HASSELL v. BIRD

Respondents’ Response to Amicus Curiae Brief

Cal.July 19, 2017

No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT Fit ED DAWN L. HASSELL and THE HASSELL LAW GROUP,P.C., JUL 19 2017 Plaintiffs and Respondents ; Jorge .«avarrete Clerk V. Deput YELP, INC. puly 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’ CONSOLIDATED ANSWER TO AMICUS CURIAEBRIEFS MONIQUEOLIVIER (SBN 190835) J. ERIK HEATH (SBN 304683) DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 BushStreet, Suite 1800 San Francisco, California 94104 Tel: (415) 433-0333 Fax: (415) 449-6556 monique@dplolaw.com Attorneysfor Plaintiffs-Respondents DAWN L. HASSELL & THE HASSELL LAW GROUP No. $235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN L. HASSELL and THE 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 Emest H. Goldsmith, presiding RESPONDENTS’ CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS MONIQUEOLIVIER (SBN 190835) J. ERIK HEATH (SBN 304683) DUCKWORTH PETERS LEBOWITZ OLIVIER LLP 100 BushStreet, Suite 1800 San Francisco, California 94104 Tel: (415) 433-0333 Fax: (415) 449-6556 monique@dplolaw.com Attorneysfor Plaintiffs-Respondents DAWN L. HASSELL & THE HASSELL LAW GROUP R R R a c t G e na e so M M es TABLE OF CONTENTS INTRODUCTION00.ctccreseeseccsscessereeesssesssenseessensasessecseeseeeeneeaees 7 I. II. Ill. IV. DEFENDANT BIRD WAS PROPERLY SERVED, HAD NOTICE OF THE LAWSUIT, AND HAS MADE A GENERAL APPEARANCEIN THIS CASE 0...eceeeceeesceeseeeeseeeseeeesseeeseenes 8 AMICTS SUGGESTION THAT THE COURT OF APPEAL’S DECISION ENCOURAGES FRAUD IS MISGUIDED........0..... 10 THERE ARE LIMITS ON FIRST AMENDMENT PROTECTIONS WHERE, AS HERE, THE SPEECH AT ISSUE HAS BEEN ADJUDICATED AS DEFAMATORY..........eee 15 THE PROCEDURE BELOW SATISFIED DUE PROCESS REQUIREMENTSo.oo.ec ceeceeeeeencecscecsereececceeecesaesaeeneseeseesneessarenens 18 . Defendant Bird’s Default Does Not Raise Due Process Concerns... 18 . Due Process Does Not Prevent The Enforcement OfAn Injunction Through A Non-Patty.........cecceeeseeceeeeeseeceeeeseeceeesacecnaceeseeeeeeeeseseeesseas 21 . Yelp’s Interest In Defendant Bird’s Speech Is Derivative to Her OwnInterest In Such Utterances. .......0.00.c cece eseeeeececccececcececceecceseeses 24 . No Alternative Process Is Proposed By Amici, And In Fact, They Insist That Yelp Cannot Be Included In Any Other Process. .......... 25 AMICIIMPROPERLY PUSH TO WIDEN THE SCOPE OF IMMUNITY UNDER THECDAueceeeeeeeeenseetneeeeeneeasens 27 . The Enforcement Of The Bird Injunction Treats Yelp As Neither A Speaker Nor Publisher, As Contemplated By The CDA................. 28 . The Speculative Cost To Comply With Court Orders Is Not Compelling Enough To Read A Broadened Immunity Shield Into the CDALone ecceceeeecsssecessestseceecesesnecssnecnecaeeaessesseessesaeessecseseaeenaeearsneeate 31 C. Congress Did Not Consider Reputation Management Companies WhenIt Enacted The CDA.........ccceecseeecceseeeeecseeseeeetsneeseeenseasenaes 33 D. The CDA Was NotIntended To Deprive Victims Of Defamation Of A Remedy To RemoveProven False Statements........0.....c: cesses 34 CONCLUSION o.oo.cscccessecconeessenstsepssenesenesatseepsesseeeseseeseaenesaes 36 TABLE OF AUTHORITIES Cases Alexander v. United States (1993) S09 U.S. S44 icecccesessesssseesesseceeseeseeseesacsecssecseseseessceeeessecasecateeessceuees 17 Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 ieee ceceeeceeeseteneeeeeeeneaeeesseceaeeceeseacecseceeneceeeessaeceseeenaeensens 15 Balboa Island Village Inn, Inc. v. Lemen (2007) AO Cal.4th 114d ooccecsececessseecsesssesseseesessesessesessesssesseeees 12,15, 17 Barnes v. Yahoo!, Inc. (9th Cir. 2009) S70 F.3d 1096 o..eceeccescseesesesceeneceeacenseecsseseescsecnsceeseseneneeseecsaeeseteueseeaneces 29 Barrett v. Rosenthal (2006) AO Cal.4th 33 ooo cececceseeseceseceesensssseesseceeceseecessesseeeseeesaeeeseeeeseeees 30, 32 Bently Res. LP v. Papaliolios (2013) 218 Cal.App.4th 418 occcecccccesceeceeeeseseeseeseeeeesesseseeeeeaeeeseeseenes 27, 29 Berger v. Superior Court ofSacramento County (1917) 175 Cal. 719 iliesseceesseeessneseeseesaeeeesetscesseesseeseecsecsseeesseeeteresaeanes 23 Bose Corp. v. Consumer Union of U.S., Inc. (1984) 466 U.S. 485 ee eeccecessescseeesseeeeceeenecsceeceseesceaeaecseesessessesaeenseeseeecsaessess 15 Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438 occcece ceeceenecsecneeseeeeeseseesaeeeneseaeesseseesens 1] Fair Hous. Council v. Roommates.com, LLC (9th Cir. 2008) S21 F.3d 11ST oieeececeeseeeecececeeneeeeseasesesecsecesseeeeseeenseeseneceeesnecssseate 32 Fazzi vy. Peters (1968) 68 Cal.2d 590 occeeceeceecceeesneceeesececseeeseeeeeeeeeecseseeesseeaeseeseeecseeneseees 21 Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 oeeeeeceseessecnsenereeeeseensessesseeseneneesens 19 Four Star Electric, Inc. v. F & H Construction (1992) 7 CaLApp.4th 1375 iesesescecesseecessecsecseeaeeeeeeeeecseceaeseeeesessseesseseeasss 20 Freedman v. Maryland (1965) 380 US. SLeeeecsescsesscesseeceseeeeeacesaeereseeeeeesseeeseceseseeeseeeetsesateneneses 20 Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028 oooeeseessesceseeeeseeeeseeseesnsseeesecsseeeeseeeneeacesecstesseseseevsess 9 Hassell v. Bird (2016) 247 Cal.App.4th 1336 occeccccsssesecesensesetseesecssesscesseeeaes 21, 22, 26, 29 Henson v. Santander Consumer USA Inc (2017) -- U.S. = 198 L.Ed.2d 177 ceeecccsccecssseteeeeesceseeseneeesseeeseeseessaneseessees 34 Hoover v. Ronwin (1984) A466 US. S58 ieee eeecsteeeeeeceeeestecseseeaeessesenseseescecerssseeesseeesseeseessenseesseeass 12 Inre Circosta (1963) 219 Cal.App.2d 777 wiieecsccssesececessececseesesessesnseseeseeeesseceaeceeescsessnesesenss 19 Inre Silva (B.A.P. 9th Cir. 1995) 190 BuR. 889 oieeeceeeseessceeseseneessceseeseseeeessesseeeseteeseeesseeasessseeeenees 20 Inre Younie (B.A.P. 9th Cir. 1997) QL BR. B67 cieeeieecececeseesceeseeseeeesseasesseesesesseseecnsessseesseeseseecsecsecssceesass 20 Kelly Sutherlin McLeodArchitecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519eeeeeessceecseesesecsessceseesseensesesseeeenesssessseeecenes 34 Marbury v. Madison (1803) SUS. (1 Cranch) 137 oociceececeeecsccecssscenseseseeeceseceeeseeceseecesssessesessnesenes 35 Mullane v. Cent. Hanover Bank & Trust Co. (1950) 339 US. 306 ooo eeeeeccessceececesseaeeceseescesceseesseeaseeseseessseceeseersrtesenes 20, 26 O'Bannon v. Town Court Nursing Center (1980) AAT US. 173 lieeecccsceeseeccsecesececceceeeeesseceseesesscessecesecetaeecsseeeessseessesssesnsens 24 O'Brien v. Appling (1955) 133 Cal.App.2d 40 o..ccccccccesssecesesseecssensescsessssessesseeessecesseneesanessssseanes 18 OmniCapital Int'l v. Rudolf Wolff& Co. (1987) AB4 US. OT ieee ceesteceeeeeeeeeesneceaeeeseeeesesenscenecseseenseeeecensesssesecssserseuts 22 Richards v. Jefferson County (1996) SLT US. 793 eeeeeeccsessecesecceetnceesecsececsasesseseateseeeseseeceseeessecessesseesine 20, 21 Texas & P.R. Co. v. Rigsby (1916) Z4L US. 33 le ceeseesesessessseeeeceesceeesseesesecsesseessesseesesseeseeseseeecssesseseens 35 Titus v. Superior Court (1972) 23 Cal.App.3d 792 ooeiesccescssceeseseeesesessessecevaceesesenseeseseeesseseeeecseecssees 9 Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110 coececcccccccscccesssessessecseeseeeeseecsecessssessesessesessscsenses 21 Zenith Radio Corp. v. Hazeltine Research (1969) 395 U.S. 100 eee ceeccecsccsscessececesscececscceseesesaseseecsseceaeceseeecanseceseessuesauees 22 Statutes AT ULS.C. Section 230 ooeieeeccseccssscesseeceseeeeseseeeeenseeseessesesseeseneeaees passim Civ. Code, section 3523 viiccecccciceeecccecessscssesssceesecceesscccesececcecsecettecsneeaaas 34 Code Civ. Proc., section 128.7 ........cccceceeseecseeescccessseesssccssesseetssensestceess 11 Code Civ. Proc., section 415.200 00... .cccceescescescecesceesseussssseussnssssseneees 9 Code Civ. Proc., section 425.16 woo. ccccccccccccsssesssssececsscccecessssssceeeenseeecess 13 Code Civ. Proc., section 585 oo... ceeccecccscssssceesecesseesecccececececeeceeeettseseuans 19 Code Civ. Proc., section 631 ...cccccccccccecsssecescesssseccececsecececcessteetecsenseeseecs 18 Code Civ. Proc., section 700.140 0.0... ceeeesesccccsesesesscsscesstsesssceesenseees 32 Code Civ. Proc., section 706.010 ........ccccceceecccsscsessssssseccsssesersesseseceees 22 Fam. Code, section 5235 wo...ccccccccccesecssccesessesessecsessescesssessceeusnsseceeestneaess 32 Gov. Code, section 68093 cc.cceccccesecsssssesscecceseseeecessrsnserceeesreesseess 32 Pen. Code, sections 18 ..........ccccccecceesecccsescesssesesssscesccssssececsensetnsecestescess 14 Pen. Code, section 115cece ccccccecscecsscssessssssssesecssecssssscesseecessnssensraess 14 Pen. Code, section 470(C) o....ccecccccsssessseseesensecsececsesesseeseseeessseseesessecesns 14 Pen. Code, section 672 .....cccccccccccccccsssccssesssseccessessccessnsesecesenerteceresseneas 14 Other Fed. Rules of Civ. Proc., rule 65(d)(2) ceecccccceccscssseseesseeeseeceseesssensues 23 I. INTRODUCTION The growth ofthe internet since enactment of the Communications Decency Act (CDA) has indeed been impressive. But that growth has also come with a price, as the internet offers an unprecedented opportunity and forum for those wishing to inflict harm on others. Defamatory comments — especially those that go “viral” — have the capacity to destroy the entire reputation of a business or person. As noted by Dean Erwin Chermerinsky in his amicus brief supporting Hassell, the internet has also become home to various formsofstalking, bullying, harassment, and even threats of physical violence. The harm these onlinetorts inflict on victims can be far more powerful than any response or counter speech could remedy alone. It simply cannot be the case, as Yelp’s Silicon Valley friends argue,that internet companies themselves should bethe ultimate arbiters of these wrongs. The effect of the rules advocated by Yelp and its amiciis that victims of online torts cannot receive any true remedyfor their online harms. Collectively, they argue that Yelp must be named as a defendant for injunctive relief purposes, but that Section 230 bars it from being named as adefendant. To further deprive victims of any remedy, amicialsoinsist that internet companieslike Yelp even havethe right to prevent users from editing or removing tortious content on their own. In short, the only party whocanhelp prevent further ongoing harm to victims such as Hassellis Yelp. Although Yelp’s amiciall adopt this aim, they approachit in various ways. Some amici attempt to mischaracterize this case as concerning a default judgmentthat wasstrategically designed to preventall parties, even Defendant Bird, from notice. That depiction is controverted by the record, and by the simple fact that Defendant Bird has herself entered this case 7 before this Court to brief the issues. Other amici unpersuasively point to suspected fraudulentlitigation activity in other states as groundsfor this Court to prevent actual tort victims from becoming whole. Of course, this purported fraud is a red herring because, to the extent this conductis a concern, there are better mechanismsfor respondingto it. Againstthis backdrop, many amici argue that the below proceedings infringed on Yelp’s First Amendmentand due process rights. These arguments presume,falsely, that the underlying defamation here was protected by the First Amendmentin thefirst place. The argumentsalso fail to fully address the ability of a California court to enter orders against nonparties to effectuate judgments against party defendants. The arguments raised by Yelp’s amici arguments concerning the CDA fare no better. These arguments attempt to draw from the already generous immunity Congress has provided to internet companies, and apply it in a waythat is supported neither by the text nor intent of the CDA. The Court of Appeal properly rejected all of the various forms of these arguments. Il. DEFENDANT BIRD WAS PROPERLY SERVED, HAD NOTICE OF THE LAWSUIT, AND HAS MADE A GENERAL APPEARANCEIN THIS CASE. Asa threshold matter, many of the amici curiae briefs attack — directly, or by implication — the method of service on Defendant Bird. Not only is the propriety of service on Defendant Bird not an issuein this appeal, but it is altogether a moot point because the record clearly shows she had notice of the lawsuit by publicly acknowledgingit before her answer wasdue; she then initiated mediation of the lawsuit with the Bar Association; and she has also now appeared before this Court as amicus curiae. Giventhe extent of amici’s arguments, it is importantto note that service wasnot only properly effected against Bird, but it provided actual and timely notice of the lawsuit. The record is clear that Defendant Bird could not be physically located after multiple attempts, and that the address of service washerlegal mailing address. (AA.V1.T3.00024-27.) Substitute service to that address, which has never been challenged by evidence or testimony, was therefore proper. (See C.C.P. § 415.200(b).) Further, this method of service did give Bird notice of the lawsuit as roughly one weeklater, Defendant Bird updated her Yelp review to announcethat “Dawn Hassell has filed a lawsuit against me...” (AA.V1.T6.00057, 102-105.) Defendant Bird then initiated mediation of the lawsuit in June 2013 with the Bar Association of San Francisco, before eventually backing out. (AA.V1.T5.00031-32.) Defendant Bird’s current protest, that she “never had an opportunity to defend herself,” (Bird, 4,) is thus entirely false. Clearly, this unchallenged service on Defendant Bird put her on notice of the pendencyofthis action, and gave her the opportunity to respond. Further illustrating Defendant Bird’s knowledgeofthe lawsuit is her bizarre entry into the case before this Court as amicus curiae. A party’s appearanceis consideredto be either “general” or “special.” (See Titus v. Superior Court (1972) 23 Cal.App.3d 792, 8011-801.) Thereis a clear delineation between the two types of appearances. A “special” appearance is made for the sole purpose of challenging personaljurisdiction. (/d.) But if a litigant “seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal. 4th 1028, 1037.) Appellees can find no prior instances where a defendant has defaulted atthetrial court level, but B E then entered the case on appeal as amicus curiae. But, here, it is clear that 9 Defendant Bird has made a general appearance because her briefing does not seek relief on groundsofpersonal jurisdiction, but instead attacks the scope of the injunction entered bythe trial court. (See e.g., Br. of Ava Bird (“Bird”), 12-13 [formally requesting this Court to “reverse the orders of the trial and appellate courts, and direct those courts to enter an order granting Yelp’s Motion to Vacate”].) To the extent other amici try to derive importance from the service of process below, as many do,(see e.g., Br. ofACLU of Northern California et al. “CACLU”), 16 [“In view of this questionable service,it is particularly inappropriate to rely on the default judgment...”]; LA/CTA, 28 (“a default judgment cannot havepreclusive effect unless the defendant ‘has been personally served with summonsorhasactual knowledgeofthe 399existence ofthe litigation.””],) the record below, coupled with Defendant Bird’s current briefing, showsthat those points should be disregarded. Defendant Bird’s briefing makesclear that she is aware ofthis litigation — and she always has been — andthat she has intentionally disobeyed a court order and continuesto refuse to comply with the injunction. IW. AMICPS SUGGESTION THAT THE COURT OF APPEAL’S DECISION ENCOURAGES FRAUD IS MISGUIDED. Perhapsthe most frequent argument appearingin the Silicon Valley amicusbriefs is a “red herring” suggestion that the Court of Appeal’s decision encourages fraud. Supporting this line of reasoning, amicicite several cases nationwide whereit appearsthat litigants may havefiled outright fraudulent lawsuits in order to obtain injunctions. (See generally, Rev. Br. of Eugene Volokh (“Volokh”); see also Br. of Public Citizen, Inc. et al. (“Public Citizen”), 39-43; Br. of Airbnb,Inc.et al. (‘Airbnb”), 34-37 [citing arguments by Volokh and Public Citizen]; Br. of Google Inc. 10 1 s r e Y (“Google”), 13 [citing arguments by Volokh and Public Citizen].) Asat least one amicus has conceded, someofthis discussion is entirely “speculative.” (Volokh, 35.) This Court should not rule based on such “speculative” theories about entirely different cases in entirely different states. Further, it is “the generalrule that issues not raised by the appealing parties but advanced for thefirst time by amici curiae are not considered.” (Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 446 n.10.) First and foremost, the connection between such concerns andthis case are, quite frankly, overblown. As conceded by one amicus, “[n]jone of the fraudulently obtained orders... was entered by a California Court.” (Public Citizen, 42; see also Br. of Glassdoor,Inc.et al. (“Glassdoor”), 24.) The majority of the purported fraud raised by amici also predates the Court of Appeal’s decision. To the extent that amici all suggest the Court of Appeal’s decision is somehowa catalyst for this fraud, they are clearly mistaken.! Second, to the extent there is even a problem to be addressed, amici have chosen the wrong vehicle to do so. Unlike manyofthe fraudulent cases theycite, this case is against a named individual and not a Doe defendant. (Public Citizen, 31-39; Volokh, 45-47.) Although,as discussed supra at 8-10, amici repeatedly suggest that service was improper, Defendant Bird has made an appearancein this case without formally challenging service. (Cf. Volokh, 39-43.) Asalso illustrated by Defendant Bird’s appearance,it cannot besaid that this case involves a fake defendant. (Cf. Volokh, 16-27.) She has herself acknowledged writing ' The oneinstance provided by amici where litigant cited the Court of Appeal’s decision to support some form of injunction wasa case in Canada. (See Google, 15.) 1] the defamatory reviews, and acknowledged the lawsuit. The injunction in this case does not cover government documents among a laundry list of websites. (Cf. Volokh, 30-35.) The injunction doesnottarget the entire webpage in which the defamatory comments appear. (Cf. Volokh, 43-50.) This is not a case of a buried URL amongsta longerlist of websites affected by the injunction. (Cf. Volokh, 51-53.) This case doesnot involve a seedy “reputation management company.” (Cf. Volokh, 35-38; Public Citizen, 29-39.) Nor does this case involve forged signatures from a notary, judge, (cf. Volokh, 27-29; 53-57,) or adverse party, (cf. Public Citizen, 39-43 [describing forged consent orders].) Because the facts of this case are so distinguishable from all of these scenarios proposed by amici, it simply cannotbe said that the Court of Appeal’s decision in this case does or will encouragethe proliferation of tactics that are not even at issue here. The proposed connection is even more attenuated considering that these cases are mostly occurring before the decision below and outside of California. This Court should not allow these possibly fraudulent cases to deprive actual victims of court remedies. “Frivolous cases should be treated as exactly that, and not as occasionsfor fundamental shifts in legal doctrine.” (Hoover v. Ronwin (1984) 466 U.S. 558, 601 [Stevens, J., dissenting].) The applicable legal doctrine here allows victims of defamation to be made whole through injunctiverelief. (See Balboa Island Vill. Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1148.) That injunctive relief would be meaningless indeed if a speaker’s adjudicated defamation could live on throughthird parties like Yelp. California law therefore rightly allows injunctions to be enforced through such intermediaries. (ABM., 26-31.) This Court should not seek to changethis legal doctrine based on the bogeymancited by amici. 12 Indeed, shifting lega! doctrine based on these fears would undoubtedly harm the victims of online torts. These victims include small businesses such as Hassell, to whom reputationis priceless. But, as Dean Chermerinsky points out, these victims also include manyother groups of individuals, who find themselves targeted by “revenge porn,”“doxing,” violent threats, and online sexual harassment. (Br. of Erwin Chermerinsky et al. (“Chermerinsky’), 6.) This is no small group. A new Pew survey has found that “{aJround four-in-ten Americans (41%) have been personally subjected to at least one type of online harassment.” (Maeve Duggan, Online Harassment 2017 (July 11, 2017), http://www.pewinternet.org/2017/07/11/online-harassment-2017/.)? To many who find themselves includedin this latter group of victims, the ability to protect oneself from illegal speech online can be not just about reputation but about personal safety, perhaps even life or death. (/d.) To allow the fraud suggested by amici to deprive these real victims of any viable remedy to their harassmentis a solution that would be unjust in addition to being legally unsound. The actual victims of these online harms may not haveas loud ofa voice as the stalwarts for the Silicon Valley cause, but they are every bit as worthy of protection. Last but not least, there are much better mechanismsto address the fraud raised by amici. For example, as Defendant Bird recognizes, a fraudulent plaintiff may be subject to substantial attorneys’ fees penalties under California’s powerful anti-SLAPP law. (See C.C.P. § 425.16; Bird, 8-9 [citing anti-SLAPP awards ranging from $27,000 to $130,506.71 ].) * Dean Chermerinsky also cites a Pew study, but it appears that the study has been updatedsincethefiling of his amicus brief. (See Chermerinsky, 6.) The 2017 study indicates that the problem has only gotten worse since the 2014 study. 13 Yelp is aware of these anti-SLAPP remedies, andis in fact particularly aggressive about pursuing them. (See Order Granting In Part and Denying In Part Defendant’s Motion For Attorney’s Fees Costs and Ruling on Related Requests, Rahbar v. Yelp (San Francisco Superior Court Feb. 5, 2016) No. CGC 10-499227 [awarding Yelp costs and fees of $80,865.20 in anti-SLAPP motion against defamation plaintiff].) Court sanctions can also be issued in an amount“sufficient to deter repetition of [the] conduct or comparable conduct,” and these sanctions can also include non-monetary components. (C.C.P. § 128.7(c)-(d).) But these civil penalties pale in comparison to the harsh criminal penaltiesthat fraudsters face. The filing of false or forged instruments with a court is a felony, (Penal Code § 115,) as is the alteration or forging of court records, (Penal Code § 470(c).) Conviction of these crimes can carry penalties of $10,000 and three-years imprisonmentper offense. (Penal Code §§ 18,672.) These are not penalties to be taken lightly. If these penalties are somehow insufficient, then amici are welcome to petition the legislature to increase the penalties or even changethe standard of proof for default judgments involving injunctions. In the end,it is not clear that the speculative concernsraised by amici are actually a problem in California. To the extent they are, there are better ways of addressing this fraud than depriving innocenttort victims of valid court remedies. 14 IV. THERE ARE LIMITS ON FIRST AMENDMENT PROTECTIONS WHERE, AS HERE, THE SPEECH AT ISSUE HAS BEEN ADJUDICATED AS DEFAMATORY. Like Yelp’s First Amendment arguments, many similar arguments raised by amici arise from the false presumption that the speech at issueis constitutionally protected. However,it has long been established that “[t]he freedom of speech hasits limits; it does not embrace certain categories of speech, including defamation...” (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-246; see also ABM,14, [cases cited].) Such utterances serve “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from themis clearly outweighed by the social interest in order and morality.” (Balboa Island, 40 Cal.4th at 1149 [quoting Bose Corp. v. Consumer Union of U.S., Inc. (1984) 466 U.S. 485, 503-504].) Of course, Defendant Bird herself generally speaking has freedom of speech rights under the First Amendment. Assuming that Yelp has a First Amendmentright to administer the forum in which Defendant Bird speaks, (see e.g., Br. of the Reporters Committee for Freedom ofthe Pressetal., 11-12,) such rights are necessarily derivative to the underlying legality of Defendant Bird’s speech. In other words, if Defendant Bird’s speechis found unlawful (because, for example, it is defamatory, discloses confidential information, or incites violence), she is thus not protected by the First Amendment, and then it necessarily follows that Yelp cannot assert First Amendmentprotections for displaying her very same words. Otherwise, the absurd result would be that those who disseminate other people’s unlawful speech would receive greater First Amendment protections than the original speaker. 15 Some amici overlook this derivative nature of Yelp’s rights. For instance, Airbnb remarkably insists that Yelp “is the party best-positioned” to defend these claims, and has “an even stronger incentive to defend speech than the original speaker.” (Airbnb, 25.) But Airbnb fails to explain why Yelp has such strong incentive to defend one of millions of comments on its website made by someoneelse, comparedto the significant money judgmentthat the original speaker herself faces. Airbnb also fails to explain how exactly such a defense would look, considering that websites are so far removed from the facts of the underlying defamation, and considering Airbnb’s simultaneousinsistence that CDA prevents the website from mounting such a defense anyway.’ Other amici that seem satisfied with the website coming to the speaker’s defense also fail to provide such explanations. (See Bird, 7; Glassdoor, 11.) Notably, no amicus argues that Yelp would havea continued, independent First Amendmentright to host the defamatory words after a contested trial between speaker and victim. Instead, amici recognize that internet companies are bound bythird-party injunctionsin these circumstances. (See e.g., Public Citizen, 22-23 [the organization only recognizes injunctions entered after contestedtrials].) This concession showsthat the true concern raised by amici is not that Yelp has rights beyond Defendant Bird’s. Instead, the thrust of amici’s argumentis that it is the nature of Defendant Bird’s default that raises constitutional concern. But, as described infra at 18-21, no amicus > In this argument, Airbnbalsoraises a meritless assertion that “[i]f the defendant is not the speaker, the defendant will have no reason to defend the speech.” (Airbnb, 25.) Clearly, an improperly named defendantin a defamation suit has plenty of reason to defend a lawsuit and avoid entry of a large money judgment for someoneelse’s conduct. 16 cites any authority for the proposition that default judgmentsare entitled to less deference than other forms ofjudgments. The distinction Yelp andits amicithus attempt to draw between a jury’s determination and a default Judgmentafter an evidentiary prove up is a false construct. Both render a valid, legal adjudication. By way of example, in the ACLU’s view,“such an injunction entered after a default judgmentis unconstitutional.” (ACLU, 21.) But the ACLU cites no authority for this statement. Instead, the ACLUarrives at this conclusion througha series of attenuated steps, beginning with its mischaracterization of the entire injunction as a prior restraint. (ACLU,8- 21.)* “The term ‘priorrestraint’ is used ‘to describe administrative and Judicial ordersforbidding certain communications whenissued in advance of the time that such communicationsare to occur.’” (Alexander v. United States, (1993) 509 U.S. 544, 550 [emphasis added].) The prohibition on prior restraints in American constitutional law originated as a reaction to an English licensing system that meant “no publication was allowed without a governmentgranted license.” (Balboa Island, 40 Cal.4th at 1149, quoting Chemerinsky, Constitutional Law:Principles and Policies (2d ed. 2002) § 11.1.1, p. 892.) But, as here, an injunction issued after “a determinationattrial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression.” (Balboa Island, 40 Cal.4th at 1156.) Balboa Island neverheld that such a determination must be madebya jury, just as 4 The Court of Appeal stripped the injunction ofits prohibition on future speech, which wasthe one feature of the injunction that was arguably a prior restraint. (Hassell v. Bird, 247 Cal.App.4th 1336, 1360-61.) Although thatpart of the injunction is not on appeal, the ACLU seemsto go further, and arguesthat the entire injunctionis a priorrestraint. -17 long as a “defendant would [not] be deprived ofthe rightto a jury trial concerningthetruth of his or her allegedly defamatory publication.” (Jd. at 1155, quoting Sid Dillon Chevrolet v. Sullivan (1997) 251 Neb. 722, 746.) Here, Defendant Bird was not deprived ofthe right to jurytrial,° and the court made a “determination” that the remarks were defamatory based upon a review of the robust evidentiary record. No further processis due. V. THE PROCEDURE BELOW SATISFIED DUE PROCESS. As with Yelp’s arguments, amici’s due process arguments ring hollow. California law clearly allows for injunctions to be enforced against third parties without running afoul of due process. Moreover, not only do amicifail to describe what alternative process is actually due, they affirmatively insist that Yelp cannotplaya role in that process because the CDAprohibits litigants from involving them. A. Defendant Bird’s Default Does Not Raise Due Process Concerns. Defendant Bird, who hasnot and will not remove the defamatory material, but has entered the case as amicus curiae, defaulted below. At no point has shetried to set aside the default. Amici improperly suggest that the default nature of the judgment below infects its validity. Not so. First, the effect of a default is clear: a party, “by permitting [its] default to be entered, confessed thetruth ofall the material allegations in the complaint.” (O'Brien v. Appling, (1955) 133 Cal.App.2d 40, 42.) The resulting “judgment by default is just as conclusive uponthe issues tendered by the complaintas if rendered after answerfiled and trial on > She waivedthat right by failing to appear. (See C.C.P. § 631(f)(1).) S e a h 18 allegations denied by the answer.” (Jd.; see also In re Circosta (1963) 219 Cal.App.2d 777, 785-86 [applying that rule to injunctive relief].) This well-established rule makespractical sense because plaintiff can never force a defendant to appearat a trial and defendtheallegations. Butit does not followthata plaintiff is automatically entitled to a default judgmentjust because a defaulting defendant has admitted the allegations as true. An action suchas this one “requires that any [default] Judgment beentered by the court [only] after what is commonly called a prove-upoftheallegations of the complaint.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 533-34, citing C.C.P. § 585(b).) These prove- up hearings exist to help bringto light frivolous claims that should not be reduced to judgment. (Seeid. [noting in that case that, if there had been a prove-up hearing,it “would have brought downthe procedural stack of cards” on whichthe plaintiffs claim was based.].) Despite the criticism that these hearings “lack[] key protections provided bya full trial on the merits,” (see ACLU,15; see also Br. of First Amendmentand Internet Law Scholars (“FAILS”), 7,) amici provide no law supporting the same and no guidance as to what other options remain when a defendant choosesnot to challenge a plaintiff's allegations. And because there was such a prove-up hearingin this case below, amici’s characterization of the default judgment as a mere rubber stampis not persuasive. Admissible evidence was presentedto the trial court, who accepted it, conducted a hearing, heard testimony, and madea ruling based uponallofit. Importantly, despite the focus of several amici on the default nature of the judgment, not a single one has cited authority for the notionthat default judgments can simply be ignored as invalid. In the view of some amici, the default judgment here is worthless because there was no “adversary proceeding,” apparently because the adversary did not appear. 19 A R , a B e t m e (See Airbnb, 22-23, quoting Freedman v. Maryland (1965) 380 U.S. 51, 58 {emphasis added]; Br. of Internet Assoc. and Consumer Technology Assoc. (“IA/CTA”), 20.) But due process in an adversary proceeding only requires notice and an opportunity to defend;it does not require that the adversary actually opt in to the action and choose to defend. (See Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) In fact, as the Mullane Court explained, the defendant “can choose for himself whetherto appear or default, acquiesce or contest.” (/d.; see also Richards v. Jefferson Cty. (1996) 517 U.S. 793, 799.) The fact that Defendant Bird had the opportunity to appear and contest the allegations here also underminesthe Internet Association’s general depiction of default judgments as “the very opposite of ‘judicial determinations’ in ‘adversarial proceedings.’” (See IA/CTA,28,citing In re Silva (B.A.P. 9th Cir. 1995) 190 B.R. 889, 893.)° This depiction also pulls the quote from Si/va out of context. The Silva case involved questionsof collateral estoppel under federal law. Unlike the federal collateral estoppel doctrine, however, “[i]n California, it is well settled that a default judgment” supports collateral estoppel. (Jn re Younie (B.A.P. 9th Cir. 1997) 211 B.R. 367, 375; see also Four Star Elec., Inc. v. F& H Constr. (1992) 7 Cal.App.4th 1375, 1380.) California law therefore fully recognizes the validity of default judgments, and if the judgment was properly obtained — by giving notice and opportunity to the adversary — there is no good reason to afford such judgments lesser treatment. These arguments advanced by amicialso present a problematic view ® The IA/CTAbrief extrapolates this same line of reasoning to consent decrees. (See IA/CTA, 28.) But, again, amicus provides no authority for the radical position that consent decrees lack the full force of a court order after a fully contested hearing. 20 of the justice system. As much as amici try to mischaracterize the Court of Appeal’s decision as creating a “roadmap”for sinister behavior, they ignore the roadmap they create to place defendants outside the reach of the courts. In amici’s view, a defendant must simply default, and the resulting Judgment would lack any value. For example, amicus Public Citizen explains how it refuses to follow court ordersthat arise out of default judgments, and it only recognizes court orders that follow contested hearings. (Public Citizen, 22-23.) If this Court were to adoptthis distorted view ofjudgments — that the public can ignore a court orderifit is perceived as not contested hotly enough — then it would render courts effectively powerless to effectuate orders against defendants unless the defendantaffirmatively opted to step foot in the courtroom. B. Due Process Does Not Prevent The Enforcement Of An Injunction Through A Non-Party. Asdiscussed in the parties’ briefing,it is already a deeply rooted legal principle that injunctions may be enforced against third parties without running afoul of due process. (ABM,22, citing Ross v. Superior Court ofSacramento County (1977) 19 Cal.3d 899, 905; In re Lennon (1897) 166 U.S. 548.) Most of amici’s arguments against this rule are based on cases that have been discussed in the parties’ briefing, or by the Court of Appeal in the decision below. For example, one amicus cites the Richardscase. (FAILS,7, citing Richards, 517 U.S. at 798.) Appellees have already distinguished Richards on groundsthat it involved pecuniary interests. (See ABM,25.) The Court of Appeal similarly distinguished some of Yelp’s cases on the same basis. (See Hassell v. Bird, 247 Cal.App.4th 1336, 1356, citing Fazzi v. Peters (1968) 68 Cal.2d 590; Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 21 110, 120-121.) But it is noteworthy that even cases involving money judgments can be enforced throughthird parties, such as by levying bank accounts, (see C.C.P. § 700.140,) or by garnishing wages through an employer, (C.C.P. § 706.010 et seg.) Banks and employers are required to comply with the terms of these writs by handing overproperty of the named defendants in much the same way that Yelp was ordered to respond with regards to the defendant’s speech. The ACLUcites new casesonthis point, but greatly exaggerates their holdings. For example, the ACLU insists that “[t]he United States Supreme Court has held that due process prohibits a court from issuing an injunction against a nonparty.” (ACLU,22,citing Zenith Radio Corp v. Hazeltine Research, Inc. (1969) 395 U.S. 100, 109-112, and Omni Capital Intern., Ltd. v. Rudolf Wolff& Co., Ltd. (1987) 484 U.S. 97, 104.) This argument greatly misstates those cases. Not only is a discussion of due process wholly absent in Zenith, but that court recognized that there were indeed occasions when the Federal Rules of Civil Procedure allow injunctions to run against nonparties. (Zenith, 395 U.S. at 112,citing Fed.R.Civ.P. 65(d).) Furtherillustrating the ACLU’s overreachis that Omni never even mentioned injunctions. (See Omni, 484 U.S.at 104.) These cases simply provide no guidance to the issues involved inthis appeal. Google, for its part, attempts to narrow the availability of such injunctions to only those nonparties who meetcertainstrict criteria proposed by Google. (Google, 17-35.) As the Court of Appeal below described, California law already provides that a nonparty can be ordered to “effectuate [a] judgment” against a defendant onthe sole basis that the enjoined defendantis acting “with or through” the nonparty. (Hassell, 247 Cal.App.4th at 1355-57.) Clearly, that standard is met here because 22 Defendant Bird’s defamatory words were posted through Yelp’s platform. And, because Yelp can legally prevent Defendant Bird from removingthis content, only Yelp has the powerto stop Defendant Bird’s illegal activity. In every sense of the words,Bird is acting “with and through” Yelp to violate the injunction. The practice of enforcing injunctions through nonpartiesis also not nearly as “limited” as Google argues. As even Google’s own authority recognizes, this Court has recognized this enforcement mechanism asearly as 1917. (See Google, 18-19, citing Berger v. Superior Court (1917) 175 Cal. 719, 720-21.) Although Google recognizes Berger as stating the correct rule for California, Google inexplicitly disregards that rule in favor of the narrower formulation expressed in Fed.R.Civ.P. 65(d)(2), which facially only applies to those in “in active concern orparticipation” with a defendant or other agent. (See Google, 22-25 [outlining federal cases], 26- 28 [urging adoption of “in concert” standards from Fed. R. Civ.P. 65(d)(2)].) Aside from walking through some federal cases,’ Google provides no compelling reason for this Court to abandon overa century of its own jurisprudence, which recognizes the enforceability of injunctions against those “with or through” whom a defendant acts. Thereare, however, compelling reasons not to abandonthis approach in favor of the language adopted by the Advisory Committee on Rules of Civil Procedure because, as explained throughoutthis brief, such approach would leave courts powerless to effect some of their judgments, and would leave victims of online torts without any meaningful remedy. The Court of Appeal properly allowed the enforcement of the Bird ’ The state law cases cited by Google, which werealsoinitially cited by Yelp, are all inapposite to this issue. (See ABM,28-29.) 23 injunction against a nonparty. Amici’s attemptto strangle the enforcement of such injunctionsis unavailing. C. Yelp’s Interest In Defendant Bird’s Speech Is Derivative To Her OwnInterest In Such Utterances. A due processreview ofthe case also necessarily requires scrutinizing the property interest at stake for websites such as Yelp. (See ABM,23, citing O’Bamnon v. Town Court Nursing Ctr. (1980) 447 U.S. 773, 788.) But here, the greatest interest that Yelp can assert necessarily entails the underlying integrity of Defendant Bird’s comments. Amici acknowledgethis interest, but remarkably argue that they should have “discretion” to determine which court judgments to follow in furtherance of that interest. Asframed by amici, websites have an interest in providing third- party contentthat is truthful. (See Glassdoor, 3; [recognizing that it is the “truthful and frank [] reviews”that are helpful]; Airbnb, 25 [citing “Yelp’s interest in maintaining the overall integrity of its platform’’].) And of ‘course, “[t]he social utility of candid user reviews cannot be denied.” (Glassdoor, 4 [emphasis added].) Of course, the converse of that statement is also true: the worthlessness of defamatory user reviews cannot be denied. Consistent with amici’s arguments, even Yelp’s own terms and conditions showthat it is not (at least not purportedly) interested in disseminating false and defamatory content. (AA.V3.T27.00748; see also AA.V3.T27.00757.) It is axiomatic that these interests are soundly defeated by a website’s display of adjudicated defamatory content. Interestingly, many amici seem content to follow court orders that are issued after a contested hearing. (See e.g., Public Citizen, 22-23.) Amici therefore recognizethat adjudicated defamation does nothing to serve these interests in website integrity. But as described above, the enforceability of a judgment does 24 not hinge on the intensity of the defense erected in the case, and default judgments are thus every bit as valid as any other court judgment. Whatamici expressly desire is the unprecedentedright to decide which court judgments they want to obey, and which court judgments they can deem invalid and ignore. Some amici expressly state this intention outright. (See e.g., Public Citizen, 22 [the organization routinely ignores certain judgments, but will obey others that it deems valid].) As Volokh argues, “[i]nternet companydiscretionis the best (albeit imperfect) way of dealing with the epidemic of questionable court orders.” (Volokh, 57; see also Google, 16 [Google has “‘a set of internal policies whereby it may remove material that a court has determined to be unlawful,” but Google is not “required” to comply with court orders].)® If this Court were to approve ofthe practice suggested by amici, it would naturally upset the rule of law, and greatly diminish the constitutional authority of the court system to enforce its orders. In amici’s view, some companiesare so far above the law that they are entitled to enjoy “discretion” over which court orders are worthy of obedience. The dangerbehindthis stance is obvious, and it should be rejected outright. D. No Alternative Process Is Proposed By Amici, And In Fact, They Insist That Yelp Cannot Be Included In Any Other Process. Amici’s due process arguments leave unanswered a fundamental question: what expandedprocess do they contendis actually due to Yelp here? (See ACLU, 19-21.) On the one hand,they argue that some more 8 Of course, as described in PointIII above, amici have not shown any “epidemic of questionable court orders” infecting the California judicial system. 25 process is due, but on the other hand,theyinsist that the CDA prevents any further process. They apparently hope this quagmire goes unnoticed, so that websites like Yelp can operate entirely outside the reach ofthe courts. This question is important, especially in light of the record here, which showsYelp receiving both notice and an opportunity to be heard. (See Mullane, 339 U.S. at 314.) Yelp received notice ofthe litigation less than a month after the case was filed. (AA.V3.T21.00601-601, 00617- 634). Yelp received notice on two separate occasions of the injunction after its entry. (AA.V3.T27.00704-718, .00720-730; AA.V3.T28.00798- 799.) Further, Yelp had the opportunity to challenge the enforcement of the Bird injunction by filing a motion to vacate, (Hassell, 247 Cal.App.4th at 1353; see also Chermerinsky, 13,) and Yelp indeed pursued that avenue for relief. Amici seem to assume — wrongly — that, simply because Yelp wasnot named as a defendant, it was deprived of any opportunity to know about, or becomeinvolvedin,thislitigation. Even assuming arguendo that someadditional form of process were due,it is not clear how websites such as Yelp could or would challenge the underlying merits of someoneelse’s defamation. As candidly described by one amicus in anothercontext, “[t]he relationship between a massplatform and any one ofits users — who may numberin the millions or even billions —is tenuous.” (IA/CTA, 26.) If websites truly wanted to engage in some kind ofprocess to litigate the merits of its user’ conduct, thenit is natural to ask howsuchlitigation would look. For example, how could Yelp present evidence that Defendant Bird was speaking the truth, when Defendant Bird is just one of the millionsor billionsof users that visit its website? Remarkably, some amici try to litigate the merits of Defendant Bird’s defamatory wordsbefore this Court, even though the underlying merits of the defamation are not at issue. For example, Glassdoor 26 challenges the scope ofthe injunction, insisting that it removes some part of the comments that were only opinion. (See Glassdoor, 7, 13-15.) Butthis determination cannot be made simply by reading the defamatory statements, and is instead a factual inquiry. (See Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426-27 [Notall statements that appearto be opinions, however, are immunized”from tort liability].) Those factual merits are not before the Court.’ Pulling Yelp into the merits of these cases — such as by namingit as a defendant ~ would also inherently undermine its CDA immunity. But, of course, Yelp and its amici do not mentionthis natural effect of their due process arguments, preferring to obfuscate the otherwise clear fact that they seek to be placed entirely outside the reach ofthe courts. VI. AMICI IMPROPERLY PUSH TO WIDEN THE SCOPE OF IMMUNITY UNDER THE CDA. Yelp’s amici attempt to use the CDAto goso far as to argue that internet companiesare entirely outside the reach of courts. Although the CDAprovides immunity from direct suit, such immunity does not mean that internet companiescan opt out of valid court orders. Hassell are aware that “[t]he normal way these disputes play out is between [the private] persons.” (IA/CTA, 14; see also Public Citizen, 21 [“‘pursue the speaker, not the host”].) That is exactly how this dispute played out. Defendant Bird posted defamatory comments on Yelp’s website. Hassell sued Bird, and obtained monetary and injunctive relief ? One amicus raises the question of how effective such an injunction can be. (See Change.org, 26,28.) This argumentsimilarly does not go to the constitutional questions at issue in this case, and instead would be an argumentfor the trial court to consider when evaluating whetherinjunctive relief would be appropriate given the facts of a particular case. 27 against her. But anticipating that she would havedifficulties enforcing the judgment against the recalcitrant Bird, Hassell also sought to have the injunction enforced through non-party Yelp if necessary. At no point did she attempt to imposeliability on Yelp, or even rope Yelp into expensive litigation on the merits of the defamation claim against oneofits users. She simply sought to enforce a valid court judgment. Some amici criticize this injunction as circumventing the CDA,as if Hassell’s pursuit of Defendant Bird and desire to have an enforceable injunction were part of some disreputable loophole within the CDA. (See e.g., FAILS, 9; Airbnb, 21 [referring to this process as ““gamesmanship”].) To beclear, this injunction is hardly a loophole. Aslaid out throughout Appellees’ briefing, the immunity sought by Yelp’s amici is not contained within the CDA because Congress never intended the CDAto coverthis set of circumstances. Reading this kind of immunity into the CDA would unjustly deprive online tort victims of important, and meaningful, remedies. A. The Enforcement Of The Bird Injunction Treats Yelp As Neither A Speaker Nor Publisher, As Contemplated By The CDA. Amici’s first misguided effort to obtain broader protections underthe CDAthan Congress ever contemplatedis to cite its prohibition against treating internet service providers (ISPs) “as the publisher or speaker of any information provided by another information content provider.” (47 US.C. § 230(c)(1); see e.g., ACLU, 24-25; Airbnb, 9-10; IA/CTA,32-33.) The Court of Appeal’s decision treats Yelp neitheras a “speaker” nor as a “publisher” for purposes of the CDA. First, as described in Appellees’ briefing, a website is not considered to be treated as a “speaker” or “publisher” simply becauseit is ordered to do somethingrelated to third- party content. (See ABM,35-36, citing Barnes v. Yahoo!, Inc. (9th Cir. 28 2009) 570 F.3d 1096, 1107.) Instead, Section 230(c)(1) only applies “when the duty the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a publisher or speaker.” (d.) This analysis necessarily requires evaluating the plaintiff’s cause of action, and against whom that causeof action is asserted. (/d.) The defamation cause of action here wasasserted against DefendantBird. As the Court of Appeal found, no liability has been imposed on Yelp here. (Hassell, 247 Cal.App.4th at 1365.) As the court described, “[i]f an injunctionis itself a form ofliability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated withit could potentially trigger a different type of liability that implicates the contempt powerofthe court.” (d.) Amici similarly err by trying to frame “liability” in a way that is not contemplated by the CDA. (See Airbnb, 13, citing Black’s Law Dictionary 1053 (10th ed. 2014); see also Br. of Change.org et al. (“Change.org”), 31, 34.) This approach conflates an ISP’s obligation to comply with the removal order with “liability” for the tort of defamation. But, as described above, amici collectively acknowledge that such take-down ordersare valid in some circumstances (e.g., after a jurytrial). Furthermore, because the CDA wasintendedto protect internet companies from tort claims such as defamation,it is not surprising that the 29 66terms “speaker” and “publisher” “are drawn from the law of defamation,” where they signify various formsoffinancialliability. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 49.) Under defamation law,a “speaker” facestort liability for “a false and unprivileged publication, which has a tendencyto injure a party in its occupation.” (Bently, 218 Cal.App.4th at 426.) A “publisher”is liable for defamation either on the samebasis as the 29 original speaker, or upon knowledgeofthe defamatory content, depending on whetherit is a primary or secondary publisher. (See Barrett, 40 Cal.4th at 44-45 [describing commonlaw liability standards}.) The distinction between various formsofpublisher liability “is a practical one. Publishers are ordinarily aware of the content of their copy.It is not reasonable, however, to expect distributors to be familiar with the particulars of every publication they offer for sale.” (/d. at 45 n. 8.) The distinction also highlights the primary intent behind the CDA. Congress was expressly concerned about cases such as Stratton-Oakmont, where an internet company’s censoring of obscene materials from its users, was sufficient to makeit a “publisher” under the commonlawforall of its content, thus imposing on it massive defamation liability for uncensored statements appearing onits platform. (ABM, 44-45.) In stark contrast to the words carefully chosen by Congress, Hassell did not seek to impose liability under defamation law against Yelp. Hassell have not pursued Yelp as an original “‘speaker’’; that financial liability was imposed upon Defendant Bird. Unlike Stratton-Oakmont, Hassell have not pursued financial liability against Yelp as a primary publisher underthe theory that Yelp censors andedits its third-party content. Further, despite some amici’s characterization of this case as imposing notice-basedliability on Yelp,(see e.g., ACLU, 26-34,) Hassell have not sought to impose suchliability on Yelp as a secondary publisher. Hassell have simply sought to enforce the injunction properly entered against Defendant Bird via the removal order issued by the court. The enforcementof this injunction does not put Yelp in the same position of the original speaker. (See ACLU, 24-25.) Most notably,the judgment below imposed a money judgmenton the original speaker in the amount of $557,918.85. (AA.V1.T9.00212-216.) Defendant Bird’s 30 financial liability is in no way shared with Yelp. Clearly, Yelp is not placed in the same position as the original speaker simply because enforcementof the injunction is sought through Yelp. In the end, Hassell did not seek to hold Yelp accountable either as a “speaker” or “publisher” as contemplated by the CDA. Hassell did not allege that Yelp violated any duty as such. Hassell do not seek to impose financial liability on Yelp based onits status as a “speaker” or “publisher,” as those termsare defined in defamation law. This all standsin contrast to Defendant Bird, against whom such accountability has been sought. B. The Speculative Cost To Comply With Court OrdersIs Not Compelling Enough To Read A Broadened Immunity Shield Into The CDA. In their push to expand the CDA well beyondits originalintent, Yelp’s amicialso raise concerns about the costs and burdensof the Court of Appeal’s decision. (Change.org, 17-18; Airbnb, 37; Public Citizen, 19.) Without muchin the wayof specifics, the argument that it would be “burdensome” for such companies to comply with court ordersis not persuasive. Indeed,it seemsto invite a certain lawlessness applicable only to internet companies, whichis not the aim of the CDA. (See Fair Hous. Council v. Roommates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1164 [the CDA was“not meant to create a lawless no-man’s-land on the Internet.”].) On the contrary, removing a specific comment from a website should be a simple task involving nothing more than a few keystrokes. Already, website content is regularly edited and updated on regularbasis. (See e.g., Change.org, 16 [amicus curiae Wikimedia Foundation,Inc., received 13.5 million proposed edits to its websites in August 2016 alone].) Even Yelp regularly reviews and blocksthird-party content that it believes violates its terms of services — including content that Yelp itself has deemed 3] defamatory. (AA.V3.T27.00748; see also AA.V3.T27.00757.) Adding compliance with a few court orders!® to this operation hardly seemslike “death by ten thousand duck-bites,” (Airbnb, 18,) but much morelike a drop in the bucket. To the extent that compliance costs do begin to pose the kind of burden that these amici suggest, which is far from clear, there are again better solutions to this hypothetical problem. Thelaw is replete with examples wherea third party’s compliance with a court orderis compensated, including inter alia witness fees, (Gov. Code § 68093,) fees for employers processing child support garnishments, (Fam. Code § 5235,) or fees charged by banks to respondto levies, (C.C.P. § 700.140(d) [contemplating such fees].) One amicus incorrectly argues that the burden imposed by the Court of Appeal’s decisionis that it has a chilling effect on speech. (See Glassdoor, 21, citing Barrett, 40 Cal.4th 33, 56.) The decision has no such effect. The chilling effect in Barrett was based onthe fact that the plaintiff sought monetary damages against the ISP. As Congress described while enacting the CDA,this chilling effect would arise from websites removing third-party content out of concern for endless liability. (See ABM, 44.) Barrett was thus the quintessential case that Congress sought to bar with the CDA. Glassdoor doesnot describe how free speech could be chilled, or even remotely burdened, by simply requiring a website to remove content that has already been adjudicated between the victim and the speaker as defamatory. If compliance with third-party court orders presents a true burden on 10 Tt does not appear that many victims attempt to overcomeall the hurdles necessary to obtain injunctiverelief. 32 internet companies, they can thus take their case to the legislature, and ensure that burden is offset by some kind of transaction fee. The solution is not to exempt such companies from the reach of the court. This easily mitigated burdenis also a small harm when compared to the reputational and other harm that can continue to be inflicted on online tort victims. C. Congress Did Not Consider Reputation Management Companies When It Enacted The CDA. Several amici also raise the specter of disreputable reputation management companiesto justify broadening the already powerful CDA. (See Public Citizen, 30-35, 39-42; Airbnb, 35-36; Volokh, 17-18.) To the extent this industry’s operations have becomeproblematic, then amici should turn to the legislature for a solution. According to these amici, such reputation management companies often engagein practices ranging from illegitimate to outright fraudulent. (See e.g., Volokh, 17 {describing the filing of “a libel lawsuit in the plaintiff's name against afake defendant”].) Volokh, for example, speculates that reputation management companiesare behind a possible schemeusing fraudulent notaries, and proposes that the CDA beinterpreted in a way thatreigns in this business practice. (Volokh, 35.) The problem withthis line of argument, aside from its speculative nature, is how far afield this business practice is from thetort liability Congress sought to eliminate whenit enacted the CDA. In fact, Congress could not have been concerned about the conduct of these reputation management companies whenit enacted the CDA’s protections because this industry apparently did not exist at the time.'' Whenrecently faced with a question of statutory interpretation, a unanimous Supreme Court '! Amici all characterize this industry as a new one. 33 refused to interpret the text of the 1977 Fair Debt Collection Practices Act in a way that would have covered the new debt-buying industry within its scope. (Henson v. Santander Consumer USA Inc. (2017) — U.S. -, 198 L.Ed.2d 177, 184-185.) Inthe view of the Henson Court: while it is of course our job to apply faithfully the law Congress has written,it is never our job to rewrite a constitutionally valid statutory text underthe banner of speculation about what Congress might have donehadit faced a question that, on everyone’s account, it never faced. (id. at 184.) Similarly, here, Congress has not entertainedthe effect of the “reputation management”industry on the internet, and has not made any judgmentcalls as to whether or how this industry should be regulated. “[T]he evolution of the [reputation management] business might invite reasonable disagreements on whether Congress should reenterthe field and alter the judgments it made in the past.” (/d. at 185.) But that question involves inherently legislative fixes. (/d.) D. The CDA WasNotIntended to Deprive Victims of Defamation of a Remedy to Remove Proven False Statements. There is no indication that, through the CDA, Congress sought to prevent the type of injunction that is at issue in this case. There is also no reason to read suchintent into the CDA, when doing so would deprive victims of online harms of any meaningful remedy. The importance of a viable remedyfor victims such as Hassell cannot be overstated. California law isto be interpreted in a way ensuring that “[f]or every wrong there is aremedy.” (Civ. Code § 3523; see also Kelly Sutherlin McLeodArchitecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 531.) This ancient canon of interpretation can be seen 34 even in the earliest jurisprudence of the U.S. Supreme Court, where it was recognized that “[t]he very essence ofcivil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One ofthe first duties of governmentis to afford that protection.” (Marbury v. Madison, (1803) 5 U.S. (1 Cranch) 137, 163; see also Tex. & P. Ry. Co. v. Rigsby (1916) 241 U.S. 33, 39-40 [“This is but an application of the maxim, Ubijus ibi remedium.”].) As Dean Chermerinsky’s brief thoughtfully explains,if this Court were to adopt amici’s position, then the victims of online abuse would be deprived of any meaningful remedy. (Chermerinsky, 8-10.) This is not hyperbole: in addition to the difficulties involved in compelling defendants such as Bird into complying with court orders, many amici expressly point out that internet companies have the powerto prevent her compliance by restricting a user’s ability to remove content. (Public Citizen, 21; FAILS, 8.) Thus, in this case, Yelp could for example, suspend or terminate Defendant Bird’s account. Yelp could have a policy that, once comments are posted online, they cannot be modified by the user. In any of these circumstances, Yelp would render Defendant Bird completely powerless to comply with the injunction even if she desired to do so. In short, because of the extensive control ISP’s have over their forums, the only effective remedy for victims such as Hassell is a removal order. Victims should not be deprived of that remedy unless Congress stated an unequivocaldesire to accomplish that result, which it has not done. 35 VII. CONCLUSION For the reasonsset forth in this brief and Respondents’prior briefing, Respondents respectfully request that this Court affirm the opinion of the Court of Appealin its entirety. Dated: July 20, 2017” DUCKWORTH PETERS LEBOWITZ OLIVIER LLP Monique Olivier J. Erik Heath By: J. Erik Heath Attorneys for Plaintiffs and Respondents '2 Originally submitted July 19, 2017 via Truefiling, but rejected and resubmitted on July 20, 2017 per instructions from the clerk’s office. 36 CERTIFICATE OF COMPLIANCE Pursuant to Rule 8.204(c)(1) of the California Rules of Court, Plaintiffs and Respondents herebycertify that the typeface in 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 8,230. Dated: July 20, 2017 MoniqueOlivier J. Erik Heath DUCKWORTH PETERS LEBOWITZ OLIVIER LLP By: J. Erik Heath Attorneysfor Plaintiffs and Respondents 37 wi m; ch ip ea at ih s e PROOF OF SERVICE Case No. S235968 I, the undersigned, declare that | am over the age of 18 years, employed in the City and County of San Francisco, California, and not a party to the within action. Mybusiness address is 100 BushStreet, Suite 1800, San Francisco, CA 94104. On July 20, 2017, | served the following document(s): RESPONDENTS’ CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS 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, erik@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 documentonthe parties below by placing said documentin a sealed envelope or package with first-class postage thereon fully prepaid, and placed the envelope or packagefor collection and mailing today with the United States Postal Service at San Francisco, California addressed as 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 MontgomeryStreet San Francisco, CA 94105 Jeremy Rosen Scott Dixler Horvitz & Levy LLP 3601 West Olive Ave, 8th Floor Burbank, CA 91505 38 Patrick J. Carome Ari Holtzblatt Wilmer Cutler Pickering Hall & Dorr LLP 1875 Pennsylvania Ave NW Washington, D.C. 20006 Mark Flanagan Wilmer Cutler Pickering Hall & Dorr LLP 950 Page Mill Road Palo Alto, CA 94304 Kenneth White Evelina Gentry Brown White & Osborn LLP 333 South HopeStreet, 40th Floor Los Angeles, CA 90071 Jason Schultz NYUSchool of Law 245 Sullivan Street #609 New York, NY 10012 Ian Ballon Lori Chang Greenberg Traurig LLP 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 David H. Kramer Shelby Pasarell Tsai Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304 Brian M. Willen Jason B. Mollick 1301 Avenue of the Americas New York, NY 10019 Andrew P. Bridges Tyler Newby Fenwick & West LLP 555 California Street, 12th Floor San Francisco, CA 94104 39 Armen N. Nercessian Fenwick & West LLP 801 California Street Mountain View, CA 94014 Jane Yakowitz Bambauer Univ. of Arizona College of Law 1201 E. Speedway Blvd. Tucson, AZ 8572] Paul Allen Levy Public Citizen Litigation Group 1600 20th Street NW Washington, D.C. 20009 Phillip R. Malone Jef Pearlman Juelsgaard Intellectual Property and Innovation Clinic Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 Eugene Volokh Scott & Cyan Banister First Amendment Clinic UCLASchool of Law 405 Hilgard Ave Los Angeles, CA 90095 J. Joshua Wheeler ThomasJefferson Center for the Protection of Free Expression 400 Worrell Drive Charlottesville, VA 2291 ] Katie Townsend Bruce Brown Reporters Committee for Freedom of the Press 1156 15th Street NW, Suite 1250 Washington, D.C. 20005 Douglas Mirell Charles Harder Harder Mirell & Abrams LLP 132 S. Rodeo Drive, Fourth Floor Beverly Hills, CA 90212 40 Clerk of the Court Superior Court of California, County of San Francisco 400 McAllister Street San Francisco, CA 94102 Clerk of the Court California Court of Appeal, First District 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 20, 2017, at San Francisco, California. J. Erik Heath 41