HASSELL v. BIRD

Respondents’ Answer Brief on the Merits

Cal.January 24, 2017

No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN L. HASSELL and HASSELL LAW GROUP,P.C., Plaintiffs and Respondents SUPREME COURT; FILED JAN 2 4 2017 YELP,INC. Appellant. Jorge Navarrete Clerk DeputyAfter a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Appeal from the Superior Court ofthe State of California, County of San Francisco, Case No. CGC-13-53025, The Honorable Donald J. Sullivan and the Honorable Emest H. Goldsmith, presiding , RESPONDENTS’ ANSWERING BRIEF ON THE MERITS *MONIQUEOLIVIER SBN 190835 monique@dplolaw.com J. ERIK HEATH SBN 304683 erik@dplolaw.com DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 BushStreet, Suite 1800 San Francisco, California 94104 (415) 433-0333 Attorneysfor Plaintiffs-Respondents DAWN L. HASSELL & HASSELL LAW GROUP No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN L. HASSELL and HASSELL LAW GROUP,P.C., Plaintiffs and Respondents Vv. YELP, INC. Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Appeal from the Superior Court of the State of California, County of San Francisco, Case No. CGC-13-53025, The Honorable Donald J. Sullivan and the Honorable Ernest H. Goldsmith, presiding RESPONDENTS’ ANSWERING BRIEF ON THE MERITS *MONIQUEOLIVIER SBN 190835 monique@dplolaw.com J. ERIK HEATH SBN 304683 erik@dplolaw.com DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 Bush Street, Suite 1800 San Francisco, California 94104 (415) 433-0333 Attorneysfor Plaintiffs-Respondents DAWN L. HASSELL & HASSELL LAW GROUP TABLE OF CONTENTS I. ISSUES PRESENTEDWw. .eieeccccsteceseescsceseesssesessccascessevsetereceataceaees 1 I. SUMMARYOF ARGUMENT.....cccccssescssessescesecssssesversecarseeeeseeaeeas 1 Wi. STATEMENT OF FACTS AND PROCEDURE......cccccccceeeseeees 3 A. Yelp Is A Business That Permits Third Parties To Post Anonymous, Unvetted Comments Online. .............ccccccecesseseeceseeesees 3 B. Bird Posts Defamatory Comments On Yelp.......0....cccccccccecessseceeeseees 4 C. After Bird Refuses to Remove HerInitial Posting and Publishes a Second One, Hassell Institute an Action Against Bird for Defamation and Ask Yelp to Removethe Postings. .........cccccceeee 6 D. The Trial Court Enters A Default And Conducts An Evidentiary FOAL. ooo. ec eee eceneeeeseceeeseeseseccsensscsscsssessesecssssssssecsascassesacscsessesaseaes 7 E. The Trial Court Enters An Injunction, Enforceable Through Yelp, And A Money Judgment, Against Bird. ....0..cccccleeeceecescssseesseseeees 8 F’, Hassell Gives Yelp Notice And Yelp Refuses To Intervene And Refuses To Remove The Adjudicated Defamatory Statements......... 9 G. The Court of Appeal Affirms The Trial Court’s Removal Order.... 10 IV. THE COURT OF APPEAL PROPERLY AFFIRMED A NARROW ORDER REQUIRING YELP TO REMOVE THREEPOSTINGS THAT WERE JUDICIALLY DETERMINED TO BE DEFAMATORYooocecccecnseseecsesssssessseesecsseesesenesseessscscseesseeaeeateas 13 A. This Case Does Not Involve A Challenge To The Underlying Defamation Finding And Injunction Against Bird. ........cece 13 B. Yelp Does Not Have A First Amendment Right to Post Defamatory Comtent. o.oo ecceeceeseeseeseseeseesesescessessesscscsscaessasesseevsacessaeuansssaneans 13 1. Yelp Offers No Authority Supporting Its Novel Claim To A First Amendment Right to Publish Libel. oo... 14 2. Yelp’s Constant Refrain That A Prior Restraint Exists Here Is Entirely Unsupported By The Factual Record And The LAW oi ceceececceseeceeseesseeesseeaeessecsecssecseeeesecssscsesssesecsecarerareranees 18 C. Yelp Was Not Deprived Of Due Process. ...........c.ccccecseseccecceseeseeees 21 1. Yelp Has No Protected Interest Guaranteed By The Due Process Clause, And It Received Actual Notice In Any EVM. ooo eceessseeeeeeeecesacesessuesesecsseseeeesseessescsscsssscaueessaeeresaes 22 2. It Is Well Established That Injunctions Can Be Enforced Against Non-Parties “With Or Through” Whom An Enjoined Party Acts. ......ccccccccsesssessesseesssccesscssssscsstseessseseeeeaes 26 V. THE CDA DOES NOT PREVENT THE COURT FROM ISSUING A REMOVAL ORDER TO EFFECTUATE ITS VALID JUDGMENT. oo. ececcecceseseseesseessesessesesssssessescsseessccserstasssecareseeass 32 A. The Plain Language Of The CDA Does Not Prevent A Court From Enforcing A Valid Judgment..............0:ccccccessesccesssseeeeseeseeseees 32 1. A Court’s Enforcement OfA Judgment Against An Original _ Speaker Is Consistent With the CDA............cccccccsceeceeeeens 32 2. Yelp’s Responsibility To Comply With Enforcement Does Not Arise From Its Duties As A Publisher......0.00000cccceeeee 33 3. No Liability Is Sought Or Imposed On Yelp... 39 B. CDA Immunity Was Designed To Protect Internet Companies From Tort Damages... .........cccccccsssssssssssssscsscessecsseesssessccscestscsscereseeaes 43 VI. THE PUBLIC GOOD IS NOT SERVED BY PERMITTING YELP TO PERPETUATE ADJUDICATED LIBEL ......0.. cece 46 VIL. CONCLUSIONwoeecccecesssessesessesesseseeseecessscssecescesssesseacusateans 49 il TABLE OF AUTHORITIES Cases A Quantity ofCopies ofBooks v. Kansas (1964) B78 US. 205 ciececcsessseeseseseesssesssssscacstssesessessssssusassasassssssveseeteeseceeeeecec. 17 Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 120 ececcceesescscesssssesssavssassescsssesevsssvevsscsteevecesecesece. 18 Airbnb, Inc. v. City & Cnty. ofSF. (N.D.Cal. Nov.8, 2016), No. 3:16 -cv-03615-JD, 2016 U.S. Dist. LEXIS 155039 .............. 35, 37 Alemite Mfg. Corp. v. Staff (2d Cir. 1930) 42 F.2d 832 ec eeccccccecseseesessescsssscsesssssssussusavssststsssassssssessevesseseeteesceecece, 27 Anthony v. Yahoo! Inc. (N.D.Cal. 2006) A21 F.Supp.2d 1257 oi ceecccccsssescsscsssessssseecssssscsestsesssscevsessteevesecececece. 37 Ark, Educ. Tv Comm'n v. Forbes (1998) S23 US. 666 wecccccccccsscsssesesssesecsssssesssssessusacsssesssssssssatstsaseatsiserseseseeeecc. 16 Ashcroft v. Free Speech Coalition (2002) S35 US. 234 occ cssesecsesesestsesecesseccesscssseseeserssasssesasassssessatsusessececeescccec. 2 Associationfor Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015) 239 Cal.App.4th 808 oo. ccccccccscscsscsssssssscesesstsrsassssssessassrsssserseseseseces 21 BE&K Constr. Co. v. NLRB (2002) 536 US. 516 ccecssecssssssssesesssssessssusessussssstusssssssssssssssteesaveecessteseeeeccecc 48 Balboa Island Village Inn, Inc. v. Lemen (2007) AO Cab.4th L141 oiccsescssscsessssstsssevesststsassesssssesssesvssteeeees passim Barnes v. Yahoo!, Inc. (9th Cir. 2009) S70 F.3d 1096 oe. ecccccccsssscssscsssstsssesestsssesvevsscssessevestaceesees 34, 36, 39, 43 Barrett v. Rosenthal (2006) AQ Cal.4th 33 ooeceeeeeesesesssssssesescsvssessesecacesscscaavsavasevsesenseesees passim Batzel v. 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Evans (2008) 162 Cal.App.4th L157 oi ecccsccscsessssesecssssecssssensessecststsessesesevsseecens 21 Fair Hous. Council v. Roommates.com, LLC (9th Cir. 2008) S2L F.3d L157 iceieeciccesccccesssccsecssssssseessssesersuseseeseeeees 37, 42, 43, 45 Fazzi v. Peters (1968) 68 Cal.2d 590 oiecescssesessesesecsesssscsecssssesevecetseecststsaacsevaees 25, 31 Freeman v. Superior Court ofSan Diego County (1955) AA Cal.2d 533 oo cceecesesesessssssssssececsssssscsesscsscsccssssavsvesecsvsesesavacseseeass 42 Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816 oc ccccccscsssssesscscscsssessssscsccsscesscscecacscaeersacatatssaeess 38 Gompers v. Bucks Stove & Range Co. (1911) 221 US. 418eeecceceeneeceseseeseseesessescsccsessecscsssssestetavassusatsesavansesees 33 Green Grp. Holdings, LLC v. Schaeffer (S.D.Ala. Oct. 13, 2016), No. CIVIL ACTION NO.16-00145-CG-N,2016 U.S. Dist. LEXIS LA2654 oieesceseeeseseesesseeseecsecsecsessssscsesscsssecessressestessaaseatacacassesees 32 Hardin v. PDX, Inc. (2014) 227 Cal.-App.4th 159 ..ccccccccssescsssssssssssesssssssssesssscssseessscssssessssssssesssseesee 37 Heller v. New York (1973) A13 US. 483 iececsesseseseeeceesecsssesssssusecsecseceesasatatessssacseeaseeses 11, 16 Herbert v. Lando (1979) AAV US. 153 ieee ecceessessesesseeesesecsessesssusssesssesaceaessatatssatseatsesscsesasens 14 Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232 oecccccccsssssesssssssssssccsssersestststststsssetesseeass 18, 21 Flustler Magazine v. Falwell (1988) ABS US. 46 icc ccccsseseesesnetessseseesecsessscscscscssssecscassesassavassesvassasavaveneees 48 J.S. v. Vill. Voice Media Holdings, LLC (2015) 184 Wash.2d 95 oii ceccccecscscscsssecessscscsesevsesssaessssssescsscsessssssessceaveseeses 37 Kash Enterprises, Inc. v. Los Angeles (1977) V9 Cah.3d 294 oieececessesseseesecscssscssssscsussecscsesesacsessatacsesascscassess 17 Kathleen R. v. City ofLivermore (2001) 87 Cal.App.4th 684 oc.seeseceeaneseetenesesteneeeseeseeeeeeeensecseeeenes 38, 40 Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770 eeccccccccccesccsscscscscscscecseessssssessecsavsessssscsssussteesecsecceseeececccee. 2 Kerry v. Din (2015) L353 S.Ct. 2128eecceeecesecssecsscscscevsvacsessvaesasarssaeeassssecssecsasesesess 22 Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263 ooeccccceccsesesesessesescsseseecsssscsescsescasatevstevatatatsesesevavacevevaes 46 Lancaster v. Alphabet Inc. (N.D.Cal. July 8, 2016), No. 15-cv-05299-HSG,2016 U.S. Dist. LEXIS 88908 coccecccccscscsseseees 38 Lee Art Theatre, Inc. v. Virginia (1968) 392 U.S. 636 oececcccscescsceesssesestssesessessacsssesscssseusssacevanetssessesssarerevscesevenes 17 Lennon (1897) 166 U.S. 548 icccceesessesesesescscsssescstsvevasscssansusresssssaasscsesceevavevecene 26 Levitt v. Yelp! Inc. (9th Cir. 2014) TOS F.3d 1123 eee eeccecesesesesesesssesscessssscsseevsceavatacaeseracsasstersessasees passim M.A.ex rel. P.K. v. Vill. Voice Media Holdings (E.D.Mo. 2011) 809 F.Supp.2d L041 oeececseseseecsescsssscsesssesecsssesesssaeeessssaravatscsesveves 39 Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042 occccccccsscscssscseesssecstscststsessecscscsstesseseveseees 38 Marcus v. Search Warrant ofProperty (1961) B67 U.S. 717 ocececeecscesesesssssesssesesesecsescassesssssasassuavacatateassesevavstsesess 15, 16 Medytox Solutions, Inc. v. Investorshub.com, Inc. (Fla.4th DCA 2014) 152 SO.3Bd 727 ooeeeceecececssssssssssesescscsecacscssasssscvevarsvessvauacsesavseesscavssseveees 40 vi Neb. Press Ass'n v. Stuart (1976) AQT US. 539 ee eieccccecsesereeeseesseeeseecessaeseetesscasessessseeesaseeeeascsseesseesseeegs 21 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) SOL F.3d 250 oieeececceessseesesseeesseessnececsseecesecsseeeseecesaseesesssseesssenseessanes 46 New York Times Co. v. Sullivan (1964) 376 US. 254 ieeeececsseeseteesseeeseeeeseneeeseesecnsesaecsseeseseeeessaseeccatenseeeaes 17 Noah v. AOL Time Warner Inc. (E.D.Va. 2003) 261 F.Supp.2d 532 ooo. eeccccccscscccssscccesssseeessccesessseeeeeesssaseeesesessuseusesssenss 40 O'Bannon v. Town Court Nursing Center (1980) AAT US. 773 cicceeccessccccceseteesseeseneessceceessaeecessesseeesesssaneesesaetsessesersssenssees 23 Oneida Indian Nation v. Madison County (2d Cir. 2011) O65 F.3d 408 oo eeccceccecsscssessscesseeeensaeessstesseecsesessesesseerecessesesessessceses 25 People ex rel. Gwinn v. Kothari (2000) 83 CalApp.4th 759 ooo. ecccccccsceseceesseessssesscsscsseeseesseseesees 2, 26, 28, 29 People v. Conrad (1997) 55 Cal.App.4th 896 ooo. ecccscssecsessecenscssesseeeeessssseseeseseecseesseseeessess 28 People v. Ramirez (1979) 25 Cal.3d 260 oeeceeeeecccssescsseseeseceseesseceseeseesecsecsecseeesecsecessscneessassesseess 25 Planned Parenthood Golden Gate v. Garibaldi (2003) 107 CalApp.4th 345 oo... eccccccccccsseccssssseesseseesesseessseeeneseeseseressesens 28, 29 Regal Knitwear Co. v. NLRB (1945) 324 US. 0 elececcceenersceeeteesneceseeeeaeceaeseeeesesaceeseecnseeesessecseseeesseeenes 27 Richards v. Jefferson County (1996) S17 U.S. 793 icececceccesceseeseeseseesneeseceseecseceeeeesesseeesecseeesuecssaeeaeeseeeeeees 25 Ross v. Superior Court ofSacramento County (1977) 19 Cal.3d 899 oocceccssesssseessscssecesssecssscssesecaeceatessseeeeseeesssenees passim Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110 oececcecssssecssssseeseeseeeeseesseeeseeesssessesseesseeseeaes 31 United States v. Hall (Sth Cir. 1972) AT2 F.2d 261 oeeeceesceseeeteeseeeecseesseecssesecssesessessecseecsaeeesseeeeeesessenseees 30 vii United States v. Paccione (2d Cir. 1992) 964 F.2d 1269 iece ccseccssceseesecssecesscsesessssesseseseceussnsvseessevsceavatens 27, 30 United Student Aid Funds, Inc. v. Espinosa (2010) S59 US. 260 ieee ccccecsessessessecssesessssesecscsecsesssessescessscssecesacsevceerensaeans 25 Virginia State Bd. ofPharmacy v. Virginia Citizens Consumer Council (1976) A25 US. 748 ooiceccecccceescecesceseeseessecssecseesesssscssceescsssesesssecssecssevasereesenses 14 Wilson v. Superior Court ofLos Angeles County (1975) 13 Cal.3d 652 voice eicecceccsecessesssssesscessesssccesescssessecsssssessssesecesceevsceaeeaeeaens 21 Zeran v. Am. Online, Inc. (4th Cir. 1997) L29 F.3d 327 ieee eeeccesscsstessecssecseceseceecesssssssseccsssesseessaseaaes 32, 37, 39, 45 Statutes AT U.S.C, section 128(a)(4) ceeeccccccccccssscessescsesesseesesesecsscsscesasvsssaveessesseeaes 33 AT U.S.C. Section 230 oo.eeceeccecessesssssesseecssessesesesscsecsscesssesessnscssseeseateees passim AT U.S.C, section 230(C)(1) ecccccscssccssccssescscscsecssscsssssccssscssecsstesesesetaeeaes 34 47 ULS.C.,section 230(€)(3) wcccccccccscccssecssssscscsecssessssesssseeeecearenees 33, 34, 40 47 U.S.C.section 230(C)(1), (€)(3) ...cecccesccsssssssscsscssssssecsecsseserseecsecsecacaneess 34 AT ULS.C. section 708.510 oiicecccccsscccccsecssssssesescsssssscsssscssssascerssvaceetecsaeses 38 AT U.S.C. section 1209(a) oceeccccccsccccssessesssscscscescsssscsccsscsseceeevsceetessaeeaneass 42 Code Civ. Proc., section 585 icic cee ccesscscesscsscseesseeessccsescecsseccssvcssacceuseess 47 CodeCiv.Proc., section 425.17 et Seq. ...ccceceecceee sesussessecesssesavesueeneees 48 Other California Rules of Court, rule 8.500(C)(2) .occceccessccccesceesessseecseecsecseseees 3 Vili 1. ISSUES PRESENTED 1. Does Yelp, an internet companythatsells advertising to businesses andalso permits third parties to post anonymous, unvetted and unedited reviews of those businesses, have a First Amendment right to post, in perpetuity, other people’s statements that have been judicially determined to be defamatory? (No.) 2. Did the Court of Appealerr in adhering to this Court’s precedent and holding that Yelp wasnot deprived ofdue process by the trial court’s issuance of a removal order requiring Yelp to take down three postings that had been judicially determinedto be defamatory? (No.) 3. Did the Court ofAppealerr in finding that the Communications Decency Act, 47 United States Code section 230 et Seq., does not prevent the court from enforcing a valid order against a named individual through Yelp? (No.) Il. SUMMARY OF ARGUMENT Despite Yelp’s overblownrhetoric, the issue before the Court is an exceedingly narrow one: May Yelp, an internet company thatsells advertising to businesses andalso allowsthird parties to post anonymous, unvetted and unedited reviews ofthose businesses, republish, in perpetuity, three postings that have beenjudicially determined to be defamatory? No reasonable reading ofthe law permits the answerto beyes. Yelp invokes the First Amendment, the Due Process clause, and the federal Communications Decency Act. Noneofthese law allows Yelp to ignore a court order preventing the republication oflibel. This caseis not a First Amendmentcaseinvolving merely critical reviews. Indeed, below its surface arguments, Yelp (1) acknowledgesthat the defamation judgmentis against Bird, not Yelp; and (2) does not dispute J that it has no standing to challenge the underlying defamation judgment against Bird. (OBM,14).' As this Court and the U.S. Supreme Court haveheld repeatedly, defamatory speech has long been recognizedto fall outside the scope of First Amendment protections. (See Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-246; Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 776 [false statements have “no constitutional value” because they “harm both the subject of the falsehood andthe readers of the statement”]; Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147). Yelp has no First Amendmentright to distribute defamatory speech any more thanthe speakerhastocreate the speech in the first instance. Thus, to the extent that Yelp believes thatit has right to perpetuate defamation becauseit has a separate First Amendmentright to distribute speech, it is entirely mistaken. There is no constitutional purpose in protecting the publication of provenlies. Yelp admits that its due process arguments are largely based on the false premisethat it has a First Amendmentright to post provenlibel. (OBM,19). Without the protective cover of the First Amendment, Yelp’s due process argument withers. Yelp must, and cannot, identify any other protected interest that would trigger due process considerations. (Bd. of Regents v. Roth (1972) 408 U.S. 564, 570). Further, Yelp cannot escape the well-established rule that an injunction mayrun to classes ofpersons through whom the enjoined party may act. (People ex rel. Gwinn vy. Kothari (2000) 83 Cal.App.4th 759, 766-767). ' References to Yelp’s Opening Brief on the Merits are designated “OBM.” References to the Court of Appeal’s opinion are designated “Op.” References to Appellate Record are designated by “AA”followed by the volume number, tab number, and page numbers, e.g. AA.V1.T3.1-3. Yelp’s brief is also marred by a fundamental andirreconcilable inconsistency. For purposes ofits constitutional arguments Yelpinsists that it is a publisher, but for purposes ofits argumentthat the Communications Decency Act shields it from liability, it distances itself from the speech at issue, emphasizingthat it played norole in the creation of the defamatory speech. The CDA wasneverintended to permit freewheeling defamation on the internet. Simply put, the CDA does not grant Yelp license to republish judicially determinedlibel in perpetuity. Imagine an advertisement on the New York Times website falsely proclaiming that a personis a rapistor a serial killer. Under Yelp’s reasoning, the website can never be compelled to remove the advertisement, even if the statements contained therein are proven ina court of law to be false. Yelp ascribes to Hassell a nefarious plan to undermine free speech and flout the law whenin fact its own conduct must be scrutinized. Hassell simply followed the law. Indeed, she tried to resolve the matter out of court with both Bird and Yelp. Only after being met with outright refusal from both did she seek relief to which sheis lawfully entitled. I. STATEMENT OF FACTS AND PROCEDURE.’ A. Yelp Is A Business That Permits Third Parties to Post Anonymous, Unvetted Comments Online. Yelp hosts an online directory of businesses that permits users to post comments and rank businesses on scale of oneto five stars. Yelp * The relevant backgroundofthe case is set forth accurately andin detail in the Court of Appeal’s opinion. (Op., 2-10). As Yelp did not seek rehearing, this Court should accept the Court of Appeal’s statement of the issues and facts, which is more complete and balanced than the statement Yelp offers. (See Cal. Rules of Court, rule 8.500(c)(2)). 3 sells paid advertising to businesses that runs alongside the user comments. Businesses cannotopt out of being listed on Yelp. (See Levitt v. Yelp! Inc. (9th Cir. 2014) 765 F.3d 1123, 1126). Yelp’s online directory is akin to a neighborhoodbulletin board: Yelp permits third parties to post anonymous, unvetted, and unedited comments to the directory. Comments can be removedbythe reviewer. In addition, Yelp states that it may remove reviewsfor violating its Terms of Service or Content Guidelines such as “writing a fake or defamatory review.” (AA.V3.T27.00748; see also AA.V3.T27.00757).* In addition, Yelp uses an undisclosed algorithm to highlight or hide certain reviews. (AA.V3.T33.00838; see Levitt, 765 F.3d at 1126). B. Bird Posts Defamatory Comments On Yelp. Plaintiffs and Respondents Hassell Law Group andits principal, attorney Dawn Hassell (collectively “Hassell” or “Plaintiffs”), represented Defendant Ava Bird in a personal injury case for less than a month in the summer of 2012. During that time, 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 dozensof direct communications with Bird by e-mail and phone andat least one in-person meeting. Bird, however, was largely nonresponsive to these communications. She failed to return promptly a signed insurance authorization, and did not respond to repeated attempts to set up a phone conferenceto discuss her 3 “How do I add a business to Yelp?”, Yelp, available at https://www.yelp- support.com/article/How-do-I-add-a-business-to-Yelp?l=en_US(last visited Jan. 23, 2017). * Yelp’s TermsofService, available at https://www.yelp.com/static?p=tos (last visited Jan. 23, 2017). case. (AA.V1.T6.00054-55, 74-86; AA.V1.T7.00144-145, 168-183). After these communication difficulties, Hassell withdrew from representation on September 13, 2012. At the time, 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. (AA.V1.T6.00055). In response, Ava Bird wrote a defamatory post on Yelp that seriously and measurably harmed Hassell’s business. (AA.V1.T.6.400055 [the “January Post’’]). The post, under the moniker “Birdzeye B.,” gave Plaintiff one star of an available five stars, and contained malicious and false statements such as “dawn hassell madea badsituation much worse for me,” “the hassell group didn’t speak to the insurance companyeither,” and that Hassell indicated “the insurance company was too muchforher to handle.” (AA.V1.T1. 00018). Hassell attempted to contact Bird by phoneto discussthe posting, but she failed to return the call, so the firm sent her an email “requesting she removethe factual inaccuracies and defamatory remarks from her Yelp.com written statement.” (AA.V1.T6.00056, 94). Bird responded by email the next day, stating, among other things, that “you deserve the review I have given you on yelp,” and “you will have to accept the permanent”review. (AA.V1.T6.00056, 95). Even though in her Yelp post, Bird hadstated that Hassell had not communicated with her or with the insurance company, Bird’s email to Hassell admitted that there were multiple email communications with Hassell and that Hassell had contacted the insurance company multiple times. (AA.V1.T6.00095-98). Bird also refused to removethe post stating that she postedit to “be a lesson to you,” threatened to have a friend post another bad review, andstated that she “giggled at the thought” of a defamation suit and would “be happy to present the evidence to the judge...” She concluded the email “FUCK YOU DAWN HASSELL, A CALLOUS, HEARTLESS, NO-GOOD ATTORNEY.” (d.). Hassell did not respond. Dayslater, Bird posted another review under the moniker “J.D.” (AA.V1 .T6.57, 99-101 [the “February Post’’]).. Hassell understood that Bird was“J.D.” because Hassell never represented a client with theinitials J.D., and because the February Post was published shortly after the January Post and used similar language. (/d.). In addition, the posting was from Alameda, where Bird wasserved, and it wasa first-time posting for that user. (/d.). C. After Bird Refuses To Remove The Review, And Writes A Second One, Hassell Institutes An Action Against Bird For Defamation And Asks Yelp To Remove The Reviews. Because the defamatory postings had palpably harmed the law firm’s business and Bird refused to remove them, Hassellfiled suit against Bird on April 10,2013. (AA.V1.T1.00001-21). The Complaint alleged four causes of action for damagesrelating to the “Birdzeye B.” and “J.D.” posts, (id. at 6-13), and a fifth cause of action for injunctive relief based on the continued irreparable harm to their business resulting from Bird’s defamatory posts. (/d. at 13). The prayer sought to enjoin Bird from continuing to defame Hassell, and requiring her to remove every defamatory review, from Yelp.com and elsewhere. (/d.). The Complaint attached the Yelp postings at issue. (AA.V1.T1.00015-20). | Over the next week, after Hassell made many attempts to serve Bird personally, they finally effected substitute service on April 17, 2013. (AA.V1.T3.00024-27). Just over a week later, on April 29, 2013, Bird “updated”heroriginal post with a new post, stating that “Dawn Hassell has 6 CO N M I N M e g PB ie e e filed a lawsuit against me overthis review.” “She has tried to threaten, bully, intimidate, harrass [sic] me into removing the review!” (AA.V1.T6.00057, 102-105[the “April Post”]). Notlong after Bird was served, Yelp received actual notice of the litigation. On May 13, 2013, only one month after the Complaint was filed, Hassell’s attorney sent Yelp’s General Counsel (and its support page) a letter enclosing the file-stamped Complaint and explaining that Hassell expected Yelp “will cause these twoutterly false and unprivileged reviews to be removedas soon aspossible.” (AA.V3.T21 -00601-601, 00617-634). The Complaint andletter plainly raised both the demand and practical: reality that if Ms. Bird refused to take down the reviews, someaffirmative conduct by Yelp would be the only wayto stop the ongoing defamation. (d.; see also AA.V3.T33.00837:13-15). D. The Trial Court Enters A Default And Conducts An Evidentiary Hearing. Neither Bird nor Yelp appeared in the action. On June 20, 2013, Hassell filed a Request for Entry of Default, and served the same upon Bird. (AA.V1.T3, T5.0003 1). On June 28, 2013, Plaintiffs received a letter from the Bar Association of San Francisco stating that Bird had expressedinterest in mediating the dispute. Hassell conveyedan offer to Bird through the mediator to dismiss the lawsuit in exchange for Bird’s removalof her defamatory reviews on Yelp or her agreement not to publish any further defamatory reviews. Bird never respondedto the proposal, and mediation efforts quickly ceased. (AA.V1.T5.0003 1-32). Plaintiffs’ requested default was entered on July 11, 2013. (AA.V1.T3.00023). Hassell then movedfor a default judgment. A hearing on the application for default judgment and request for injunctive relief was set for January 14, 2014. (AA.V1.T4.00028-29). Thetrial court reviewed and heard extensive evidence and argument in support of Hassell’s claims, ranging from Bird’s email admitting she had posted the review to teach Ms. Hassell “a lesson,” (AA.V1 .1T6.00096), to Plaintiffs’ efforts to serve Bird (AA.V1.T3.00024-26, AA.V1.T6.00124- 140), to Bird’s affirmative refusal to mediate the lawsuit, (AA.V1.T5.31- 32), to detailed explanations why each of the reviews was demonstrably false, (AA.V1.T6-7), as well as thorough briefing on the merits of each claim, (AA.V1.T5.00036-51). Plaintiffs’ briefing explained that if Bird refused to comply with the requested injunction, the only wayto remove the posts would be a court order requiring Yelp to do so. (AA.V1.T5.50- 51). Hassell also produced substantial documentation proving that Bird’s statements were untrue. E. The Trial Court Enters A Money Judgment And Injunction, Enforceable Through Yelp, Against Bird. After the evidentiary hearing, the Court granted mostofthe relief Hassell sought. (AA.V1.T8.00211; AA.V1.T9.00212-21 6). It ordered $557,918.85 in damages against Bird, denied the request for punitive damages, and granted injunctive relief. (d.). The Judgment and Order provided: ...Defendant AVA BIRD is ordered to remove each and every defamatory review publishedor caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELLfrom Yelp.com and from anywhereelse they appear onthe internet within 5 business day of the date of the court’s order. Defendant AVA BIRD,her agents, officers, employeesor representatives, or anyone acting on herbehalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions ofDAWN HASSELL or the HASSELL LAW GROUP on Yelp.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 of these reviewers within 7 business days of the date of the court’s order. (AA.V1.T9.00213). Exhibit A attached the January Post, the February Post and the April Post. (/d. at 00212-215). F. Hassell Give Yelp Notice, And Yelp Refuses To Intervene And Refuses To Remove The Adjudicated Defamatory Statements. Plaintiffs hand-delivered the Judgment and Order, with letter requesting that Yelp removethe posts, on January 15, 2014. (AA.V3.T27.00704-718; AA.V3.T28.00798-799). Plaintiffs then personally served Yelp’s agent for service of process with the Order on January 29, 2014, along with a letter again requesting that Yelp remove the three posts. (AA.V3.T27.00720-730). Yelp ignored the judgmentandflatly refused to removethelibelous posts. Yelp’s Senior Director of Litigation Aaron Schur responded by letter dated February 3, 2014, claiming that Yelp wasnot subject to the injunction, that the default was improper, and that Plaintiffs had not adequately proved that Bird posted the reviewsor that the reviews were defamatory. (AA.V3.T27.00732-734). He wrote: [T]he judgmentand orderare rife with deficiencies and Yelp sees no reasonat this time to remove the reviewsat issue. Of course, Yelp has no desire to display defamatory content onits site, but the 9 defamation must be proven. A default judgment through a bench trial in a lawsuit in which it does not appear the defendant was ever served is an insufficient basis for Yelp to consider the review of Birdzeye B. to be defamatory — muchless the review of JD. Yelp would revisit its decision if the facts change, for example,ifit receives evidence that the defendantis actually served, fails to defend herself, and is responsible for both reviews. (AA.V3.T27.00734). In other words, Yelp chose to credit its own disingenuous? analysis over the court’s judgmentafter a default prove-up hearing. Four monthslater, Yelp moved to vacate the entire judgment. (AA.V1.T11.00225). After considering briefing and hearing extensive argument (AA.V3.T33.829-854), the trial court denied the motion. (AA.V3.T30.808-810). The trial court observed that “injunctions can be applied to non-parties,”citing a line of cases allowing an injunction to run against those acting “in concert with or in support of” the enjoined party. (AA.V3.T30.00809, quoting Ross v. Superior Court (1977) 19 Cal.3d 899, 906). The court also noted evidence demonstrating that Yelp aided and abetted Bird in maintaining the false statements. (/d.). Yelp appealedthe ruling. G. The Court of Appeal Affirms The Trial Court’s Removal Order. The Court of Appeal largely upheld thetrial court’s decision, soundly rejecting the arguments Yelp reiterates here. > Yelp, of course, has the recordsit faults Plaintiffs for not subpoenaing (AA.V1.T12.00228) and can check who posted the comments. 10 First, in resolving standing issues (which Yelp does not contest, see OBM,14), the court noted that Yelp’s appeal impermissibly attempted to mounta collateral attack on the underlying defamation judgment. “Yelp’s claimedinterest in maintaining [its] Website as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.” (Op., 11). Second, the Court of Appeal rejected Yelp’s argument that the removal order was barred by due process. The court embracedthe “settled principles” and “commonpractice” of permitting an injunction, such as the removalorderat issue here, to run to anon-party. (Op., 19). The court also rejected Yelp’s contention that it had a First Amendmentright to distribute third-party speech that could not be denied without notice and a hearing, holding that Yelp did not have a First Amendmentright to distribute speech that had specifically “been found to be defamatory in a judicial proceeding.” (Op., 23). Yelp failed, as it does here, to offer any authority “which confers a constitutional right to a prior hearing before a distributor can be ordered to comply with an injunction that precludes re- publication of specific third party speech that has already been adjudgedto be unprotected and tortious.” (/d.). Further, the court noted that the United States Supreme Court has “never held, or even implied, that there is an absolute First or Fourteenth Amendmentright to a prior adversary hearing” whenever any alleged unprotected materials is seized or impacted. (Op., 23 quoting Heller v. New York (1973) 413 U.S. 483, 488). Third, the Court of Appeal rejected Yelp’s overbroadprior restraint argument. The appellate court, held, as this Court did in Balboa Island, 40 Cal.4th 1141, that “an injunction issued followinga trial that determined 11 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.” (/d. at 1148; Op., 24). The court did trim the removal order to remove subsequent comments that Bird or anyone else mightpost as an “overbroadpriorrestraint on speech.” (Op., 25). Finally, the court found that any immunity from liability Yelp may enjoy under the CDA wasinapplicableto its status as a third-party in this case. Lookingto the plain languageofthe statute, the court reasoned that “[t]he removal order does not violate section 230 because it does not imposeanyliability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgmentagainst Bird, not Yelp and was awarded damagesandinjunctiverelief against Bird, not Yelp.” (Op., 28). Yelp did not cite any “authority that applies section 230to restrict a court from directing an Internet service provider to comply with a judgment whichenjoins the originator of defamatory statements posted on the service provider’s Web site.” (/d.). It noted that California law both authorizes an injunction against statements adjudgedto be defamatory, and permits injunctions to run to a non-party through whom the enjoined party may act, procedures which are not inconsistent with section 230 “because they do not impose anyliability on Yelp, either as a speaker oras a publisherofthird party speech.” (Op., 29). Asa result, the court found that the CDA, which acts as a shield from tort liability, did not excuse Yelp from compliance with court orders. (Op., 31). Yelp petitioned the Court for review. Bird’s libelous statements remain online to this day. 12 IV. THE COURT OF APPEAL PROPERLY AFFIRMED A NARROW ORDER REQUIRING YELP TO REMOVE THREE POSTINGS THAT WERE JUDICIALLY DETERMINED TO BE DEFAMATORY. A. This Case Does Not Involve A Challenge To The Underlying Defamation Finding And Injunction Against Bird. In an effort to transform this case into a First Amendmentcase, Yelp repeatedly refers to Bird’s statements as merely “critical,” and otherwise seeks to have this Court question the validity of the trial court’s finding of defamation. (See, e.g., OBM, 9, 16). This attempt to blur the lines between protected and unprotected speechis a blatant misrepresentation of the record and is beyond the scope of the issues properly before this Court upon review. The Court of Appeal found — a finding not challenged by Yelp inits petition to this Court — that Yelp did not have standing to challenge the judgment, and thus the underlying finding of defamation, against Bird. (Op. 10-11 [Yelp has endeavored to blur the distinction between the judgmententered against Bird which awarded Hassell damages and injunctive relief, and the removal order in the judgment which directs Yelp to effectuate the injunction against Bird.”], 17-18 [“Yelp cannot bootstrap | its collateral attack of an allegedly void order into a substantive appeal of the default judgment itself. The question whetherthe trial court should have granted an injunction against Bird is outside the scope of this appeal.”}). Yelp acknowledgesthis ruling, but Yelp’s refusal to honorit permeatesits brief. B. Yelp Does Not Have A First Amendment Right To Post Defamatory Content. Yelp’s insistence that its due process rights were violated largely 13 rests on its false contention that it has a First Amendmentright to post Bird’s defamatory statements. But it is axiomatic that there is no First Amendment protection where, as here, the statements at issue are statements that have been conclusively adjudged to be defamatory. (See Bill Johnson's Rests. v. NLRB (1983) 461 U.S. 731, 743 [‘[F]alse statements are not immunized by the First Amendment.”]; Herbert v. Lando (1979) 441 U.S. 153, 171 [“Spreading false information in and ofitself carries no First Amendmentcredentials.”]; Virginia Bd. ofPharmacy v. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748, 771 [“Untruthful speech, commercial or otherwise, has never been protected for its own sake.”]; Beauharnais v. Illinois (1952) 343 U.S. 250, 256 [‘the prevention and punishment”oflibel has “never been thoughtto raise any Constitutional problem”)). To avoid this correct conclusion here, Yelp makes two unpersuasive arguments. First, it claims that it has independent First Amendmentrights as a publisher to post defamatory material. Second, it claims that the Court ofAppeal permitted the trial court to engage in a prior restraint. Neither argument has merit. 1. Yelp Offers No Authority Supporting Its Novel Claim To A First Amendment Right To Publish Libelous Statements. Althoughit disavowsanyrole in creating Bird’s defamatory statements at issue, Yelp insists that it has a First Amendmentright to post those statements. This issue is without nuance. Yelp hasno First Amendmentright to publish proven defamatory speech. Oncethis false premiseis stripped away,it is evident that Yelp cannot base its due process claim onits free speech rights because, as to Bird’s libel — which is the only 14 speech at issue -- ithas none. As the Court of Appeal found, and as continuesto be true now, “Yelp does not cite any authority which confers a constitutional right to a prior hearing before a distributor can be ordered to comply with an injunction that precludes republication ofspecific third party speechthat has already been adjudged to be unprotected and tortious.” (Op., 23). Yelp relies primarily on Marcus v. Search Warrant ofProperty (1961) 367 U.S. 717. The Court of Appeal carefully and correctly analyzed Marcus. (See Op., 21-23). There, the Supreme Court found the procedure to be constitutionally inadequate because no judicial officer had reviewedthe allegedly obscene materials before seizure, and they were seizedat the discretion of individual police officers without standards to follow and without a requirement that the court determine whether the materials are actually obscene within anyparticular time. (367 U.S.at 731-732, 737). Marcusis inapposite for three reasons. First, the distributors in Marcus “personally engaged in protected speech activities by selling books, magazines and newspapers,” while Yelp disavowed anyrole in Bird’s speech and, more importantly, “the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.” (Op., 22). Second, even if Yelp’s “operation ofan interactive website is construed as constitutionally protected speech by distributor, Marcus does not support Yelp’s broad notion that a distributor of third party speech has an unqualified due process right to notice and a hearing before distribution of that speech can be enjoined.” (Op., 23). As the Court of Appealhere noted, a litany of problemsled the Court in Marcus to conclude that 15 appellants’ due processrights were violated. (/d.). The court also noted that the Supreme Court clarified in Heller ~ another case cited by Yelp that doesnot aid it -- that “[t]his Court has never held, or even implied, that there is an absolute First or Fourteenth Amendmentrightto a prior adversary hearing applicableto all cases where allegedly obscene material is seized. [Citations.]” (Op., 23, citing Heller, 413 U.S.at 488). Third, and as the Court of Appeal here found, “crucially,” “the due process problems explored in Marcus, supra, 367 U.S. 717, andits progeny pertain to attempts to suppress speech that is 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.” (Op., 23). Unlike Marcus, then, a court here actually reviewed the material at issue in this case, and gavethe original authorofit an opportunity to appear at a hearing, before entering its order. Yelp attempts to gloss overthis distinction, but it makesall the difference. Noneofthe other cases cited by Yelp rally to its aid. For example, in Bigelow v. Virginia (1975) 421 U.S. 809, the Supreme Court addressed a challenge to a statute as constitutionally overbroad whereit resulted in a newspapereditor being convicted for publishing an advertisement that provided information about abortion services. (/d. at 817-19). The Court rejected the Virginia Supreme Court’s conclusion that the speech at issue was unprotected because it had commercial aspects. (/d.). However, in so holding, the Court specifically distinguished other categories of speech, “such as fighting words...or libel...or incitement...[that] have been held unprotected, [as] no contention has been madethat the particular speech embraced in the advertisement in question is within any of these categories.” (Id. at 819 [emphasis added]). Similarly, Yelp cites to Ark. 16 Educ. Tv Comm'n v. Forbes (1998) 523 U.S. 666, 674 for the unremarkable proposition that publishers may beentitled in certain contexts to assert First Amendmentrights to their programming. That case has no bearing on the free speech rights of consumer review websites such as Yelp, to say nothing of free speech rights as they relate to the republication oflibel. (See, e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-283 [knowingly false statements not entitled to constitutional protection, even in heightened context of public interest]).° Yelp offers no case, because indeed there is none, that grants Yelp a constitutional right to a prior hearing before being ordered to removethird party speech that has been judicially determined to be defamatory. Instead, Yelp cites to a couple of cases to support its vague and undeveloped assertion that as a website, Yelp is entitled to the sameFirst Amendment and dueprocess protection as publishers and editors. Even if this were true, Yelp cites no case that permits a publisher or an editor to ° Yelp also dumpsseveral inapposite cases into a footnote. Carroll v. President & Comm'rs ofPrincess Anne (1968) 393 U.S. 175, 180, holding that ex parte orders against protected speech cannot issue where defending parties had no opportunity to appear, does not apply to this context where Bird’s libelous speech was adjudicated after notice and a hearing. Lee Art Theatre, Inc. v. Virginia (1968) 392 U.S. 636, 637, finding a due process violation where alleged obscenity was seized based upon “conclusory assertions” of a police officer “without any inquiry by the justice of the peaceinto the factual basis for the officer's conclusions,” has no bearing on the facts or issues in this case. (See also A Quantity ofCopies ofBooksv. Kansas (1964) 378 U.S. 205, 212-213 [same].) And Kash Enterprises, Inc. v. Los Angeles (1977) 19 Cal.3d 294, addressed a city ordinance that permitted seizure of newsracks violating location and size requirements. Neither the reasoning nor the holding of any of these cases advances Yelp’s position. 17 republish an adjudicated defamatory statementin perpetuity.’ Yelp cannot shoehorn this case into the line of cases finding constitutional concerns where there is state action involving speech that was merely suspected of being unlawful. That distinction is critical: Yelp’s conduct — insisting on continuing to host adjudged defamatory content — has no constitutional protection. 2. Yelp’s Constant Refrain That A Prior Restraint Exists Here Is Entirely Unsupported By The Factual And Legal Record. Sensing the weakness of its contention thatit has a First Amendment right to distribute proven defamatory speech, Yelp then pivots to claim that the removal order constitutes a prior restraint. It does not. As this Court hasheld, “once a court has foundthat a specific pattern of speechis unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech. [Citation.]” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 140). Yelp’s argumentis yet anotherdistortion of the record andthe law. Asan initial matter, Yelp plays fast and loose with the term “prior restraint.” In the first paragraph of its Summary ofArgument (OBM,2), for example, Yelp uses the term three times, each time without clearly articulating whatit believes the prior restraint to be. To be clear, “[o}rders whichrestrict or preclude a citizen from speaking in advance are known as ‘prior restraints.’” (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241). To the extent that Yelp faults the lower courts for including in the 7 Yelp faults the Court ofAppeal for labeling it as an “administrator of a forum”rather than a publisher. Again, however, Yelp fails to acknowledgethat the removal order does not treat Yelp as a publisher and, even if it did, no constitutional right exists to post libel. 18 removal order any “subsequent comments” posted by Bird, the Court of Appealdirected thetrial court to excise that portion of the order. (See Op.., 25).8 Hassell have not appealedthat part of the decision. That issue is, therefore, not before this Court. To the extent that Yelp attempts to arguethat the portion ofthetrial court’s order directed at Bird constitutes a prior restraint on speech,that issue is also not before this Court. As the lower court found, Yelp is an “aggrieved party” entitled to appeal the removal order issued againstit. It has nostanding to argue separately that the judgment against Bird is erroneous. (Op., 10-11). Asto Yelp’s poorly articulated argument that the removal order otherwise acts asa prior restraint on speech, both the facts and well- established law bar that claim. As modified by the Court ofAppeal, the removalorder before this Court directs Yelp “to removeall reviews posted by AVA BIRD underuser names “Birdzeye B.” and “J.D.” attached hereto as Exhibit A and-any-subsequent comments-of thereview rs within 7 business days ofthe date of the court’s order.” (AA.V1 .19.000212-215). Yelp admits that the removalorder has beenstripped of any obligation to “bar publication of any comments by [Bird] that might be posted in the 8 It is possible that the “subsequent comments” languagein the trial court’s removal order was notdirected at future speech at all. The evidence demonstrated that after the complaint wasfiled, Bird posted an “update” _ below herinitial defamatory post, stating that Hassell “hastried to threaten, bully, intimidate, harrass [sic] me into removing the review!” (See AA.V1.T6.00057, 000102-105). That “update,” which may have been characterized by the trial court as a “subsequent comment” wasalso specifically found to be defamatory. (See AA.V1.T6.00057, 000102-105; AA.V1.T9,00212-216). In any event, neither party contests that portionof the Court of Appeal’s decision. 19 future.” (OBM,15). As a factual matter, then, the removal order does not bar anyfuture speech;it simply requires Yelp to removethree specific posts — past speech-- that were judicially determinedto be libel. This Court’s decision in Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141 conclusively resolves the issue. There, the Court stated: [A]n injunction issued following trial that determinedthat the defendant defamedthe plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and doesnot offend the First Amendment.... Prohibiting a person from making a statement or publishing a writing before that statementis spoken orthe writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined attrial to be defamatory and, thus, unlawful. This distinction is hardly novel. (Id. at 1148, 1150 [emphasis added]; see Op., 24). Yelp demands a different result here, because Balboa Island involved a “contestedtrial” rather than a “default judgment...that did not evaluate anyofthe individual statements to determineifthey are false, defamatory, and unprivileged.” (OBM,32). But this argument simply shows Yelp’s true grievance. Yelp is not contesting what wasa correct application of the law by the Court of Appeal; instead it wants to challenge the underlying defamation.’ As the lower court properly found, Yelp, which has repeatedly disavowed any * Yelp’s response to Hassell when they asked that the posts be removed proves the point: Yelp’s General Counsel acknowledgedthatit would remove defamatory statements, but claimed that the defamation here was not “proven” becauseit was a benchtrial and a default judgment. (AA.V3.T27.00734). 20 involvementin the creation of Bird’s defamatory statements, has no standing to challenge the finding of defamation. (Op., 25). Stripped of that argument, Yelp has no argumentto resist the this Court’s holding in Balboa Island, whichplainly did not turn on the fact that it was a “contested trial,” as opposed to a default judgment. (40 Cal.4th at 1156 [“Once specific expressional acts are properly determined to be unprotected by the First Amendment, there can be no obj ection to their subsequent suppression or prosecution.”’]). Furthermore, the trial court here did not merely rubber stamp Hassell’s allegations of defamation, but heard extensive evidence in support of her claims. The other cases offered by Yelp simply underscore the lack of any prior restraint at play here. Several of these cases contain prohibitions on future speech. (See Neb. Press Ass'n v. Stuart (1976) 427 U.S. 539; Evans v. Evans (2008) 162 Cal.App.4th 1157, 1169; Assn. for Los Angeles Deputy Sheriffs v. Los Angeles Times Comm’n LLC (2015) 239 Cal.App.4th 808.) In Wilson v. Superior Court ofL.A. Cty. (1975) 13 Cal.3d 652, 659,in permitting the republication ofpossibly false or misleading statements involving public officials, this Court specifically distinguished cases — like this one — holding that libel is not entitled to First Amendmentprotection, from cases involving public official that are subject to a higher standard. Andthe Hurvitz court rejected arguments in favor of an orderrestraining speech onthe basis of medical privilege and privacy. (84 Cal.App. 4th at 1245-47.) Yelp has not been compelled to act, in any way, with respect any future speech. Thereis nopriorrestraint. C. Yelp Was Not Deprived Of Due Process. The thrust of Yelp’s constitutional due process argumentisthatit 2) was deprived of an opportunity to defend itself because it was not named as a defendantin this action. “The United States Supreme Court faced and explicitly rejected an almost identical due process contention over [] a century ago.” (Koss, 19 Cal.3d at 905, citing In re Lennon (1897) 166 U.S. 548). As in Ross and Lennon, Yelp’s due process arguments must fail. Yelp doesnot assert any protectedrights that were affected by the purported due process violation, and the removal order wasentirely consistent with well-established law. 1. Yelp Has No Protected Interest Here Guaranteed By The Due Process Clause, And It Received Actual Notice In Any Event. “(T]he range of interests protected by procedural due processis not infinite.” (Roth, 408 U.S. at 570). Thus, “[a]lthough the amount and quality of process... recognized as ‘due’ under the Clause has changed considerably since the founding,it remains the case that no processis due if one is not deprived of‘life, liberty, or property.’” (Kerry v. Din (2015) 135 S. Ct. 2128, 2132 [emphasisin original] [internal citations omitted]). Because Yelp’s due process is not based on its own protected interest, its constitutional argument is fundamentally flawed. Thesorts of interests protected by the due processclause are classified aseither“liberty” or “property” interests. (See Roth, 408 U.S. at 571-572). In orderfor a “liberty” to be protected, there must be both “a careful description of the asserted fundamentalliberty interest, as well as a demonstration that the interest is objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of orderedliberty, such that neither liberty nor justice would exist if it was sacrificed.” (Din, 135 S.Ct. at 2134, quoting Washington v. Glucksberg (1997) 521 U.S. 702, 720- 22 721; see also Roth, 408 U.S. at 573-575 [right to continued state employmentnotprotected liberty]). The due process clause’s “protection of property is a safeguard ofthe security of interests that a person has already acquiredin specific benefits.” (Roth, 408 U.S. at 576). A protected property interest must be based on “more than abstract need or desire;” it must be based on “legitimate claim of entitlement.” (Jd.at 577). Courts are traditionally skeptical of finding either liberty or property interests in the context of third party claims to due process. Thereis, after all, a “simple distinction between governmentaction that directly affects a citizen’s legal rights, or imposesa direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” (O'Bannon v. Town Court Nursing Ctr. (1980) 447 U.S. 773, 788). In O’Bannon, a state agency sought to revoke a nursing home’s operating authority. Approximately 180 of the home’selderly residents argued that they had due processrights to a hearing before the revocation. While conceding the obvious “adverse impact” the decertification would have on someresidents, the Court reasoned that the impact was “indirect” and “incidental”to the real action (the decertification), and therefore “does not amount to a deprivation of any interest in life, liberty, or property.” (/d. at 787). In its constitutional challenge, Yelp does not recognize any ofthese fundamental concepts to due process, and instead relies upon nebulous assertions that it has someright to be heard on the Bird injunction. This argumentis first based on a repeated assertion that the required “interest”is foundin its “separate First Amendmentright to distribute the speech of others.” (OBM,19). However, as described in detail above, Yelp has no 23 First Amendmentright to “distribute” defamatory remarks made by other people. Yelp also attempts to carve a protected interest from its desire “to maintain the integrity of its website, for the benefit of its users.” (OBM, 17 n.6). In Yelp’s view,if it “removed every review a business owner argued wasfalse or even defamatory, it would have few critical reviews on its website.” (OBM,17n.6). Again, Yelp cites no authority to support its bald proposition that its website’s integrity rises to the level of becoming a constitutionally protected interest. But just assuming arguendothatit does have such protection, that interest is not remotely implicated in this case. This case is not about merely critical reviews, or “argued” defamation. Hassell sued Bird, and obtained a judgment based on substantial evidence about the defamation, including email admissions by Bird. Simply put, as the Court ofAppeal stated, “Yelp's claimed interest in maintaining its Web site as it deems appropriate does not include the right to second-guessa final court judgmentthat establishes that statements by a third party are defamatory.” (Op., 11). Evenifthe injunction affected a recognized interest of Yelp’s — which it does not — that effect is more akin to the “indirect” or “incidental” impact that did not merit its own set of due process protections in O’Bannon. Just as the real issue in O’Bannon wasthecertification matter between the State and the nursing home (not the patients), the real issue in this case is the defamation claim between Hassell and Bird (not Yelp). Andthere is certainly no stronger link between the Bird judgment and Yelp than between the O’Bannon decertification and the nursing homeevictees. This parallel, combined with Yelp’s dubiousinterest in Bird’s defamation, highlights important distinctions between this case andthe cases cited by 24 Yelp to establish its due process framework, which largely involve cases where a party’s recognized interests were directly at stake. (Seee.g., Richardsv. Jefferson County (1996) 517 U.S. 793, 794 [pecuniary interest in tax liabilities]; People v. Ramirez (1979) 25 Cal.3d 260, 272-74 [termination of drug treatment resources received as alternative to criminal sentencing]; Fazzi v. Peters (1968) 68 Cal.2d 590 [money judgmentagainst an individual]; Estate ofBuchman (1954) 123 Cal.App.2d 546, 559 [removal of executor ofprobate estate]).! Furthermore, Yelp’s due process argumentfails on the facts of this case because it is also well established that “[a]ctual notice satisfies due process.” (Benson v. Cal. Coastal Com. (2006) 139 Cal.App.4th 348, 353, citing In re Pence (7th Cir. 1990) 905 F.2d 1107, 1109; see also United States Aid Funds, Inc. v. Espinosa (2010) 559 U.S. 260, 272 [“United received actual notice... [t]his more than satisfied United’s due process rights.”]; Oneida Indian Nation v. Madison Cty. (2d Cir. 2011) 665 F.3d 408, 429 [same]). Yelp has been provided extensive notice of the developmentsin this case, andthe relief sought, throughoutlitigation. Mostnotably, Yelp had notice of this lawsuit and the requested injunctive relief soon after it was filed, and specifically chose not to intervene. (See '° Yelp cites two othercasesin this string that are either unhelpfulto its position, or entirely unrelated to the matter at hand. In Blonder-Tongue Labs v. University ofHlinois Found. (1971) 402 U.S. 313, 350, the Supreme Court allowed an estoppel defense that essentially blocked patent plaintiffs from filing subsequent lawsuits against different defendants after a court had alreadyruled the patent invalid. Also, the case of Chase National Bank y. City ofNorwalk, Ohio (1934) 291 U.S. 431, 440-441, is not about due process, but instead stands for the uncontroversial and unrelated proposition that a mortgagee’s rights were unaffected by the city’s ouster action against the mortgagor. 25 AA.V3.T21.00601-601, 00617-634). Yelp’s disingenuous protest to this Court that it was deprivedof “notice” lacks any factual support from the record. In the end, without any constitutionally protected interest at stake, Yelp’s due process rights could not have been undermined. _ Its argument fails on those groundsalone. 2. It Is Well Established That Injunctions Can Be Enforced Against Non-Parties “With or Through” Whom an Enjoined Party Acts. Yelp recognizes thatit is “commonpractice” for an injunction to “run also to classes ofpersons through whom the enjoined party may act.” (OBM,22, quoting Kothari, 83 Cal.App.4th at 766-767). While admitting the ubiquity and firm legal foundation forthis practice, Yelp paradoxically viewsthe practice as a “narrow” one. This Court should reject this meritless argument. As the Court ofAppeal noted, this deeply-rooted practice is not nearly as limited as Yelp suggests. (See Op., 19). Instead, “this practice is thoroughlysettled and approved by the courts.” (Kothari, 83 Cal.App.4th at 766-767; see also Ross, 19 Cal.3d at 905-906 [“‘this practice has always been upheld bythe courts”’]). Illustrating how firmly establishedthis principle is, it has been upheld bythis Court as early as 1917, (see Berger y. Superior Court ofSacramento County (1917) 175 Cal. 719,) and by the U.S. Supreme Court as early as 1897, (see Lennon, 166 U.S. at 554). “[T]he the wholeeffect of this is simply to make the injunction effectual against all through whom the enjoined party mayact... and there is a fair foundation for a conclusion that personsso co-operating with the enjoined party are guilty of a disobedience of the injunction.” 26 (Berger, 175 Cal. at 721). Simply put, the rule ensures that an enjoined defendant does not “avoid the force of an injunction” by acting through others. (Ross, 19 Cal.3d at 909). Each of the cases cited by Yelp confirmsthis general rule. For example, Yelp first cites to Regal Knitwear v. NLRB (1945) 324 U.S.9-—a case that actually supports Hassell. (OBM, 21). There, the U.S. Supreme Court reaffirmed the principle that injunctions could apply to the conduct of certain nonparties, including “those persons in active concert or participation with [the defendants] who receive actual notice of the order by personalservice or otherwise.” (324 U.S. at 13-14, quoting Fed. R. Civ.P. 65(d)). As the court explained, consistent with the above authority, this practice helps protect the court’s ability to administer justice by ensuring ~ compliance with its orders. (See id. at 14 [“defendants maynotnullify a decree by carrying out prohibited acts through aiders and abettors”]; see also United States v. Paccione (2d Cir. 1992) 964 F.2d 1269, 1274-1275 [“A court may bind non-parties to the terms of an injunction orrestraining order to preserve its ability to render a judgment”]}). Similarly, the Learned Hand decision cited by Yelp “agree[s] a person who knowinglyassists a defendantin violating an injunction subjects himself to civil as well as criminal proceedings for contempt. This is well settled law.” (Alemite Mfg. Corp. v. Staff(2d Cir. 1930) 42 F.2d 832)."' This trend continues in ! The end result in Alemite, that the appellant was not boundby the injunction in that case, is beside the point for purposes of this case. The Alemite appellant was acting on his own behalf, completely independent from the enjoined defendants. (Alemite, 42 F.2d at 833.) Obviously, while an injunction can run to parties through whom a defendantacts, no injunction can prevent unnamedparties elsewhere in the universe from their ownindependentactionsthat are unrelated to the enjoined defendant. (See id. at 832 [injunctions are not against “the world at large.”].) 27 the line of California cases discussed by Yelp. (See Ross, 19 Cal.3d at 905 [“it has been a commonpractice to make the injunction runalsoto classes of persons through whom the enjoined party may act”’]; Kothari, 83 Cal.App.4th at 766-767). In fact, each of the cases cited by Yelp further confirmsthis general rule that injunctions can run against nonparties “with or through whom the enjoined party may act.” (Planned Parenthood Golden Gate v. Garibaldi (2003) 107 Cal.App.4th 345, 353 [an injunction can run to the persons “with or through whom the enjoined party may act” to prevent an enjoined party from “nullify[ing] an injunctive decree by carrying out prohibited acts with or through nonparties to the original proceeding”); see also Ross, 19 Cal.3d at 905 [“it has been a commonpractice to make the injunction run also to classes ofpersons through whom the enjoined party may act”]; People v. Conrad (1997) 55 Cal.App.4th 896, 903 [‘“‘we concludethat a nonparty to an injunction is subject to the contempt powerofthe court when, with knowledge ofthe injunction, the nonparty violates its terms | with or for those whoarerestrained.”’]). The cases pointed out by Yelp where the scope ofthe injunction exceeded the boundariesofthis rule largely involved persons who were not specifically named in the injunction, and who had,at best, only an attenuated connection to the enjoined defendant. (See, e.g., Conrad, 55 Cal.App.4th at 903 [subsequent abortion protesters not subject to injunction because “it must be [their] actual relationship to an enjoined party, and not [just] their convictions about abortion, that make them contemners”]; Planned Parenthood, 107 Cal.App.4th at 353 [protestors may not be subject to injunction where evidence wasabsentthat they acted together with or on behalf of enjoined parties]; Berger, 175 Cal. at 720 [subsequent 28 protester who was“absolute stranger” to enjoined parties could not be bound by injunction]; Jn re Berry (1968) 68 Cal.2d 137, 156 (injunction could run to nonparties, but inclusion of those “in concert among themselves” created “a baffling element of uncertainty as to the application of the orderto [unaffiliated] persons”); see also Kothari, 83 Cal.App.4that 770-771 [injunction against future owners of property improper because specific cause of action did not allow injunctiverelief to run in rem)). Yelp also extrapolates too much from the Illinois case ofBlockowicz v. Williams (N.D.Il. 2009) 675 F.Supp.2d 912, aff'd, 630 F.3d 563. The Blockowicz Court based its decision on federal procedural rules, which are described in more limited terms than California’s rules on third-party injunctions. (Compareid. at 915 [non-party “must be acting in concert or legally identified (i.e. acting in the capacity of an agent, employee, officer, etc.) with the enjoined party”), with Planned Parenthood, 107 Cal.App.4th at 35 [injunction can run to non-party “with or through whom the enjoined party may act”]). However, even under the federal rules, the Blockwicz Court implicitly recognizedthatit had the authority to enforce its injunction against the non-party, but apparently declined to do so only as a matter of discretion. (See id. [“the court findsthat it should not exercise its authority underthe facts in this case”]). Needless to say, the fact that the Blockowicz Court declined to “exerciseits authority” under federal proceduralrules says nothing about whetherit was properfor thetrial court in this case to do so under California law. Yelp’s brief largely reaffirms the abovesettled principles beforeit attempts to escape them in a three-point argument. Yelp’s first distinction — that the above authority only enjoined unnamedparties — defies logic. (See OBM,25). If due process permits an injunction to be enforced 29 against unnamed individuals, then afortiori a more specific injunction would pass muster. That makes sense in this case, where the adjudication below waslimited to three specific statements posted on Yelp. Under Yelp’s strained view of due process, the removal order would have been required to cover broadly all “websites” through whom Bird posts defamatory content — an impossible result — instead of honing in on Yelp and the specific remarks that were adjudicated. Even after more than 120 years ofjurisprudence onthis issue, Yelp does not cite any authority forits backwardsproposal that more broadly worded injunctions carry more force than specifically targeted ones. Injunctions targeting named nonparties, however, have been upheld. (See, e.g., United States v. Hall (Sth Cir. 1972) 472 F.2d 261, 263-264 [upholding injunction that court ordered to serve “on seven named persons, including Eric Hall. Hall was neither a party plaintiff nor a party defendant.”]; Paccione, 964 F.2d at 1274-1275 {upholding cease and desist order namingspecific nonparty)). Rather than relying on legal authority for this proposed distinction between named and unnamednonparties, Yelp relies on a false premise. In Yelp’s view, because the injunction specifically identified it as a party “with or through” whom Birdacts, it “treated Yelp asif it had... [a] full opportunity to standup forits rights as a publisher.” (OBM,25). However,this argument assumes that Yelp has a First Amendment right as a publisher of defamationin the first instance, which as described above,it does not. The argumentis also void of any legal analysis to explain to the Court and Hassell why injunctions involving named nonparties violate due process, while injunctions that cannot or do not specifically name the bound nonparty are permissible. Second, Yelp misrepresents that “the court affirmed the injunction 30 against Yelp without any evidence”as to Yelp’s relationship to Bird. Even before the injunction was entered, the trial court considered voluminous evidence and argument concerning Bird’s conduct and heractions through Yelp. (See e.g., AA.V1.T6.00096, AA.V1.T6-7).!2 Yelp cannotcredibly dispute that Bird was acting through its online directory. Bird’s statements were andstill are posted on Yelp’s website with Yelp’s permission and, but for Yelp’s online space, Bird’s libel would not be published. Yelp’s third point brings togetherseveralofits false legal presumptions to argue that the Court of Appeal“ignored Yelp’s interests in its own website.” However, the Court of Appeal did not“ignore[] Yelp’s interests;” it simply and correctly rejected Yelp’s proposedinterest in this matter. As explained by the Court, “Yelp's claimed interest in maintaining its Website as it deems appropriate does notincludethe right to second- guess a final court judgmentthat establishes that statements by a third party are defamatory.” (Op., 11). Yelpalso attacks the Court of Appealfor the wayit distinguished cases involving money judgments — an obvious distinction considering that Hassell is aware of no authority allowing money judgments to run to a nonparty. (OBM,28, citing Fazzi, 68 Cal.2d 590; Tokio Marine & Fire Ins. Corp. v. W. Pac. Roofing Corp. (1999) 75 Cal.App.4th 110). This attack hypocritically states that the court did not explain whythat distinction mattered, but then Yelp fails to provide its own explanation as to whythisdistinction is unimportant. '* Yelp also faults the Court of Appeal’s decision for not containing “any analysis or appreciation ofhow its [opinion]... will affect websites like Yelp.” (OBM, 27). As described in Part VI below, these concerns are overblown. 3] V. THE CDA DOES NOT PREVENT THE COURT FROM ISSUING A REMOVAL ORDER TO EFFECTUATEITS VALID JUDGMENT. Yelp’s brief twists CDA immunity well beyondits purpose of shielding internet companies from destructivetort liability. Nothing in the CDAitself, or in the legislative history enacting it, suggests that Congress sought to place websites outside the reach ofthe court system for purposes of enforcing valid judgments against namedtortfeasors. Nor does Yelp cite any legal precedent to supportthis strained interpretation of the CDA. A. The Plain Language Of The CDA Does Not Prevent A Court From Enforcing A Valid Judgment. Hassell have asserted no cause of action and have sought noliability against Yelp. Nevertheless, Yelp insists that CDA immunity prevents the court from enforcing its ruling. Not so. 1. A Court’s Enforcement of A Judgment Against An Original Speaker Is Consistent With The CDA. Asa threshold matter, it cannot be disputed that the judgment obtained against Bird is entirely consistent with the CDA. It is uniformly recognizedthat “Plaintiffs are free under section 230 to pursue the originator of a defamatory Internet publication.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 63; see also Green Grp. Holdings, LLC v. Schaeffer (S.D. Ala. Oct. 13, 2016) 2016 U.S. Dist. LEXIS 142654, at *27 [“a plaintiff defamed on the internet can sue the original speaker.”], quoting Ricci v. Teamsters Union Local 456 (2d Cir. 2015) 781 F.3d 25, 28; Zeran v. Am. Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330-31 [CDA immunity does not mean “that the original culpable party who posts defamatory messages would escape accountability”]). Yelp’s brief also recognizesthis uncontroversial proposition. (OBM,35 [“If someone authors injurious 32 content, a plaintiff can pursue the author of that content’”’]). This lawsuit, from thefiling of the complaint, all the way through the money judgment and injunction, was structured to do just that — hold Bird accountable for spreading falsehoodsonline. When Bird nevertheless escaped accountability, and refused to comply with the valid court judgment entered against her, Hassell needed an enforcement mechanism to ensure the administration ofjustice. (See C.C.P. § 128(a)(4) [“Every court shall have the powerto... compel obedience to its judgments, orders, and process”]; see also Gompersv. Bucks Stove & Range Co. (1911) 221 U.S. 418, 450 [court’s ability to enforce orders is “absolutely essential” and prevents the judicial branch from becoming “a mere mockery.”]). The court’s removal order provided that enforcement, and directs Yelp, as a party through whom Birdacts, to put an endtoherillegal activity. “Nothing in [section 230] shall be construed to prevent any State from enforcing any State law [e.g., a valid state court judgment] thatis consistent with this section.” (47 U.S.C. § 230(e)(3)). Despite this express command in the CDA, Yelp seeks to extend its CDA immunity to protect Bird’s own contemptuous conduct, and ultimately prevent the court from ensuring enforcementof its valid judgmentagainst her. 2. Yelp’s Responsibility To Comply With Enforcement Does Not Arise From Its Duties As A Publisher Or Speaker. Theplain language of Section 230 immunity, although broad, does not extend as far as Yelp claims. Yelp’s purported immunity derives from 33 the relationship of two subsections,(c)(1) and (e)(3),!° which provide: (c) Protection for “Good Samaritan” blocking and screening of offensive material (1) Treatment of publisher or speaker Noprovider or user of an interactive computerservice shall be treated as the publisher or speaker of any information providedby another information content provider. (e) Effect on other laws (3) State law Nothingin this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed underany State or local law that is inconsistent with this section. (47 U.S.C. § 230(c)(1), (e)(3)).!4 Thissection “as a whole cannot be 13 At times, Yelp attempts to argue that these two subsections create distinct liability shields. (See OBM, 48). This reading of the CDAis not supported by the statutory text, which courts read together. Afterall, “subsection (c)(1) precludesliability only by meansofa definition... Subsection (e)(3) makes explicit the relevance ofthis definition.” (Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1100). In a footnote, Yelp tries to support its claim for separate Section 230(c)(1) immunity by pointing out that federal causes of action have been read into the CDA. (OBM,48 n. 21). However, the implied inclusion of federal causes of action under the CDA, which wasnotbasedonstatutory text, says nothing about howthis straightforward text should be applied to state law causes of action. (See Barnes, 570 F.3d at 1100 n.4 [declining to decide how this parsing of the statute would be different under a federal claim]). '4 Yelp quotes Section 230(e)(3) as stating, “any state law, including imposition oftort liability, that is inconsistent with its protections,” (OBM 34 understood as granting blanket immunity to [a] provider from anycivil cause of action that [merely] involves content posted on or transmitted over the Internet by a third party.” (Lansing v. Southwest Airlines Co.(Il. Ct. App. 2012) 2012 IL App (1st) 101164, {| 40, citing Chi. Lawyers' Comm. Jor Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008)). “The correct test, then, is not whether a challenged activity merely bears some connection to online content.” (Airbnb, Inc. v. City & Cnty. of S.F. (N.D. Cal. Nov. 8, 2016) 2016 U.S. Dist. LEXIS 155039,at *15). Instead, parsing those two subsections, the CDA proscribes specific legal actions underState or local law (either a “cause of action” or the imposition of “liability”), but only ifthat legal action is “inconsistent” with subsection (c)(1) — in other words, only ifthe legal action itself treats the provider defendant “as the publisher or speaker of any information provided by” others. These requirements for CDA immunity are unmet here. Theinstant legal action against Bird neither treats Yelp as the publisher,!> nor sought to imposeany liability on Yelp whatsoever. First, CDA immunity only applies when a plaintiffs cause of action itself is premised on a provider acting as a publisher or speakerofthird- party content. The test as to whether this treatment exists is “when the 41), but that exact language does not appearin the statute, and the origin of the quotedtext is not clear. 'S Yelp attempts to claim that “[i]n the briefing below, Hassell conceded... that she is seeking to treat Yelp as the publisheror speaker of information provided by readers.” (OBM, 43.) However,the citations provided by Yelp do not include such a concession. On the contrary, Hassell argued vehemently below that this was not a case like those Yelp cited which tried to impose liability, rather than simply enforcing a remedy. (AA.V3.126.00663-665). 35 duty the plaintiff alleges the defendant violated derives from the defendant’s status or conductas a publisher or speaker.” (Barnesv. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1107). In other words, the gravamenofthe plaintiff's complaint drives whetherthe provider is impermissibly held accountable asa publisher. CDA immunity is thus consistently denied in cases involving duties other than a provider’s general duty as a would-be publisher, even if the legal actionis related to third-party content. For example, the Barnes Court itself entertained a promissory estoppel claim against Yahoo,afterit “promised [and failed] to take downthird-party content from its website.” Even though the Ninth Circuit found that taking down third-party contentis “quintessential publisher conduct,”it refused to apply CDA immunity becausetheplaintiff did “not seek to hold Yahooliable as a publisher or speakerofthird-party content, but rather as the counter-party to a contract, as a promisor whohasbreached.” In other words, “[c]ontract liability [] would comenot from Yahoo’s publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something, which happens to be removalofmaterial from publication.” (Jd. at 1107). As Yelp concedes, the Barnes Court’s approach to CDA immunityis “instructive.” (OBM,47).!¢ Barnes is far from an outlier, as many other courts have fashioned similar rationales as to duties that are inherently distinct from general publishing duties. (See e.g., Doe v. Internet Brands, Inc. (9th Cir. 2016) '© Barnes also involveda claim for negligent undertaking, which was subject to CDA immunity under the same test because, for that claim, “the duty that Barnes claims Yahooviolated derives from Yahoo's conductas a publisher.” (Barnes, 570 F.3d at 1103). 36 824 F.3d 846, 851 [en banc] [failure to warn user of dangers ofthird-parties not barred by CDA]; Fair Hous. Council v. Roommates.com, LLC, (9th Cir. 2008) 521 F.3d 1157, 1164 [website’s duty not to discriminate as a housing brokerheld it responsible for prohibited third-party information]; City of Chi. v. StubHub!, Inc. (7th Cir. 2010) 624 F.3d 363, 366 [CDA did not shield website from its duty to collect municipal taxes on transactions occurring betweenthird party users]; Airbnb, 2016 U.S. Dist. LEXIS 155039, at *11-12 [no immunity for website against municipal ordinance prohibiting it from collecting fees from certain postings by third-parties]; Anthony v. Yahoo!, Inc. (N.D.Cal. 2006) 421 F.Supp.2d 1257, 1262-63 [CDA does not apply to website’s misrepresentations concerning third- party content.]; JS. v. Vill. Voice Media Holdings, LLC (2015) 184 Wash. 2d 95, 102-03 [website not immune from tort claim of inducing prostitution, despite the prostitution conduct coming from third parties]; Hardin v. PDX, Inc. (2014) 227 Cal.App.4th 159 [duties related to software provider’s own participation in creating content]; Lansing, 2012 IL App (Ist) 101164, [duties of employer to supervise employees’ conduct, including electronic communications, distinctly different from any duties of a publisher]). By contrast, cases that found CDA immunity to be appropriate all involve causes of action against the providerdirectly, that fully hinge on whether the provider breached a duty as publisher or speaker. (See e.g., Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1120 [dating website not “legally responsible for false contentin a dating profile provided by someoneposing as another person.”]; Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1023 [defamation claim against website]; Zeran, 129 F.3d 327 [defamation lawsuit against providerafter its delayed removal of 37 third-party content]; Lancaster v. AlphabetInc. (N.D. Cal. July 8, 2016) 2016 U.S. Dist. LEXIS 88908, at *6-7 [“the plaintiff's claim [itself must] seek[] to hold the defendantliable as ‘the publisher or speaker’ ofthat information.”]; Dart v. Craigslist, Inc. (N.D. II. 2009) 665 F.Supp.2d 961, 967-69 [nuisancetort against website for third-party content]; Barrett, 40 Cal.4th at 62-63 [plaintiffs could not sue website operator for libel under theory of notice-basedliability]; Doe J v. MySpace Inc. (2009) 175 Cal.App.4th 561, 574 [question is “whether appellants seek to hold MySpaceliable for failing to exercise a publisher's traditional editorial functions”]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 806-07 [varioustort claims against ISP]; Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 831 [seeking damages against eBay forits “dissemination of representations madebythe individual defendants, or the posting of compilations of information generated by those defendants and other third parties.”]; Kathleen R. v. City ofLivermore (2001) 87 Cal.App.4th 684, 698 [language of Section 230(e)(3) bars causes of action asserted directly against internet companiesfor third-party content]). The removalorder in this case falls squarely in the Barnesline of authority because Yelp’s duty to comply does notarise from its status as a publisher or speaker, but as a party through whom the court must enforce its order. The court’s enforcement of its own orders could take many shapes. Forinstance, if Yelp owed moneyto Bird for some reason, Yelp could be compelled as a third-party to pay those funds over to Hassell to satisfy the monetary judgment. (See, e.g., C.C.P. § 708.510). Yelp could also be required to respondto a third-party subpoenain the course ofpost- judgment discovery. (See ,e.g., Macaluso v. Super. Ct. (2013) 219 Cal.App.4th 1042). Here, the removal order simply prohibits Yelp from 38 continuing to be the conduit through which Bird violates her injunction ~ an uncontroversial way for a court to enforce its orders. As the promissory estoppel claim in Barnes, Yelp’s duty “here would come notfrom [its] publishing conduct, but from” a valid court order that “legally obligated[it] to do something, which [just] happens to be removal of material from publication.” (Barnes, 570 F.3d at 1107). The Court of Appeal properly understoodthis distinction, when it concludedthat violations of “[v]iolating the injunction or the removalorder associated with it could potentially trigger a different type of liability that implicates the contempt powerofthe court.” (Op., 30). Yelp spends considerable energyin its brief cataloging the Zeran line of cases, including this Court’s Barrett decision, but Yelp does not explain why thatline of authority is controlling, let alone persuasive, in this context. In fact, there is nothing inconsistent with those cases and the Court of Appeal’s decision in this case. In the current case, Yelp is neither “cast in the sameposition as the party whooriginally posted the offensive messages,” (Zeran, 129 F.3d at 333,) nor sought to be held accountable for its own editorial decisions of “whether to publish, withdraw, postpone or alter [such] content,” (Barrett, 40 Cal.4th at 43, quoting Zeran, 129 F.3d at 330). Hassell have not sought to “punish[] and deter[]” Yelp in any way for Bird’s conduct. (See M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC (E.D. Mo. 2011) 809 F.Supp.2d 1041, 1055). Instead, as instructed by both Zeran and Barrett, Hassell have pursuedtheoriginal poster of the defamation, resulting in a judgment againsther. Noris this removal order properly characterized as notice-based liability, as asserted by Yelp. (See OBM, 40). Nothing in the legal theory in this case, or in the Court ofAppeal’s decision, places Yelp “at risk for 39 liability each time it received notice of a potentially defamatory statement in any Internet message, requiring an investigation of the circumstances, a legal judgment about the defamatory character of the information, and an editorial decision on whetherto continue the publication.” (Barrett, 40 Ca]l.4th at 45). Yelp need not investigate or decide anything. On the contrary, it can host all the content it wants without facing liability for its owneditorial decisions. But if a court must reach out to Yelp for enforcement, then it must respondto that order just as any party would be required to do — publisher or not. The injunctive relief cases cited by Yelp do not suggest any different result. (See OBM, 50-52). First, Yelp cites only one case that deals exclusively with injunctive relief, as opposed to cases seeking injunctive relief side-by-side with money damages. (See id. at 50, citing Medytox, 152 So.3d at 730-731). The injunction sought in Medytox was premised on a claim for declaratory relief. Yet the court foundthat the declaratory/injunctive relief claims could not move forward because, regardless ofwhether an injunction was a form ofliability, the express terms of Section 230(e)(3)still barred any “cause of action.” (Medytox, 152 So.3d at 731). Citing Barnes, the court even suggested that its outcome would be different if the cause of action “does not derive from the provider's status as a publisher or speaker.” (Jd. at 731 n. 1). The other two cases cited by Yelp involved injunctions that were part of claims asserted directly against the “provider,” which would similarly be barred by Section 230’s ban on causes of action. (See OBM, 50-54, citing Kathleen R., 87 Cal.App.4th at 697-698 [injunctiverelief as part of a claim under Section 1983]; Noah v. AOL Time Warner (E.D.Va. 2003) 261 F.Supp.2d 532, 538-539 [injunctive relief as part of a 40 discrimination claim arising out of third-party comments in an AOL chat room]).!” This is not the situation here. 3. NoLiability Is Sought Or Imposed Against Yelp. Finally, much of the above analysis still assumes that the removal order in this case was a form ofliability against Yelp, which it wasnot. As succinctly explained by the Court of Appeal, the removalorder issued in this case does not violate Section 230 “because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgmentagainst Bird, not Yelp; and was awarded damagesand injunctive relief against Bird, not Yelp.” (Op., 28). In other words, being the subject of an enforcement order from the court that seeks to enforce an order against someoneelseis not tantamountto being subjectto liability. For example, in the context of postjudgment collection of a money judgment, a garnishee bank is not liable to a judgmentcreditor even though it may be compelled to act in aid of enforcement of that judgment. Yelp’s argumentthat the removalordercreates a form ofliability barred by the CDAresults from its misunderstanding of the Court of Appeal’s decision. Yelp misrepresents that decision as broadly “concluding that Section 230 does not apply to requests for injunctive relief.” (OBM,49,citing Op., 28). Nowhere did the court suggest such a broad rule. Instead, the cited part of the opinion correctly distinguishes Yelp’s authority, and concludes more narrowly that Section 230 does not “restrict a court from directing an Internet service provider to comply with '" In a footnote, Yelp also advancesa string cite of cases thatare all similarly distinguishable. (See OBM, 51 n. 22). 4 a judgment which enjoins the originator of defamatory statements posted on the service provider’s Website.” (Op., 28). Yelp similarly mischaracterizes the court’s “conclu[sion] that Yelp wasacting ‘with orfor’ Bird as the publisher ofthe statementsat issue.” (OBM,at 49,citing Op., 30-31). The court upheld the removal order not because Yelp wasacting as the “publisherofthe statements at issue,” but because Yelp is an entity with a general duty of obedienceto the court, through whom Birdis flouting a court order. (See Op., at 30-31 [“sanctioning Yelp for violating a court order... would not impose liability on Yelp as a publisheror distributor of third party content.”]). As described in the above discussion from the Barnes case, this is a significant distinction. Remarkably, Yelp argues that it cannot face this contempt power of the court because Section 230 bars “‘cause[s] of action’ against website publishers like Yelp.” (OBM,54, quoting Roommates. com, 521 F.3d at 1174-75). However, Yelp cites no authority for its proposition that contemptsanctions constitute a “cause of action.” Given the wide variety of acts that may constitute “contempt,” many of which do not require a party to be a named defendant, it appears that California law treats contempt as a remedy, not a cause of action. (See C.C.P. § 1209(a)). Further, as the Court ofAppeal noted, a “contempt proceedingis not a civil action.” (Op., 31, quoting Freeman v. Superior Court (1955) 44 Cal.2d 533, 536). In short, this case against Bird does not implicate the CDA immunity. Nothing in the language of the CDAprevents the court from enforcing its own judgmentsthrougha third party, even if that third party happensto be a website. 42 B. CDA Immunity Was Designed To Protect Internet Companies From Tort Damages. “The Communications Decency Act was not meantto create a lawless no-man’s-land on the Internet.” (Roommates.com,521 F.3d at 1164). Instead, as Yelp emphasizes throughoutits brief, CDA immunity wasdesigned as a shield from tort liability. This legislative background only reinforces Hassell’s reading of the statutory text, which allows them to enforce their valid judgment against Bird. Long beforethe electronic age, traditional defamation law imparted various formsofliability to “[e]veryone whotakes part in the publication, as in the case of the owner,editor, printer, vendor, or even carrier of a newspaperis charged with publication.” (Barnes, 570 F.3d at 1104). The standardofliability on these participants largely depended ontheirrole. “Primary publishers [such as newspapers and magazines] were heldto a strict liability standard, whereas secondary publishers [such as news vendors and booksellers] wereonlyliable for publishing defamation with actual or constructive knowledge ofits defamatory character.” (Jd.). Thus, the more control exercised over the defamatory remarks, through editing, the more liability faced by the publisher. (See Barrett, 40 Cal.4th at 44-45 [describing historical distinction].) Thesetraditional delineations did not mesh well with the developmentofthe internet. For example, in 1991, CompuServe,a formerly popular internet service provider, escaped liability in a defamation case regarding statements madeonits online forum. (See Cubby, Inc.v. Compuserve, Inc. (S.D.N.Y. 1991) 776 F.Supp. 135, 141). The Cubby Court reasoned that it would be impractical for CompuServe,like a library, to be held accountable for all of the contentit stored, whenit is impossible 43 to familiarize itself with such a vast amount of information. The victory wasa narrow one, however,as the court held that CompuServecouldstill be held liable if it was on notice of the defamatory character of the statements. (See id. at 140-41). The Court therefore left open liability on an internet companyas a secondary publisher. The next major defamation case against an internet companyraised the stakes considerably. It was a $200 million defamation case brought by an investment brokerage house against Prodigy based on statements posted by an unidentified third-party in one of its online bulletin boards. However, Prodigy operated its forums differently than CompuServe. Attempting to protect its users from potentially offensive content, such as nudity, Prodigy had a policy of manually reviewingall its users’ messages prior to posting. The court held that Prodigy’s heavy hand in screening material for offensive content elevated it to the status of a primary publisher, leavingit strictly liable forall its content. (See Stratton Oakmontv. Prodigy Servs. Co. (N.Y. Sup. Ct. May 24, 1995) INDEX No. 31063/94, 1995 N.Y. Misc. LEXIS 229). Congressional reaction to the Stratton Oakmontdecision wasswitt. Later that summer, Congress was already debating whetherinternet companies should receive immunity from such suits. As reasoned by Rep. Cox, the Stratton Oakmont decision “is backward. We want to encourage people like Prodigy... to do everything possible for us, the customer, to help us control... what comes in and whatour children see.” (141 Congressional Record H8469-H8470 (daily ed., June 14, 1995) [statement of Rep. Cox]). While removing disincentives for internet companies to engage in self-censorship of offensive material, the proposed CDA immunity also hadthe effect of furthering free speech. Otherwise, “t]he 44 specter oftort liability in an area of such prolific speech would have an obvious chilling effect” on speech. (Zeran, 129 F.3d at 331). These goals have often been describedas the “dual purposes” of the CDA immunity shield. (See Barrett, 40 Cal.4th at 51 (citing Zeran, 129 F.3dat 333; see also OBM,38). Devoting considerable spaceinits brief to this point, Yelp concedes that “Section 230 grew out ofcases... that attempted to adapt common law tort liability principles to Internet publishers.” (OBM,36 [emphasis added], citing Barrett, 40 Cal.4th at 44).!8 Indeed, court decisions consistently recognize that the CDA wasdesignedto defeat the potentially destructive effects of tort damages. (Zeran, 129 F.3dat 330 [“The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech...” [emphasis added]]; Barrett, 40 Cal.4th at 57 [“Congress intended to create a blanket immunity from tort liability for online republication ofthird party content.”]). Of course, “Congress could have written the statute [even] more broadly, but it did not.” (Internet Brands, 824 F.3d at 853). Courts havetherefore been “carefulnotto exceed the scope of the immunity provided by Congress and thusgive online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.” (Roommates.com, 521 F.3d at 1164 n.15). Thelegislative background of the CDA demonstrates that this case does not offend its terms. Unlike Stratton Oakmont, this case does not 'S Yelp even adds special emphasisto this history to drive the point home. (See OBM,41 [CDAprecludes“anystate law, including imposition oftort liability...”], 45 [Plaintiffs “may only seek recoveryfrom the original source ofthe statement”); 40, quoting Barrett, 40 Cal.4th at 46-47, 53 [Congress sought to avoid “the sword pointoftort liability”]). 45 seektort liability against Yelp on any legal theory, muchlessa theory that it faces publisher liability as one who reviewsandedits third-party content. It does not even attemptto rope Yelp into a “costly and protracted legal battle[].” (See OBM, 39, quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. (4th Cir. 2009) 591 F.3d 250, 254-255). Nor could this case have a chilling effect on speech because, outside of these three postings — which werejudicially determined to be defamation-- Yelp is welcome to maintain its third-party content. In one final swipe at the removal order, Yelp seeks to knock down the court’s decision as part of simple “gamesmanshipthat attempts to circumvent Section 230.” (OBM,54, citing Kimzey v. Yelp! Inc. (9th Cir. 2016) 836 F.3d 1263). However, the Kimzey case,as all cases cited by Yelp, involves a plaintiff who attemptedto sue Yelp directly, seeking monetary damagesonthe “cryptic” theory that Yelp “in effect created and developed”the reviewsat issue. (Kimzey, 836 F.3d at 1265-1266). In other words, it was the plaintiffs inappropriate attempt to pin the obvious third-party content on Yelp that doomedits case. Such “gamesmanship”is clearly not at play here, as Hassell have sought merely to give meaning to the court judgment they obtained against a namedtortfeasor. VI. THE PUBLIC GOOD IS NOT SERVED BY PERMITTING YELP TO PERPETUATE ADJUDICATED LIBEL. Finally, Yelp presents this Court with a sky-is-falling alert, arguing that the instant decision will result in a flood of fraudulent lawsuits against fake defendants. (OBM, 55). Not only are these hypothetical concerns overblown, but they should not supplant the palpable harm already inflicted on tort victims such as Hassell. 46 First and foremost, although Yelp makes multiple attempts to disparage Hassell in its brief, its concerns about fraudulentlitigation conductare not before the Court in this case. Hassell filed a defamation case lawsuit against a named defendant, providing substantial notice and opportunity for her to defend herself (as well as actual notice to Yelp). During a prove-up hearing,the trial court received voluminous evidence, and determined that Bird had indeed defamed Hassell through her Yelp postings. The court awarded monetary damagesin favor of Hassell in the amount of $557,918.85, along with injunctive relief against Bird. This case is indeed far from the fraudulent scheme presented by Yelp; Hassell did everything correctly. Under Yelp’s own Content Guidelines and Termsof Service, which forbid “false or defamatory” posts, it even claims it will — and has — removed such posts. (AA.V.3.T27.00756). This evidences Yelp’s gamesmanship, not Hassell’s. Furthermore, there are procedural safeguards that protect the judiciary from Yelp’s phantom fraud claim. Afterall, a plaintiff like Hassell who sues for defamation muststill prove defamation and damages at an evidentiary hearing, evenifthe defendant has defaulted. (Code Civ. Proc. § 585). This prove-up requirement prevents people from obtaining redress against reviewsthat, in Yelp’s words, are merely “critical,” because critical opinions without false statements of fact are not defamatory and would not pass judicial scrutiny. Anda plaintiff who fraudulently engages in this process subjects itself to a numberofharsh consequences, including civil liability under anti-SLAPP laws (as was threatened by Yelp here) or malicious prosecution torts, criminal liability for perjury, and a host of other court sanctions. (See, e.g., Code Civ. Proc. § 425.17 et seg.). With all of these safeguards,it is difficult to extrapolate very much from the one 47 Maryland example cited by Yelp where a reputation management company apparently filed a fraudulent suit against a defendant, without informing either the plaintiff or the defendant. (See OBM, 55; RJN, Ex. A-B). Finally, there are stronger countervailing policy concerns that support the Court of Appeal’s decision. After all, a person’s right to petition the court for a redress of grievancesis one of the most precious of rights. (BE&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 524-25). That fundamental right is meaningless if the court system is unable to issue judgmentsthat it can actually enforce. This relief is especially important in the context of defamation because “[flalse statements of fact... cause damage to an individual's reputation that cannoteasily be repaired by counterspeech, howeverpersuasive or effective.” (See, e.g., Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 52). Even though Yelp touts itself as a champion for constitutional rights, it takes the absurd position that this Court should limit an individual’s ability to remedy injurious defamation in order to provide increased protections for defamatory remarks. What if Bird cannot comply with the injunction because, for instance, she can no longerlog in to Yelp’s website? Whatif she is incapacitated, or deceased? Hassell are doomed to remain victims, and endure unending harm. Yelp’s proposedresult is backward. 48 VIL. CONCLUSION For the forgoing reasons, the opinion of the Court of Appeal should be affirmedin its entirety. Dated: January 24, 2017 DUCKWORTH PETERS LEBOWITZ OLIVIER LLP MoniqueOlivier J. Erik Heath Monique otiyle Attorneys forPlaintiffs and Respondents 49 CERTIFICATE OF COMPLIANCE Pursuant to Rule 8.204(c)(1) of the California Rules of Court, Plaintiffs and Respondentsherebycertify that the typefacein the attached brief is proportionally spaced, the type style is roman,the type size is 13 points or more and the word countfor the portions subject to the restrictions of Rule 8.204(c)(3) is 13, 931. Dated: January 24, 2017 MoniqueOlivier J. Erik Heath DUCKWORTH PETERS LEBOWITZ OLIVIER L By: oe - Monique/OkiVvier Attornegs ‘for Plaintiffs and Respondents 50 PROOF OF SERVICE Case No. 8235968 I, the undersigned, declare that I am overthe 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 100 BushStreet, Suite 1800, San Francisco, CA 94104. On January 24, 2017, I served the following document(s): RESPONDENTS’ ANSWERING BRIEF ON THE MERITS as follows: [V] ELECTRONIC SERVICE (E-MAIL): Based on the California rules, I transmitted by e-mail the document(s) listed above from this e-mail address, monique@dplolaw.com,to: California Supreme Court [Vv] 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 correspondenceis 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 belowbyplacing said documentin a sealed envelope or package with first-class postagethereon fully prepaid, and placed the envelope or packagefor collection and mailing today with the United States Postal Service at San Francisco, California addressedas set forth below: ThomasR. Burke Rochelle L. Wilcox Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111-6533 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 51 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 lawsofthe State of California that the foregoing is true and correct. Executed on January 24, 2017, at San Francisco, California. Monique Olivier 52