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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS SMITH,

Plaintiff

Against DECISION

ON MOTION TO

DISMISS

JANE JOHNSON,

PISSEDPRODUCER.COM, INC,

Defendants

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Haas, J.,

Defendant Jane Johnson (“Johnson”) lives in Portland, Oregon, and operates

defendant corporation, pissedproducer.com (the “website”). The website is devoted to

allowing service providers to complain about actions of consumers. According to the

website’s terms, business owners or service providers are allowed to post feedback about

consumers “that other producers should be wary of.” The website also allows aggrieved

producers to publish the names, addresses and other personal information about

consumers, along with audio and video files that relate to the transaction.

On June 12, YR-01, Brenda James (“James”) posted a story regarding plaintiff,

Douglas Smith (“Smith”) in which she accused him of, inter alia, lying about his

conversations with her, behaving antagonistically towards her and unjustifiably

complaining about her business. She also posted information about Smith’s name,

address and license plate number and a video that showed a confrontation between her

and Smith.

Johnson knowingly allowed this information to remain on her site in spite of

Smith’s protest.

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Smith brought the present action against Johnson and the corporation that holds

the website alleging defamation, invasion of privacy for intrusion upon seclusion,

invasion of privacy for misappropriation of name and likeness and intentional infliction

of emotional distress against all three defendants.

Subject matter jurisdiction is established under 28 U.S.C. § 1332 (diversity

jurisdiction) because plaintiff is a resident of California and defendants are residents of

Oregon and the amount in controversy is more than $75,000. This is undisputed.

Johnson and the website have moved to dismiss the complaint based on FRCP

Rule 12(b)(2), alleging that this court does not have personal jurisdiction over her and

under FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted

with respect to each of the four counts of the complaint.

For the reasons set forth below, I deny the defendant’s motion to dismiss with

respect to each count.

Personal Jurisdiction

Defendant argues that this court lacks personal jurisdiction over Johnson and the

website because they operate exclusively in the state of Oregon and have insufficient

contacts with California to subject them to personal jurisdiction in the state of California.

Under the due process clause of the 14th amendment to the United States

Constitution, a state may exercise long arm jurisdiction over an out-of-state defendant

only if the defendant has “certain minimum contacts with it such that the maintenance of

the suit does not offend "traditional notions of fair play and substantial justice.” Int'l Shoe

Co. v. Washington, 326 U.S. 310, 317 (U.S. 1945).

In Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 109 (U.S.

1987), a case relied on by defendant, the Supreme Court refused to allow the state of

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California to exercise jurisdiction over a Japanese automobile part manufacturer who's

part, after having been built into a Taiwanese motorcycle, had caused injury in California.

The plurality opinion in Asahi had ruled that Asahi had failed to “purposefully direct”

activities towards the state of California, and could therefore not be subject to personal

jurisdiction in that state.

While defendant relies on Asahi, I think Asahi is distinguishable. In Asahi, the

defendant had not specifically been made aware that its parts would end up in California

and certainly did not have any specific interest in availing itself in the privileges and

immunities of the state of California. See id. at 102. It had no specific knowledge of its

products being in California and did not intentionally direct any activity towards

California.

In our case, Johnson was specifically apprised of the review targeting a California

resident. I think that our case is more analogous to cases in which jurisdiction has been

allowed. In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (U.S. 1985), the

Supreme Court allowed the Florida courts to exercise personal jurisdiction over a

defendant when the defendant “had established a substantial and continuing relationship

with” a resident of Florida. The Supreme Court also allowed personal jurisdiction to the

state of California when “the suit was based on a contract that had substantial connection

with California.” McGee v. International Life Ins. Co., 355 U.S. 220 (U.S. 1957).

The Ninth Circuit Court of Appeals also ruled that a website that offered readings

of medical care providers in Washington state on its website “purposefully interjected”

itself into Washington state and was therefore subject to jurisdiction in Washington.

Northwest Healthcare Alliance, Inc. v. Healthgrades.com, Inc., 50 Fed. Appx. 339, 341

(9th Cir. Wash. 2002). Based on the holding in the Northwest Healthcare Alliance case, I

find that a website that allows reviews of businesses in a particular state subject itself to

personal jurisdiction in that state.

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Therefore, I find that California may constitutionally exercise personal

jurisdiction over the defendants in this case.

Motion to Dismiss Under Rule 12(b)(6)

I now turn to the components of defendant's motion to dismiss that allege that

plaintiff’s causes of action should be dismissed for failure to state a claim upon which

relief can be granted.

I note at the outset that this stage of the proceeding is not for finding facts or

determining issues that are in dispute between the parties. In considering a motion to

dismiss, I must review the facts in the light most favorable to the nonmoving party. See

Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987). I may only dismiss the cause of

action if I rule that there is no “genuine issue for trial.” Valandingham v. Bojorquez, 866

F.2d 1135, 1137 (9th Cir. 1989).

Cause of Action 1: Defamation

Smith alleges that James’ statements about him that were posted to the website

contained false information. As a threshold matter, to be defamatory a statement must be

false. Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir. Ariz. 1990). The general

rule in a defamation action is that the defendant has the burden to prove truth unless the

subject matter is a matter of public concern. Milkovich v. Lorain Journal Co., 497 U.S. 1

(U.S. 1990). Whether a statement is a matter of public concern is a triable issue for jury

to determine. Because it is unclear who will have the burden to prove truth or falsity in

this case, I must assume falsity for the purpose of a motion to dismiss.

Johnson argues that her disclaimer on the website insulates her from liability. She

claims that clearly disavowing fulsome information and clearly disclaiming any

responsibility for third-party statements on her site, she protects herself from liability for

defamation that might appear on her site.

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It is true that a disclaimer can be taken into account in determining whether a

statement is defamatory. see Hustler Magazine v. Falwell, 485 U.S. 46, 47 (U.S. 1988).

Still, I also note that a disclaimer is not always enough to insulate a website against

liability for the contents thereof. See Hagendorf v. Brown, 699 F.2d 478 (9th Cir. Cal.

1983) (disclaimer ineffective against a claim of copyright infringement).

The issues of whether the statements are true, whether they are defamatory and

the extent of the fault of the party providing the forum are issues of facts to be tried by

the jury. See Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005). Therefore, there is a

triable issue of fact and the motion to dismiss this count must be denied.

Cause of Action 2: Excessive Publication of Private Facts

The plaintiff’s second cause of action alleges invasion of privacy for intrusion on

seclusion. Plaintiff alleges that the defendant's allowing information such as his name and

address and the video of his interaction to be posted on her website constitutes disclosure

of private information that intruded upon his solitude.

Defendant argues that even if the plaintiff’s allegations are true, the information

released was not “private” insofar as that names and addresses are publicly available

information and the video was taken in a place in which the plaintiff had no expectation

of privacy. Therefore, defendant argues that there has been no intrusion.

According to the Restatement of Torts, a person is liable for invasion of privacy

for intrusion upon seclusion if he “intentionally intrudes, physically or otherwise, upon

the solitude or seclusion of another or his private affairs or concerns... if the intrusion

would be highly offensive to a reasonable person.” Restatement 2d of Torts, Section

652B. This has been adopted as the California law on the subject. See Shulman v. Group

W Productions, Inc., 18 Cal. 4th 200, 230-231 (Cal. 1998).

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However, I do not find that it is required that there be a physical invasion of

privacy or that specific secret information be disclosed. Rather, the cause of action for

invasion of privacy “recognizes a measure of personal control over the individual's

autonomy, dignity, and serenity.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286 (Cal.

2009). A cause of action may be sustained as long as the defendant “penetrated some

zone of physical or sensory privacy … or obtained unwanted access to data by electronic

or other covert means, in violation of the law or social norms.” Id, quoting Shulman v.

Group W Productions, Inc., 18 Cal. 4th 200 (Cal. 1998).

Although it is conceded that defendant made no information public that is not

publicly accessible, plaintiff’s argument can still be sustained if plaintiff can show that

the information released in this case was done in “violation of... social norms.” I believe

that a reasonable jury could conclude that a producer releasing the name and address of a

consumer violates social norms. Therefore, it is possible for this cause of action to be

sustained by a reasonable jury. Therefore, the motion to dismiss this count is denied.

Cause of Action 3: Misappropriation

Plaintiff next alleges that the use of his name and his likeness (on the video)

constitutes invasion of privacy for misappropriation of name and likeness. Plaintiff

maintains that this misappropriation constitutes common law invasion of privacy as well

as a tort under California statute.

Under the common law, a person is liable for invasion of privacy for

“appropriation of plaintiff's name or likeness for commercial purposes.” Johnson v.

Harcourt, Brace, Jovanovich, Inc., 43 Cal. App. 3d 880, 887 (Cal. App. 2d Dist. 1974).

California has codified this common law rule, making it a tort to knowingly use

“another's name, voice, signature, photograph, or likeness, in any manner, on or in

products, merchandise, or goods, or for purposes of advertising or selling, or soliciting

purchases of, products, merchandise, goods or services, without such person's prior

consent.” Cal Civ Code § 3344.

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Defendant argues that Plaintiff is not a noteworthy person and that Defendant did

not benefit economically from the use of Defendant’s name specifically. Defendant also

argues that the video was “newsworthy” because a tirade by an angry consumer is a

matter of public interest and curiosity.

To Defendant’s first claim, I respond that California courts have not required that

plaintiffs in misappropriation cases be famous or special notability. On the contrary,

appropriation of names of ordinary people with no special notoriety has been held to be

actionable for misappropriation. Stilson v. Reader's Digest Assn., 28 Cal. App. 3d 270

(Cal. App. 1st Dist. 1972). Likewise “the appearance of an "indorsement" is not the sine

qua non of a claim for commercial appropriation.” Eastwood v. Superior Court, 149 Cal.

App. 3d 409, 419 (Cal. App. 2d Dist. 1983). The fact that Defendant did not rely on

Plaintiff’s specific reputation or persona does not preclude an action for

misappropriation.

Defendant next claims the “newsworthiness” defense against an allegation of

misappropriation. Defendant relies on various California cases that have ruled that

publicizing one's own media outlet by using names and information of public celebrities

is not considered invasion of privacy. See Montana v. San Jose Mercury News, Inc., 34

Cal. App. 4th 790 (Cal. App. 6th Dist. 1995) (Newspaper had a constitutional right to

promote itself by reproducing its originally protected articles or photographs of Joe

Montana). See also Abdul-Jabbar v. GMC, 85 F.3d 407, 416 (9th Cir. Cal. 1996).

Defendant argues that the public has an interest in watching videos of private individuals

involved in unusual situations and that, therefore, the incident in the videotaped

confrontation is newsworthy.

Defendant’s argument is misplaced. California courts have applied

newsworthiness as a defense when the Plaintiff himself isn't newsworthy figure, not

necessarily when the story is of public interest.

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For the foregoing reasons, I deny the defendant's motion to dismiss the cause of

action of invasion of privacy for misappropriation of name and likeness.

Cause of Action 4: Intentional Infliction of Emotional Distress

To maintain an action for intentional infliction of emotional distress, a plaintiff

must show that (1) extreme and outrageous conduct by the defendant with the intention of

causing, or reckless disregard of the probability of causing, emotional distress; (2) the

plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate

causation of the emotional distress by the defendant's outrageous conduct. Melorich

Builders v. Superior Court, 160 Cal. App. 3d 931, 935 (Cal. App. 4th Dist. 1984).

Defendant argues that posting a video taken in a public place with a name and

some publicly available information on the internet cannot constitute

“extreme and outrageous conduct.”

However, it is not the province of this court to determine what constitutes

extreme and outrageous conduct. That is a question of fact to be decided by a jury. I will

therefore not address that issue at this stage of the proceeding.

Conclusion

For the foregoing reasons, defendant’s motion to dismiss is denied with regard to

Plaintiff’s complaint and all counts therein.