Tendler

*805 Opinion

Appellant Mordecai Tendler obtained a prefiling discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Respondents, whom we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section 1 425.16 motion to strike. Although Tendler withdrew his request for subpoenas, the Does proceeded on their section 425.16 motion to strike. The superior court granted the Does’ section 425.16 motion to strike, and awarded them their attorney’s fees. On appeal, we conclude that a request for subpoenas does not fall within section 425.16, and therefore the superior court erred in granting the motion and in awarding attorney’s fees.

I. Background

In February 2006, Tendler, a resident of New York, obtained an order from an Ohio state court providing his Ohio…

MIHARA, Acting P. J.

Appellant Mordecai Tendler obtained a prefiling discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted statements about him on the Internet that he believed were defamatory. Respondents, who we will refer to as the Does, are the anonymous individuals who posted those statements. When Google, the subject of Tendler's discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. The Does filed a motion to quash and a Code of Civil Procedure section [1] 425.16 motion to strike. Although Tendler withdrew his request for subpoenas, the Does proceeded on their section 425.16 motion to strike. The superior court granted the Does section 425.16 motion to strike, and awarded them their attorney's fees. On appeal, we conclude that a request for subpoenas does not fall within section 425.16, and therefore the superior court erred in granting the motion and in awarding attorney's fees.

In February 2006, Tendler, a resident of New York, obtained an order from an Ohio state court providing his Ohio attorney…

Attention anonymous Internet posters and bloggers: this court has good news and bad news for those of you who engage in nontortious discourse. The good news, announced earlier this year: your message will be protected by the First Amendment and your identity will be protected by the court quashing a third party subpoena, unless the requesting party can make a prima facie showing of defamation. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 [ 72 Cal.Rptr.3d 231 ] (Krinsky).) The bad news: it may cost you tens of thousands of dollars to preserve your anonymity.

I must concur with my colleagues’ ultimate conclusion that Code of Civil Procedure section 425.16 (section 425.16) does not apply to requests for subpoenas, but I write separately for two reasons: First, I cannot agree with the rationale employed by the majority in reaching the conclusion that the statute is inapplicable here. Second, I urge the Legislature to consider whether the statute should be expanded to include third party subpoena requests of this type.

1. Section 425.16 does not apply because no cause of action is stated.

Although my colleagues have no difficulty rejecting the application of section 425.16 to a…