Nelson v. Superior Court of L. A. Cnty.

JEFF NELSON et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;JOHN DOES 1 through 50, whose true identities are unknown, Real Parties in Interest.

B283743

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

February 27, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC645561)

ORIGINAL PROCEEDINGS in mandate. John P. Doyle, Judge. Petition granted.

Gerard Fox Law, Gerard P. Fox, Morgan E. Pietz and Thomas P. Burke Jr. for Petitioners.

No appearance for Respondent.

Miller Law Associates, Randall A. Miller and Lisa D. Mallinson for Real Parties in Interest.

____________________

INTRODUCTION

After pseudonymous Internet commenters posted on social media that Jeff Nelson practices "bestiality and paedophilia [sic] and incest," has "mouth sores," and sells food that causes "mouth herpes," he and his company VegSource Interactive (collectively, Nelson) sued for defamation. To discover the identity of the commenters, one of whom posted under the pseudonym Chantelle Robin, Nelson served subpoenas on Google, Tumblr, YouTube, and Twitter, requesting potentially identifying information, including the commenters' IP addresses. Before those companies responded to the subpoenas, however, they notified Robin, who filed a motion to quash the subpoenas. The trial court granted the motion to quash.

Nelson filed a petition for writ of mandate seeking to compel the trial court to vacate its order granting the motion to quash and to enter a new order denying the motion. Because Nelson made a prima facie showing of defamation against Robin and another pseudonymous commenter, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

In his operative complaint Nelson alleged five causes of action against unknown (Doe) defendants:¹ defamation, false light, intentional and negligent infliction of emotional distress, intentional and negligent interference with prospective economic advantage, and unfair competition. All of the causes of action were based on the allegation that "[c]ertain unknown John Doe defendants are waging a campaign of sustained online defamation and harassment against . . . Nelson, his family, and their business." Nelson suspected the "person(s) behind this scheme are vegan YouTuber competitors who are doing it not just out of spite, but also for profit."

Nelson described himself as "a frequent speaker and conference leader on issues relating to health and nutrition, with a specific focus on the benefits of a plant-based vegan diet." Since 1996 he has run "a media and publishing company with a focus on health, nutrition, and veganism." The company, VegSource, "creates original content and documentaries for sale, cooking DVDs, and a variety of products in the vegan health sector." "One aspect of the company's business is a YouTube channel . . . which has programming that frequently includes [Nelson] and others speaking about the vegan lifestyle, as well as related educational, marketing, and advertising efforts." Advertisers pay to advertise on VegSource's YouTube channel. VegSource also organizes and sponsors an annual event called the Healthy Lifestyle Expo, which brings together "top, bestselling experts in the vegan niche."

In July 2016 Nelson "invited a vegan YouTube personality named Charles Marlowe a/k/a 'Vegan Cheetah' to attend and speak" at the Healthy Lifestyle Expo. Marlowe "speaks frequently about his troubled past, including his drug addiction and criminal record, and credits veganism with helping get his life back on track." After the public announcement that Marlowe would speak at the event, someone using the pseudonym (screen name) Chantelle Robin "began releasing a series of videos on a phony YouTube account" attacking Nelson and his decision to invite Marlowe to speak.

The complaint alleged that Robin and others posted many defamatory statements, including the following comments Robin allegedly posted on YouTube:

1. "'What [Nelson] called his kids are women in their mid twenties, who vilely attack all kinds of others. Not to mention the family gangbang on essena o'neill, a young girl.'"

2. "Nelson used money he 'inherited' from the Armour Meat Company to 'hire a convicted felon named Charles Marlowe to harass vegans and shut down vegan [YouTube] channels.'"

3. "Nelson 'is using the criminal Charles Marlowe to do harm to people that [Nelson] doesn't approve of, and someone is going to get badly hurt. [Nelson] will be responsible. He is promoting this harm.'"

4. "Nelson has been 'harassing people for 20 years (while hiding in a troll capacity). [Nelson] has a vendetta against anyone who dares to be interested in animal rights. He believes they should be censored and eliminated. Now he has a criminal thug mascot to hurt people.'"

5. "Nelson 'has a history of attacking and trying to hurt vegans'" and "'has a criminal on felony probation who is willing to stalk and hurt people and silence them.'"

6. "'[Nelson] found a felon with 20 arrests behind him who was willing to stalk and harass vegans on Youtube. Death threats, rape threats, doxing,² smear - all attempts to shut down vegan Youtube channels. [Nelson] wants to be the Big Daddy of Youtube and punish at will.'"

7. "'Sources have suggested there was a disease outbreak of anal fissures after the Vegsource Expo Party $$$ at Jeff Nelson's home but this HAS NOT BEEN SUBSTANTIATED AND IS NOT KNOWN TO BE TRUE.'"

The complaint also alleged Robin posted a video on YouTube, titled "Vegan Cheetah has MOUTH SORES! The Shocking Truth of the Vegsource Diet!! Jeff Nelson Bite Size." The text on the screen of the video stated: "'Due to the RESTRICTIVE Vegsource McDougall Diet . . . And close, intimate collaboration . . . The Vegsource Industry Has an outbreak of MOUTH SORES' and 'Vegsource Jeff Nelson & Vegan Cheetah Are selling a MAGICAL DIET And it's causing MOUTH HERPES & uncontrollable lying.'" The video included photographs of Nelson and his wife that were "doctored to make it appear as if they had mouth herpes" and placed "next to stock photographs of persons with mouth herpes."

Nelson further alleged:

1. Someone using the pseudonym "TZM RBE" posted on YouTube: "'Former slaughterhouse owner Jeffs family are scum. satanists practice bestiality and paedophilia and incest.. noticed that time when jeff used one of his daughters bare arse cheeks as a thumb-nail on his video.'"

2. Someone using the pseudonym "RONS DOUBLE Ds" posted on YouTube: "'Nelson is paying them to do his dirty work, total dirt bag'" and "'From my gathering JEFF NELSON is paying off congasm and weezie to troll people for him.'"

3. Someone using the pseudonym "GISFORGARY" posted on YouTube: "'I think Jeff fucks Charlie in the ass till he calls him daddy.'"

B. The Subpoenas

Nelson served YouTube, Google, Tumblr, and Twitter with subpoenas for the production of documents. Nelson requested documents that would identify Robin and the other pseudonymous posters, including documents disclosing their names, email addresses, IP addresses, physical addresses, and phone numbers. Nelson also asked for information regarding "AdSense" accounts associated with the posters' YouTube accounts.³

C. The Motion To Quash

Some of the Internet services providers (ISPs) contacted Robin. They warned Robin that, if they did not receive a "response" or a copy of a motion to quash the subpoena within a certain number of days, they might produce responsive documents, which could lead Nelson to unmask Robin's true identity. Robin, claiming to make a special appearance, filed a motion to quash under Code of Civil Procedure section 1987.1,⁴ arguing the subpoenas "threaten to violate Robin's Constitutionally guaranteed rights to free and anonymous speech and privacy."

At the hearing on the motion to quash, Nelson's attorney characterized the motion as "a dispositive motion in disguise, where the court is being asked to decide whether the plaintiff has sustained . . . its burden of coming forward with [a] prima facie case of defamation." The trial court determined that Nelson had not met his burden of making a prima facie case, and granted Robin's motion to quash. The court reasoned that, although Robin made "verifiable" statements regarding "mouth herpes and anal fissures," "the platform for such statements, YouTube, and the diction and tone employed by Defendants [in the posts], convey that the statements comprised essentially what might be characterized as a rant and rave not reasonably to be construed as facts by the intended audience." The court stated: "Robin does not represent herself as 'unbiased' and 'having specialized knowledge,' nor does she characterize her videos or comments as 'Research Reports' or 'bulletins' or 'alerts' [citation], and the social media used was not like Yelp [citation] or RipoffReport.com [citation] in which statements could reasonably be understood as conveying facts." The court explained that the context of Robin's statements was dispositive ("all roads lead to this issue of context") and that "you might get a different result from a different judge." The court ruled, "Here, it is apparent that the context of the statements attributable to Robin—that there is an ongoing battle between Plaintiffs and Robin over the manner in which Plaintiffs have expressed their opinions by which both Robin and Plaintiffs have accused each other of personal attacks and bullying—are in the nature of opinions." As support for its statement regarding the "ongoing battle," the court cited Nelson's declaration "notably conceding that Marlowe has a criminal record" and Robin's declaration "explaining that all of...