Reade v. The N.Y. Times Co.
2:22-cv-00543 WBS KJN
MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND SPECIAL MOTION TO STRIKE
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.
Plaintiff Tara Reade brought this action against defendant The New York Times Company challenging the alleged publication of a photograph containing her Social Security number in defendant’s newspaper, The New York Times (the ““Times”). (See Compl. (Docket No. 1-1 at 5-9).) Plaintiff’s complaint includes three claims under California law: (1) violation of California Civil Code § 1798.85, (2) public disclosure of private fact, and (3) negligence. Defendant now moves both to dismiss plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) and to strike them via special motion under California’s anti-SLAPP statute, Cal. Code Civ. P. § 425.16. (See Mot. to Dismiss (Docket No. 10); Mot. to Strike (Docket No. 11).)
Defendant’s motions appear to be identical, except for portions addressing the respective legal standards for a motion to dismiss under Rule 12(b)(6) and for a special motion to strike under the anti-SLAPP statute. (See Mot. to Dismiss; Mot. to Strike.) Accordingly, except where relevant to the special motion to strike, which as explained below has additional requirements beyond those of a motion to dismiss, the court cites to the motion to dismiss and not to the special motion to strike.
I. Factual and Procedural Background
All facts described in this section are as alleged in plaintiff’s complaint, except as otherwise noted.
During the 2020 United States presidential campaign, plaintiff publicly accused then-candidate Joe Biden of having sexually assaulted her in the 1990s, while plaintiff was working at the United States Senate. (See Compl. at ¶¶ 7-12.) The Times investigated plaintiff’s allegations and, to corroborate them, plaintiff provided the Times with a photograph of her federal identification card from her time with the Senate. (See id. at ¶¶ 9-11.) That ID card included what turned out to be the upper portion of plaintiff’s Social Security number. (Id. at ¶ 12.)
Although the Complaint suggests the whole number was visible, counsel for plaintiff acknowledged at oral argument that this was not the case. This is confirmed by the unredacted copy of the image as it was provided to the Times, which has been filed under seal, as well as a partially redacted version with only the final four digits of the number visible, attached to this Order as Exhibit A, pursuant to Local Rule 140(a)(iii) and Federal Rule of Civil Procedure 5.2(a)(1).
The Times published an article about plaintiff’s allegations in April of 2020, in which it included the photo of her ID card, though plaintiff had not expressly given the Times consent to publish the photo. (Id. at ¶¶ 11-13.) The Times removed the photo after roughly nine hours, after plaintiff demanded its removal. (Id. at ¶¶ 14-15.) Plaintiff alleges that the photo was viewed thousands or millions of times before it was removed and that there have since been hundreds of attempts to steal her identity using her Social Security number. (Id. at ¶¶ 15-16.)
Plaintiff alleges that defendant employs an extensive editing process prior to publishing articles on the Times website and that its publication of the photo in spite of this process shows the publication of the photo was either intentional or reckless. (Id. at ¶¶ 18-19.) She alleges that as a result of the photo’s publication, she has suffered financial and emotional harm. (Id. at ¶ 17.) Plaintiff filed this action in the Superior Court of the State of California, in and for the County of Nevada, on February 22, 2022. (Compl. (Docket No. 1-1 at 5).) Defendant removed to this court on May 24, 2022. (Notice of Removal at 1 (Docket No. 1).)
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff’s complaint fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint has alleged “sufficient facts . . . to support a cognizable legal theory,” id., and thereby stated “a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Id.
Courts are not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl., 550 U.S. at 555. Accordingly, “for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff first alleges violation of § 1798.85 of the California Civil Code, which in pertinent part provides that, except under specified circumstances, “a person or entity may not . . . [p]ublicly post or publicly display in any manner an individual’s social security number.” Cal. Civ. Code § 1798.85(a)(1). The statute defines “[p]ublicly post” and “publicly display” to mean “to intentionally communicate or otherwise make available to the general public.” Id.
Defendant seeks dismissal of plaintiff’s § 1798.85 claim on the grounds that (1) the statute creates no private right of action and, (2) even assuming it does, plaintiff nonetheless fails to allege that defendant “intentionally” communicated or displayed her Social Security number when publishing the photo. (Mot. to Dismiss at 11-16.)
In its motions, defendant also argues that the Social Security number depicted in the ID photo is not plaintiff’s current Social Security number, and that § 1798.85 only applies to current Social Security numbers. (Mot. to Dismiss at 14.) However, in its reply defendant indicates that it no longer seeks to pursue this argument in light of an affidavit from plaintiff stating that the Social Security number is in fact current. (Reply at 2 n.1 (Docket No. 16); see Reade Aff. (Docket No. 15 3).) Accordingly, the court will not address this asserted basis for dismissal.
a. Existence of Private Right of Action
“A violation of a state statute does not necessarily give rise to a private cause of action.” Lu v. Hawaiian Gardens Casino, Inc., 50 Cal.4th 592, 596 (2010) (citation omitted). “Whether a party has a right to sue depends on ‘whether the Legislature has manifested an intent to create such a private cause of action under the statute.’” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1132 (9th Cir. 2014) (quoting Lu, 50 Cal.4th at 596). To find such a legislative intent, courts must first look to the language of the statute and then to its legislative history. Id. (citing Lu, 50 Cal.4th at 596); see San Diegans for Open Gov’t v. Pub. Facilities Fin. Auth. of City of San Diego, 8 Cal. 5th 733, 739 (2019).
In examining the language of a statute, the court must look for signals such as an “express[ ] state[ment] ‘that a person has or is liable for a cause of action for a particular violation,’” “a remedy or means of enforcing its substantive provisions,” or other “obvious,” “‘clear, understandable, [and] unmistakable terms which strongly and directly indicate’ an intent to create a private cause of action.” Fresno Motors, 771 F.3d 1132-33 (quoting Lu, 50 Cal.4th at 597). Section 1798.85 does clearly state that a person or entity “may not” publicly post or display an individual’s Social Security number, but it does not contain either any language establishing that individuals whose Social Security numbers are publicly posted or displayed have a cause of action against the offending party or warning that persons who violate the statute are liable for a cause of action based on the statute itself. Nor does it contain any language explaining what remedies would be available to a plaintiff bringing suit for violation of the statute. See Lu, 50 Cal.4th at 597 (listing examples of statutory language courts have found expressly create causes of action, none of which are present in § 1798.85).
Because § 1798.85 contains no “obvious language” indicating that cause of action exists, the court turns to legislative history. To demonstrate the existence of a cause of action, the legislative history must offer a “clear indication that the Legislature intended to create a private cause of action under the statute.” Id. at 600.
In support of her argument that the statute creates a private right of action, plaintiff points to two portions of a report on the law by the Assembly Committee on Banking and Finance (Docket No. 15-1) . She first points to the report’s statement that the law represents “a modest effort to allow the victim to assertively deal with the consequences of identity theft.” (Id. at 3.) Although this statement suggests the Committee’s view that the law could assist victims of identity theft in addressing the effects of such theft, its meaning is clarified when read in context with the second portion plaintiff identifies. There, the Committee recommends that the bill’s “author . . . consider specific causes of action and monetary sanctions for violations” and that such sanctions include “costs and attorney fees to the prevailing plaintiff.” (Id.) This language makes plain the Committee’s understanding that the statute, as written, did not provide a cause of action for violations, hence the Committee’s recommendation that one or more causes of action be added. That recommendation was never adopted.
Plaintiff has attached the report to her opposition. Although not framed as such, the court construes this as a request for judicial notice of the statements contained in the report. So construed, plaintiff’s request for judicial notice is granted. Defendant does not contest that the statements are authentic, see Fed.R.Evid. 201(b)(2); indeed, defendant seeks judicial notice of the contents of the same document, (Docket No. 12-13). Defendant’s request, insofar as it seeks such notice, is granted. Defendant’s request is denied in all other respects, however, as consideration of the other documents for which defendant seeks notice is unnecessary to the resolution of the instant motions.
In light of those statements, this court cannot conclude that the report’s vague reference to victims “assertively deal[ing] with the consequences of identity theft” constitutes a “clear indication that the Legislature intended to create a private cause of action under the statute.” Lu, 50 Cal.4th at 600. Likewise, that the report lists the statute’s projected “fiscal effect” as “None,” (Docket No. 15-1 at 2), provides too weak an inference of intent to create a cause of action for the court to recognize one here. Although plaintiff argues the lack of a projected fiscal impact indicates that the legislature did not intend for the state Attorney General to enforce the law, and that individuals whose Social Security numbers are published therefore must be able to enforce the law themselves, (Opp. at 11 (Docket No. 15)), this rationale is far too speculative to represent a “clear indication” of legislative intent. Moreover, it appears that the Attorney General has indeed sought to enforce this statute on at least one occasion, via an action brought under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, indicating that a means of enforcing the law does in fact exist. (See Docket No. 12-12.)
Although not part of the Complaint, the court takes judicial notice of the fact that the state brought this claim, in a case in the Superior Court of the State of California, in and for the County of Alameda, in January of 2014. (See id.)
Plaintiff also cites an unpublished California Superior Court decision, Skylight Advisors, LLC v. Does 1-25, 20-SMC-cv-01175, at 13 (Cal. Super. Ct. May 24, 2021) (Docket No. 15-2), attached to her opposition, in arguing that a cause of action exists. There, the court stated that, “[a]s a remedial statute, the Court believes that there is a manifest intent to allow a private right of action” in § 1798.85. (Docket No. 15-2 at 13.) However, that conclusion is expressly qualified by the court’s statement that “[n]o party provide[d] the Court with the full legislative history, including what the Legislative Analyst or Counsel stated about [the existence of a] claim (if anything),” and that “the Court [was] open to persuasion on this point at a later stage of the proceedings, perhaps with a better recitation of Legislative history.” (Id. at 13-14.) This discussion makes clear that that court did not consider the legislative materials that this court has reviewed. Skylight Advisors is therefore unpersuasive.
As with the legislative analysis of § 1798.85, the court construes this as a request for judicial notice of the document’s contents. (See supra n.5.) So construed, plaintiff’s request for judicial notice is granted, as defendant does not contest the document’s authenticity.
Accordingly, the court concludes that, based on the statutory text and the legislative history identified by plaintiff, § 1798.85 does not create a cause of action. Accord Fine v. Cambridge Int’l Sys., 12-cv-165 WQH (BGS), 2012 WL 2871656, at *5 (S.D. Cal. July 11, 2012) (citation omitted), rev’d in part on other grounds, 584 Fed.Appx. 695 (9th Cir. 2014); see San Diegans for Open Gov’t, 8 Cal. 5th at 739 (“The burden of persuasion is with the party claiming a statutory right to sue.”) (citation omitted). Plaintiff’s § 1798.85 claim therefore cannot succeed.
b. Requisite Allegations of Intent
Even if a cause of action existed, plaintiff’s claim fails for another, independent reason. Section 1798.85 includes an intent component, prohibiting “person[s] or entit[ies]” from “intentionally communicat[ing] or otherwise mak[ing] available to the general public” another person’s Social Security number. Cal. Civ. Code § 1798.85(a)(1) (emphasis added).
As a threshold matter, the parties dispute whether the provision requires general or specific intent — in other words, whether a person or entity violates the statute any time it intentionally communicates material that happens to contain another person’s Social Security number, or whether the person or entity must specifically intend to communicate the Social Security number itself. A plain reading of the statute demonstrates that the latter interpretation is correct. As noted, the statute provides that “a person or entity may not . . . [p]ublicly post or publicly display in any manner an individual’s social security number” and defines “[p]ublicly post” and “publicly display” to mean “to intentionally communicate or otherwise make available to the general public.” Cal. Civ. Code § 1798.85(a)(1). Reading these provisions of the statute together, it prohibits persons or entities from “intentionally communicat[ing] or otherwise mak[ing] available to the general public,” “in any manner[,] an individual’s social security number.” Id. The terms “communicate” and “make available” apply directly to “an individual’s social security number,” making clear that the intent requirement, which modifies “communicate” and “make available,” applies to disclosure of the number itself.
The allegations in plaintiff’s complaint relevant to intent are that defendant (1) “has an extensive editing process before publication on its website,” making it “very unlikely that the disclosure was inadvertent, as several people must have seen the photo before it was published”; (2) “acted recklessly or intentionally in disclosing Plaintiff’s Social Security Number”; and, similarly, (3) “intentionally or recklessly violated California law in publicly posting or displaying Plaintiff’s Social Security Number.” (Compl. at ¶¶ 18-19, 24.)
These allegations are insufficient to plausibly suggest that defendant intentionally displayed plaintiff’s Social Security number when it chose to publish the photo of her Id. The court has reviewed an unredacted image of the photo, which the court has separately ordered to be sealed, and it is not at all obvious that the number is in fact a Social Security number.Only the top half of the digits are visible at the bottom of the image, and it is not even clear what numbers they are. The two dashes typically separating the digits are also absent from the photo. The mere fact that defendant has a practice of reviewing photos before publishing them online does not plausibly suggest that its inclusion of a portion of plaintiff’s Social Security number was intentional. See Sprewell, 266 F.3d at 988 (courts not “required to accept as true allegations that are merely . . . unwarranted deductions of fact[ ] or unreasonable inferences”).
As noted, see supra n.3, a partially redacted copy of the image is attached at Exhibit A.
Plaintiff’s other allegations on this point are mere conclusory statements that defendant acted either recklessly or intentionally. These allegations are unsupported by any factual allegations — other than the above-noted allegation regarding defendant’s editing process — supporting an inference that the inclusion of plaintiff’s Social Security number was intentional. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
There is no suggestion as to how defendant would have known that portions of what appear to be numbers on what was represented to be plaintiff’s identification badge as an employee of the United States Senate were in fact her Social Security number. Moreover, the Complaint does not even definitively state that defendant’s publication of the Social Security number was, in fact, intentional, but rather alleges that the publication may instead have been reckless. Because the statute specifies that intentional display or dissemination is required, recklessness is insufficient.
Because section 1798.85 does not create a cause of action and, in any event, plaintiff fails to plausibly allege that defendant’s publication of her Social Security number was intentional, plaintiff’s first claim will be dismissed.
2. Public Disclosure of Private Fact
To state a claim for public disclosure of private facts under California law, a plaintiff must allege: “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” Shulman v. Grp. W Prods., Inc., 18 Cal.4th 200, 214 (1998). This type of claim arises from California’s common law right to privacy. See Diaz v. Oakland Trib., Inc., 139 Cal.App.3d 118, 125-26 (1st Dist. 1983); see also id. at 125 n.10 (noting claim may also arise under California Constitution’s right to privacy) (citing Cal. Const. Art. I, § 1). As the Ninth Circuit has noted regarding common law privacy claims, although California courts “ha[ve] not explicitly required a finding of intentional conduct as a prerequisite for the cause of action to be asserted,” they “have yet to extend the cause of action to include accidental or negligent conduct.” Ruiz v. Gap, Inc., 380 Fed.Appx. 689, 692-93 (9th Cir. 2010).
The other tort claims arising under the common law right to privacy in California are “(1) intrusion upon plaintiff’s solitude or into his or her private affairs; (2) ‘false light’ publicity; and (3) appropriation of plaintiff’s name or likeness to the defendant’s advantage.” Diaz, 139 Cal.App.3d at 126 (citations omitted).
Defendant argues that plaintiff fails to state a claim because public disclosure of another’s Social Security number is, as a matter of law, not “offensive and objectionable to the reasonable person,” citing a series of cases from other district courts in California. (See Mot. to Dismiss at 17.) These decisions state that “[e]ven disclosure of personal information, including social security numbers, does not constitute an ‘egregious breach of the social norms’ to establish an invasion of privacy claim.” E.g., Low v. LinkedIn Corp., 900 F.Supp.2d 1010, 1025 (N.D. Cal. 2012) . All appear to cite Ruiz v. Gap, Inc., 540 F.Supp.2d 1121 (N.D. Cal. 2008), aff’d, 380 Fed.Appx. 689, for this proposition, or other decisions that did so. See Schmitt v. SN Servicing Corp., 21-cv-3355 WHO, 2021 WL 3493754, at *7 (N.D. Cal. Aug. 9, 2021) (citing In re iPhone Application Litig., 844 F.Supp.2d 1040, 1063 (N.D. Cal. 2012), which relied upon Ruiz); Low, 900 F.Supp.2d at 1025 (citing Ruiz); White v. Soc. Sec. Admin., 111 F.Supp.3d 1041, 1053 (N.D. Cal. 2015) (citing Low and Ruiz); Del Llano v. Vivint Solar Inc., 17-cv-1429 AJB MDD, 2018 WL 656094, at *5 (S.D. Cal. Feb. 1, 2018) (citing White); Barry v. Wells Fargo Home Mortg., 15-cv-4606 BLF, 2016 WL 4242237, at *4 (N.D. Cal. Aug. 11, 2016) (citing Low); Bongiovanni v. State Farm Fin. Servs., F.S.B., 15-cv-556 MWF (SSx), 2015 WL 13916261, at *9 (C.D. Cal. July 22, 2015) (citing Low); Mitchell v. Reg’l Serv. Corp., 13-cv-4212 JSW, 2014 WL 12607809, at *5 (N.D. Cal. Apr. 23, 2014) (citing Low); Belluomini v. Citigroup, Inc., 13-cv-1743 CRB, 2013 WL 3855589, at *6 (N.D. Cal. July 24, 2013) (citing Ruiz).
The decision in Ruiz was based upon the peculiar facts in that case, and the court there did not purport to hold that disclosure of Social Security numbers may never form the basis for public disclosure claims. Although the cases following Ruiz do not fully articulate the rationale for their conclusion that a public disclosure claim may not be predicated simply upon disclosure of a Social Security number, there is a sound underlying reason to reach such a conclusion. California courts have frequently described the scope of the right of action for public disclosure of private facts as protecting against disclosure of “intimate details of [a] plaintiff’s private life.” Fellows v. Nat’l Enquirer, Inc., 42 Cal.3d 234, 251 n.13 (1986) (en banc); Kapellas v. Kofman, 1 Cal.3d 20, 35 (1969) (en banc); Coverstone, 38 Cal. 2d at 322-23; see also, e.g., Taus v. Loftus, 40 Cal.4th 683, 717-18 (2007) (right covers disclosure of “sufficiently sensitive or intimate private fact[s]”).
The history of this tort sheds light on its reach. The California Supreme Court has noted that California courts’ initial recognition of the tort stemmed from the Restatement of Torts and from a seminal article on privacy law by Dean William Prosser. Shulman, 18 Cal.4th at 214 (citing Restatement (Second) of Torts § 652A-E (Am. Law Inst. 1977); William Prosser, Privacy, 48 Cal. L. Rev. 381 (1960)); see Miller v. Nat’l Broadcasting Co., 187 Cal.App.3d 1463, 1482 (2d Dist. 1986) (“The Prosser analysis has been widely adopted . . . . Recent California decisions have also employed it.”) (citing Prosser, supra at 389). Although the Restatement in relevant part refers only to disclosure of “matter[s] concerning the private life of another,” Restatement (Second) § 652D, Prosser’s article identified the tort as “Public disclosure of embarrassing private facts about the plaintiff.” Prosser, supra at 389, 392 (emphasis added). It went on to discuss the tort in depth, citing, as the tort’s basis, a variety of decisions involving dissemination of scandalous stories or lurid details about individuals’ private lives that were likely to cause embarrassment. Id. at 392-98 (collecting cases).
See also id. at 397 (“The law of privacy is not intended for the protection of any shrinking soul who is abnormally sensitive about . . . publicity. It is quite a different matter when the details of sexual relations are spread before the public gaze, or there is highly personal portrayal of his intimate private characteristics or conduct.”).
One such early case addressed a challenge to a magazine’s publication of a photograph in which plaintiffs alleged they were depicted in an “uncomplimentary pose” and that their “right of privacy was thereby invaded and plaintiffs were subjected to humiliation and annoyance.” Gill v. Hearst Pub. Co., 40 Cal. 2d 224, 227 (1953) (en banc) (internal quotation marks omitted). The California Supreme Court, in reviewing a dismissal of the plaintiffs’ claim, concluded in pertinent part that the image contained nothing “uncomplimentary or discreditable,” distinguishing the case from others “where the right of privacy has been enforced with regard to the publication of a picture which was shocking, revolting or indecent in its portrayal of the human body.” Id. at 230-31. Because the disclosure in Gill did not rise to that level, it was insufficient “to shock the ordinary sense of decency or propriety” as was necessary to give rise to “an actionable invasion of the right of privacy.” Id. at 231.
California courts continue to speak of the tort in terms of whether the private facts disclosed were embarrassing, uncomplimentary, discreditable, indecent, derogatory, or reprehensible. See Forsher v. Bugliosi, 26 Cal. 3D 792, 808 (1980) (addressing invasion of privacy claim in which plaintiff alleged “that private embarrassing facts about him were revealed and that his personal character was thereby injured”); Diaz, 139 Cal.App.3d at 125 (referring to privacy right at issue as “the right to be free from public disclosure of private embarrassing facts”).
Courts in other jurisdictions have described the common law public disclosure tort in a similar fashion. See Cottrell v. Smith, 299 Ga. 517, 532 (2016) (referring to tort as “public disclosure of embarrassing private facts” and explaining, “[t]he interest protected [by the tort] is that of reputation, with the same overtones of mental distress that are present in libel and slander”) (citing Cabaniss v. Hipsley, 114 Ga.App. 367, 372-73 (1966), which likewise relied on Prosser’s article); Busse v. Motorola, Inc., 351 Ill.App.3d 67, 72 (1st Dist. 2004) (public disclosure tort applies to disclosure of individuals’ private conduct, such as “family problems, romantic interests, sex lives, [and] health problems,” but not of personal identifying information) (citation omitted); see also Dept. of Labor v. McConnell, 305 Ga. 812, 819 n.7 (2019) (“[T]he subject matter of other cases involving this tort includes the disclosure of extramarital affairs and the publication of a partially nude photograph.”) (citations omitted).
In sum, this court concludes that, under existing California law, to state a claim for public disclosure of private facts a plaintiff must allege disclosure not merely of facts she would prefer to keep private, but rather of private facts that rise to such a level as could be characterized as embarrassing in nature, such as would adversely affect her personal or professional reputation if disclosed. Personal identifying information such as a Social Security number, standing alone, clearly does not qualify because it discloses nothing about the individual’s conduct or personal life that would adversely affect her reputation if made known to others.
In Re iPhone Application Litigation supports this conclusion. There the court held that disclosure of identifying information contained in cell phones, including users’ “unique device identifier number, personal data, and geolocation information,” is not an “egregious breach of social norms.” 844 F.Supp.2d at 1063 (citing Folgelstrom v. Lamps Plus, Inc., 195 Cal.App.4th 986, 992 (2d Dist. 2011)). A Social Security number is similar in its ability to identify and reveal basic information about individuals.
Accordingly, because plaintiff’s public disclosure claim is predicated solely upon the alleged disclosure of her Social Security number, that claim must fail.
Additionally, because the court has concluded that plaintiff has failed to allege that defendant intentionally disclosed her Social Security number, plaintiff’s public disclosure claim fails for this independent reason as well. See Ruiz, 380 Fed.Appx. at 692-93.
In her claim for negligence, plaintiff alleges that defendant’s disclosure caused her “significant damages,” and the Complaint elsewhere clarifies that these consist of “financial and emotional damages.” (Compl. at ¶¶ 24, 36.) It is well established, however, that plaintiffs may not recover damages solely for economic losses in negligence claims. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 874-76 (1986); Union Oil Co. v. Oppen, 501 F.2d 558, 563-64 (9th Cir. 1974); Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5Th 905, 915 (2022).
An exception to this rule may apply in rare cases where there exists a “special relationship” between the parties. S. Cal. Gas Leak Cases, 7 Cal. 5th 391, 400 (2019). However, plaintiff has not alleged that a special relationship existed between her and defendant, nor does precedent suggest that their relationship would qualify. See, e.g., J’Aire Corp. v. Gregory, 24 Cal.3d 799, 804-05 (1979) (restaurant operator’s contract to renovate restaurant created special relationship with contractor, thus allowing recovery for purely economic loss caused by contractor’s negligent failure to complete construction on time); Biakanja v. Irving, 49 Cal. 2d 647, 650-51 (1958) (notary’s preparation of will created special relationship with plaintiff, an intended beneficiary, such that plaintiff could recover for notary’s negligent omission from will of assets that would otherwise have passed to plaintiff).
Precedent also establishes that allegations of “increased risk of identity theft,” standing alone, are insufficient to show actual damages. See Holly v. Alta Newport Hosp., Inc., 2:19-cv-07496 ODW (MRWx), 2020 WL 6161457, at *4 (C.D. Cal. Oct. 21, 2020). Although plaintiff alleges that there have been attempts to steal her Social Security number since the photo was published, she does not allege that her Social Security number was actually stolen or that she suffered harm as a result.
To the extent that plaintiff seeks damages for emotional harm based on negligence, the California Supreme Court has stated that there generally “is no duty to avoid negligently causing emotional distress to another.” See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (1993). Plaintiff, however, points to the statement of a
California Court of Appeal: California courts have limited emotional suffering damages to cases involving either physical impact and injury to plaintiff or intentional wrongdoing by defendant. Damages for emotional suffering are allowed when the tortfeasor’s conduct, although negligent as a matter of law, contains elements of intentional malfeasance or bad faith.
Quezada v. Hart, 67 Cal.App.3d 754, 761 (2d Dist. 1977).
Relying on this “intentional wrongdoing” exception, plaintiff argues that because defendant intentionally published her Social Security number, she may recover in negligence for emotional harm. As explained above, however, the Complaint fails to adequately allege that defendant’s publication of plaintiff’s Social Security number was intentional. Accordingly, the exception identified in Quezada does not apply. Moreover, the court in Quezada cited no precedent in support of the existence of this exception, and it is not clear that the exception remains viable today.
Because plaintiff therefore cannot recover in negligence for either type of alleged harm, her negligence claim will be dismissed.
B. Special Motion to Strike
Under California’s Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute, a defendant in a civil action may file a special motion to strike claims “arising from any act of [the defendant] in furtherance of [the defendant’s] right of petition or free speech” under the United States or California constitutions. Cal. Code Civ. P. § 425.16(b)(1); see Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 832-33 (9th Cir. 2018). The motion is available to litigants proceeding in federal court. Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir. 2005).
“A court considering a motion to strike under the anti-SLAPP statute must engage in a two-part inquiry.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). The defendant must first show “that the plaintiff’s suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant’s right to free speech under the United States or California Constitution.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003), superseded in part by statute on other grounds as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766-67 (9th Cir. 2017). “The burden then shifts to the plaintiff,” id., who “must show a reasonable probability of prevailing in [her] claims for those claims to survive dismissal.” Planned Parenthood, 890 F.3d at 833 (quoting Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001)) (internal quotation marks omitted).
Where an anti-SLAPP motion is made at the pleading stage, challenging the legal sufficiency of a claim, the second part of the analysis is identical to the analysis performed in evaluating a motion to dismiss under Rule 12(b)(6). Id. at 834. Accordingly, where a court concludes that a plaintiff’s complaint fails to satisfy the 12(b)(6) standard, the only remaining question is whether the suit arises from “an act by the defendant made in connection with a public issue in furtherance of the defendant’s right to free speech.”
Such an “act” includes, as relevant here, “any 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” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Cal. Code Civ. P. § 425.16(e)(3)-(4). “[P]ublic issues,” in turn, include “statements concerning a person or entity in the public eye” and “topic[s] of widespread, public interest.” Sarver v. Chartier, 813 F.3d 891, 901 (9th Cir. 2016) (citation and internal quotation marks omitted, alteration adopted). To be of “public interest,” a topic must be “of concern to a substantial number of people.” Id. (quoting Weinberg v. Feisel, 110 Cal.App.4th 1122, 1132 (3d Dist. 2003)). The terms “public issue” and “public interest” must be “construed . . . broadly in light of the statute’s stated purpose to encourage participation in matters of public importance or consequence.” Id. (citations omitted, alteration adopted).
The publication of the photo, which plaintiff voluntarily provided to the newspaper that she knew intended to write a story about her, was clearly done in connection with a public issue in furtherance of the newspaper’s constitutional right to free speech. California courts have on multiple occasions held that similar conduct was in furtherance of defendants’ free speech rights. See Taus, 40 Cal.4th at 713 (journalistic investigation, writing, and publishing are conduct in furtherance of free speech rights); Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 165-66 (2d Dist. 2003) (newsgathering is conduct in furtherance of free speech rights). Moreover, in the article in which the photo was published, the Times was reporting on plaintiff’s accusation that a leading candidate for President of the United States had sexually assaulted her. Such an accusation would certainly have been of interest to a substantial number of people.
Plaintiff argues that the article could have told the story just as effectively without the photo or if the editors had omitted the number segments from the bottom of it. First, since it was plaintiff who submitted the photo with the partial number visible on the bottom to the Times, presumably she agreed that both the photo and the numbers had some relevance to the article in that they corroborated her claim that she had worked for the Senate. More importantly, the test is not whether the article could have been written or presented differently, but rather only whether the defendant has shown that its actions were “in furtherance of” its constitutional right of free speech in connection with a public issue. Cal. Code Civ. P. § 425.16(e)(4). Defendant has met that burden.
IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss (Docket No. 10) be, and the same hereby is, GRANTED.
AND IT IS FURTHER ORDERED that defendant’s Special Motion to Strike (Docket No. 11) be, and the same hereby is, GRANTED.
Plaintiff has twenty days from the date of this Order to file an amended complaint, if she can do so consistent with this Order.
EXHIBIT A (Image Omitted)