Justia Communications Law Opinion SummariesArticles Posted in California Courts of Appeal
Gruber v. Yelp Inc.
Yelp publishes crowdsourced business reviews and allows businesses to advertise on its Website and mobile app. Yelp employs over 2,000 sales representatives to solicit advertising sales. Gruber, a solo attorney practitioner, was contacted by phone several times by Yelp sales representatives. During these calls, in which the sales representatives’ voices were recorded, Gruber discussed confidential and financial information regarding his law firm. When conversing with one representative, who happened to be his friend, Gruber sometimes joked, discussed private topics, and used profanity. Gruber did not recall that any Yelp sales representative notified him that the conversations were being recorded. Gruber sued under the California Invasion of Privacy Act (CIPA) Pen. Code 630, alleging unlawful recording and intercepting of communications; unlawful recording of and eavesdropping upon confidential communications; and unlawful wiretapping.The trial court granted Yelp summary judgment. The court of appeal reversed. While Gruber was not recorded during any calls (only Yelp’s representatives were recorded), CIPA is violated if a defendant records any portion of a conversation between two or more individuals. When the Yelp salespeople spoke during the one-sided recordings of their conversations with Gruber, the recordings revealed firsthand and in real-time their understanding of or reaction to Gruber’s words. Yelp failed to meet its burden of production regarding whether its use of VoIP technology precludes CIPA's application. View "Gruber v. Yelp Inc." on Justia Law
Oakland Bulk and Oversized Terminal, LLC v. City of Oakland
Oakland entered into agreements with OBOT for the development of the former Oakland Army Base. The project was to include a bulk commodity shipping terminal for products, including coal. When the subject of coal became public, it activated interest groups, ultimately leading to an ordinance banning coal handling and storage in the city and a resolution applying the ordinance to the terminal. A federal court held that the resolution was a breach of the OBOT agreements, and enjoined Oakland from relying on the resolution. Friction between OBOT and Oakland continued. OBOT sued, alleging breach of contract and tort claims.The city filed a demurrer, then a special motion to strike (SLAPP motion, Code of Civil Procedure 425.16) that sought to strike “in part” the complaint. The SLAPP motion was heard with other matters. The hearing dealt primarily with the demurrer, which the court overruled in most part, and sustained in part with leave to amend. Days later, the court “denied without prejudice” the SLAPP motion, describing it as “premature” in light of the amended complaint to come.The court of appeal determined that the SLAPP motion has no merit because the complaint is not based on protected activity and remanded with instructions to deny the motion on the merits. The essence of the complaint arose from Oaklands’s acts or omissions in breach of its agreements, its refusal to cooperate, and its tortious conduct. View "Oakland Bulk and Oversized Terminal, LLC v. City of Oakland" on Justia Law
City of Los Angeles v. Herman
Herman regularly attends Los Angeles and Pasadena city meetings and has been removed more than 100 times. Herman At a public hearing on April 17, 2019, Herman said, “Fuck" Los Angeles Deputy City Attorney Fauble and gave Fauble’s address. At an April 29 meeting, Herman, in a threatening manner, again disclosed Fauble’s Pasadena address. Herman also submitted speaker cards; one had a swastika drawn on it, another had a drawing of a Ku Klux Klan hood with figures that were either an “SS” or lightning bolts above Fauble’s name. On May 1, Herman attended another meeting and stated, “I’m going back to Pasadena and fuck with you.”The city sought a workplace violence restraining order under Code of Civil Procedure 527.8, precluding Herman from harassing, threatening, contacting, or stalking Fauble or disclosing his address, and requiring Herman to stay at least 10 yards away from Fauble while attending meetings. At a hearing, Herman explained that he made the statements because he was upset about a change in the council rules and with his own homelessness. He denied intending to threaten Fauble. The court of appeal affirmed the entry of a restraining order, rejecting a First Amendment challenge. There was substantial evidence that Herman’s threatening conduct was reasonably likely to recur and that Herman’s statements would have placed a reasonable person in fear for his safety, regardless of Herman’s subjective intent. The credible threats of violence were not constitutionally protected. View "City of Los Angeles v. Herman" on Justia Law
Gascon v. HomeAdvisor, Inc.
The San Francisco District Attorney sued HomeAdvisor, alleging it violated California’s False Advertising Law, Business and Professions Code section 17500, and the Unfair Competition Law section 17200, claiming that many of HomeAdvisor’s advertisements “are false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks." The only person who actually undergoes a background check is the owner/principal of an independently-owned business.The court of appeal affirmed a preliminary injunction that prohibited HomeAdvisor from broadcasting certain advertisements, but, excepting advertisements HomeAdvisor discontinued, permitted HomeAdvisor to continue broadcasting them for specified lengths of time if accompanied by a disclaimer. The court rejected arguments that the order was vague, indefinite, overbroad, and unconstitutional. The government may ban forms of communication more likely to deceive the public than to inform it.” By providing several specific examples of permissible and impermissible advertising, the preliminary injunction order is sufficiently definite for HomeAdvisor to determine what it “may and may not do” pending a trial on the merits of the claims. The enjoined advertisements and descriptions are inherently likely to deceive because they exploit the ambiguity of the term “pro.” View "Gascon v. HomeAdvisor, Inc." on Justia Law
Pott v. Lazarin
Audrie, the Potts’ daughter, was sexually assaulted while unconscious from intoxication. Her assailants distributed intimate photographs of her. Audrie committed suicide. The Potts, as the registered successors-in-interest to “deceased personality” rights for Audrie under Civil Code 3344.1, authorized the use of Audrie’s name and likeness in a documentary. The Potts sued Lazarin under section 3344.1, claiming that Lazarin (who claims to be Audrie’s biological father) had used Audrie’s name and likeness "for the purpose of advertising services” without their consent. Lazarin admitted that he had displayed Audrie’s photograph “to change the law regarding parental rights” but argued that he had not acted to promote “goods or services.” The Potts submitted evidence that Lazarin solicited donations for a suicide prevention group, using Audrie’s name and photograph. Lazarin brought an unsuccessful special motion to strike the complaint under Code of Civil Procedure 425.16.The court of appeal reversed. Lazarin made a prima facie showing that the Potts’ suit was based on his “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” The Potts failed to establish that there was a “probability” that they would “prevail” on their Civil Code section 3344.1 suit; they did not show that Lazarin “misappropriate[ed] the economic value generated by [Audrie’s] fame through the merchandising” of her name or likeness. View "Pott v. Lazarin" on Justia Law
Facebook, Inc. v. Superior Court of the City and County of San Francisco
The defendants were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each defendant served a subpoena duces tecum on one or more social media providers (Facebook, Instagram, and Twitter, collectively “Providers”), seeking public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers repeatedly moved to quash the subpoenas on the ground that the federal Stored Communications Act (18 U.S.C. 2701) barred them from disclosing the communications without user consent. The trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the motions to quash, and ordered Providers to produce the victim’s and witness’s private communications for in camera review. The court of appeal granted mandamus relief, concluding the trial court abused its discretion by not adequately exploring other factors, particularly options for obtaining materials from other sources, before issuing its order. The trial court focused on defendants’ justification for seeking the private communications and the record does not support the requisite finding of good cause for the production of the private communications for in camera review. View "Facebook, Inc. v. Superior Court of the City and County of San Francisco" on Justia Law
Ojjeh v. Brown
Defendants solicited and obtained $180,000 from plaintiff produce a documentary on the Syrian refugee crisis. Plaintiff sued, alleging that no “significant” work on the documentary has occurred, that defendants never intended to make the documentary, and that a cinematographer has not been paid and claims the right to any footage he has shot, putting the project in jeopardy. Defendants filed an unsuccessful anti-SLAPP (strategic lawsuit against public participation (Code Civ. Proc. 425.16)) motion to strike, arguing the complaint arises out of acts in furtherance of their right of free speech in connection with an issue of public interest--their newsgathering related to the Syrian refugee crisis, and that plaintiff could not demonstrate minimal merit on his claims because the action is subject to an arbitration provision; plaintiff’s allegations are contradicted by the investor agreement; and the evidence establishes that substantial progress was made. The court found that plaintiff’s claims did not arise out of acts in furtherance of defendants’ protected speech but were “based on the failure to do acts in furtherance of the right of free speech."The court of appeal reversed. Defendants made a prima facie showing that the complaint targets conduct falling within the “catchall” provision of the anti-SLAPP law. Defendants’ solicitation of investments and their performance of allegedly unsatisfactory work on the documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest. The court erred in denying the motion at the first stage of the anti-SLAPP analysis. View "Ojjeh v. Brown" on Justia Law
Miller Marital Deduction Trust v. Zurich American Insurance Co.
The Miller Trust is the successor owner of property previously owned by spouses Jack (now deceased) and Helen. The trustees sued previous owners including the Estate of Jack Miller and a lessee, DuBois, seeking redress for environmental contamination that originated from a dry cleaning business that operated on the property in 1956-1985. DuBois filed a counterclaim. Zurich determined it had a duty to defend and retained counsel to represent the Estate. The trustees tendered the Dubois counterclaim for defense, asserting that they were additional insureds under the Estate's Zurich policies. Zurich agreed subject to an extensive reservation of rights but denied the trustees' request for independent counsel based on conflicts of interest. The trustees sued Zurich in state court, alleging breach of the contract and of the implied covenant of good faith and fair dealing. Zurich unsuccessfully filed an "anti-SLAPP" (strategic lawsuit against public participation) special motion to dismiss, Code of Civil Procedure 425.16, asserting that the claims “arise from allegations about the conduct of attorneys representing Zurich’s insured in the” federal action and that the trustees could not demonstrate a probability of prevailing because that conduct was protected by the litigation privilege. The court of appeal affirmed, in favor of the trustees. Zurich met its burden of demonstrating the applicability of the anti-SLAPP statute but the trustees met their burden of demonstrating a probability of prevailing on the merits. A bad faith action can be subject to the anti-SLAPP statute where the basis for liability is judicial communications. View "Miller Marital Deduction Trust v. Zurich American Insurance Co." on Justia Law
Teamsters Local 2010 v. Regents of the University of California
The Teamsters Union represents skilled crafts employees at UCLA and UCSD and was campaigning to unionize University of California Davis (UCD) employees. Teamsters distributed a flyer making statements about the impact that unionizing had upon the skilled crafts employees at UCLA and UCSD. In response, Regents distributed an “HR Bulletin,” stating: “the University is neutral on the issue of unionization” and that UCLA and UCSD employees had been in extensive contract negotiations, which had the effect of freezing salaries for several years. The flier included favorable statements about UCD salaries, benefits, and grievance procedures. Teamsters filed suit, citing Government Code 16645.6, which prohibits a public employer from using state funds to “assist, promote, or deter union organizing.” Regents filed an "anti-SLAPP" special motion to strike (Code of Civil Procedure 425.16) arguing that the complaint arose from protected conduct: a statement made in a place open to the public in connection with an issue of public interest; that Teamsters could not demonstrate a probability of prevailing on its claim because the action was preempted by the exclusive jurisdiction of the Public Employment Relations’ Board (PERB); and that nothing in section 11645.6 prohibited noncoercive speech. The court of appeal affirmed the denial of the anti-SLAPP motion. PERB had exclusive jurisdiction over unfair labor practices. The bulletin was not alleged to be an unfair labor practice. The bulletin could be construed as an attempt to influence the employees, so Teamsters had a reasonable probability of prevailing on its section 16645.6 claim. View "Teamsters Local 2010 v. Regents of the University of California" on Justia Law
Park Management Corp. v. In Defense of Animals
Six Flags, a Vallejo amusement park, features rides and animal attractions on 138 acres, including a ticketed interior portion with the entertainment activities and an exterior portion with an admissions area connected by walkways and streets to a paid parking lot. The property falls within the city’s “public and quasi-public facilities zoning district.” For many years, the amusement park was municipally owned but privately operated. In 2006, a federal district court recognized the constitutional right of an individual to protest at the park’s front entrance, which is public fora under California’s free speech clause. The following year, Park Management exercised its option and acquired the park from the city for $53.9 million; the city committed to retaining the park’s zoning designation. Management agreed to pay the city a percentage of annual admissions revenue. The city’s redevelopment agency agreed to finance the construction of a new parking structure on publicly owned fairgrounds for lease to Management. In 2014, Management banned all expressive activity at the park, including protests. Weeks later, people protested against the park’s treatment of animals at the front entrance area and handed out leaflets in the parking lot. The police and the district attorney declined to intervene without a court order. Management filed suit, alleging private trespass. The trial court granted Management summary judgment. The court of appeal reversed. While a long-time protestor failed to prove as a matter of law that he has acquired a common law prescriptive right to protest at the park, the exterior, unticketed areas of the amusement park are a public forum for expressive activity under California Constitution article I, section 2. View "Park Management Corp. v. In Defense of Animals" on Justia Law