Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 10, 2008

California Court of Appeal Reverses Lower Court on Blogger Subpoenas

In an unpublished opinion, the California Court of Appeal, 6th Appellate District, has reversed a lower court's order to quash subpoenas in an anonymous blogger case and remanded the case to that court for further consideration.

Mordecai Tendler "obtained a pre-filing 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, who 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 section 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....The question before us in this case is whether a request for a subpoena falls within the scope of section 425.16....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="m.” 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.


"The fact that Tendler would have been required to make a prima facie showing to prevail on the motion to quash does not means 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.)  “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, internal quotation marks omitted.)

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.) 

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.

Read the entire opinion here. The case is Tendler v.

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