FILED
SAV MATEO COUNTY
MAY: 3 12015
C

JASON CROSS, ET AL. VS. FACEBOOK, INC., ET AL.

CIV 537384

JASON CROSS

MARK PUNZALAN

FACEBOOK, INC.

JULIE E. SCHWARTZ

e

By

of

the Sled

These matters came on for hearing in the Law and Motion Department on May 12, 2016. After
argument of counsel before Judge Donald Ayo6b, the Court took the matter under submission. The

Court having reviewed all relevant pleadings, the oral arguments of counsel, and the authorities cited
therein, has revised its tentative ruling and now issues its ruling.
SPECIAL MOTION TO STRIKE AND FOR ATTORNEYS' FEES AND COSTS BY
FACEBOOK, INC.

Defendant FACEBOOK, INC.'s Special Motion to Strike is GRANTED IN PART, and DENIED
IN PART, as follows:
The motion is GRANTED as to Plaintiffs' First cause of action for breach of written contract;

Second cause of action for negligent misrepresentation; and Third cause of action for negligent
interference with prospective economic relations. The motion is DENIED as to Plaintiffs' Fourth
cause of action

publicity,

for breach

of

which are exempt

Civil Code § 3344, Fifth cause of action for violation of rights of

from the Communications

Decency Act

(47 U.S. C. § 230( e)( 2));

and

Sixth cause of action for unfair business practices .
Code

Civil Procedure § 425. 16( b)( 1)

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
of

provides: "

United States Constitution or the 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."
Section 425. 16( b)( 2) further

In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon which the liability or
states, "

defense is based."

A defendant specially moving to strike has the initial burden to show that the conduct underlying a
cause of action arises from protected activity. City of Cotati v. Cashmatz ( 2002) 29 CalAth 69, 79.
Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of
prevailing on the claim. Zamos v. Stmud (2004) 32 Ca1.4th 958, 965. To do so, the plaintiff must

1

Co

DEPUTYCLQ

 show that the complaint is both legally sufficient and supported by a sufficient prima facie showing
of facts to sustain a favorable judgment if the evidence is credited. Id.

Does the conduct underlying Plaintiffs' claims arise from protected activity.
Plaintiffs' causes of action for breach of written contract; negligent misrepresentation and negligent

interference with prospective economic relations all arise from Facebook' s decision not to remove
speech of

its

users that

is

critical

of Plaintiffs. See Complaint at p. 5 (" Facebook Refuses to Disable

the Unauthorized Mikel Knight Page in Violation of its Terms of Service").

Plaintiffs insist that they are not trying to hold Facebook liable for statements made by third -party
users on the unauthorized pages, but rather, to hold Facebook liable for failing to follow through on
its alleged promise to remove all content that poses a " genuine risk of physical harm or direct threats
to public

safety". ( Complaint 1123- 26.)

However, where an action " directly targets the way a

content provider chooses to deliver, present, or publish news content on matters of public interest,

that action is based on conduct in furtherance of free speech rights and must withstand scrutiny

GmaterLosAngelesAgency on Deafness, Inc. v. Cable News
Network, Inc. (2014) 742 F.3d 414, 424-45 ( CNN' s decision to display videos on its website without
closed captioning constitutes conduct in furtherance of CNN' s protected right to report the news).
under

California' s

anti-

SLAPP

statute."

It cannot be disputed that Facebook' s website and the Facebook pages at issue are " public forums",
as

they

are accessible

Wong v. Tai Jin (2010)
public ...

to anyone who consents to

Facebook' s Terms. Code Civ. Proc. § 425. 16( e)( 3);

189 Cal.AppAth 1354, 1366 (" It is well settled that web sites accessible to the

are public forums for purposes of the anti-SLAPP statute.").

Moreover, the content of the subject Facebook pages concern public issues or issues of public

broadly defined as " any issue in which the public is interested." Maloney v.
Media, Inc. (2015) 94 F.Supp.3d 1128, 1134. As admitted by Plaintiffs in their Complaint, the
original " Families Against Mikel Knight" page was created by persons related to the injured and
deceased independent contractors hired by Plaintiffs to sell Knight's CDs. (Complaint 112.)
Plaintiffs allege that two of their drivers fell asleep behind the wheel in two separate incidents,
resulting in fatal collisions. ( Complaint 118- 9) It is not a far stretch to say that such incidents, and
the circumstances leading to them, are matters in which the public would be interested.
interest, which is

This lawsuit clearly targets Facebook's ability to maintain a forum for discussion of these issues,
including its discretion to remove content that Plaintiffs find objectionable. Plaintiffs argue
otherwise, contending that their claims are based on Facebook' s duty to adhere to the promises
made to Knight when he signed up for his own Facebook page. Plaintiffs rely on Barnes P. Yahoo
Inc. (2009) 570 F.3d 1096 for the proposition that contract liability can arise from a website host' s
manifest intention to be legally obligated to do something, which happens to be removal of
material

from

publication."

Id. at 1107.

2

 However, Barnes does not aid Plaintiffs here. In Barnes, Yahoo' s Director of Communications made

a specific promise to the plaintiff to " personally walk the statements over to the division responsible
for stopping unauthorized profiles and they would take care of it." Despite this very specific
promise, Yahoo! failed to disable the profiles for two months, prompting the plaintiff to file a
lawsuit. Only then were the profiles taken down. Id. at 1098.

After a lengthy discussion of the applicability of the Communications Decency Act, the Barnes court
found that this case was an exception, since " contract liability here would come not from Yahoo' s
publishing conduct [which was protected activity], but from Yahoo' s manifest intention to be legally
obligated

to

do something,

which

happens

to

be

removal of material

from

publication."

Id. at 1107.

However, the court held that a promise to de -publish must " be as .clear and well defined as a

Thus a general monitoring policy, or even an attempt to help

promise that could serve as an offer ...

a particular person, on the part of an interactive computer service such as Yahoo does not suffice

for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any
to be bound." Id. at 1108 ( emphasis added), citing Workman v. United Parcel Sero Inc. (2000)

intention

234 F.3d 998, 1001.

Here, Facebook made no explicit promise to Plaintiffs to remove the offending content from its
website. Indeed, the Terms and Community Standards that Plaintiffs seek to hold Facebook to

specifically disclaim any intention to be required to remove content. Accordingly, Barnes is simply
distinguishable, rather it supports Facebook' s position that its general monitoring policy does not
rise to the level of contract liability as Plaintiffs argue.
Plaintiffs next contend that their claims satisfy the commercial speech exemption of Code Civ. Proc.
425. 17, relying on Demetriades v. Yelp, Inc. (2014) 228 CaLApp.4th 294. Plaintiffs argue that by
making statements such as " We want people to feel safe when using Facebook" ( see Community
Standards, Exhibit B to Decl. Cross), Facebook sought to induce users like Knight to sign up for an
account. Thus, this qualifies as commercial speech which is not protected.

However, Demetriades likewise does not aid Plaintiffs. In that case, the plaintiff, a restaurant

operator, sued Yelp under the Unfair Competition Law and False Advertising Law based on Yelp' s
assertions that each of its user reviews passed through a proprietary " filter" that gave consumers
the most trusted reviews".
Plaintiff had purchased advertising on Yelp, but quickly noticed that
false reviews were appearing on the main page of his restaurants' profiles, while legitimate positive
reviews were being erroneously filtered. Id. at 300- 301.
On Yelp' s anti-SLAPP motion, the trial court found that Yelp met its initial burden of establishing

that its statements arose from protected activity because statements regarding the filtering of reviews
on a social media site were matters of public

interest.

The plaintiff failed to establish the

commercial speech exemption applied, because the statements regarding Yelp' s filter were mere
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 puffery and opinion. Id. at 304. However, the Court of Appeal reversed, finding that Yelp had made
factual statements about the superiority and reliability of its review filter, which therefore constituted
commercial speech about the quality of its product. These statements were intended to reach third
parties to induce them to engage in a commercial transaction (e. g. patronizing Yelp' s website and
Thus, a statement that is quantifiable, that makes a claim as to
purchasing advertising). Id. at 310. "

the `specific or absolute' characteristics of a product,' may be an actionable statement of fact, while a
general, subjective claim about a product

is

actionable
non -

puffery." Id. at 311.

Here, Plaintiffs have not alleged any representations of fact about Facebook itself, its operations,
goods, or services. Accordingly, the commercial speech exemption of Code Civ. Proc. 5 425.17(c)
does not apply.

Facebook has met its initial burden of demonstrating that Plaintiffs' claims arise out of protected
activity.

Can Plaintiffs demonstrate a probability ofprevailing on their claims?

Plaintiffs' First, Second, and Third causes of action are all barred by the Communications Decency
Act, 47 U.S. C. § 230( c)( 1), because ( 1) Facebook is

an "

interactive

computer service"; (

2) Plaintiffs'

claims treat Facebook as the " publisher" or " speaker" of the offending content; and (3) the
See Klayman V.
another information content provider."
offending content was " provided by
Zuckerberg (2014) 753 F.3d 1354, 1357.
Here, there is

no

dispute

that

Facebook is

an "

interactive

computer service".

Klayman, supra at 1357.

Not is there any dispute that the offensive content was posted by an " information content provider"
other than Facebook, i.e. the families and friends of the injured and deceased independent
contractors. (

Complaint 112.)

The only point of contention is whether Plaintiffs' claims treat

Facebook as the " publisher" or " speaker" of the offending content.

The Barnes court held that " publication involves reviewing, editing, and deciding whether to publish
or

to

withdraw

from

publication third -

party

content."

Barnes, supra at 1102 ( emphasis added), citing

Fair Housing Council ofSan Fernando Valley v. Roommater.com, LLC (20 08) 521 F.3d 1157, 117 0- 71
A]ny activity that can be boiled down to deciding whether to exclude material that third parties
230."). "[ R]emoving content is something
is perforce immune
to post
publishers do, and to impose liability on the basis of such conduct necessarily involves treating the
seek

liable party

online

under section

as a publisher of the content

it failed to

remove."

Barnes, supra at 1103.

Thus, since Plaintiffs seek to hold Facebook liable for failing to remove content that Plaintiffs found
objectionable, their claims treat Facebook as a " publisher" of said content. The CDA operates to

relieve Facebook for liability on the First, Second, and Third causes of action.

4

 However, the CDA

Nothing in this section shall be construed to limit or
5 230( e)( 2). In California, rights of
publicity claims are intellectual property laws. Comedy III Products, Inc. v. Gary Sademp, Inc. (2001) 25
CalAth 387, 399 (" The right of publicity protects a form of intellectual property."). Accordingly,
Plaintiffs' Fourth, Fifth and Sixth causes of action are not barred by the CDA.
also

explicitly

any law pertaining

expand

to

states, "

intellectual property." 47 U.S. C.

Plaintiffs are able to demonstrate a probability of prevailing on their Fourth, Fifth and Sixth causes
of action. Under Civil Code § 3344, a
party is liable where it " knowingly uses another' s name ... in
any

manner, on or

in

products, merchandise, or goods, or

for

the purposes of...

selling, or soliciting

purchases of, products, merchandise, goods or services, without such person' s prior consent."

Similarly, a common law cause of action for commercial misappropriation requires a showing of. (1)
the defendant' s use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to

defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Stewart v. Rolling Stone LLC (2010) 181 Cal.AppAth 664, 679.
Here, it is alleged that Facebook had knowledge since October 2014 that pages using Knight's
and
identity were being created on its site. ( Decl. Hairston 13.) Knight states that he did not

likeness

consent

to these pages

or

the

advertising Facebook

placed on them. (Decl.

Knight ¶ 2.) Facebook' s

financial performance is based on its user base; accordingly, Facebook' s alleged use of Knight's
image

on

Knight

advertising revenue for the company. ( RJN Exhibit B.)
Facebook' s unauthorized use of his image has resulted in substantial harm. ( Decl.

the unauthorized pages generates

states

that

Knight ¶T 12- 13.)

Accordingly, Plaintiffs have shown a probability of prevailing on their rights of
publicity claims. Because the Sixth Cause of Action is a derivative claim that may arise from either or
both the Fourth and Fifth Causes of Action, here to Plaintiffs have shown a probability of
prevailing.

Attorney's fees and costs

Typically, a prevailing defendant on an anti-SLAPP motion is entitled recover its attorney's fees and
costs. Code Civ. Proc. § 425. 16( c).
Facebook opted to bring a subsequent motion for attorney's
fees and costs should it prevail on its motion. If Facebook files such a motion where, as here, three

of Plaintiffs' six causes of action were subject to being stricken, the Court directs the parties to
provide authority as to whether there is a " prevailing party" under these circumstances and, if so,
whether attorney's fees and costs should be apportioned to reflect the result.
DEMURRER TO COMPLAINT OF CROSS BY FACEBOOK, INC.

Defendant FACEBOOK, INC.'s Demurrer to Complaint is MOOT as to the First cause of action
for breach of written contract; Second cause of action for negligent misrepresentation; and Third

cause of action for negligent interference with prospective economic relations in light of the ruling
on Facebook' s anti- SLAPP motion.

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 The demurrer is OVERRULED

as

to Fourth

cause of.action

for breach

of

Civil Code § 3344; Fifth

cause of action for violation of rights of publicity; and Sixth cause of action for unfair business
practices, which are exempt

from

the

Communications

Decency Act.

47 U.S. C. § 230( e)( 2). These

causes of action are sufficiently stated.

Facebook' s Request for Judicial Notice is GRANTED as to Exhibits A, B, C, and D. Courts

regularly take judicial notice of documents that are referenced and relied upon in a complaint. Align
Tech, Inc.

v.

Tran ( 2009) 179 Cal.AppAth 949, 956

n. 6

("[ Plaintiff) referred to the Settlement

Agreement in its complaint herein. As such, it was an appropriate matter of which the court could
take judicial notice.").

Courts may also take judicial notice of records in other court actions. Evid.

Code § 452( d).

Plaintiffs' Request for Judicial Notice is DENIED as to Exhibits A, B and C.

Defendant Facebook shall file an Answer to the remaining claims on or before June 17, 2016.
IT IS SO ORDERED.

Dated: May 31, 2016

Hon. Donald J. Ay of, judge

San Mateo Countytvpetior Court

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