Opinion
Cоmmercial tenants Artisan Fine Oriental Rug Care, Inc. (Artisan), and its owners Margaret L. Kinda and Aaron Kinda (plaintiffs) sought a temporary restraining order and preliminary injunction against their landlord Scott Carpenter (defendant). The dispute centered on plaintiffs’ tenancy and defendant’s alleged disruption of their business. Plaintiffs alleged several contract-related causes of action based on their lease. After plaintiffs obtained a temporary restraining order, three consumer reviews criticizing Artisan and Margaret Kinda appeared on the Internet site Yelp.com (Yelp) posted from different online aliases. Plaintiffs suspected defendant was responsible for the reviews and they amended the complaint to allege
Defendant moved in limine to exclude the evidence related to the Yelp reviews on hearsay and authenticity grounds. The trial court granted defendant’s motion and later granted a directed verdict for defendant on the defamation cause of action. A jury returned a unanimous defense verdict on the contract causes of action, which included a special verdict that although defendant had breached the lease agreement no damages resulted. The trial court deemed defendant the prevailing party and granted his request for attorney’s fees.
Plaintiffs contend on appeal that the trial court erred in excluding the Yelp evidence and eliminating their defamation cause of action. Plaintiffs also contend that had the Yelp evidence been admitted, they would have established presumed damages, which would have altered both the jury’s special verdict on the contract-based causes of action and the court’s prevailing party determination for the attorney’s fees award.
As we explain in the published portion of this opinion, the exclusion of the Yelp evidence and the resulting disposition of the defamation cause of action was error.
1
In the unpublished portion of this opinion, we concludе that in light of the erroneous exclusion of plaintiffs’ evidence supporting the defamation cause of action, the determination of the prevailing party and award of attorney’s fees likewise must be reversed. Although we do not agree with plaintiffs that a finding of defamation per se would have necessarily furnished
I. BACKGROUND
A. Landlord-tenant Dispute
After defendant and his company, Monterey Bay Spice Company, Inc., 2 bought the commercial building housing plaintiffs’ rug cleaning business, a series of disputes developed in which plaintiffs complained that defendant’s behavior interfered with their business operations and amounted to a campaign of harassment and retaliation. Plaintiffs claimed that defendant’s conduct, which included construction and demolition on an adjoining sectiоn of the building, requests to enter and inspect the premises, service of multiple “pay rent or quit” and similar notices, and obstructing a designated parking space, interfered with plaintiffs’ business and breached the implied and express covenants of their lease. Based on defendant’s alleged failure to abate the noisy construction work, on June 1, 2011, Ms. Kinda sought and received a temporary restraining order enjoining defendant’s construction activities exceeding a stated decibel level during business hours. Ms. Kinda later obtained a preliminary injunction related to the noise, and a second preliminary injunction related to defendant’s requests to enter and inspect plaintiffs’ business premises.
B. Postings on Yelp
Yelp is an Internet website that collects and publishes online consumer reviews of businesses.
(Bently Reserve LP
v.
Papaliolios
(2013)
The first review, posted on June 1, 2011 by “thomas j” stated that Artisan provided the “[w]orst service I have ever experienced” and described in detail purported delays, a price increase, and a stain that appeared on his carpets after leaving them with Artisan. The next day, a review of Artisan by “Sandy Z” warned, “watch out for the angry Lady that works there” and stated, “I am lucky in that I had a taste of this cantankerous rug hut BEFORE I actually
Plaintiffs amended their complaint to add a cause of action for defamation as to Ms. Kinda and Artisan. They alleged that defendant, his company, and Does 1 through 10 ‘“commenced a сampaign of defamation” on or about June 1, 2011, against Ms. Kinda and Artisan ‘“whereby they pretended to be customers of [pjlaintiffs and published false statements online summarizing a fictional and disappointing experience with [pjlaintiffs business.” Citing Civil Code section 45a, Ms. Kinda and Artisan alleged that the statements were false and libelous on their face because the reviews subjected them to ‘“ridicule and obloquy” and sought to injure their reputation in the fine rug cleaning and care industry by imputing a lack of integrity, professionalism, and competence. Defendant denied the allegations against him and specifically denied any responsibility for the Yelp reviews.
Plaintiffs tried to discover the identity of the person or persons responsible for the Yelp reviews. Plaintiffs subpoenaed Yelp! Inc. for business records and obtained the e-mail addresses and IP addresses 3 associated with the three reviews at issue. The ‘“thomas j” and ‘“Sandy Z” posts shared the same IP address, which was associated with an Internet account registered to Comcast Corporation (Comcast). The ‘“chris s” post came from a different IP address associated with an AT&T Internet Services (AT&T) account.
Plaintiffs requested from Comcast and AT&T the subscriber information associated with the IP addresses at the time of the June 2011 Yelp posts. AT&T responded with the ‘TP Assignment Details” for the relevant time frame and IP address, as well as ‘“Customer Account Details” for an inactive account that had been registered to ‘“Scott D. Carpenter” and billed to an address in Santa Cruz, California. The address was the location of defendant’s business offices at the time. Comcast eventually responded that due to its record retention system, it could not verify the IP address information for
In connection with this information and possible punitive damages on their defamation claim, plaintiffs sought an order to allow pretrial discovery on defendant’s financial condition. 4 The judge who heard the motion found the IP address evidence to be circumstantial yet compelling. The court refеrred to the evidence as a “series of coincidences” whereby “the negative reviews on Yelp were traced to the defendant’s internet protocol addresses.” The court explained: “[Ajlthough the defendant makes an interesting argument that it’s not conclusively shown that Mr. Carpenter himself provided these reviews . . . , the circumstantial evidence in this case and the only reasonable interpretation that this Court comes to is that it is highly likely that the defendant is the one that is responsible for these reviews and it’s not just a coincidence.” The court granted the discovery motion but cautioned that any findings were “only for this motion for discovery” and were not to be viewed as binding on any trier of fact.
C. Motions in Limine and Trial
A different judge presided over pretrial motions and trial. Defendant moved in limine to exclude evidence of and reference to the Yelp posts on the grounds that the posts were inadmissible hearsay and unauthenticated. After hearing from counsel, the court dispensed with the hearsay argument and focused on what was termed authentication: “[Y]ou have to put on somе sort of evidence that ties [the Yelp posts] to the defendant and authenticates it. [¶] . . . [¶] How are you going to tie it to the defendant, please?” Plaintiffs’ counsel responded that the Yelp posts, memorialized as printouts of the online reviews, were “self-authenticating” under Evidence Code section 1552. To tie those reviews to defendant, plaintiffs would offer the subpoenaed records from AT&T and Comcast, authenticated by the respective custodians of records. Plaintiffs’ counsel argued that by using the subpoenaed records, they could show sufficient circumstantial evidence from which the jury could reasonably infer that defendant posted the reviews.
Defendant’s counsel disagreed, arguing that the subpoenaed documents “indicate that the users who posted these IDs accessed the internet and the
Defendant’s counsel urged it was insufficient to have merely the IP address of a router that was assigned to defendant’s address, because “[w]hether that router was at his home at the time, whether or not, you know, a neighbor accessed it, whether or not, you know, somebody else was within distance . . . that’s just what the circumstance[] was here. . . . [I]t does not come close to proving that it was Scott Carpenter himself [who] posted these reviews. And that’s absolutely the first question that has to be answered in order to establish defamation.”
The court stated that it would require expert testimony under Evidence Code section 402 before allowing the Yelp evidence at trial and that it would not entertain argument on circumstantial evidence without having its concerns about authenticity addressed. Plaintiffs lodged the deposition testimony of their expert, Ron Herardian, and submitted supplemental briefing on the admissibility of the Yelp evidence. At the evidentiary hearing, the trial court remained skeptical that the evidence could tie the Yelp posts to defendant. The court noted the Comcast records only showed the relevant IP address assigned to Scott D. Carpenter as of July 27, 2011, more than one month after the Yelp reviews posted. The court rejected plaintiffs’ assertion that Mr. Herardian’s testimony could show the IP address assigned in late July 2011 was “more likely than not” the same as that assigned in June 2011.
The court identified a similar problem with the AT&T records showing Scott D. Carpenter’s name and address in response to the subpoena requesting subscriber information finked to the IP address at issue. Based on the appearance of the AT&T record, which referenced defendant’s name in one place on the document, and dates of service and billing address in another, the court rejected plaintiffs’ argument that the expert could interpret the record to show defendant was the subscriber with the IP address in question on the relevant date. The trial court also rejected plaintiffs’ argument that deposition testimony, in which defendant acknowledged that the e-mail
The trial court granted defendant’s in limine motion, stating, “I’m keeping out all of these Yelp allegations. I don’t find that you’ve met the foundational requirements for these matters.” It explained its reasoning as to the Comcast and AT&T records: “I’m not going to allow the Comcast records in. The custodian of records certifies them beginning July 27th, 2011, and we have no information before us about anything preceding that time. I do not agree that Mr. Herardian can make that leap. He certainly can explain things regarding access to routers and IP addresses and things like this, but the foundation still must be laid for the records. It could have been done, you just have the wrong witness, in this Court’s opinion. ... So I’m not going to allow any reference to the Comcast IP address, and therefore those two reviews from that time. [¶] Now, with respect to AT&T, I think there’s the same foundation flaw. Your expert in his testimony said T assumed that the billing address is the same as the service address.’ And I don’t think one can assume such [an] important foundational fact. Looking at the deposition, Mr. Carpenter says, T used to have an employee of this name and she had an email, and she hasn’t worked for me in years, and we have changed our system since then.’ So I don’t see that this deposition contains anything which surmounts the foundational gaps.”
After trial began, the court granted defendant’s request for a directed verdict on the defamation cause of action based on a failure of evidence. The remaining causes of action for breach of contract, breach of the implied covenant of quiet enjoyment, and breach of the covenant of good faith and fair dealing were tried to the jury as discussed in greater detail below. The jury unanimously found for defendant on all three contract-based causes of action. On the verdict form for breach of contract, the jury marked that defendant violated the lease (“d[id] something that the contract lease prohibited him from doing”) as to each plaintiff, but found that no harm resulted.
D. Trial of the Contractual Causes of Action *
E. Determination of Prevailing Party and Attorney’s Fees Award
Following the defense verdict and entry of judgment, defendant moved for attorney’s fees and costs as the prevailing party under the contract. After
II. DISCUSSION
Plaintiffs challenge the exclusion of the Yelp evidence on three grounds: (1) the basis for the ruling exceeded the grounds for relief stated in the motion; (2) the trial judge improperly reconsidered the previous ruling allowing financial discovery; and (3) the trial court applied the wrong standard in finding an absence of foundation for the records.
A. The Trial Court Did Not Err in Ruling on Grounds Not Stated in Defendant’s Motion in Limine
Plaintiffs argue the trial court exceeded its jurisdiction when it ruled on defendant’s motion based on grounds that were not stated in the moving papers. A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought (Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a)), and courts generally may consider only the grounds stated in the notice of motion
(Luri v. Greenwald
(2003)
The purpose of the notice requirements “is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’ ”
(Luri, supra,
These circumstances also are distinguishable from a ruling on a motion in limine that deprives the nonmoving party of any opportunity to address issues that were raised outside of the notice and motion.
(Cf. Blanks
v.
Seyfarth Shaw LLP
(2009)
B. The Trial Court Did Not Improperly Reconsider a Prior Court Ruling
Plaintiffs argue that the trial court’s inquiry into the Yelp evidence improperly functioned as a reconsideration of the issues previously decided by a different judge in plaintiffs’ motion for financial discovery. Code of Civil Procedure section 1008 places strict jurisdictional limits on a litigant’s ability to seek reconsideration of a prior ruling. (Code Civ. Proc., § 1008, subd. (a) [application for reconsideration of prior, intеrim court order must be made within 10 days of entry of the order and be based “upon new or different facts, circumstances, or law”].) Any application for reconsideration must comply with the provisions of section 1008 in order for the court to consider the request. {Id., § 1008, subd. (e).)
Plaintiffs rely on two cases.
Curtin v. Koskey
(1991)
We do not find either case applicable here to the trial court’s treatment of defendant’s in limine motion relative to the earlier discovery ruling. In both
Curtin
and
Morite,
the later ruling imposed a course of action in direct conflict with the earlier ruling. In
Curtin,
the dismissal for failure to prosecute effectively overrode the granting of a preferential trial setting
(Curtin, supra,
231 Cal.App.3d at pp. 877-878); in
Morite,
the setting of trial conflicted with the earlier stay
(Morite, supra,
C. The Trial Court Erred in Excluding the Yelp Evidence
Plaintiffs argue that the trial court’s exclusion of the Yelp evidence deprived them of the opportunity to present their defamation case to the jury, while defendant contends that plaintiffs effectively abandoned the defamation cause of action after the evidentiary ruling.
1. Standard of Review
Plaintiffs correctly state that if the trial court’s ruling on a motion in tintine precludes an entire cause of action, the ruling is subject to independent review on appeal as though the court had granted a motion for nonsuit.
(Dillingham-Ray Wilson
v.
City of Los Angeles
(2010)
We are not persuaded by defendant’s argument that exclusion of the Yelp evidence on foundational grounds did not preclude plaintiffs from offering evidence regarding the alleged defamation. The tort of defamation “requires the intentional publication of a false statement of fact that has a natural tendency to injure the plaintiff’s reputation or that causes special damage.”
(Burrill
v.
Nair
(2013)
It is this corresponding information, the Comcast and AT&T records pertaining to the IP addresses, which was excluded and without which plaintiffs could not prove defamation. The trial court’s statement following its ruling on the motion confirmed this: “I’m keeping out all of these Yelp allegations. I don’t find that you’ve met the foundational requirements for these matters.” Plaintiffs later asked the trial court to clarify the effect of the in tintine ruling, and defendant urged he was entitled to a directed verdict on the defamation cause of action, which the trial court eventually granted.
Although the trial court’s exclusion of the Yelp evidence on foundational grounds was narrower than the multiple broad motions in limine granted in
R & B Auto Center,
the result here—a directed verdict on the defamation cause of action—had the same effect. (See
R & B Auto Center, supra,
Defendant cites
Katiuzhinsky v. Perry
(2007)
We will independently review the granting of defendant’s motion in tintine, viewing the record in the light most favorable to plaintiffs and determining whether the evidence and inferences were sufficient to support a judgment in defendant’s favor.
2. The Trial Court’s Analysis of Defendant’s Motion
Motions in tintine are ‘“designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial.”
(Amtower, supra,
The appellate court in
Amtower
examined the pitfalls that can result from ‘“us[ing] the in tintine process to examine the sufficiency of the evidence,” including the loss of certain procedural protections provided by statutory motions or by trial on the merits.
(Amtower, supra,
158 Cal.App.4th at pp. 1593-1594.) The court distinguished this nontraditional, nonstatutory use of in limine motions from traditional in tintine motions, noting ‘“[t]he risk of reversal arises when appellate courts are required to review a dispositive ruling on an in limine motion as if it were the product of a motion for nonsuit after opening statement.”
(Id.
at p. 1594.) Thus, in
Amtower,
which arose out of the merger of two cоmpanies, the court upheld the trial court’s dismissal of the plaintiff’s cause of action for a section 11 federal Securities Act of 1933 (15 U.S.C. § 77a et seq.) violation on an in tintine motion only after concluding, as a matter of law, that the plaintiff ‘“could not have prevailed under any circumstances.”
{Amtower,
at p. 1595.) The court reached this conclusion after reviewing the requirements of a section 11 claim and the plaintiff’s concession that he had seen and read key disclosure statements— facts that ‘“conclusively demonstrate[d] that plaintiff had actual knowledge”
In contrast, plaintiffs here argue the trial court erred in analyzing the in limine motion by applying all possible inferences
against
plaintiffs as the nonmoving party, in effect circumventing the procedural protections that should have applied. (See
Amtower, supra,
Defendant’s motion argued the Yelp posts, offered as webpage printouts, were “not authenticated” and plaintiffs had not identified a custodian from Yelp’s records department to authenticate the documents. Plaintiffs responded that the Yelp web posts could be authenticated under Evidence Code section 1552, by which a printed representation of computer-generated information is presumed to be an accurate representation of that information at the time it was printed. Plaintiffs’ offer of proof also stated that Ms. Kinda and another individual would testify to having seen the reviews online.
Our Supreme Court has explained that “[ajuthentication is to be determined by the trial court as a preliminary fact [Evid. Code, § 403, subd. (a)(3)] and is statutorily defined as ‘the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is’ or ‘the establishment of such facts by any other means provided by law’ [§ 1400].”
(People
v.
Goldsmith
(2014)
California courts have applied these authentication principles before and after
Goldsmith
to evidence from online and social media sources. For example, under Evidence Code section 1552, a printout of a purported gang roster was “presumed to be an accurate representation of the [w]eb page” that a witness testified to seeing and printing off of the Internet.
(People
v.
Beckley
(2010)
This colloquy illustrates the trial court’s treatment of the motion in limine like a motion for nonsuit, rather than limiting its assessment to the initial question of whether the documents were sufficient for the ‘“trier of fact to find that the writing is what it purports to be.”
(Goldsmith, supra,
Such use of the in limine proceeding is within the trial court’s “ ‘inherent power to control litigation and conserve judicial resources.’ ”
(K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc.
(2009)
3. The Trial Court Improperly Resolved Inferences Against Plaintiffs
The Evidence Code defines an inference as “a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) An inference is “not evidence but rather the result of reasoning from evidence. . . . ‘It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists.’ ”
(Fashion 21
v.
Coalition for Humane Immigrant Rights of Los Angeles
(2004)
Here, for example, the trial court appears to have disregarded defendant’s counsel’s statements at the motion hearing, which effectively conceded that the records subpoenaed from Yelp, Comcast, and AT&T tied the Yelp posts to defendant’s home and business network or routers. Defendant’s counsel at various points stated that “[t]he documents that were subpoenaed indicate that the users who posted these IDs accessed the [I]nternet and the Yelp website using an IP address that was assigned to Scott Carpenter’s routers, one at his home, one at his business” and “[w]hether that router was at his home at the time, whether or not, you know, a neighbor accessed it, whether or not, you know, somebody else was within distance . . . that’s just what the circumstance[] was here. Somebody was able to access his network.” Defendant’s counsel thus did not dispute the connection between the IP addresses and defendant’s home and business accounts, but only whether Mr. Carpenter himself could be shown to have posted the reviews.
Later in addressing the temporal gap between the Yelp reviews and the earliest IP address that Comcast could produce, the trial court negatively inferred that because the Comcast record did not extend to the dates of the
The trial court similarly resolved doubts about the AT&T record against plaintiffs and excluded the evidence for lack of foundation. The examination of plaintiffs’ expert reveals the trial court’s inferences regarding the AT&T evidence: “[Plaintiffs’ counsel:] During the month of June 2011, who was that [IP address] account assigned to, according to this record from AT&T? [¶] [Mr. Herardian:] Scott D. Carpenter. [¶] [Plaintiffs’ counsel:] Okay. Now, if you look at the top of that record—[¶] [THE COURT:] How do you tell that? [¶] [Mr. Herardian:] His name is right here under ‘Customer Name.’ [¶] [THE COURT:] Right. And that says ‘Billing Start Date: April 2001.’ [¶] [Mr. Herardian:] That would be most likely the time at which the service was established. [¶] [THE COURT:] How do you know that this is the record for June 3, 2011? Because someone told you it was; right? [¶] [Mr. Herardian:] For June 3rd, 2011? [¶] [THE COURT:] Yes. [¶] [Mr. Herardian:] It’s my understanding this document was provided in response to a subpoena. [¶] [THE COURT:] Right. [¶] So somebody told you that, that’s the only reason you know that; is that fair? [¶] [Mr. Herardian:] It’s fair to assume that it’s because that was the information asked for in the subpoena, yes. [¶] [THE COURT:] Okay. Somebody told you that. [¶] So he doesn’t know that. Walk me through how you can tell that from this, [Plaintiffs’ counsel]. [¶] [Plaintiffs’ counsel:] Because they’re responding to our subpoena and they’re showing us who was assigned that IP address on that date. That’s what we asked them for. And if you look at the top of that page, it shows you that Scott Carpenter was assigned that IP address from February 6th, 2011, to at least August 26th, 2011. [¶] [Defendant’s counsel:] I’m going to object to the characterization that it was assigned. My reading of this document shows that his billing address is listed there. I’m not sure that the document says what
The trial court’s scrutiny of whether the AT&T record indicated defendant on the account to which the IP address was assigned is perplexing because, on its face, the AT&T record contains enough information for a jury to reasonably infеr defendant was the account holder, and defendant’s counsel had already conceded the AT&T record linked the third Yelp post to defendant’s office router or network. The record itself provides two sets of information: The ‘TP Assignment Details” show the IP address, provided by Yelp, assigned to the username ‘“eviek@sbcglobal.net” for the date range February 6th, 2011, to August 26th, 2011. The ‘“Customer Account Details” show Scott D. Carpenter’s name and account information, including billing dates, billing address, and the “Member ID” for the account: “eviek@sbcglobal.net.” The underlying record established the address fisted was defendant’s business address and the “eviek” member ID and e-mail address had been assigned to one of defendant’s employees and had remained in effect when the employee left the company.
Defendant’s counsel also conceded the connection, albeit in the context of arguing the insufficiency of the evidence: “[A]nyone on any computer within [defendant’s] office would have the exact same IP address, no matter which computer was being used .... So you could have had a dozen employees all on the computer at the same time, one of whom may have posted this, but you can’t identify who it is.” Plaintiffs’ counsel also made an offer of proof, stating “in case there’s any issue about the fact that these accounts actually belonged to Mr. Carpenter, he acknowledged at his deposition that ... the AT&T account is his account.”
In light of these foundational facts, the inference that the billing address and physical location were the same is equally if not more plausible than the inference that they were different. Although not binding on the trier of fact, the rationale for granting the discovery motion earlier in the case, based on the court’s “reasonable interpretation” of the circumstantial evidence, provides an example of how the issue could be, and in fact was, resolved in plaintiffs’ favor.
There is no indication that the trial court found the AT&T record was not authentic or did not respond to the subpoena. The record was, therefore, admissible, and any dubious or conflicting inferences to be drawn would “ ‘go[] to the document’s weight as evidence, not its admissibility.’ ” (Goldsmith,
supra,
4. The Directed Verdict Was Improper
Plaintiffs cite
Fashion 21, supra,
The appellate court found the circumstantial evidence sufficient for the jury to infer the fact of publication. The court explained: “Even ‘slight evidence’ in support of the fact to be inferred has been held to be sufficient. It is up to the jury to assess these credibility and judge the weight of the evidence proffered in support of and in opposition to the fact it is asked to infer. [¶] We believe the evidence showing Narro actively participated in the demonstration, had a stack of the green flyers in his possession and these flyers wound up in the hands of those passing by could, but not necessarily would, lead a reasonable trier of fact to infer Narro distributed at least some of the flyers.”
(Fashion 21, supra,
We are persuaded by the appellate court’s reasoning in
Fashion 21
and apply it here. The sum of indirect evidence cоntained in the record and
As in
Fashion 21,
we find that this evidence “could, but not necessarily would” lead a reasonable trier of fact to infer that defendant posted the Yelp reviews.
(Fashion 21, supra,
In concluding that the trial court erred in its wholesale exclusion of the Yelp evidence and related Comcast and AT&T records, we do not intend to suggest that the trial court should abandon its gatekeeping function to allow or exclude evidence. The admissibility of each component of plaintiffs’ evidence, including the scope of Mr. Herardian’s expert testimony, was properly before the court and would have remained subject to thе normal course of objections at trial.
D„ E. *
The judgment is reversed. Each side shall bear its own costs on appeal.
Notes
Two weeks after oral argument and submission of the case (Cal. Rules of Court, rule 8.256(d)(1)), appellants filed a notice of settlement, indicating the case has settled, with dismissal conditional on the fulfillment of specified terms. The parties have not yet filed a stipulation for dismissal. A valid settlement between the parties renders the appeal moot to the extent that it “effectively extinguishes the judgment from which the appeal is taken,” ending both the dispute and the possibility of further, effective relief from the court.
(Ebensteiner Co., Inc.
v.
Chadmar Group
(2006)
Monterey Bay Spice Company, Inc., settled with plaintiffs before trial and is not a party to the appeal.
An IP address (Internet Protocol address) is a “ ‘unique identifier’ ” that functions “ ‘much like [a] Social Security numbeif] or telephone numbeif],’ ” each corresponding to “ ‘a specific entity connected to the Internet.’ ”
(Kleffman
v.
Vonage Holdings Corp.
(2010)
Civil Code section 3295 authorizes a court to order pretrial discovery of a defendant’s financial condition if “the plaintiff has established that there is a substantial probability” of prevailing on the claim. It expressly provides that the order “shall not be considеred to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” (Civ. Code, § 3295, subd. (c).)
See footnote, ante, page 1268.
Courts in other jurisdictions have drawn similar conclusions. The Delaware Supreme Court in
Parker
v.
State
(Del. 2014)
We have found no suggestion by the court or the parties that the Comcast record itself, as certified by the custodian of records, was inadmissible. Nor was there any suggestion that the document’s provision of defendant’s name and home address as the subscriber to whom the IP address in question was assigned as of July 27, 2011, was ambiguous or not responsive to plaintiffs’ subpoena.
The
Fashion 21
appeal followed the defendants’ unsuccessful SLAPP motion to strike the complaint, which had required the lower court to decide whether Fashion 21 had established a probability that it would prevail on its causes of action.
(Fashion 21. supra.
We note that this ruling applies only to plaintiffs Margaret Kinda and Artisan. The operative complaint alleged defamation only as to Ms. Kinda and Artisan; plaintiff Aaron Kinda was not a party to that cause of action. The exclusion of evidence in support of Ms. Kinda’s and Artisan’s defamation allegations cannot be said to have prejudiced Aaron Kinda in the same manner, if at all.
See footnote, ante, page 1268.