Cir. 1992) 964 F.2d 1269 voi. ecccccesscscessescessecesccesnecssceeseceneeeeessessaeseesaceeseseesssesaeenasnass28 Virginia Board ofPharmacyv. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748 vocccccccccssccsscsseseescecseceseeceeeecaeeearceseessesaeeasesesseeseseesssasesesaseess22 Voicenet Commn’cns, Inc. v. Corbett (E.D. Pa. 8/30/06) — 2006 WL 2506318 00... ceeeeeseseeeescersessesascscsssesssersceeesseeeesscaeeseeessessenee 39 Warren v. Warren (2015) 240 Cal.App.4th 373.0... ccecsceeseesessscessssesseseseresssssesereceecsssesseesseeseenseres 14 Wilson v. Superior Court (1975) 13 Cal.3d 652.......cccccccsssesseessseesecesecseseersscesseessssesessssseaseeeeessessseneesees 24, 25 Zeran v. America Online, Inc. (4th ¢Cir.1997) 129 F.3d 327 ...ccccccsssccssesscsscsceestecseessseceeeeesseceaceseeeaesssereasueeesseseneavees 18, 36 STATUTES 47 U.S.C. § 230 (Communications Decency ACt) oo...cccceteeteeeetenees passim § 230(C)(1) ..ceccesscceseecsccererenersceseeseesseeessasseessseessesseeteneeeseeeeseneeneeaees passim § 230(€)(3) ..cesccsccsccesesccscssesesecesecsteeessesscessessssesssseseeseeessseeeesaseeeseeeees 35, 39 California Code of Civil Procedure ; § L28(a)N(4) ..eesececccsccsecescesseceeseecsesscesesessscseseesscensesesssnecseeessessseeesenesgs 33, 34 § 128(a)(S) oocerecccceccesceceseessecesceecseesesaseseesesessesscserscasaeeaesseessecsesessesseseneeneas34 § 580 eccccscssseseeeecsecseeceeeesssesssesscsessessecsuseuseeseenessaneseeseeeaserssesenaees 11, 14 RULES Federal Rule of Civil Procedure 65(d)..........eeeesseesseeeseeeesceeseersesesneesseneee26 CONSTITUTIONAL PROVISIONS United States Constitution, First AMendMent...........cceeseeesteeteeneenes passim I. INTRODUCTION Plaintiffs’ arguments boil downto their dubious claim that Yelp enjoys no independentrights as an Internet publisherto select, organize, and display consumer-oriented content on Yelp.com. But Plaintiffs cannot cite a single case supporting their argument that Yelp has neither a First Amendmentright to publish and protect third party-authored speech, nor a due process right to notice and a hearing in connection with Plaintiffs’ attempt to enjoin its First Amendmentrights. They also cannotcite a single case holding, as the appellate court did here, that Section 230(c)(1) does not apply to requests for injunctive relief. The court of appeal’s ruling threatens settled due process, First Amendmentand Section 230 principles and this Court should reverse for several reasons. First, Yelp was not a party to the action that found the speech to be defamatory after an uncontested default hearing. Plaintiffs intentionally gave Yelp nonotice of this hearing; Yelp had no opportunity tolitigate this question. Thetrial court’s holding against Bird is not binding on Yelp, and does not excuse denying Yelp its basic due process rights. See, e.g., DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825. Yelp has a First Amendmentright to publish consumer reviewson its website, and a due process right to defend itselfwhen its interests are attacked. The narrow exception permitting injunctions against non-parties who’actin collusion with parties to evade an injunction does not apply here, because Yelp acted to advance its own interests and did not act in concert with Bird to violate the injunction. Section IJ,infra. Second, Plaintiffs’ analysis of Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”) is equally flawed. Again, Plaintiffs use the defamation ruling from an uncontested default hearing— that Yelp was not invited to attend—to support their claim that Yelp has no rights worthy of protection. Answering Brief on the Merits (“Answer”) 32- 33. And they continue to trumpet the appellate court’s conclusion that Section 230 can be evaded by the simple expedient ofnot directly suing a website publisher. Answer 41-42. Plaintiffs plainly do not like Congress’ decision to require defamation plaintiffs to look for their remedy against the original speaker, not the Internet publisher. But that does not excuse Plaintiffs’ inexplicable choice not to enforce their Judgment against Bird— whoindisputably could remove the reviews from Yelp’s website—nor overcomethe federal policy that those remedies adequately protect defamation plaintiffs like Hassell. SectionIII, infra. Yelp wasPlaintiffs’ target from the beginning. A00837. But because Plaintiffs knew that Section 230 barred their claims, they decided to ignore Yelp’s due processrights, in the hopeof indirectly obtaining the injunction that Plaintiffs could not have obtained directly. Jd. Their gambit worked in the lower courts, both ofwhich treated Yelp as if it were a mere 10 bystander, with nointerest in the content or the integrity of its website. This Court should remedythis injustice. Il. TRIAL COURTS MAY NOT ENJOIN NON-PARTIES, TAKING AWAY THEIR INDEPENDENT RIGHTS, WITHOUT NOTICE AND AN OPPORTUNITY TO BE HEARD Plaintiffs cannot deny that they did not sue Yelp or give it any notice that they intended to ask the trial court to issue an injunction against Yelp. They instead focus ontheresult, that Yelp did not appear in the action (Answer 7), ignoring that Yelp had no reason to suspect that it needed to intervene to protect its own interests. Plaintiffs’ actions flouted Yelp’s due process rights, and the appellate Opinion should be reversed for this independentreason. A. Yelp Has A Due Process Right To Protect Its Website. In their effort to defend the appellate court’s decision, Plaintiffs argue for the first time that Yelp does not havea liberty or property interest in its own website. Answer 23-25. Plaintiffs waived this argument by not raising it below. See A00481 (arguing that Yelp’s due processrights were satisfied, without suggesting Yelp has no such rights); Court ofAppeal Respondent’s Brief (3/13/15) at 11-28 (same); Answerto Petition for | ' Yelp regularly receives correspondence advisingit about claims asserted against a user based on a review. It is absurd to suggest that Yelp must hire counsel and moveto intervene in each oneorrisk waiving fundamentalrights. Due process principles and statutes such as Code of Civil Procedure § 580 are designed to protect non-parties from such machinations. 1] Review (8/8/16) at 10. The Court should refuse to consider Plaintiffs’ newly-minted argument. See Ehrlich v. City ofCulver City (1996) 12 Cal.4th 854, 865 n.4 (argumentnot raised below or in counterpetition for review is “not cognizable before this court”). Regardless, as discussed below,Plaintiffs are simply wrong. As an Internet publisher, Yelp has a well-recognized First Amendmentright to publish the content of others on the website that it has developed and maintains. E.g., Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 849, 853 (“Reno”’); see Section B,infra. Plainly, First Amendment rights fall within the broad protection of the due process clause. E.g., Marcus v. Search Warrant ofProperty (1961) 367 U.S. 717, 731-32. Plaintiffs offer no authority holding otherwise.” Plaintiffs continue to simply ignore the fundamental point of the _ many U.S. Supreme Court cases that require a hearing to enjoin speech. Answer 15-17 & n.6. Their authority focuses on the question ofwhether state officials must provide a hearing before enjoining speech. Id.; see also id. 1-2; Op. 23. But as Yelp explained, the question is not whether the hearing must always be held before the injunction is issued, but instead * The plurality opinion in Kerry v. Din (2015) 135 S.Ct. 2128, 2134, does not support Plaintiffs’ claim. There, the Court refused to recognize a new liberty interest for a woman whose non-resident husband was denied a visa. It did not limit the due process guaranteed to those, like Yelp, whose First Amendmentrights are attacked. 12 whether Yelp wasentitled to a prompt hearing to adjudicate its claimed rights, even if that hearing did not precede the injunction. O.B. 19-20, citing Heller v. New York (1973) 413 U.S. 483, 488; see also Marcus, 367 USS. at 731-32. Contrary to Plaintiffs’ claim (Answer 15-16), Yelp is exactly like the distributors in Marcus. It personally engages in protected speech activities by providing a forum for and publishing different types of third-party speech, which Yelp organizesfor display, selects for recommendation or non-recommendation, or removes. A00240, A00495, A00567-00569. Indeed, Yelp regularly applies automated softwaretoall reviewsin an attempt to recommendthe most helpful information to consumers—an ongoing andinherently editorial function. Jd. Nonetheless, the appellate court denied Yelp its due processrights by holding that Yelp wasentitled to no hearing atall to oppose the injunction against it. Op. 21. Plaintiffs’ argument that Yelp received actual notice of the claim against it, which purportedly satisfies due process, also is wrong. Answer 25. In Plaintiffs’ cases, due process wassatisfied only because the notice effectively communicated that the party’s own interests were implicated.| See Benson v. California Coastal Comm’n (2006) 139 Cal.App.4th 348, 353-54 (written notice to developer advising it of upcoming hearing satisfied due process); United States Aid Funds, Inc. v. Espinosa (2010) 559 U.S. 260, 272 (due process satisfied where creditor “received actual notice ofthe filing and contents of [debtor’s] plan” and rule arguably violated was 13 procedural); Oneida Indian Nation v. Madison County (2d Cir. 2011) 665 F.3d 408, 431-32 (due process satisfied where plaintiffs received actual notice that fully informed them of impending action). Plaintiffs’ vague letter advising Yelp that a lawsuit wasfiled against Bird, but not mentioning any intent to seek an injunction against Yelp, did not provide that notice here. A00601-00602. This Court’s jurisprudence on Code of Civil Procedure § 580 demonstrates whyPlaintiffs’ arguments are so misplaced. In Greenupv. Rodman (1986) 42 Cal.3d 822, the Court explained that Section 580 satisfies due process requirements by ensuring that parties receive adequate notice of the relief that will be sought against them in a default judgment. Id, at 826-27 (rejecting plaintiff's argumentthat trial court acted within its jurisdiction in granting greaterreliefthan originally requested). As this Court explainedin Jn re Lippel (1990) 51 Cal.3d 1160, 1166 “[i]t is a fundamental concept of due processthat a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. ... California satisfies these due process requirements in default cases through section 580.” (Citations omitted.) See also Warren v. Warren (2015) 240 Cal.App.4th 373, 377-79 (reversing judgmentin action seeking accounting because defendant did not receive notice of amountat issue). 14 Plaintiffs’ other arguments fare no better. This case does not involve the “indirect” interest at issue in the only case Plaintiffs cite for their argument, O’Bannon v. Town Court Nursing Center (1980) 447 U.S. 773. There, the government’s action indirectly harmedthe interests of nursing homepatients, who challenged revocation of the home’sright to receive Medicaid and Medicare payments. Jd. at 775. The Court found a “simple distinction between governmentaction that directly affects a citizen’s legal rights, or imposesa directrestraint on hisliberty, and action thatis directed against a third party and affects the citizen only indirectly or incidentally. ...” Id. at 788. As the Ninth Circuit explained in Greene v. Babbitt (9th Cir. 1995) 64 F.3d 1266, 1272-73, the due process clause protects “individual entitlements,” but not the “collective hopes”at issue in O'Bannon. Here, Yelp’s “individual entitlement” to protect its website is underattack, andit is entitled to defendit. Yelp is not challenging the ruling against Bird that the speechis defamatory, nor mustit to assert its rights as a publisher. Yelp is advocating its own First Amendmentrights, independent of any judgment entered against Bird in a proceeding to which Yelp wasnot party. Plaintiffs do not discuss the legal requirements for their proclamation that Yelp is bound by the holding against Bird, perhaps because they know that they cannotpossibly satisfy those requirements. Contrary to Plaintiffs’ claims (Answer 24-25 & n.10), Yelp’s cases directly support its due I) process argumentby establishing that in personam judgments are forbidden without notice and an opportunity to be heard. O.B. 17-18. As Blonder- Tongue Labs., Inc. v. Univ. ofIll Found. (1971) 402 U.S. 313, 329, and Chase Nat’l Bank v. City ofNorwalk (1934) 291 U.S. 431, 440-41, make clear, only the parties to priorlitigation are bound by any judgmententered in that litigation. “Unless duly summonedto appearin a legal proceeding, a person not a privy mayrest assured that a judgmentrecovered therein will not affect his legal rights.” Chase Nat’l Bank, 291 U.S.at 441 (citations omitted; emphasis added). Here,that straight-forward rule meansthat Yelp had no obligation to intervenein the litigation below, in which it was not named and received no notice thatits rights were challenged, and it is not bound by the defamation ruling against Bird. See DKN Holdings, 61 Cal.4th at 824-25 (claim and issue preclusion are available only against parties to litigation); Dillardv. McKnight (1949) 34 Cal.2d 209, 215 (adopting the “accepted rule that in no case will a judgment entered after service on less thanall the partners be given the effect of a personal judgment against partners not actually served” (citations omitted)); Patel v. Crown Diamonds, Inc. (2016) 247 Cal.App.4th 29, 38 (non-parties not bound where “they had no directinterest in the subject matter, nor any right to make a defense, control the proceeding,or appeal from the judgment”). 16 H a e Bird is one of millions of Yelp users. Because Plaintiffs chose not to make Yelp a partyto this litigation, they cannot enforce the defamation holding against Yelp. The central theme of their Answer crumbles under this clear law. B. Yelp Has A First Amendment Right To Publish Third Party Speech On Its Website. The baseless themeat the heart of Plaintiffs’ Answer Brief is that Yelp has no First Amendmentright to publish, organize, and recommend third-party content on its website. This argument underlies Plaintiffs’ theory that Yelp is merely an “online directory” that the court simply treated as the conduit through which its order would be enforced. Answer 31,42. This led the appellate court to describe Yelp as nothing more than the “administrator of the forum” on which Plaintiffs’ speech wasposted. Op. 21-22. Plaintiffs cite no case to support this startling claim, nor could they. Internet publishers like Yelp have a First Amendmentright to publish third-party speech aspart of their editorial operations. This was the fundamental premise underlying the United States Supreme Court’s first discussion ofthe protections afforded to Internet publishers. Reno, 521 U.S. at 849, 853. The Court rejected the federal statute at issue becauseit “abridges ‘the freedom of speech’ protected by the First Amendment,” including the rights of publishers “from which to address and hear from a 17 world-wide audience of millions of readers, viewers, researchers, and buyers.” Jd. Indeed, Section 230 specifically was adopted to protect Internet publishers who exercise “a publisher’s traditional editorial functions—suchas deciding whether to publish, withdraw, postpone or alter content.” Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d 327, 330.° This Court reiterated long agothattraditional editorial functionsfall squarely within the First Amendment’s protection. Shulmanv. Group W Prods., Inc. (1998) 18 Cal.4th 200, 224-25. See also Miami Herald Publ’g Co. v. Tornillo (1974) 418 U.S. 241, 258 (“[t]he choice of material to go into a newspaper... constitute the exercise of editorial control and judgment”); Denver Area Educ. Telecomms. Consortium, Inc. v. FCC 3 See also Garcia v. Google, Inc. (9th Cir. 2015) 786 F.3d 733, 747 (en banc) (request to enjoin Google from distributing a film in which plaintiff briefly appeared “gave short shrift to the First Amendmentvalues at stake”); Chicago Lawyers’ Committeefor Civil Rights Under Law,Inc. v. Craigslist, Inc. (7th Cir. 2008) 519 F.3d 666, 668 (“anyrule that forbids truthful advertising of a transaction that would be substantively lawful encounters serious problems underthe first amendment”(citations omitted)). See generally Jian Zhang v. Baidu.com, Inc. (S.D.N.Y. 2014) 10 F.Supp.3d 433, 438-30; Google, Inc. v. Hood (S.D. Miss. 2015) 96 F.Supp.3d 584, 593-94, rev'd on procedural grounds, (5th Cir. 2016) 822 F.3d 212; Langdon v. Google, Inc. (D. Del. 2007) 474 F.Supp.2d 622, 629- 30. Cf Kash Enterprises, Inc. v. City ofLos Angeles (1977) 19 Cal.3d 294, 300, 301 (“the right to distribute newspapers and other periodicals on the public streets lies at the heart of our constitutional guarantees of freedom of speech and freedom ofthe press” and this protection extends “to virtually all modes of communication that may beutilized to disseminate ideas and protected expression on the public streets”). 18 (1996) 518 U.S. 727, 753-63 (rejecting statute imposing programming obligations on broadcaster).* Yelp acted on its own behalf—in advancementofits First Amendmentrights—completely independently of Defendant Bird. Yelp’s website includes tens of millions of consumer reviews, written by millions of independent users. A00240. Businesseslisted on Yelp can create free accounts, which allow them to publicly respond to any review, with the response appearing next to the original review. Jd. Yelp organizes reviews for display, removes reviewsthat violate its terms of service, and applies automated softwareto all reviews posted in an attempt to recommendthe most helpful reviews to consumers. A00240, A00495, A00567-00569. This exercise of traditional editorial functionslies at the heart of the First Amendment. Plaintiffs also are wrong in proclaiming that purportedly false speech has no First Amendmentprotection. The Supreme Court long ago recognized that some false speech must be protected in order to give “the freedomsof expression ... the ‘breathing space’ that they ‘need... to * Plaintiffs attempt to distinguish many of Yelp’s casesin a brief footnote. Answer 17 n.6; see O.B. 19-20 n.8. Their response to Carroll v. President & Comm’rs ofPrincess Anne (1968) 393 U.S. 175, turns on their debunked claim that the defamation ruling against Bird also binds Yelp. Lee Art Theater, Inc. v. Virginia (1968) 392 U.S. 636, 637; Quantity of Copies ofBooks v. Kansas (1964) 378 U.S. 205, 212-13; and Kash Enterprises, 19 Cal.3d at 309, all make clear that courts must engage in a careful, searching inquiry when enjoining speech. That did not occur here. 19 399,survive’”; thusplaintiffs bear the burden ofproving falsity, and public officials and public figures must prove constitutional malice to state a defamation claim. New York Times v. Sullivan (1964) 376 U.S. 254, 271- 72 (citations omitted); see Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 776. Plaintiffs’ argumentis undisguised bootstrapping and in exploiting this Court’s earlier ruling in Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 (Section C, infra), demonstrates the dangers the appellate decision creates. Undertheir reasoning, any judicial ruling that speech is defamatory—even one entered following questionable service (A00026) and an uncontested default hearing (A00211)—would bind third parties who receive no opportunity to contest that ruling. Plaintiffs could get uncontested judgments around the country and use them to deny California citizens their own First Amendmentrights—all because a court somewhere entered a default judgment, based solely on a plaintiff's say-so, ruling the speech to be defamatory.’ Butas this Court explained in Barrett v. Rosenthal (2006) 40 Cal.4th 33, 57, “[d]efamation law is complex, requiring consideration of multiple factors.” (Citations omitted.) Despite this Court’s admonition that “‘a court must tread lightly and carefully when 5 Yelp does not contendthat this is notice-basedliability, but instead that similar concerns apply here, particularly in light of innovative attempts byplaintiffs to evade Section 230’s protection. E.g., RJN Exs. A-G; see Section III,infra. 20 issuing an orderthat prohibits speech” (Balboa Island, 40 Cal.4th at 1159 (citation omitted)), the trial court issued, and the appellate court approved, a broad injunction without analyzing the individual statements (A00211). This is not the law.° Nor do Plaintiffs’ other cases help them. Answer 2, 14. In Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-46, the Court addressed restrictions on “virtual child pornography.” It stated in passing that freedom of speech does not embrace defamation, but did not apply that observation to the different facts of that case. Id. In Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 776, the Court merely recognized the state’s interest in preventing false statements of fact, in deciding whether the forum had personaljurisdiction over defendant. And in Bill Johnson’s Rests., Inc. v. N.L.R.B. (1983) 461 U.S. 731, 743, the Court held that the First Amendmentright to petition does not protect sham litigation, “[j]ust ° Plaintiffs accuse Yelp of“blatant[ly] misrepresent[ing]”the allegedly defamatory nature of Bird’s statements (Answer 13), but cannot deny thatthe trial court’s order following an uncontested default hearing did not evaluate the individual statements or any potential defenses. A00211. Plaintiffs also mischaracterize Yelp’s Termsof Service, claiming they require Yelp to remove content deemed defamatory. Answer 47. They do not. A000637. Rather they makeclear that Yelp assumes no obligation—andretains sole discretion to decide whether—to remove content that allegedly violates its terms. Thus, while it is Yelp’s general practice to remove content adjudicated defamatory against third parties— assuming any appeals have been exhausted and a plausible showing of defamation has been made (A00734)—this almost never occurs, as Yelp users have the ability to remove their reviewsat any time. 21 as false statements are not immunized by the First Amendmentright to freedom of speech.” Jd. at 743 (citation omitted).’ Noneofthese cases hold—asPlaintiffsinsist—that once speechis found to be defamatory in any proceeding anywhere,that holdingis binding on the entire world and everyone loses First Amendmentrights related to that speech. To the contrary, the U.S. Supreme Court “has never endorsed the categorical rule [Plaintiffs] advance[]: that false statements receive no First Amendmentprotection.” U.S. v. Alvarez (2012) 567 U.S. 709, 132 S.Ct. 2537, 2545 (reversing criminal conviction under Stolen Valor Act; governmenthad noright to criminalize speech at issue, evenif false). Finally, Yelp’s arguments are completely consistent. Yelp is entitled to protect its First Amendmentright to publish speech created by others, andto assert its rights as an Internet publisher under Section 230. “The provisions of section 230(c)(1), conferring broad immunity on Internet intermediaries, are themselves a strong demonstration oflegislative commitment to the value ofmaintaining a free market for online ’ See also Herbert v. Lando (1979) 441 U.S. 153, 171-72 (to ensure protection of First Amendmentprinciples, liability is limited “to instances where somedegree of culpability is present”); Virginia Board ofPharmacy v. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748, 771 (stating in dicta that false speech generally not protected “for its own sake”; no claim advertisements at issue were false). Plaintiffs’ reliance on Beauharnais v. Illinois (1952) 343 U.S. 250, 256, is particularly misplaced. That decision preceded New York Times v. Sullivan by a dozen years, and ~ no longerreflects controlling law. 22 expression.” Barrett, 40 Cal.4th at 56; see also Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1027-28. Plaintiffs’ argument—that only those who create speech have a First Amendmentright in that speech—is simply wrong. See, e.g., Marcus, 367 U.S. at 731-33; Heller, 413 U.S. at 488. C. The Injunction Is An Unconstitutional Prior Restraint. Contrary to Plaintiffs’ claim that this Court has “conclusively resolve[d] this issue” (Answer 20), in noneofPlaintiffs’ cases did a court bind a non-party that lacked privity with a party to a holding that speechis defamatory. In BalboaIsland, the Court reversed a prior restraint against defendantto the extent it applied to non-parties, while reserving the question of “whether the scope of the injunction properly could be broader if people other than [defendant] purportedto act on her behalf.” 40 Cal.4th at 1160 & n.11. It held that “followinga trial at which it is determinedthat the defendant defamedtheplaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.” Jd. at 1155-56 (emphasis added). Plaintiffs ignore this key difference between Balboa Island andthis case. Moreover,Plaintiffs’ newly-minted argumentthat the injunction entered against Yelp is not a prior restraint demonstrates a fundamental . misunderstanding ofFirst Amendment jurisprudence. Answer 18-21. While manyprior restraints enjoin speech before its initial publication, orders to stop or removespeechalso are prior restraints and presumptively 23 unconstitutional. E.g., Organizationfor a Better Austin v. Keefe (1971) 402 U.S. 415, 418-19 (injunctionrestraining distribution of leaflet already distributed to public was unconstitutional prior restraint). Thus, in Flack v. Municipal Court (1967) 66 Cal.2d 981, 990, this Court rejected a seizure of materials that already had been publicly displayed, explaining that it “effects a prior restraint upon freedom of speech or press and constitutes a denial ofprocedural due process of law.” (Citation omitted.) See also Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1482(trial court’s order requiring attorney to remove pages from website during trial was “unlawful prior restraint on the attorney’s free speech rights”); Garcia, 786 F.3d at 747 (“[t]he panel’s takedownorderof a film of substantial interest to the public is a classic prior restraint of speech”(citations omitted)). Plaintiffs take cases out of context in arguing to the contrary. This - Court’s plurality opinion in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, involved unlawful conduct—sexual harassmentin the workplace. Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241, did not purport to limit the term “prior restraint” to orders prohibiting speech not yet published, as Plaintiffs contend. Answer 18. Plaintiffs also misconstrue the decision in Wilson v. Superior Court (1975) 13 Cal.3d 652, 659, in which this Court held that orders enjoining previously published speech are presumptively unconstitutionalprior restraints. Answer 21. Wilson did notturn on theplaintiff's public figure status, as Plaintiffs 24 claim; the Court simply was describing the facts ofNew York Timesv. Sullivan. Wilson, 13 Cal.3d at-659. Plaintiffs cannot redefine the law governingpriorrestraints. Becausethe prior restraint against Yelp cannotsatisfy the constitutional scrutiny required underthe First Amendment, the injunction fails for this independent reason. D. Injunctions Cannot Bind Non-Parties Like Yelp Without Evidence Of Aiding And Abetting The Enjoined Party. Plaintiffs insist the trial court had the right to enter an injunction against Yelp without giving it any notice or opportunity to be heard, because Bird purportedly is acting through Yelp. Answer 26-31. They invoke a narrow exception to due process requirements, which allows courts to bind non-parties to an injunction if they are “instrumentalities through which defendant seeks to evade an orderor [| come within the description of personsin active concert or participation with them in the violation of an injunction.” Regal Knitwear Co. v. NLRB (1945) 324 U.S. 9, 14 (emphasis added). But this narrow exception wascreated to give courts the ability to enforce injunctions against large groups or unknown collaborators, when post-entry conduct creates problems with enforcement. It does not apply here, where Plaintiffs conceded that they intended Yelp as a target at the beginning of this lawsuit, but deliberately chose not to sue 25 Yelp (A00837), and have never attempted to enforce the injunction against Bird. Plaintiffs ignore a critical difference between their cases andthis case—the injunction infringed Yelp’s independent First Amendmentrights as an Internet publisher. Sections B, C, supra. Plaintiffs’ attempt to distinguish Alemite Mfg. Corp.v. Staff(2d Cir. 1930) 42 F.2d 832,833, exposes this fundamentalflaw in their claims. They argue thatthere, “appellant was acting on its own behalf, completely independent from the enjoined defendants.” Answer 27 n.11. But so was Yelp. A00240-00241; see also Doctor’s Assoc., Inc. v. Reinert & Duree, P.C. (2d Cir. 1999) 191 F.3d 297, 303 (injunction against franchisor could not be applied to franchisees becauseit “bars appellant franchisees from prosecuting the... suits on their own behalfand on behalf of other” non-parties). Additive Controls & MeasurementSys., Inc. v. Flowdata, Inc. (Fed. Cir. 1996) 96 F.3d 1390, 1395, is instructive. There, the court reversed a district court injunction against non-parties based on a contractual relationship with defendant. The court explained that “[b]ecause they were notparties to the Adconcase,[] the appellants could not be enjoined from engaging in independent conduct with respect to the subject matter ofthat suit, and the ... decree could not be interpreted to impose any such duty upon them.” Jd. It elaborated that “[h]aving a relationship to an enjoined party ofthe sort set forth in Rule 65(d) exposes a non-party to contemptfor 26 assisting the party to violate the injunction, but does notjustify granting injunctive reliefagainst the non-party in its separate capacity.” Id. at 1395-96. This is a demanding standard, as it should be. As the court explained in G.&C. Merriam Co. v. Webster Dictionary Co. (Ast Cir. 1980) 639 F.2d 29, in reversing a contempt finding against a non-party, “[p]roof of a relationship to the pre-injunction act of a party may be circumstantially suggestive, but a nonparty, ifnotlegally identified with a party, can be foundto be in contemptonly ifin active concert or participation with a party in post-injunction activity.” Id. at 35 (citations omitted; emphasis added). These cases squarely apply here. Yelp always acted to advanceits ownFirst Amendmentrights. Section B, supra. Yelp did not “assist” Bird to violate the injunction—whichwas entered well after the reviewsfirst posted—andit certainly never acted in “active concert or participation” with Bird. Instead, Yelp acted well within its constitutional rights and as an Internet publisher protected by Section 230’s immunity. Section III.C, infra. NoneofPlaintiffs’ arguments get them past this critical distinction. First, they erect a straw man to knock it down. Answer 26. Responding to Yelp’s argument that the exception is narrow, Plaintiffs makethe different point that the exception is firmly established. Jd. Yelp never claimed otherwise. 27 Second, Yelp’s cases do not support Plaintiffs’ position. Answer 28- 29. In most, plaintiff asked the court to enforce the injunction against a memberofa group, such as an anti-abortion protester, because it would be effectively unenforceable if plaintiff were required to sue every current or future group member. E.g., Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 353 (abortion protestors). A Florida court explained thiscritical distinction in rejecting the Secretary of Labor’s request for an injunction against a creditor that sold the debtor’s property. Martin v. Carroll Graphics Corp. (M.D.Fla. 1992) 804 F.Supp. 311, 312. In distinguishing cases allowing injunctions against groups, the court noted that those courts were “faced with a situation where the class ofpersons to which the injunction applied was undefinable.” Jd. at 313. In Martin, in contrast, the Secretary “could have named [the creditor] as a party to the preliminary injunction but failed to do so.” Jd. at 314.8 The sameis true here. Yelp was Plaintiffs’ target from the ® The Secretary relied in part on United States v. Hall (5th Cir. 1972) 472 F.2d 261, 263-64, which Plaintiffs also invoke to misleadingly argue that “[iJnjunctions targeting named nonparties[] have been upheld.” Answer 30. Hail does not support the injunction issued in Martin or here. In Hail, the Court issued an injunction to prevent unrest and violence in a school desegregation case, and directed service on non-party Hall. 472 F.2d at 262-64. The Court explained that school orders “necessarily depend on the cooperation of the entire community for their implementation”and are “particularly vulnerable to disruption by an undefinable class of persons whoare neither parties nor acting at the instigation of parties.” Jd. at 266 (emphasis added). United States v. Paccione (2d Cir. 1992) 964 F.2d 1269, is even further afield. There, 28 beginning. Answer 30; A00837. Plaintiffs could have named Yelp as a defendant—andfaced the dismissal mandated by Section 230—butthey chose not to do that, and instead sought to secure an injunction against Yelp without giving Yelp a chanceto opposeit. Third, Plaintiffs also are incorrect in arguing that if courts can apply injunctions to non-parties, they afortiori can name non-parties in the injunction. In the few cases that permitted a non-party to be named, the party and non-party werein privity or closely aligned. See Asetek Danmark A/S v. CMI USA, Inc. (Fed. Cir. 2016) 842 F.3d 1350, 1364-67 (injunction may extend to non-party in close contractual relationship with party); Aevoe Corp. v. AE Tech Co., Ltd. (Fed. Cir. 2013) 727 F.3d 1375, 1383-84 (affirming injunction naming non-party that wasprivy of party). See also footnote 8, supra. Where no suchrelationship exists, courts apply injunctions to non-parties only if they hold an evidentiary hearing and conclude that the non-party’s conductjustifies applying the injunctionto it. E.g., Berger v. Superior Court (1917) 175 Cal. 719, 721. Here, in contrast, following issuance of a TRO to preserve business assets, a court-appointed receiver signed a Forfeiture Consent Order on behalf of a business to implement the TRO. Jd. at 1270-72. However, after a dispute, the receiver interfered with the business’s interest and properties. Jd. Although the receiver was not personally named in the Consent Order, he appropriately was held in contempt because it was similar to an attachment order and he had notice and “placed himselfat risk ofbeing held in contemptifhe undertook to thwart the district court’s efforts to enforce its judgments and orders.” Jd. at 1273, 1275, 1276 (citation omitted; emphasis added). 29 the appellate court disclaimed the need for any evidentiary hearing (Op. 21),” and affirmedthe injunction against Yelp without legal authority or analysis to support its vast expansion of this narrow exception to due process rights.'° Plaintiffs’ argumentthat “but for” Yelp’s website Bird would notbe ableto violate the injunction (Answer 31) demonstrates the remarkable breadth of the standard they ask this Court to embrace, but does not answerthis key point. Fourth, Yelp’s Opening Brief focuses on the criteria and standards courts imposeto justify extending injunctions to non-parties, which Plaintiffs largely ignore. O.B. 21-24. Plaintiffs focus instead on language taken from a few decisions out of context, suggesting that “injunctions can 399° run against nonparties ‘with or through whom the enjoined party mayact. ’ Plaintiffs misstate Yelp’s argumentin accusing Yelp of misrepresentation. Answer 30. Yelp pointed out—correctly—thatthe appellate court did not base its decision on any conduct by Yelp, but instead said that evidence regarding Yelp’s actions (or inactions) would be evaluated in connection with contemptproceedings. O.B. 25-26. Plaintiffs point out that the trial court received evidence of Yelp’s alleged conduct. Answer 30-31. This is beside the point; this Court reviews the appellate court’s decision. 10 Tt is no answerthat the court of appeal contemplated a second hearing, at which thetrial court would decide whether Yelp should be held in contempt. Op. 18. Yelp should not have to choose between complying with an unconstitutional prior restraint and risking contempt sanctions. Cf Inre Berry (1968) 68 Cal.2d 137, 148-49 (person affected by injunction may challenge the injunction in advanceorviolate it and risk contempt sanctions). Underthe appellate court’s rationale, no reason exists to give anyone a prompthearing to challenge an injunction. Op. 21. The enjoined party could just argue in opposing contempt proceedingsthat no facts support the injunction. This is not the law. 30 Answer28, citing Planned Parenthood, 107 Cal.App.4th at 353. Thus, they claim the injunction applies to Yelp simply because Bird contributed her reviews to Yelp’s website. But this cannot be enough. Yelp publishes a forum for Bird’s statements and for millions of others to submit reviews but did nothing to actively support Bird. Fifth, Plaintiffs’ attempt to distinguish Regal Knitwear (Answer 27), also ignores the fact that there, the non-party was not namedin the injunction, and the Court held it was entitled to a hearing fo determineifthe injunction could be appliedto it. 324 U.S. at 16. Thus,the fact that the injunction took effect before the non-party was given a hearingis meaningless. Here, in contrast, Yelp is named in the injunction (A00213); it is accused of “ignor[ing]” that injunction, simply becauseit refuses to sacrifice its right to challenge the priorrestraint entered against it (Answer 9); and it faces contemptand other sanctionsif it refuses to comply with an injunction that ignores Yelp’s interests in its own website (Op. 30-31). Sixth, Plaintiffs misstate California law in attempting to distinguish Blockowicz v. Williams (N.D.Ill. 2009) 675 F.Supp.2d 912,aff'd (7th Cir. 2010) 630 F.3d 563. Answer 29. Under federal law,“a court may find a nonparty in contemptif that person has ‘actual knowledge’ of the court order and ‘either abets the party namedin the orderorislegally identified with him.’” Jd. at 915 (citation omitted). The same standard applies here. See Berger, 175 Cal. at 722 (injunction can be applied only to those named 31 in the injunction, their members, and those “acting as an aider and abetter” of the enjoined parties (citations omitted)). Planned Parenthood, 107 Cal.App.4th at 353, reiterated this limiting language from Bergerin rejecting an injunction against abortion protestors neither named individually nor as class members. /d.; see also O.B. 21-25. Finally, Plaintiffs again misconstrue Yelp’s Opening Brief in an attempt to downplay the appellate court’s decision to treat Yelp as nothing morethan the “administrator” of Yelp’s website. Answer 31; see Op. 22. Yelp explained thatits First Amendmentrights deserve at least as much protection as the monetary interests at issue in Fazzi v. Peters (1968) 68 Cal.2d 590, and Tokio Marine & Fire Ins. Corp. v.W. Pac. Roofing Corp. (1999) 75 Cal.App.4th 110, becauseprior restraints are “one of the most extraordinary remedies knownto our jurisprudence [which] carry a heavy burden against constitutional validity.” O.B. 28 (citation omitted). Plaintiffs have no answerto this important point. The appellate court watered downthestrict requirements of California law by approving the injunction here. Op. 21. If this narrow exception can be applied to Yelp—which is connected to Bird only because she is one of millions ofpeople who post on Yelp—it can be applied to any non-party. The exception will have swallowed the rule. A newspaperthat refuses to removea publishedletter to the editor or quote from a source in an article, a bookstore that continuesto sell a book foundto be misleading, 32 and a library that provides Internet access, all are non-parties “with or through whom [an] enjoined party may act.” Answer 14. But none hasthe close or contractual relationship with the enjoined party that courts consistently have required to bind them to an injunction to which they were not a party. This narrow exception to due process does not apply here. HI. PLAINTIFFS CANNOT EVADE SECTION 230 BY DENYING WEBSITE PUBLISHERS THEIR DUE PROCESS RIGHTS A. The Injunction Against Yelp, Not Bird, Is At Issue Here. Plaintiffs begin their arguments against Yelp’s well-recognized Section 230 immunity with the uncontroversial point that the Judgment can be enforced against Bird. Answer 32. They then misstate the facts and law in arguing that under Code of Civil Procedure § 128(a)(4), the Court can also compel Yelp to comply with the injunction against Bird. They are wrong. First, they claim that Bird “escaped accountability, and refused to comply with the valid court judgment against her.” Answer 33. They do notcite to the record for this claim because they cannot—as Yelp explained in its Opening Brief(at 7) and Plaintiffs have not denied, Plaintiffs have never attempted to enforce their injunction against Bird. The only injunction entered bythetrial court was directed to Bird and Yelp together. A00213. Plaintiffs immediately sought to enforce this injunction against Yelp alone. A00243, A00494, A00522. 33 Second, Yelp has no obligation to act as the court’s deputy and “put an end to [Bird’s] illegal activity” (Answer 33), in contravention of Yelp’s independentandsignificant interests in its own website. This argumentis simply an unsupported enlargementofthe formerly narrow exception to due process recognized in Regal Knitwear, without the benefit of any supporting authority. See Section IID, supra. Section 128(a)(4) does not authorize enforcementof court orders against non-parties whose independentrights are at issue. See Oksner v. Superior Court (1964) 229 Cal.App.2d 672, 685 (Section 128(a)(4) “does not extend to application of the property of a third person to the debt of another without previously affording a full hearing to said third person”; order requiring third party to surrender property “was madein excess ofjurisdiction and is void”); cf Barwis v. Superior Court (1978) 87 Cal.App.3d 239, 242 (Section 128(a)(5) does not give court jurisdiction over non-party not “connected with” proceeding). And Gompers v. Bucks Stove & Range Co. (1911) 221 U.S. 418, 450, merely recognizes the court’s authority to punish parties for contempt. Neither it nor Section 128(a)(4) supports Plaintiffs’ overreach. B. The Injunction Treats Yelp As The Publisher Of Bird’s Speech. Yelp demonstrated in its Opening Briefthat Section 230(c)(1) and supporting case law, such as this Court’s decision in Barrett, 42 Cal.4th at 60, 63, squarely prohibit entry of an injunction against Yelp here. O.B. 44- 34 46.'' In response, Plaintiffs cite a combination ofdisparate cases to create a proposed test—that Sections 230(c)(1) and (e)(3) purportedly impose separate requirements, both ofwhich mustbesatisfied for Section 230 to apply—that is not supported by any case they cite. Answer 34-35. This Court’s careful analysis in Barrett makes clear that Section 230(c¢) (D), standing alone, creates the statutory immunity. 40 Cal.4th at 39-40; see also O.B. 45-47. Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, fully supports this straight-forward interpretation. Jd. at 1100-01.” There, the court rejected one claim, based on publication of content on the website and nothing more(id. at 1102-03), but permitted a different claim, based on an allegedly broken oral promise to remove content (id. at 1107). But Yelp made no such promise. Yelp challenges the court’s authority to issue the orderagainstit in the first instance—whichis premised entirely on Yelp’s publication of Bird’s speech, and nothing else. This dispositive fact puts Yelp comfortably within the Section 230 protection recognized by the "! Yelp apologizes forits incorrect use of quotation marksin discussing Sections 230(c)(1) and (e)(3). O.B. 41. "? Plaintiffs deny their concession below that they seek to treat Yelp as the “publisher or speaker” of Bird’s comments. Answer 35 n.15. The record, however, is clear. Plaintiffs argued that Yelp must be treated as the content provider because its website filters reviews and that in doingso, “Yelp is acting as a ‘publisher’ or ‘speaker.’” A00486-00488. They wisely have abandoned that argument. 35 Zeranline of cases, including this Court’s decision in Barrett.’> Plaintiffs’ argument would render Section 230 meaningless, giving courts carte blancheto issue injunctions without due process against website publishers. The focus in Barnes was whether the action was based exclusively on free speech or publishing conduct, or instead included some other element—suchas a broken promise from Yahoo’s Director of Communications—thattook it outside of Section 230 immunity. Answer 36-38; accord O.B. 42 n.18, 45-46 & n.20. Indeed, Plaintiffs’ cases highlight this distinction by focusing on conductother than publication of speech on an Internet site. Answer 35, citing Lansing v. SouthwestAirlines Co. (2012) 2012 IL App.(1st) 101164 (Section 230 did not apply to negligent supervision claims based on employee’s harassment using workplace computer system); Airbnb, Inc. v. City & County ofSan Francisco (N.D. Cal. 11/8/16) 2016 U.S. Dist. LEXIS 155039 (rejecting claim by short-term rental websites that Section 230 barred law targeting 3 Plaintiffs ignore the facts in arguing that “Yelp is neither ‘cast in the same position as the party whooriginally posted the offensive messages,” ... nor soughtto be held accountable for its own editorial decisions of ‘whether to publish, withdraw, postponeor alter [such] content, ... [nor] ‘punish[fed or] deter[red].’” Answer 39, citing Zeran, 129 F.3d at 333; Barrett, 40 Cal.4th at 43. The injunction places Yelp exactly in these positions, ordering Yelp to do what Plaintiffs speculated Bird would not, i.e., withdraw or alter content published on Yelp.com, or face the “punish[ment]” and “deterr[ence]” of contempt sanctions. 36 acceptance of fee for reservation and payment services).!4 In contrast, Yelp’s conductas a publisheris the only conduct at issue here. Plaintiffs try to avoid this result by arguing that Yelp’s duty “does not arise from its status as a publisher or speaker, but as a party through whom the court must enforceits order.” Answer 38.'° Butthis is nottrue; Yelp is not a party, and Bird could removeher reviewsat any time, yet Plaintiffs have never enforced their Judgment against Defendant Bird to try to compelherto do so. It also is the kind of “artful skirting” of the CDA that courts across the nation uniformly have rejected. E.g., Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263, 1266. Plaintiffs concede that “but for” Yelp’s website, Bird’s alleged libel “would not be published.” Answer 31. Plainly, the order against Yelp derives from its status as a publisher or speaker ofthe content at issue. E.g., Delfino v. Agilent Tech., Inc. (2006) 145 Cal.App.4th 790, 806-07 (“plaintiffs, in alleging that Moore’s © employer wasliable for his cyberthreats, sought to treat [the employer] ‘as the publisher or speaker’ of those messages”(citing § 230(c)(1)). '4 Airbnb is contrary to the weight of authority interpreting Section 230, which has held websites immune undersimilar theories. E.g., Evansv. Hewlett-Packard Co. (N.D. Cal. 10/10/13) 2013 WL 5594717. Regardless, this case does not concern a website’s role in facilitating rental transactions, as Airbnb did. 'S They bolster their equivocation by pointing to actions a court might take against Yelp that have nothing to do with the contentofits website. Answer 38. These examples demonstrate the emptiness of Plaintiffs’ claims. 37 C. The Injunction Against Yelp Violates Section 230. Echoing the appellate court’s unsupported conclusion,Plaintiffs insist that Section 230 only prohibits direct liability, not the injunction issued here. Answer 41; see generally id. 41-45,'° But again, Plaintiffs’ argument turns on their claim that Yelp has nointerest in its own website. Yelp is nothing like a “garnishee bank” with no right to disputed money. Yelp has a profoundinterest in protecting its First Amendmentrights to publish its website and makeeditorial decisions concerningit. Here,too, Plaintiffs engage in naked bootstrapping. Answer 42. Yelp does not have a “duty of obedience” to California courts, absent a properly-issued order against it. This is the critical distinction that Plaintiffs refuse to acknowledge. Thetrial court had no right to enjoin Yelp’s exercise of its First Amendmentrights in the procedural void Plaintiffs intentionally created. The remedy of an injunction—or contempt for violation of an injunction—cannot be manufactured out of thin air. Permanentinjunctions may be issued only as remedies against defendants that lose claims. Plaintiffs’ insistence that they may sidestep thecritical first step of actually asserting a claim against the party they seek to enjoin finds no support in law or fact. Section 230 necessarily precludes '© Plaintiffs try to narrow the reach of the appellate Opinion, accusing Yelp of misrepresenting it. Answer 41-42. The appellate court plainly held that Section 230did not bar Plaintiffs’ request for injunctive relief. Op. 29-30. 38 Plaintiffs’ claim against Yelp, which Plaintiffs improperly addedto their request for a default judgment against Bird. Norcan Plaintiffs escape Section 230 by pointing out that contempt proceedingsare not civil proceedings. Answer 42 (citing Op. 31 (quoting Freeman v. Superior Court (1955) 44 Cal.2d 533, 536)). Contempt proceedings are “of a criminal nature” in which “the affidavit on which the proceedingis based constitutes the complaint.” Jd. at 535-36 (citation omitted); see also In Re MR. (2013) 220 Cal.App.4th 49, 58 (“[t]he issuance of the order to show cause commencesa ‘separate action’ on the contempt charges”(citation omitted)). But by its plain terms, Section 230 also immunizesstate criminal proceedings. 47 U.S.C. § 230(e)(3). As one court explained, “[i]f Congress had wantedall criminal statutes to trump the CDA,it could have written subsection [230(e)](1) to cover ‘any criminal statute’ or ‘any similar State criminal statute.’ Instead, sub-subsection (1) is limited to federal criminal statutes.” Voicenet Commn’cns,Inc.v. Corbett (E.D. Pa. 8/30/06) 2006 WL 2506318, at *3 (emphasis added); accord Backpage.com, LLC v. McKenna (W.D. Wash. 2012) 881 F.Supp.2d 1262, 1274 (“[i]f Congress did not want the CDAto apply in state criminal actions, it would have said so”). Moreover, Plaintiffs’ perfunctory distinction of the many cases that have held that Section 230 also bars injunctions—thatthey all involved “causes of action” (Answer 40-41)—ignores the reason courts consistently 39 reach this conclusion. As one court explained, “injunctive relief will [sometimes] be at least as burdensometo the service provideras damages, and is typically more intrusive.” Noah v. AOL Time Warner (E.D. Va. 2003) 261 F.Supp.2d 532, 540, aff'd (4th Cir. 3/24/04) 2004 WL 602711. See also O.B. 50-52 & n.22. Plaintiffs concede the CDA generally bars injunctions, and can offer no reason why Congress would enact a statute that could so readily be sidestepped. The same congressionalintent and policy choices that bar injunctions against website owners whenthey are demandedin the complaint fully apply here. In addition, Plaintiffs’ ignore the language of Section 230 in arguing that it should be defined by the facts of the cases that promptedits enactment. Answer 43-46. As the court noted in Chicago Lawyers in evaluating Section 230, “a law’s scope often differs from its genesis. Once the legislative process getsrolling, interest groups seek (and often obtain) other provisions.” 519F.3d at 671; see also Barrett, 40 Cal.4th at 44 n.7 (one purpose of Section 230 wasto overrule the case Plaintiffs cite). Thus, Section 230 broadly applies to “information”and bars courts from treating website publishers as a “publisher or speaker”of third-party content. It is not limited to damage claims. Plaintiffs’ argument would upendthe consistent consensusthat Section 230 bars claims for injunctiverelief, leaving California standing alone in any conclusionthat it does not. O.B. 49-51 & n.22. This would bethe “open invitation to forum shopping by 40 defamation plaintiffs” that this Court condemnedin Barrett. 40 Cal.4th at 58 & n.18. Finally, Plaintiffs’ claim that their arguments further the “public good”again ignores both the facts and the law. Answer 47-48. Even if Plaintiffs had done everything correctly (although they did not, O.B. 10- 11), it would not matter, because the plain language of Section 230 bars Plaintiffs’ claims against Yelp. Congress madethis policy determination, in enacting a statute that protects Yelp and other Internet publishers. Plaintiffs’ argument that procedural safeguards prevent manipulation of the judicial system ignores the facts of this case—which has requiredthis Court’s intervention to remedythe violation of Yelp’s due process rights— as well as Yelp’s many examples demonstrating the ability of some reputation management companies to obtain court orders through deception. RJN Exs. A-G. AsPlaintiffs cannot deny, as with any other defamationplaintiff, they are not without a remedy againstthe original speaker—they have just chosen notto pursue it. Plaintiffs’ speculation that they might not be able to enforce their judgmentdirectly against Bird (Answer3, 48) may give them a reason to lobby Congress to change existing law, but it does not give them an end-run around Section 230. Section 230 gives Yelp—and companieslikeit that host millions of third-party postings—the freedom they need to provide valuable information to the public without fear of 4] being dragged into court each time a business or powerful personis unhappywith criticism. This plainly advances the public good. Iv. CONCLUSION Yelp respectfully requests that the Court reverse the orders of the trial and appellate courts, and direct those courts to enter an order granting Yelp’s Motion to Vacate Judgment. Dated: March 16, 2017 DAVIS WRIGHT TREMAINE LLP Thomas R. Burke RochelleTtWilcox VV IlBy: _ a ‘ ~~ ThomasR. Burke Attorneys for Non-Party Appellant YELP INC. 42 CERTIFICATE OF WORD COUNT (Cal. Rules of Court 8.504(d)) The text of this brief consists of 8,398 words as counted by the Microsoft Word word-processing program used to generate thisbrief, including footnotes but excluding the tables, the cover information required underrule 8.204(b)(10), this certificate, and the signature blocks. Dated: March 16, 2017 DAVIS WRIGHT TREMAINE LLP ThomasR. Burke © Rochelle L-Wilcox pe dQ Thomas R. Burke Attorneys for Non-Party Appellant YELP INC. 43 PROOF OF SERVICE Case No. S235968 I, the undersigned, declare that I am over the age of 18 years, employed in the City and County of San Francisco, California, and not a party to the within action. My business address is 505 Montgomery Street, Suite 800, San Francisco, CA 94111. On March 16, 2017, I served the following document(s): REPLY BRIEF ON THE MERITS as follows: [x] U.S. Mail: Iam readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, such correspondence is deposited with the United States Postal Service in a sealed envelope or package that same day with first-class postage thereon fully prepaid. I served said document on the parties below by placing said documentin a sealed envelope or package with first-class postage thereon fully prepaid, and placed the envelope or package for collection and mailing today with the United States Postal Service at San Francisco, California addressed as set forth below: MoniqueOlivier, Esq. J. Erik Heath, Esq. Duckworth Peters Lebowitz Olivier LLP 100 Bush Street, Suite 1800 San Francisco, CA 94104 Aaron Schur Yelp, Inc. 140 New Montgomery Street San Francisco, CA 94105 Clerk of the Court Superior Court of California, County of San Francisco 400 McAllister Street San Francisco, CA 94102 44 Clerk of the Court California Court of Appeal, First District 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 16, 2017, at San Francisco, California. Mi jwhtEGed Aysha D. Léwis 4820-01 18-3045v.1 0100262-000006 45
