Tendler v. Www. Jewishsurvivors. Blogspot. Com

164 Cal. App. 4th 802, 79 Cal. Rptr. 3d 407, 36 Media L. Rep. (BNA) 2025, 2008 Cal. App. LEXIS 994

• Court: California Court of Appeal
• Decided: June 10, 2008
• Docket: H031130
• Status: Published

Opinions

Opinion

MIHARA, Acting P. J.

Appellant Mordecai Tendler obtained a prefiling discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Respondents, whom we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section¹ 425.16 motion to strike. Although Tendler withdrew his request for subpoenas, the Does proceeded on their section 425.16 motion to strike. The superior court granted the Does’ section 425.16 motion to strike, and awarded them their attorney’s fees. On appeal, we conclude that a request for subpoenas does not fall within section 425.16, and therefore the superior court erred in granting the motion and in awarding attorney’s fees.

I. Background

In February 2006, Tendler, a resident of New York, obtained an order from an Ohio state court providing his Ohio attorney with “subpoena power for the purpose of obtaining IP address and other owner/creator information from Google concerning web blogs that have allegedly published false, libelous and defamatory statements concerning the Petitioner.”² In March 2006, Tendler’s Ohio attorney issued a subpoena to Google seeking “the originating internet protocol (IP) address(es) or other owner/creator information for the following uniform resource locator (URL): www.jewishwhistleblower.blogspot.com.” At the same time, identical subpoenas were issued to Google for the URL’s www.rabbinicintegrity.blogspot.com,www.newhempsteadnews.blogspot.com, and www.jewishsurvivors.blogspot.com. Google apparently declined to respond to these Ohio subpoenas.

On May 24, 2006, Tendler’s California attorney filed a “request[]” in Santa Clara County Superior Court asking the court “to issue a case number and endorse” the four subpoenas. The court filed a “civil case cover sheet” on May 24, 2006, and assigned a case number. (Capitalization omitted.)

Google apparently notified the Does of Tendler’s subpoenas. On July 7, 2006, “defendants John Doe JewishSurvivors [,] Jewish Whistleblower, and NewHempsteadNews” filed a motion to quash the subpoenas.³ On July 13, 2006, the Does filed a second motion seeking to “strike this proceeding” under section 425.16. They claimed that “the allegations of the deposition subpoena and the underlying petition are covered by C.C.P. § 425.16 . . . .” (Capitalization omitted.) On August 2, 2006, Tendler filed a request for dismissal without prejudice of the “Out-of-State Subpoena Commission.” The dismissal was entered that day.

On August 29, 2006, Paul Alan Levy filed an application for permission to appear as counsel pro hac vice for the Does. Levy wished to appear in association with the California attorney, Cindy Cohn, who was also representing the Does. A hearing was set for October 12, 2006, on the motion to strike and on the application to appear pro hac vice. Tendler’s Ohio and California attorneys apparently ceased to act on Tendler’s behalf in August 2006, and Tendler apparently was without counsel thereafter. However, he did not promptly file a proper substitution of attorneys or provide the Does’ attorneys with a mailing address or telephone number, which made it difficult for them to serve Tendler with any pleadings.

The motion to strike and application to appear pro hac vice were heard on October 12, 2006. Neither Tendler nor any attorney appeared on his behalf. The court granted the application and the motion, and awarded the Does “their attorney fees and costs pursuant to Code of Civil Procedure § 425.16(c).” On October 18, 2006, Tendler filed a proper substitution of attorney, substituting himself for his California attorney and providing a mailing address and telephone number for himself.

On November 7, 2006, the Does filed a motion for an award of attorney’s fees and costs. They sought $40,496.25 in attorney’s fees and $1,745.64 in costs. Levy asserted that he had spent 34.5 hours on the litigation, while the associated California attorneys had spent a total of 29.2 hours. Levy’s time had been spent between June 13, 2006, and October 28, 2006, with most of the time being spent early on. Tendler sent a letter to the court that seemed to seek reconsideration of the court’s prior orders, but the court denied the request for reconsideration as untimely.

The court awarded the Does $20,330 in attorney’s fees and their costs. Tendler filed a timely notice of appeal from the court’s orders granting the motion to strike and awarding the Does their costs and attorney’s fees.

II. Analysis

The question before us in this case is whether a request for a subpoena falls within the scope of section 425.16.

“ ‘We begin as always “with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.” [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] “Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” [Citation.]’ (Trope v. Katz (1995) 11 Cal.4th 274, 280 [45 Cal.Rptr.2d 241, 902 P.2d 259].)” (Sheppard v. Lightpost Museum Fund (2006) 146 Cal.App.4th 315, 322 [52 Cal.Rptr.3d 821] (Sheppard).)

Section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1), italics added.) This “cause of action” must be contained in a complaint, cross-complaint, petition or similar pleading initiating a judicial proceeding. (§ 425.16, subd. (h); Sheppard, supra, 146 Cal.App.4th at pp. 322-323.) “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c).) The Legislature has mandated that section 425.16 “shall be construed broadly.” (§ 425.16, subd. (a).)

Even the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena. A request for a subpoena is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding.

A complaint or cross-complaint must contain a statement of the factual allegations constituting the cause of action and a demand for the relief sought by the pleader. (§ 425.10.) “The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.” (§ 420, italics added.) As a request for a subpoena does not contain causes of action, does not seek relief, and does not serve to formally allege a party’s claims and seek judgment, it bears no resemblance whatsoever to the pleadings at which section 425.16 is directed.

Section 425.16 is also explicitly directed at the striking of “a cause of action.” Yet a request for a subpoena, unlike a complaint, cross-complaint, or petition, does not contain any “cause of action.” An “action” is a proceeding “one party [prosecutes] against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.” (§ 30.) A request for a subpoena does not seek to prosecute “another for the declaration, enforcement or protection of a right” and does not seek “redress or prevention of a wrong.” A request for a subpoena merely seeks to compel the disclosure of information potentially relevant to a “cause of action.” Indeed, a request for a subpoena directed at a third party, such as the request filed by Tendler, is not even served on the adverse party and could not possibly be expected to initiate a “cause of action” against that adverse party.

The Does argue that Tendler, recognizing that California does not permit prelitigation discovery, filed “a new action” for defamation in California. The record provides no support for this contention. Tendler never filed a complaint, petition, or other similar pleading that would be sufficient to initiate a lawsuit in California. His sole filing in California was a “civil case cover sheet” that was accompanied by an affidavit of his attorney and a “request” that the court “issue a case number and endorse” the four subpoenas. A civil case cover sheet does not on its own initiate a lawsuit, nor does an affidavit and request for endorsement of subpoenas. The absence of a complaint, petition, or other similar pleading establishes that Tendler did not file a California lawsuit.

The Does claim to find support for their contentions in this court’s recent decision in Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 [72 Cal.Rptr.3d 231] (Krinsky), but Krinsky is not helpful to their cause. Lisa Krinsky filed a defamation lawsuit in Florida against Doe 6, and subsequently served a subpoena on Yahoo! in Santa Clara County seeking to discover Doe 6’s identity. Doe 6 moved to quash the subpoena, but the motion to quash was denied. {Krinsky, at pp. 1159-1161.) On appeal from the denial of the motion to quash, this court held that Krinsky was not entitled to prevail on the motion to quash unless she made a prima facie showing in support of at least one of her Florida causes of action against Doe 6. (Krinsky, at pp. 1171-1172.)

The Does claim that Krinsky establishes that a request for a subpoena must contain causes of action in order to justify the subpoena’s issuance. They misunderstand Krinsky. Krinsky does not require that the prima facie showing be made in the request for a subpoena. Instead, Krinsky sets forth the standard that is applicable in deciding a motion to quash. Here, under Krinsky, Tendler would have been required to make a prima facie showing in support of at least one of his Ohio causes of action against the Does in order to overcome the Does’ motion to quash. However, the Does’ motion to quash was never heard because Tendler dismissed his request for subpoenas in response to the filing of the Does’ motion.

The fact that Tendler would have been required to make a prima facie showing to prevail on the motion to quash does not mean that his request for subpoenas was a complaint-like pleading stating causes of action. Krinsky’s prima facie showing requirement does not apply to the request for a subpoena itself, but only to the showing necessary to overcome a motion to quash. Nothing in Krinsky supports the Does’ claim that a request for a subpoena must contain causes of action.

The Does express great concern that, absent the availability of a section 425.16 motion to strike, their First Amendment rights may be at risk. Such concerns are not properly addressed to this court. We lack the “power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used.” (Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365 [5 P.2d 882].) “In interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law, ‘ “ ‘whatever may be thought of the wisdom, expediency, or policy of the act.’ ” ’ ” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632 [59 Cal.Rptr.2d 671, 927 P.2d 1175].)

The Does’ concern may also be overstated. It is debatable whether the unavailability of a section 425.16 special motion to strike deprives an anonymous speaker whose identity is sought by a subpoena of adequate means to protect his or her First Amendment rights. In this case, for instance, the Does brought a motion to quash the subpoenas, a valid means for challenging the validity of Tendler’s discovery request. (See Krinsky, supra, 159 Cal.App.4th 1154; Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 879-881 [42 Cal.Rptr.3d 79].)

The Does cannot establish that section 425.16 applies to a request for a subpoena. Consequently, we can only conclude that the superior court erred in granting the Does’ section 425.16 motion to strike and awarding attorney’s fees.

III. Disposition

The superior court’s orders are reversed, and the matter is remanded with directions to deny the section 425.16 motion. In the interests of justice, the parties shall bear their own costs on appeal.

Duffy, J., concurred.

1 Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

2 Tendler’s action in Ohio state court was dismissed without prejudice “as the result of an administrative oversight” on April 25, 2006. The dismissal order was vacated nunc pro tunc on June 19, 2006.

3 The fourth defendant, www.rabbinicintegrity.blogspot.com, did not join in the motion to quash or in the motion to strike.