Hassell v. Bird

Citation247 Cal.App.4th 1336,203 Cal.Rptr.3d 203
Decision Date07 June 2016
Docket NumberA143233
CourtCalifornia Court of Appeals
PartiesDawn HASSELL et al., Plaintiffs and Respondents, v. Ava BIRD, Defendant; Yelp, Inc., Appellant.

Counsel for Appellant: David Wright Tremaine, Thomas R. Burke, Oakland, and Deborah A. Adler, San Francisco.

Counsel for Respondents: Duckworth Peters Lebowitz Olivier, Monique Olivier, San Francisco.

RUVOLO

, P.J.

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” by the removal order; (2) Yelp's trial court motion to vacate was not cognizable under Code of Civil Procedure section 6632

; (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 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 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 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...

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6 cases
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    • United States
    • California Supreme Court
    • 2 d1 Julho d1 2018
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    • United States
    • Harvard Journal of Law & Technology Vol. 34 No. 1, September 2020
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