The Volokh Conspiracy

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Free Speech

How to Lose a Case Against an Empty Chair

"If this order were a Yelp review rather than a court ruling, it might read as follows: 'This attorney tried to persuade the court to enter an injunction by citing an obviously invalid trial court order—zero stars.'"


In Misleh v. Johnson, decided last year (Aug. 6, 2018) by Judge Christopher E. Krueger in Sacramento, plaintiff Edward Misleh (a lawyer) sued two commenters for defamation. The commenters didn't contest the case, so Misleh moved for default judgment, seeking both $9,206 in specifically identified damages and an injunction.

No, said the court: Though the commenters' failure to appear is tantamount to admission of the alleged facts, the court should still verify that the plaintiff's factual allegations are adequate as a matter of law. And here, the court said, plaintiff didn't even offer any allegations tying particular comments to particular commenters, or anything but "an exceedingly vague rationale for why their decline in revenue over an entire year is plausibly connected to Defendants' conduct alone," especially since plaintiff's own evidence shows that "negative Yelp reviews of [his] services are apparently a common occurrence."

But my guess is that much of the judge's skepticism stems not just from the thinness of the plaintiff's allegations, but from something else—a cautionary tale for law students and lawyers:

B. Plaintiffs Ask for Injunctive Relief against Yelp Based on Inapplicable Case Law

i. Plaintiffs cited a Superior Court ruling that had been partially reversed

At the default judgment hearing, the court asked Mr. Misleh what legal authority existed to support his request for entry of an injunction against Yelp, which is not a party to this action. Mr. Misleh stated that he sought relief consistent with the San Francisco Superior Court's default judgment filed on January 14, 2014 in Hassell v. Bird (CGC-13-530525)….

After the hearing concluded, the court noticed that Plaintiffs' Amended Complaint mirrors the Hassell order to a significant degree. (See e.g., Amended Complaint at 13; Hassell trial court order at 2 [showing identical types of injunctive relief].) The court also performed computerized legal research and discovered two salient facts not disclosed by Mr. Misleh.

First, the Superior Court's injunction against Yelp was reversed in part and remanded by the Court of Appeal in June 2016, approximately one half-year prior to the commencement of this litigation.(Hassell v. Bird, 247 Cal. App. 4th 1336 (2016). [Footnote: The Court of Appeal in Hassell held that the trial court's injunction could apply against Yelp even though it was a nonparty. (Hasse//v. Bird, supra, 247 Cal.App.4th at 1365.) However, the trial court's order was held to be erroneously overbroad "to the extent it purports to cover statements other than Bird's defamatory reviews." (Id at I341.) The matter was remanded to the trial court to allow it to enter a new order narrowing the terms of its removal order in order to eliminate what it described as the "overbroad unconstitutional prior restraint on speech." (Id) The offending language in the order stated that Yelp was required to remove "any subsequent comments of these reviewers within 7 business days of the date of the court's order." (Id. at 1360.) Plaintiffs' proposed judgment lodged in this case contained this exact language, apparently copied from the Hassell v. Bird trial court order.]

Second, review of that decision had been granted by the California Supreme Court, which had recently heard argument and taken the matter under submission.

On July 2, 2018, the Supreme Court rendered its decision in Hassell v. Bird, 5 Cal. 5th 522, 527 (2018). A summary of the facts set forth in the Hassell opinion reveals the close factual similarities between that case and the instant case …

Mr. Misleh's citation of Hassell implied that the Superior Court's order stands as good law. To the contrary, at the time of the prove-up hearing, the Court of Appeal had already ruled that the San Francisco Superior Court erred in ordering Yelp to remove any future postings by defendants. (Hassell v. Bird, 247 Cal. App. 4th 1336, 1360 (2016).) That opinion was relevant legal authority to which this court should have been directed.

Moreover, the procedural history has subsequently turned even further against Plaintiffs' requested relief. The Supreme Court's ruling, which is now binding precedent on this court, further rejects the type of relief that Plaintiffs seek against nonparty Yelp.

Even prior to the Supreme Court's July 2, 2018 ruling, Hassell had garnered widespread publicity due to First Amendment issues and California's interest in internet sovereignty. Even a perfunctory internet search of "Hassell v. Bird" at the time of Plaintiffs' prove-up hearing yielded numerous results indicating the case's status in front of the Supreme Court. The likelihood that Mr. Misleh was completely unaware of Hassell's procedural history is doubtful.

Mr. Misleh's actions are an apparent violation of Rule 5-200(D) of the California Bar' Rules of Professional Conduct. Rule 5-200(D) states in relevant part that "In presenting a matter to a tribunal, a member … [s]hall not, knowing its invalidity, cite as authority a decision that has been overruled[.]"

In this instance, Mr. Misleh provided a citation only to the Superior Court ruling in Hassell. He failed to acknowledge Hassel's subsequent procedural history-likely because such history is detrimental to his case (as discussed below). Mr. Misleh, in fairness, never characterized as binding precedent on this court. His representation of the Hassell trial court opinion is nevertheless unprofessional.

ii. Plaintiffs request the type of relief denied by the California Supreme Court

Notwithstanding an apparent Rule 5-200 violation, Plaintiffs ask for injunctive relief that has been rejected by the very case to which Plaintiffs drew this court's attention.

Plaintiffs, presumably replicating the Hassell complaint verbatim, first failed to realize that injunctive relief is a remedy as opposed to a cause of action. (City of South Pasadena v. Dept. of Transportation, 29 Cal. App. 4th 1280, 1293 (1994).) Plaintiffs furthermore failed to realize that this overly broad "cause of action" contains precisely the type of injunctive relief that the California Supreme Court struck down. Were this court even to follow the Court of Appeal's ruling, it would be to the detriment of Plaintiffs. The Court of Appeal unequivocally held that "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." (Hassell, supra, 247 Cal. App. 4th at 1360.)

Moreover, the California Supreme Court held that "it is clear that plaintiffs' legal remedies lie solely against [defendants], and cannot extend—even through an injunction—to Yelp." (Hassell, supra, 5 Cal. 5th at 547.) The Supreme Court's ruling renders invalid not only any order restricting subsequent comments from defendant Bird, but also any order directing Yelp to remove the defamatory posts when it is not named in an action.

If this order were a Yelp review rather than a court ruling, it might read as follows: "This attorney tried to persuade the court to enter an injunction by citing an obviously invalid trial court order—zero stars." Since this is a court ruling, the court must simply state that the request for an injunction against Yelp must be denied as it is foreclosed by controlling legal authority.

I e-mailed Mr. Misleh to ask for his side of the story, but got no response. Thanks to Paul Alan Levy (Public CItizen) for the pointer.