Case Information
*1 Filed 6/7/16
CERTIFIED FOR PUBLICATION
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT DIVISION FOUR
DAWN HASSELL et al.,
Plaintiffs and Respondents,
v. A143233
AVA BIRD, Defendant; (San Francisco City & County YELP, INC., Super. Ct. No. CGC-13-530525)
Appellant. I.
INTRODUCTION
Respondents Dawn Hassell and the Hassell Law Group (Hassell) [1] obtained a judgment holding defendant Ava Bird liable for defamation and requiring her to remove defamatory reviews she posted about Hassell on Yelp.com, a Web site owned by appellant Yelp, Inc. (Yelp). The judgment also contains an order requiring Yelp to remove Bird’s defamatory reviews from its Web site (the removal order). Yelp, who was not a party in the defamation action, filed a motion to vacate the judgment which the trial court denied.
On appeal, the parties raise numerous issues relating to the judgment against Bird, and the subsequent removal order. As to those issues, we conclude as follows: (1) Yelp is not “aggrieved” by the defamation judgment entered against Bird, but it is “aggrieved” *2 by the removal order; (2) Yelp’s trial court motion to vacate was not cognizable under Code of Civil Procedure section 663 [2] ; (3) Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate that order; (4) Yelp’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; (5) the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; (6) to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and (7) Yelp’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.
Therefore, although we affirm the order denying Yelp’s motion to vacate the judgment, we will remand this case so that the trial court can narrow the terms of the removal order in a manner consistent with this decision.
II.
STATEMENT OF FACTS
A. The Complaint
Hassell’s April 2013 complaint against Bird arose out of Hassell’s legal representation of Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of *3 direct communications with Bird by e-mail and phone and at least one in-person meeting. When legal representation was withdrawn, Bird had 21 months before the expiration of the statute of limitations on her personal injury claim, and had not lost any rights or claims relating to her injury.
Hassell further alleged that, on January 28, 2013, Bird published a review on Yelp.com about her experience with Hassell (the January 2013 review). Hassell attempted to contact Bird by phone to discuss the publication, but she failed to return the call, so the firm sent her an e-mail “requesting she remove the factual inaccuracies and defamatory remarks from her Yelp.com written statement.” In an e-mail response, Bird made derogatory comments about Dawn Hassell’s legal skills, refused to remove the January 2013 review, and threatened to post an updated review and to have another review posted by someone else.
According to the complaint, on February 6, 2013, Bird or her agent created a “fake Yelp identity, using the pseudonym ‘J.D.,’ from Alameda,” to post another negative review about the Hassell firm on Yelp.com (the February 2013 review). Hassell believed that Bird was “J.D.” because Hassell never represented a client with the initials J.D., and because the February 2013 review was posted shortly after the January 2013 review and used similar language.
In their complaint, Hassell alleged causes of action against Bird for defamation, trade libel, false light invasion of privacy, and intentional infliction of emotional distress. In a fifth cause of action for injunctive relief, Hassell alleged that Bird’s ongoing wrongful acts were the direct and proximate cause of substantial pecuniary losses and irreparable injury to Hassell’s business reputation and good will, and that they were entitled to an injunction because there was no adequate remedy at law to compensate them for their continuing injuries.
In their prayer for judgment, Hassell sought general and special damages, each in excess of $25,000, according to proof, and punitive damages in an unspecified amount. Hassell also prayed for “injunctive relief prohibiting Defendant Ava Bird from continuing to defame plaintiffs as complained of herein, and requiring Defendant Ava *4 Bird to remove each and every defamatory review published by her about plaintiffs, from Yelp.com and from anywhere else they appear on the internet.”
B. Yelp Reviews about Hassell
The allegedly defamatory statements about Hassell that were posted on Yelp.com were attached as exhibits to the Hassell complaint.
The January 2013 review was posted by a reviewer who used the name “Birdzeye B. Los Angeles, CA.” It was identified by Yelp as one of “10 reviews for The Hassell Law Group” that Yelp used to give Hassell an overall star rating of four and one-half out of five stars. Birdzeye B., however, gave Hassell a rating of one out of five stars, and stated that the law firm did not even deserve that. The reviewer’s critique was directed at both the Hassell firm and Dawn Hassell personally, who was accused of “ma[king] a bad situation worse for me,” and reneging on her obligations because “her mom had a broken leg” and because “the insurance company was too much for her to handle.” The review also stated: “the hassell law group didn[’]t ever speak with the insurance company either, neglecting their said responsibilities and not living up to their own legal contract! nor did they bother to communicate with me, the client or the insurance company AT ALL . . . .”
The February 2013 review was posted by a reviewer who used the name “J.D. Alameda, CA.” It was identified by Yelp as one of “11 Filtered Reviews for The Hassell Law Group.” Yelp posted a note advising its users that filtered reviews “are not factored into the business’s overall star rating.” The user who posted the February 2013 review gave Hassell a one star rating and provided the following information: “Did not like the fact that they charged me their client to make COPIES, send out FAXES, POSTAGE, AND FOR MAKING PHONE CALLS about my case!!! Isn’t that your job. That’s just ridiculous!!! They Deducted all those expenses out of my settlement.” (Original capitalization.)
C. The Default Judgment
On April 17, 2013, Hassell served Bird by substitute service with a summons, the complaint, an alternative resolution package, a civil case information sheet, a statement of damages and an attorney letter. On June 18, 2013, Hassell filed a request for the *5 superior court clerk to enter a default against Bird, who had failed to answer Hassell’s complaint. Default was entered and filed on July 11, 2013.
On November 1, 2013, Hassell filed a notice of hearing on their application for default judgment and request for injunctive relief. The application was supported by a “plaintiffs’ summary of the case,” which provided additional details about matters alleged in the complaint, and also described a third review that Bird allegedly posted on Yelp.com on April 29, 2013 (the April 2013 review).
Hassell’s case summary also argued the merits of its case. In support of its request for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird] made defamatory statements,” the court would have authority to issue an injunction, and that if the same showing could be made at a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctive relief after a default prove-up hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the defendant refuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed to do so, which was likely in light of her history of “flaunting” California’s court system.
Through declarations from Dawn Hassell and another Hassell attorney named Andrew Haling, Hassell filed extensive documentary evidence, including Bird’s attorney- client agreement, correspondence between Hassell and Bird, evidence of damages, and comments about Hassell that were posted on Yelp.com., including the April 2013 review that Hassell identified in its case summary as another defamatory statement by Bird.
The April 2013 review was posted by “Birdseye B. Los Angeles, CA, and was identified by Yelp as one of “11 reviews for The Hassell Law Group” that Yelp used to calculate Hassell’s overall star rating. The reviewer described his or her statements as an update to Birdseye B.’s earlier review and then stated that Dawn Hassell had filed a lawsuit “against me over this review,” and that she “tried to threaten, bully, intimidate, [and] harass me into removing the review!” Birdseye B. also stated: “the staff at YELP has stepped up and is defending my right to post a review. once again, thanks YELP! . . .”
On January 14, 2014, a default prove-up hearing was held before the Honorable Donald Sullivan. Although a transcript of that hearing is not in the appellate record, the court’s minute order reflects that Dawn Hassell and Andrew Haling appeared on behalf of Hassell and there was no appearance by Bird. Dawn Hassell was sworn and testified, and, after considering all the evidence, the court entered judgment against Bird. Hassell was awarded general and special damages and costs totaling $557,918.75, but was denied punitive damages. The Bird judgment also awarded Hassell injunctive relief pursuant to the following provisions:
“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order.
“Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website.
“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.” (Italics added.)
On January 15, 2014, Hassell served Bird with notice of entry of judgment. Bird did not appeal, and the judgment became final on March 16, 2014. (Cal. Rules of Court, rule 8.104.) [3]
*7 D. Hassell’s Efforts to Enforce the Judgment
On January 15, 2014, Hassell hand-delivered a copy of the Bird judgment to an attorney employed by Yelp named Laurence Wilson, along with a letter requesting that Yelp comply with the judgment. On January 28, Hassell caused the judgment to be personally served on Yelp’s national registered agent for service of process. In a letter served with the judgment, Dawn Hassell highlighted the following circumstances: Yelp had failed to comply with the court deadline for removing Bird’s defamatory reviews; Laurence Wilson had not replied to Dawn Hassell’s January 15 letter or returned phone calls from Hassell; and “Yelp, Inc.’s non-compliance with the court’s order will become the subject of contempt proceedings and a further lawsuit against Yelp if Yelp refuses to comply [with the judgment] as my business is being further damaged.”
Yelp’s senior director of litigation, Aaron Schur, responded to Dawn Hassell in a February 3, 2014 letter. Schur stated that Yelp objected to the judgment “to the extent directed at Yelp itself” for three reasons: (1) Yelp was a nonparty to the litigation; (2) Yelp was immune from liability for it publication of a review; and (3) Hassell failed to properly serve Bird or prove its defamation claims against her. Schur also informed Hassell that Yelp had made the decision not to comply with the judgment, stating: “the judgment and order are rife with deficiencies and Yelp sees no reason at this time to remove the reviews at issue. Of course, Yelp has no desire to display defamatory content on its site, but defamation must first be proven.” Schur stated that Yelp would “revisit its decision” if it was presented with stronger evidence. He also warned that Hassell’s “threats” of litigation against Yelp were not well taken because Yelp would file a motion to dismiss and recover attorney fees under the anti-SLAPP law, “as it has done in the past in similar cases.”
In an April 30, 2014 letter to Schur, Dawn Hassell asked that Yelp reconsider its position in light of the facts that Bird had refused to comply with the judgment, and, as a practical matter, she was judgment proof because the award against her was uncollectable. Dawn Hassell also objected to a recent decision by Yelp to recommend one of Bird’s defamatory reviews. As Hassell explained, “I also take issue with the fact *8 that Yelp has now highlighted these defamatory reviews by user ‘Birdzeye B.’ (already confirmed to be Defendant Bird) by listing them as ‘Recommended Reviews,’ so other Yelp visitors see these defamatory reviews first, above more recent, honest, positive reviews.”
Finally, Dawn Hassell advised Schur of her plan to file a motion to enforce the judgment. She reminded him that she had sought Yelp’s assistance before initiating litigation, but was informed by Yelp that her only recourse was against Bird. However, after obtaining a judgment against Bird, it was now clear that the only remedy available to Hassell was to have Yelp take down the reviews. Ms. Hassell stated that if Yelp believed the injunction was too broad, she was “willing to discuss stipulating with you to terms pertaining to Yelp that would be more agreeable, for settlement purposes only, and before the motion to enforce the court’s order is heard.”
E. Yelp’s Motion to Set Aside the Judgment
On May 23, 2014, Yelp filed a notice of motion and motion to set aside and vacate the Bird judgment pursuant to section 663 on the “grounds that the legal basis for the decision is not consistent with or supported by the facts or applicable law.” In its supporting memorandum, Yelp alleged it had standing to bring the motion as an “aggrieved party,” even though it was a nonparty in the action. Yelp then argued the trial court was required to vacate the Bird judgment because: (1) Hassell’s failure to name Yelp as a party defendant violated Yelp’s right to due process; (2) Yelp was immune from liability for posting Bird’s reviews pursuant to the CDA, 47 United States Code section 230; (3) the judgment violated section 580 by awarding relief that Hassell did not request in their complaint; and (4) the judgment subverted Bird’s First Amendment rights by suppressing speech that Hassell failed to prove was defamatory.
On July 8, 2014, the Honorable Ernest H. Goldsmith ordered Yelp’s motion off calendar and directed Yelp to reschedule its motion in a different department of the superior court before Judge Sullivan, explaining: “The moving party seeks to vacate or modify Judge Sullivan’s judgment and he should make the determination regarding the propriety of that request.”
On July 23, 2014, Yelp filed a re-notice of its motion to vacate and set aside the Bird judgment. Yelp’s re-notice did not reference section 663 or any other statutory ground for the motion, but explicitly relied on the memorandum and other pleadings Yelp had already filed in support of its motion to vacate. Furthermore, Yelp stated that its motion was being re-noticed in the same department as previously noticed, pursuant to the instruction of the presiding judge of the superior court.
On August 27, 2014, Judge Goldsmith held a hearing on Yelp’s motion to vacate, accepted evidence, entertained arguments and then took the matter under submission. On September 29, 2014, the court filed an order denying Yelp’s motion to set aside and vacate the judgment (the September 2014 order). The September 2014 order contains two sets of findings.
First, regarding the judgment itself, the court found that Judge Sullivan
(1) conducted a court trial, (2) made a finding that Bird’s postings about Hassell on
Yelp.com were defamatory; (3) granted injunctive relief against Bird which required her
to remove her defamatory reviews from Yelp.com; and (4) also ordered nonparty Yelp to
remove the defamatory reviews. Judge Goldsmith then concluded that, under California
law, an injunction can be “applied to” a nonparty by virtue of its relationship to an
enjoined party. (Citing
Ross v. Superior Court
(1977)
The second set of findings in the September 2014 order pertained to “Hassell’s contention that Yelp is aiding and abetting Bird’s violation of the injunction.” The court found that the evidence showed that (1) Yelp highlighted Bird’s defamatory reviews on Yelp.com by explicitly recommending one of her reviews, and also by refusing to take account of a “litany” of favorable reviews that users had posted when it calculated a “star rating” for the Hassell law firm; (2) Yelp’s motion to vacate was not limited to its own interests, but sought to vacate the entire Bird judgment by making arguments that pertained only to the propriety of the judgment against Bird; and (3) Yelp refused to acknowledge or abide by a judicial finding that Bird’s reviews are defamatory notwithstanding that its own terms of service require Yelp.com users to agree not to post a “fake or defamatory review. . . .” Based on these findings, the court concluded that *10 “Yelp is aiding and abetting the ongoing violation of the injunction and that Yelp has demonstrated a unity of interest with Bird.”
III.
DISCUSSION
A. Preliminary Considerations
In its opening brief on appeal, Yelp requests that this court “reverse and vacate the trial court’s judgment.” Yelp appears to assume that the denial of its motion to vacate conferred standing on it to appeal the entire Bird judgment. At the same time, however, Yelp strenuously insists that it is not and never has been a “party” in this case. Adding to the confusion, Hassell contends that the trial court did not have “jurisdiction” to hear Yelp’s section 663 motion, to which Yelp responds that courts have inherent power to set aside void judgments. To sort these issues and clarify the scope of this appeal, we begin by considering the two prerequisites for appellate standing.
“Standing to appeal is jurisdictional [citation] and the issue of whether a party has
standing is a question of law [citation].” (
People v. Hernandez
(2009) 172 Cal.App.4th
715, 719.) To “have appellate standing, one must (1) be a party and (2) be aggrieved.
[Citations.]” (
In re Marriage of Burwell
(2013)
1. Yelp Is Not “Aggrieved” By the Judgment Against Bird, But Is “Aggrieved” By the Removal Order
“One is considered ‘aggrieved’ whose rights or interests are injuriously affected
by the judgment. [Citations.] Appellant’s interest ‘ “must be immediate, pecuniary, and
substantial and not nominal or a remote consequence of the judgment.” ’ [Citation.]”
(
County of Alameda v. Carleson
(1971)
Applying this test, we conclude that Yelp is not aggrieved by the default judgment against Bird. Awarding Hassell damages and injunctive relief with respect to Bird’s *11 defamatory remarks did not cause Yelp to suffer a substantial immediate pecuniary injury of any kind. Bird was the party aggrieved by that judgment and she elected not to appeal. On the other hand, the judgment contains an additional provision which expressly requires Yelp to remove Bird’s reviews from Yelp.com. This removal order directly affects the operation of Yelp’s business and potentially carries some pecuniary consequence. Thus, Yelp was aggrieved by the removal order for purposes of establishing standing.
Throughout proceedings in the trial court and on appeal, Yelp has endeavored to blur the distinction between the judgment entered against Bird which awarded Hassell damages and injunctive relief, and the removal order in the judgment which directs Yelp to effectuate the injunction against Bird. For example, Yelp asserted trial court standing to bring a motion to vacate on the ground that “Yelp’s rights and interests to maintain its Site as it deems appropriate [were] injuriously affected by the Judgment.” However, this claimed injury did not result from the judgment itself, but only from the removal order requiring Yelp to effectuate the injunction against Bird. To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.
Since Yelp was not aggrieved by the default judgment entered against Bird, it had no standing to challenge that judgment in the trial court. Thus, this court will not address arguments regarding the validity of the Bird judgment itself including, for example, *12 Yelp’s theory regarding perceived defects in Hassell’s complaint against Bird, and its contention that Hassell failed to prove their defamation claim against Bird. [4]
2. Yelp’s Motion to Vacate Was Not Authorized by Section 663 As already noted, a legally aggrieved nonparty to a judgment or decree may “become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section 663. [Citations.]” ( Carleson , , 5 Cal.3d at p. 736.)
Section 663 states: “A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict.”
Section 663 “is designed to enable speedy rectification of a judgment rendered
upon erroneous application of the law to facts which have been found by the court or jury
or which are otherwise uncontroverted. [Citation.]” (
Forman v. Knapp Press
(1985) 173
Cal.App.3d 200, 203 (
Forman
).) Thus, “ ‘section 663 is a remedy to be used when a trial
court draws incorrect conclusions of law or renders an erroneous judgment on the basis of
uncontroverted evidence.’ [Citation.]” (
Plaza Hollister Ltd. Partnership v. County of
San Benito
(1999)
However, relief is available under section 663 only where a “different judgment”
is compelled by the facts found by a judge or jury. (
Payne v. Rader
(2008) 167
Cal.App.4th 1569, 1574;
Plaza Hollister
,
In the present case, Yelp used its motion to vacate to seek relief that was not available under section 663. First, Yelp requested that the entire judgment be vacated, not that it be corrected to conform to the findings of the trier of fact. Second, many of Yelp’s arguments were direct or indirect challenges to the sufficiency of the evidence to support the Bird judgment. In addition to the fact that Yelp was not aggrieved by the default judgment against Bird, these claims were not cognizable in the context of a section 663 motion to vacate. Third, both Yelp and Hassell improperly used section 663 to seek additional findings of fact in order to resolve their collateral disagreement about whether Yelp became Bird’s aider and abettor after the judgment was entered.
3. Yelp’s Statutory Motion to Vacate Was Untimely In addition to the substantive flaws discussed immediately above, Yelp’s section 663 motion was not timely filed. Section 663a imposes time restrictions on a party’s decision to file a motion to vacate a judgment under section 663, and on the trial court’s authority to rule on such a motion. Two provisions of section 663a are pertinent here. First, subdivision (a) requires “[a] party” to file a notice of intent to file a section 663 motion within 15 days of the date it was served with notice of entry of judgment. Second, subdivision (b) states that “the power of the court to rule on a motion to set aside *14 and vacate a judgment shall expire 60 days . . . after service upon the moving party by any party of written notice of entry of the judgment . . . .” (§ 663a, subds. (a), (b).)
In the present case, Yelp’s agent for service of process was served with the judgment on January 28, 2014. Yelp then waited 116 days before filing a notice of motion and motion to vacate the Bird judgment. Thus, Yelp not only failed to comply with the 15-day time limit for filing a notice of intent to file a motion to vacate, its tardy decision to bring the motion precluded the trial court from ruling on it within the statutory time period applicable to section 663 motions.
Yelp contends it was not subject to the time restrictions imposed by section 663a
because it was not a party of record when the judgment was entered. (Citing
Aries Dev.
Co. v. Cal. Coastal Zone Conservation Com.
(1975)
If applied without reflection, Aries supports Yelp’s contention that it was not subject to the 15-day filing requirement in subdivision (a) of section 663a because it did *15 not become a “party” until it actually filed its motion to vacate. ( Aries , supra , 48 Cal.App.3d at p. 542.) However, the procedural facts in Aries did not raise any substantive concern about the timeliness of the section 663 motion in that case, as it was filed before the commission filed a notice of appeal. ( Aries , at p. 542.) Here, by contrast, Yelp filed its motion to vacate after the time for Bird to appeal the judgment had expired. Furthermore, by waiting more than 100 days after it was served with notice of entry of the judgment before filing its motion to vacate, Yelp precluded the trial court from complying with the 60-day outside time limit to rule on the motion as set out in section 663a, subdivision (b). We note too that this latter time limit provision was added to the statute in 2012, several years after Aries was decided. (See 2012 Amendment in Deering’s Ann. Code Civil Proc. (2015 ed.) foll. § 663a under heading Amendments, p. 363.)
Unlike the 15-day filing rule in section 663a, subdivision (a), which expressly
applies only to a “party,” the time limitation in subdivision (b) restricts the “power of the
court to rule” on a section 663 motion, and uses mandatory language to set an outside
limit of 60 days from the date the moving party was served with written notice of entry of
judgment. Strictly enforcing this 60-day limitation is consistent with the function of this
specific type of statutory motion, which is to afford the decision maker a mechanism for
the
speedy
rectification of an easily correctible error in the judgment. (See
Forman
,
supra
,
Yelp takes the view that an aggrieved nonparty should be allowed to file any type of statutory motion to vacate a judgment within a reasonable time not exceeding six months from the entry of judgment. This argument ignores the authority of section 663a itself, and is based on an apparent misreading of Plaza Hollister , 72 Cal.App.4th 1. The Plaza Hollister court held that the appellant in that case had filed an invalid section 663 motion in the trial court, but that it had appellate standing pursuant to a nonstatutory motion to vacate that was filed within a reasonable time after entry of *16 judgment. ( Plaza Hollister , at p. 19.) Plaza Hollister reinforces our conclusion that, under the circumstances presented here, Yelp was not entitled to relief under section 663.
4. Yelp Acquired Standing By Filing a Nonstatutory Motion to Vacate
Like the motion at issue in
Plaza Hollister
,
supra
,
“ ‘A stranger to an action who is aggrieved by a void judgment may move to vacate the judgment, and on denial of the motion may have the validity of the judgment reviewed upon an appeal from the order denying the motion. [Citations.]’ [Citation.] . . . It has also been said: ‘[A] stranger may attack a void judgment if some right or interest in him would be affected by its enforcement. [Citations.]’ [Citation.]” ( Plaza Hollister , 72 Cal.App.4th at pp. 15-16.) Furthermore, the “granting of relief, which a court under no circumstances has any authority to grant, has been considered an aspect of fundamental jurisdiction for the purposes of declaring a judgment or order void.” ( Id. at p. 20; see Selma Auto Mall II v. Appellate Department (1996) 44 Cal.App.4th 1672, 1683 [“When a court grants relief which it has no authority to grant, its judgment is to that extent void.”].)
This type of nonstatutory motion was the correct mechanism for Yelp to employ to
challenge a portion of the Bird judgment on the ground that it contains an allegedly void
removal order. Furthermore, treating Yelp’s motion as a nonstatutory motion eliminates
Hassell’s concerns about its timeliness. “ ‘[A] judgment or order, which is in fact void
for want of jurisdiction, but the invalidity of which does not appear from the judgment-
roll or record, may be set aside on motion within a reasonable time after its entry, not
exceeding the [six month] time limit prescribed by [former] section 473 of the Code of
Civil Procedure; and an independent suit in equity to set aside the judgment or order is
*17
not necessary. [Citations.]’ ” (
Plaza Hollister
,
The considerations outlined above lead to the following conclusions regarding Yelp’s standing to appeal: Yelp is aggrieved by the removal order directing Yelp to remove Bird’s defamatory reviews from Yelp.com; Yelp became a party of record in this case by filing a nonstatutory motion to vacate the allegedly void order within a reasonable time after entry of the judgment; and, therefore, Yelp has standing to appeal the removal order provision contained in the Bird judgment.
The substantive issue raised by this appeal is whether the trial court had the legal authority to make the removal order directing Yelp to remove Bird’s defamatory reviews from Yelp.com. Yelp contends that Judge Sullivan did not have that authority because the removal order (1) violates due process; (2) constitutes a prior restraint of speech; and (3) is barred by the CDA. Before considering these claims of legal error, we briefly address two circumstances that are mentioned above in order to further clarify the scope of our review.
First, Yelp attempts to characterize the removal order as an injunction against Yelp. We do not accept that characterization. The judgment was entered solely against Bird, and the injunctive order was directed solely at Bird’s defamatory speech. [5] The removal order was limited to statements covered by that injunction, statements attributed to Bird which she had been ordered to remove. Thus, the removal order does not impose any independent restraint on Yelp’s autonomy. Under these circumstances, charactering the removal order as an injunction creates unnecessary confusion about the clear distinction between the removal order and the underlying injunction against Bird. For reasons already discussed, Yelp cannot bootstrap its collateral attack of an allegedly void *18 order into a substantive appeal of the default judgment itself. The question whether the trial court should have granted an injunction against Bird is outside the scope of this appeal.
Second, the September 2014 order denying Yelp’s motion to vacate the judgment contains findings and a conclusion responsive to Hassell’s contention that Yelp was aiding and abetting Bird’s violation of the judgment. However, it appears that neither the trial court nor the parties ever considered whether that issue was cognizable in the context of a motion to vacate a judgment. As we have explained, the only issue properly raised by Yelp’s nonstatutory motion to vacate was whether Judge Sullivan was without power to make the removal order that implemented the injunction against Bird. What Yelp did after the judgment was entered—whether it became an aider and abettor with respect to Bird’s postjudgment violation of the injunction—is a separate issue which may be relevant in a future contempt action against Yelp for disobedience of the judgment. But Judge Goldsmith’s adjudication of that issue was premature, and was also potentially improper to the extent proceedings were conducted without the procedural safeguards attendant to a contempt proceeding. In any event, findings of fact regarding Yelp’s aiding and abetting are irrelevant to the issues properly raised in this appeal. Therefore, those findings will have no bearing on our disposition of this appeal.
B. Due Process
Yelp contends that the removal order was barred by due process because the trial court did not afford Yelp notice or a hearing before the order was entered. There are two distinct prongs to Yelp’s due process theory: first, that the trial court could not order Yelp to implement the injunction because it was not a party in the defamation action; and second, that prior notice and a hearing were mandatory because the removal order impinged on Yelp’s First Amendment right to “host” Bird’s reviews.
1. An Injunction Can Run Against a Nonparty
“ ‘ “ ‘An injunction is obviously a personal decree. It operates on the person of
the defendant by commanding him to do or desist from certain action.’ ” [Citation.]’
[Citation.] Indeed it may ‘deprive the enjoined parties of rights others enjoy precisely
*19
because the enjoined parties have abused those rights in the past.’ [Citation.] Thus, it is
well established that ‘injunctions are not effective against the world at large. [Citations.]’
[Citations.] On the other hand, the law recognizes that enjoined parties ‘may not nullify
an injunctive decree by carrying out prohibited acts with or through nonparties to the
original proceeding. [Citations.]’ [Citation.] Thus, an injunction can properly run to
classes of persons with or through whom the enjoined party may act. [Citations.]
However, ‘a theory of disobedience of the injunction cannot be predicated on the act of a
person not in any way included in its terms or acting in concert with the enjoined party
and in support of his claims.’ [Citations.]” ’ ” (
Planned Parenthood Golden Gate v.
Garibaldi
(2003)
These settled principles undermine Yelp’s theory that the trial court was without
any authority to include a provision in the Bird judgment which ordered Yelp to
effectuate the injunction against Bird by deleting her defamatory reviews. As Judge
Goldsmith observed in the order denying Yelp’s motion to vacate, our Supreme Court has
explicitly confirmed that injunctions can be applied to nonparties in appropriate
circumstances. (
Ross
,
Yelp contends that the rule permitting a court to enforce an injunction against a
nonparty is limited to situations in which “a group or organization has been enjoined, so
as to prevent the group’s individual members who are not named in the injunction from
acting on behalf of that group.” As support for this claimed limitation, Yelp cites
People
ex rel. Gallo v. Acuna
(1997)
Yelp cites two additional cases to support its contention that the trial court could
not order a nonparty to effectuate the injunction against Bird:
Fazzi v. Peters
(1968) 68
Cal.2d 590 (
Fazzi
) and
Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp.
(1999)
Fazzi
,
supra
,
Tokio Marine
,
Fazzi and Tokio Marine are inapposite because both cases involved money judgments that were entered against nonparties to the litigation. Here, by contrast, the *21 damages portion of the judgment was entered solely against Bird. Neither Fazzi nor Tokio Marine address whether an injunction imposed against a party can be enforced against a nonparty.
Yelp argues in the alternative that, even if the injunction against Bird could properly be enforced against a nonparty like Yelp, the evidence in this case does not “support the theory that Yelp was somehow ‘aiding and abetting’ Bird’s violation of the injunction.” This issue was a major dispute below. But as we have already discussed, it has no bearing on the question whether the trial court was without power to issue the removal order in the first instance. The authority summarized above establishes that a trial court does have the power to fashion an injunctive decree so that the enjoined party may not nullify it by carrying out the prohibited acts with or through a nonparty to the original proceeding.
2. Yelp’s First Amendment Rights
Yelp’s second due process theory is that the First Amendment protects Yelp’s
right “to distribute the speech of others without an injunction,” and “Yelp simply cannot
be denied those rights without notice of the proceedings and an opportunity to be heard.”
To support this argument, Yelp cites
Marcus v. Search Warrants.
(1961)
In
Marcus
,
The United States Supreme Court held that, as applied to the
Marcus
appellants,
Missouri’s procedure lacked due process safeguards to assure that non-obscene materials
were afforded First Amendment protection. (
Marcus
,
supra
,
We disagree that
Marcus
,
Second, even if Yelp’s operation of an interactive website is construed as
constitutionally protected speech by a distributor,
Marcus
does not support Yelp’s broad
notion that a distributor of third party speech has an unqualified due process right to
notice and a hearing before distribution of that speech can be enjoined. In
Marcus
, the
use of an ex parte hearing to secure search warrants was only one of many problems with
the Missouri procedure which culminated in the ruling that appellants’ due process rights
were violated. (
Marcus
,
supra
, 367 U.S. at pp. 731-733.) Indeed, in a subsequent case in
which
Marcus
was distinguished, the Supreme Court clarified that “[t]his Court has never
held, or even implied, that there is an absolute First or Fourteenth Amendment right to a
prior adversary hearing applicable to all cases where allegedly obscene material is seized.
[Citations.]” (
Heller v. New York
(1973)
Third, and crucially, the due process problems explored in Marcus , 367 U.S. 717, and its progeny pertain to attempts to suppress speech that is only suspected of being unlawful. Here, we address the very different situation in which specific speech has already been found to be defamatory in a judicial proceeding. Yelp does not cite any authority which confers a constitutional right to a prior hearing before a distributor can be ordered to comply with an injunction that precludes re-publication of specific third party speech that has already been adjudged to be unprotected and tortious.
C. The Constitutional Bar Against Prior Restraints Yelp also contends the trial court was without authority to issue the removal order because it constitutes a prior restraint of speech.
1. Applicable Law
“An order prohibiting a party from making or publishing false statements is a
classic type of an unconstitutional prior restraint. [Citation.] ‘While [a party may be]
held responsible for abusing his right to speak freely in a subsequent tort action, he has
the initial right to speak freely without censorship.’ [Citation.]” (
Evans v. Evans
(2008)
In
Balboa Island
,
supra
,
The
Balboa Island
court began with the foundational premise that freedom of
speech is a fundamental right protected against invasion by state action by both the First
and Fourteenth Amendments. (
Balboa Island
,
Because defamation is not protected by the First Amendment, the
Balboa Island
court concluded, “an injunction issued following a trial that determined that the defendant
defamed the plaintiff that does no more than prohibit the defendant from repeating the
defamation, is not a prior restraint and does not offend the First Amendment.” (
Balboa
Island
,
2. Analysis The removal order directed at Yelp states: “Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdseye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order.”
Under the authority of
Balboa Island
,
supra
, 40 Cal.4th at pages 1155-1156, the
trial court had the power to make the part of this order requiring Yelp to remove the three
specific statements that were set forth in the exhibit A attachment to the Bird judgment
because the injunction prohibiting Bird from repeating those statements was issued
following a determination at trial that those statements are defamatory. However, to the
extent the trial court additionally ordered Yelp to remove subsequent comments that Bird
or anyone else might post, the removal order is an overbroad prior restraint on speech.
(
Ibid.
; see also
Evans
,
supra
,
Yelp contends that limiting the scope of the removal order to statements that have
already been adjudged as defamatory does not cure the constitutional problem because
the findings that Bird’s reviews of Hassell were defamatory were not made by a jury.
According to Yelp, “the Supreme Court in
Balboa Island
carefully limited its narrow
holding to judgments entered
after a jury trial . . .
.” (Original italics.) We find nothing
in
Balboa Island
supportive of this contention. In fact, the injunction in that case was
issued after a bench trial. (
Balboa Island
,
Yelp argues that even if Balboa Island applies in this context, the removal order is impermissibly overbroad because Hassell failed to actually prove that Bird wrote the *26 February 2013 review posted under the name “J.D. Alameda, CA,” or the April 2013 review posted under the name “Birdseye B. Los Angeles, CA.” However, the trial court made a final judicial determination that Bird posted those reviews and, for reasons we have already discussed, Yelp does not have standing to challenge that aspect of the judgment.
D. Yelp’s Immunity from Tort Liability
Finally, Yelp contends that the removal order is barred by section 230 of the CDA, 47 United States Code section 230 (section 230). According to Yelp, section 230 prohibits courts “from ordering website providers like Yelp to remove content provided by third parties.”
1. Applicable Law Section 230 states, in pertinent part: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” (§ 230(c)(1).) “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (§ 230(e)(3).)
Section 230 was enacted as an amendment to the CDA. Originally, the primary
objective of the CDA was to restrict the exposure of minors to indecent materials on the
Internet. However, through the addition of section 230, the CDA acquired a second
objective of furthering First Amendment and e-commerce interests on the Internet.
(
Batzel v. Smith
(9th Cir. 2003)
Accordingly, section 230 has been construed broadly to immunize “providers of
interactive computer services against liability arising from content created by third
parties.” (
Fair Housing Coun., San Fernando v. Roomamates.com
(9th Cir 2008) 521
F.3d 1157, 1162, fn. omitted; see also
Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.
(N.D.Cal. 2015)
The justification for this broad grant of immunity is that it (1) encourages Internet
service providers to self-regulate the dissemination of offensive material over their
services, and (2) avoids a chilling effect on Internet free speech that would result from
exposing companies to tort liability for potentially harmful messages they do not create
but that are delivered by using their service. (
Zeran
,
supra
,
California courts have also construed section 230 to afford interactive service
providers broad immunity from tort liability for third party speech. (
Barrett v. Rosenthal
(2006)
In
Barrett
,
supra
,
Thus, “[t]here are three essential elements that a defendant must establish in order to claim section 230 immunity” from California tort liability. ( Delfino , 145 Cal.App.4th at pp. 804.) “They are ‘(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher *28 or speaker of information; and (3) the information at issue [is] provided by another information content provider.’ [Citation.]” ( Id. at p. 805.)
2. Analysis Yelp argues the authority summarized above establishes that the removal order is void. We disagree. The removal order does not violate section 230 because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.
These circumstances distinguish the present case from Yelp’s authority, all cases
in which causes of action or lawsuits against internet service providers were dismissed
pursuant to section 230. (See, e.g.,
Barnes v. Yahoo!, Inc.
(9th Cir. 2009)
Neither party cites any authority that applies section 230 to restrict a court from
directing an Internet service provider to comply with a judgment which enjoins the
originator of defamatory statements posted on the service provider’s Web site. We note,
*29
however, that section 230 explicitly provides that “[n]othing in this section shall be
construed to prevent any State from enforcing any State law that is consistent with this
section.” (§ 230(e)(3).) As discussed above, California law authorizes a trial court to
issue an injunction preventing the repetition of statements that have been adjudged to be
defamatory by the trier of fact. (
Balboa Island
,
supra
,
Yelp mistakenly contends that the “trial court” imposed liability on Yelp as an aider and abettor of Bird’s defamatory postings. The “trial court” that conducted the default prove-up hearing and entered judgment against Bird alone (Judge Sullivan) did not find that Yelp was an aider and abettor or impose any liability on Yelp whatsoever. Furthermore, although the trial court that conducted the hearing on Yelp’s motion to vacate (Judge Goldsmith) found that Yelp was an aider and abettor, we have already declared this finding not relevant to the issues before this court, and reiterate that it has no bearing on our analysis.
Yelp also argues that “enjoining a party from publishing content is a remedy that can only follow from a finding of liability, and thus the injunction entered against Yelp cannot survive the robust protection of the CDA.” Again though, the party that was enjoined from publishing content in this case was Bird, and that injunction did follow a finding of Bird’s liability for publishing defamatory reviews about Hassell. Assuming, as Yelp has maintained, that Yelp played no role in the creation of that defamatory speech, an order directing Yelp to remove only those reviews that are covered by the injunction does not impose any liability on Yelp.
Yelp insists that “Section 230 immunity encompasses claims for injunctive relief,
and the cases do not distinguish between defendants and non-parties.” However, each
case cited for this proposition involved a failed claim for injunctive relief that was alleged
*30
against an Internet service provider defendant in a civil lawsuit. (
Kathleen R.
, , 87
Cal.App.4th 684;
Noah v. AOL Time Warner, Inc.
(E.D.Va. 2003)
Yelp argues that cases extending CDA immunity to claims for injunctive relief that are alleged directly against a interactive service provider in a tort action must apply with equal force to an injunction that binds a non-party. Otherwise, Yelp argues, “a plaintiff who wants to enjoin an interactive computer service can nullify its immunity under the CDA by suing the creator of the third-party content and then obtaining an injunction binding the interactive computer service . . . .” This argument ignores the fact that protection against third party liability is the foundation of CDA immunity. As we have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird’s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site.
Finally, Yelp contends that section 230 bars “any liability for failing to comply
with the injunction.” Once again, Yelp’s imprecision masks the real question. If an
injunction is itself a form of liability, that liability was imposed on Bird, not Yelp.
Violating the injunction or the removal order associated with it could potentially trigger a
different type of liability which implicates the contempt power of the court. Generally
speaking, “a nonparty to an injunction is subject to the contempt power of the court
when, with knowledge of the injunction, the nonparty violates its terms with or for those
who are restrained.” (
People v. Conrad supra,
Yelp does not cite any authority which addresses the question whether section 230
would immunize Yelp from being sanctioned for contempt. In our opinion, sanctioning
Yelp for violating a court order would not implicate section 230 at all; it would not
impose liability on Yelp as a publisher or distributor of third party content. A “contempt
proceeding is not a civil action but is of a criminal nature even though its purpose is to
impose punishment for violation of an order made in a civil action. [Citation.]”
(
Freeman v. Superior Court
(1955)
For all of these reasons, Yelp has failed to establish that section 230 or any other law barred the trial court from issuing the removal order under the circumstances of this case. Therefore, Yelp’s nonstatutory motion to vacate the Bird judgment was properly denied.
IV.
DISPOSITION The September 2014 order denying Yelp’s motion to vacate the Bird judgment is affirmed, but this case is remanded to the trial court with the direction to narrow the terms of the removal order in the January 2014 judgment by limiting it to the specific defamatory statements that were listed on exhibit A of that judgment. The parties are to bear their own costs of appeal.
_________________________ RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
STREETER, J.
A143233, Hassell v. Bird
Trial Court: San Francisco Superior Court Trial Judge: Hon. Donald J. Sullivan Counsel for Appellant: David Wright Tremaine, Thomas R. Burke and
Deborah A. Adler Counsel for Respondents: Duckworth Peters Lebowitz Olivier, Monique
Olivier
A143233, Hassell v. Bird
Notes
[1] Generally, we will refer to respondents collectively, using the singular, gender neutral pronoun form where appropriate.
[2] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
[3] A “ ‘ “default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” ( Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.)
[4] As noted, Bird elected not to appeal the judgment, but even if she had, Bird herself could not have challenged the sufficiency of the evidence to support the liability findings in the default judgment. ( Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.) Clearly then, Yelp’s claimed injury from the removal order did not authorize its attempted challenge to the sufficiency of the evidence to support the judgment against Bird.
[5]
“[O]nce a court has found that a specific pattern of speech is unlawful, an
injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is
not a prohibited ‘prior restraint’ of speech. [Citation.]” (
Aguilar v. Avis Rent A Car
System, Inc
. (1999)