Cross v. Facebook, Inc.

Citation222 Cal.Rptr.3d 250,14 Cal.App.5th 190
Decision Date09 August 2017
Docket NumberA148623,A149140
CourtCalifornia Court of Appeals Court of Appeals
Parties Jason CROSS et al., Plaintiffs and Appellants, v. FACEBOOK, INC., Defendant and Appellant.

Punzalan Law, Mark L. Punzalan, San Francisco; Cole Law Group, Todd G. Cole for Plaintiffs and Appellants.

Perkins Coie, Michael B. Garfinkel, Los Angeles, Eric David Miller, San Francisco, Julie Erin Schwartz, Lauren B. Cohen, Palo Alto; Durie Tangri, Sonal Naresh Mehta, San Francisco, for Defendant and Appellant.

Public Citizen Litigation Group, Paul Alan Levy; Zeitgeist Law and Marcia Clare Hofmann, San Francisco, for Public Citizen, Inc., as Amicus Curiae on behalf of Defendant and Appellant Facebook, Inc.

Electronic Frontier Foundation, Daniel Kelly Nazer for The Electronic Frontier Foundation, Engine, Eric Goldman, Github, Inc., Medium, The Organization for Transformative Works, Rebecca Tushnet, Snap, Inc., Wikimedia Foundation, and Yelp, Inc., as Amici Curiae on behalf of Defendant and Appellant Facebook, Inc.

Wilmer Cutler Pickering Hale and Dorr, Ari Holzblatt, Patrick J. Carome, Emily J. Barnet and Mark Donnell Flanagan, Palo Alto, for Airbnb, Inc., IAC/InterActiveCorp., Google, Inc., LinkedIn Corp., Reddit, Inc., and Twitter, Inc., as Amici Curiae on behalf of Defendant and Appellant Facebook, Inc.

Randazza Legal Group, Marc John Randazza and Alex James Shepard for Consumer Opinion LLC and AVVO, Inc., as Amici Curiae on behalf of Defendant and Appellant Facebook, Inc.

Richman, Acting P.J.

We here address appeals filed by both sides from an order on an anti-SLAPP motion, which order granted the motion as to three causes of action and denied it as to three others.

Plaintiffs are Jason Cross, also known as Mikel Knight, a country rap artist, and two entities affiliated with him. Defendant is Facebook, Inc. (Facebook). The dispute arises out of a Facebook page called "Families Against Mikel Knight," which page, plaintiffs claimed, incited violence and generated death threats against Knight and his team. Plaintiffs sought to have the page removed, Facebook refused, and plaintiffs sued, in a complaint that alleged six causes of action. Facebook filed a special motion to dismiss all six causes of action, arguing that they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP motion as to them. The trial court denied the motion as to the three other causes of action—claims alleging statutory and common law claims for violation of Knight's right of publicity, along with a derivative unfair competition law (UCL) claim—concluding that Knight had shown a probability of prevailing on them.

Both sides appeal, plaintiffs arguing that all six causes of action should proceed, Facebook that none should. We agree with Facebook, and thus affirm in part and reverse in part, with instructions to the trial court to enter an order granting the anti-SLAPP motion and striking the complaint.

BACKGROUND
The Facts

Plaintiff Jason Cross, also known as Mikel Knight (Knight), is, as described in his complaint, "an American recording artist in the genre of Country Rap/Urban Country. Knight's music is available on streaming music services such as Spotify, and his music videos are available on music video services such as Vevo." 1203 Entertainment, LLC (1203 Entertainment) is Knight's record label, which itself has a marketing subsidiary, MDRST Marketing/Promotions (MDRST) (when referred to collectively, Knight, 1203 Entertainment, and MDRST will be referred to as plaintiffs).

Facebook operates a social networking service that enables some two billion users worldwide to connect and share information that is important to them with family, coworkers, and friends. Use of the service is free, but users agree to Facebook's terms of service when they sign up for a Facebook account and each time they access or use Facebook.

Knight's Facebook experience apparently proceeded uneventfully for several years, until 2014, when two accidents happened within a week.

MDRST's marketing efforts included hiring of independent contractors who would travel throughout the country in vans that featured Knight's name and logo, promoting his music and merchandise. On June 9 and 16, 2014, two vans were involved in separate accidents when the drivers fell asleep at the wheel. The accidents had tragic consequences, including two deaths and one serious injury.

Shortly after the accidents, a publicly available Facebook page called "Families Against Mikel Knight" was created, apparently by a person (or persons) related to the victims. As to plaintiffs' version of what followed, their brief describes it this way: "numerous commenters began posting statements inciting violence and death threats against Knight and members of his record labels .... Because of these comments, numerous members of Mr. Knight's promotion team were verbally threatened and physically assaulted. [¶] In addition to these threats and assaults, the unauthorized Facebook page also severely impacted Knight and 1203 Entertainment's business deals. In 2014 and 2015, Knight was in negotiations with numerous companies to sign lucrative deals involving his music. But once representatives from these companies, which included Nielsen SoundScan and the Dallas Cowboys football team, reviewed the content of the unauthorized Facebook pages, they backed out of these negotiations."

Sometime in late 2014, Knight informed Facebook of the comments and threats. And on June 5, 2015, Knight's attorney sent a letter to Facebook demanding that it remove the pages. Facebook refused. This lawsuit followed.

The Proceedings Below

On February 16, 2016, plaintiffs filed a verified complaint against Facebook. It alleged six causes of action, styled as follows: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) breach of Civil Code section 3344 ; (5) violation of common law right of publicity; and (6) unlawful and unfair business practices, Business and Professions Code section 17200 (the UCL claim). Knight was a plaintiff in all six causes of action; 1203 Entertainment was also a plaintiff in the third cause of action; and the sixth cause of action was apparently by all three plaintiffs.1

The essence of the complaint was that Facebook delayed in disabling the "Families Against Mikel Knight" page, and failed to detect and quickly remove two other claimed "unauthorized" pages critical of Knight. This, plaintiffs claimed, violated Facebook's terms and community standards and Knight's right of publicity.2

On March 30, Facebook filed a demurrer, and a special motion to strike (anti-SLAPP motion). The anti-SLAPP motion contended that the complaint arose from the exercise of the constitutional right of free speech in connection with an issue of public interest, and that plaintiffs could not show a probability of success for two reasons: (1) the claims were barred by the Communications Decency Act; and (2) even if not, the claims were not viable under California law.

Plaintiffs filed an opposition that included a memorandum of points and authorities and three declarations—of Knight; Thomas Hairston, senior vice president of 1203 Entertainment; and attorney Mark Punzalan, purporting to authenticate some 60 pages of discovery and correspondence. Plaintiffs also filed a request for judicial notice.

Facebook filed a reply, and the motion came on for hearing on May 12. The trial court heard extensive argument, at the conclusion of which it took the matter under submission.

On May 31, the trial court filed its order, a comprehensive, six single-spaced pages. The court first held that the first step of the anti-SLAPP analysis was satisfied, that "i[t] cannot be disputed that Facebook's website and the Facebook pages at issue are 'public forums,' " and "the content of the subject Facebook pages concern public issues or issues of public interest." The court observed that the lawsuit "clearly targets Facebook's ability to maintain a forum for discussion of these issues, including its discretion to remove content that Plaintiffs find objectionable," and concluded that Facebook "met its initial burden of demonstrating that Plaintiffs' claims arise out of protected activity."

As to step two, the court held that the first three claims were barred by the CDA, going on to explain that "[n]o 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." ( 47 U.S.C. § 230(c)(1).) The court noted it was undisputed that Facebook is an " 'interactive computer service,' " and that the pages to which plaintiffs objected contained content provided by another "information content provider." So, the trial court concluded, the first three causes of action—for breach of contract, negligent misrepresentation, and negligent interference with prospective economic relations—were barred because these causes of action "treat[ed] Facebook as the 'publisher' ... of the ... content" to which plaintiffs object. The court thus granted the anti-SLAPP motion as to those three claims.

The trial court went on to hold, however, that the three other claims—the common law and statutory right of publicity claims and the derivative UCL claim—were not barred by the CDA. In support of this holding, the court relied on 47 U.S.C. § 230(e)(2), which states that "[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property." In the court's view, "the right of publicity protects a form of intellectual property," and therefore the CDA does not apply to such claims. The court further held that Knight had shown a probability of prevailing on...

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