Yelp Ordered to Produce Documents Identifying Anonymous Negative Poster

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Orange County Court House

Be Careful When Posting Negative Yelp Reviews to “Get Even.” It May Just Land YOU in a World of Legal Trouble.

In this case, Montagna filed a lawsuit against Sandra Jo Nunis and several Doe defendants alleging a single cause of action for trade libel. According to the first amended complaint, Montagna, an accountant, prepared a tax return for Nunis in 2015. Montagna initially quoted Nunis a “minimum” fee of $200 for the preparation of her return, based on her representation that her income was comprised exclusively of wages reported on a W-2 form, and she would require only a simple return. However, both Nunis’ income and the resulting tax return were allegedly more complicated than she had represented. As a consequence, Montagna charged Nunis $400 for preparation of the return, rather than the $200 fee he initially quoted. Nunis allegedly paid Montagna only $200, and refused to pay him more even after receiving “a collection letter” for the balance. And in November 2015, Nunis allegedly went online to the Yelp website and posted the following review of Montagna, using the alias Alex M.:

“Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.”

Montagna alleged the following statements made by Nunis in the review were provably false: (1) the return he had prepared for her was accurate and complete; (2) he had not caused her to hire another firm to redo his work; (3) he was not negligent in preparing her return, such that her refund more than doubled; and (4) no one in his office screamed at, harassed, or threatened her. Montagna allegedly sent a demand to Nunis, asking she retract the Yelp review, or correct the false and libelous statements, and warned her that if she failed to do so, legal action might be taken against her. Nunis, however, allegedly failed and refused to either delete or correct her review and Montagna thereafter filed the lawsuit.

A subpoena was issued to Yelp to confirm the identity of the “anonymous” poster.  Yelp fought the Subpoena on a number of grounds, including “Freedom of Speech of the Poster,” and lost.  The Court held,

“We are unpersuaded by Yelp’s contention because we cannot agree with its characterization of the review. While it is true that pure expressions of opinion are not actionable, “[t]hat does not mean that statements of opinion enjoy blanket protection. [Citation.] To the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.]” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 (GetFugu).)”

And, as such, the Court ordered, “…we conclude the latter finding was sufficient to support the trial court’s order compelling Yelp to produce the subpoenaed documents in the circumstances of this case.”

The lawsuit against the Yelp poster will proceed.

(YELP INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; GREGORY M. MONTAGNA et al.(11/13/2017).)

Eric Papp, Esq.


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