Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 1 of 10 Page ID #:241

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Present: The Honorable

Date

January 27, 2015

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Applicant:

Attorneys Present for Respondent:

None Present

None Present

Proceedings:

(In Chambers) Order: Denying Plaintiffs Ex Parte Application for

Leave to Engage in Limited Third Party Expedited Discovery (ECF

No. 13)

On January 15, 2015, Plaintiffs filed a Complaint stating various causes of action
stemming from an alleged hacking and allegedly defamatory anonymous internet
postings. On January 16, 2015, Plaintiffs filed an Ex Parte Application for Leave to
Engage in Limited Third Party Expedited Discovery (Motion), seeking permission to
subpoena various websites to learn the identity of Doe Defendants. On January 26,
2015, the named Defendants filed an opposition to the Motion. For the reasons that
follow, the Court denies the Motion without prejudice.
I.
BACKGROUND
A.

Complaint

Plaintiffs are the Darras Firm, Inc. (DarrasLaw), a law firm; the firms named
partner, Frank Darras; and Mr. Darrass daughter, Natasha Darras. Defendants are
McDavid Public Relations and McDavid Publishing Group, LLC (collectively,
McDavid); Robin Nolan, the president and CEO of McDavid; and ten unknown,
unnamed defendants (Doe Defendants).
The Complaint alleges DarrasLaw and the named Defendants had a normal
working relationship for several years. ECF No. 1 at 8. However, in late 2014 that
relationship began to deteriorate. Id. Nolan told DarrasLaw it had not paid for certain
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

public relations services she provided. Id. Frank Darras found Nolans communications
hostile, and advised Nolan that DarrasLaw would no longer utilize her services as of
December 31, 2014. Id. at 9.
After that date, Plaintiffs allege, an anonymous poster began a campaign of
online harassment and defamation, and DarrasLaws Twitter accounts [were] hacked.
Id. at 5, 8. Plaintiffs state nine causes of action, but most relevant for purposes of this
Order are their defamation claims, which arise under California state law, and their
hacking claims, which arise under the Computer Fraud and Abuse Act (CFAA), 18
U.S.C. 1030, and the California Data Access and Fraud Act (CDAFA), Cal. Penal
Code 502.
1.

Allegations of Defamation

The Complaint alleges on January 2, 2015, a person going by the name of Jackie
published a post on ripoffreport.com, under the sites category Liars, with the title
Beware of Scam Artist Frank Darras Frank Darras [sic], DarrasLaw, Natasha Darras
Scam Artists, con man, con woman, grifters Ontario, California. ECF No. 1 at 5. The
post stated Plaintiffs ripped [Jackie] off as an investor, and warned readers not to do
business with Frank or Natasha Darras. Id. at 5-6.
The Complaint alleges on January 3, 2015, a person going by the name of Jackie
Smith opened a new Twitter account and tweeted to Natasha Darras a link to the
ripoffreport.com post, with the accompanying message, [L]ooks like your Dad Frank
Darras is a con artist. Id. at 6. The Complaint alleges on the same date, a hacker . . .
posted a disparaging post on DarrasLaws Twitter feed. Id. at 10. The entirety of the
post reads: FBI Federal Crime. Id.
The Complaint alleges on January 5, 2015, an anonymous person published a post
on thedirty.com making various blatantly false and indecent statements about
Natasha and Frank Darras that included information about Natasha Darrass romantic
status and medical history. Id. at 7. The Complaint does not identify which
statements are blatantly false.
The Complaint alleges on January 6, 2015, an anonymous person published a
second post on thedirty.com, under the sites category Dirty Business, with the title
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 3 of 10 Page ID #:243

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

Beware of 10 Cent Millionaire Frank Darras. Id. According to the Complaint, the
post falsely claim[ed] that Frank Darras of Darras Law . . . ripped [the author] off as an
investor, and warn[ed] readers not to do business with Frank Darras. Id.
2.

Allegations of Hacking

The Complaint also alleges DarrasLaws Twitter accounts were hacked. Id. at 8.
The Complaint alleges, on information and belief, Defendants McDavid and Robin
Nolan are the perpetrator[s] of these attacks. Id.
According to the Complaint, as part of her work with DarrasLaw, Nolan opened
two Twitter accounts one called DarrasLaw and one called DarrasNews. Id. at 9.
Nolan never provided the firm with the accounts login information. Id. The Complaint
alleges on December 22, 2014, Nolan sent DarrasLaw a letter demanding payment of an
invoice, and stating that she would not relinquish control over [the Twitter] accounts
unless her demands were met. Id. at 9-10.
On January 3, 2015, Plaintiffs allege, on information and belief, McDavid and
Nolan improperly and without authorization accessed [the DarrasLaw] Twitter account
using the login information Nolan had retained. Id. at 10. The Complaint states:
DarrasLaw undertook efforts and was eventually able to recover the account, but not
before the hacker had posted a disparaging post regarding FBI Federal Crime. Id.
According to the Complaint, on January 6, 2015, a hacker successfully gained
access to the DarrasNews Twitter account. Id. at 11. The Complaint alleges, on
information and belief, McDavid and Nolan are responsible. Id. The Complaint alleges
that, after taking control of the DarrasNews account, the hacker changed the images
on the account from those that DarrasLaw had posted to branding and marketing
images. Id. According to the Complaint, Plaintiffs have not yet been able to regain
control of the DarrasNews Twitter account, despite expend[ing] substantial funds
to do so. Id.
B.

Discovery Request

On January 16, 2015, Plaintiffs filed the instant Motion, which asks the Court for
an order allowing them to engage in limited third party expedited discovery to enable
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 4 of 10 Page ID #:244

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

them to establish the identity of, and serve a copy of the summons and Complaint on, the
unknown Doe Defendants. ECF No. 13 at 2.
Plaintiffs seek an order to serve subpoenas duces tecum upon Twitter,
www.ripoffreport.com, www.thedirty.com, and any associated Internet Service
Providers, which is the location where the[] scandalous and defamatory internet postings
were made. Id. Plaintiffs seek the following information from www.ripoffreport.com,
www.thedirty.com, and Twitter: (1) identifying information, such as the names,
addresses, zip codes and e-mail addresses for each Doe Defendant identified in the
Complaint1; and (2) the IP address associated with the individuals publishing and/or
submitting for publication content identified in the Complaint, as well as the precise
dates and times of each of the defamatory postings identified in the Complaint. Id. at 9.
Plaintiffs also seek leave to conduct early discovery relating to the alleged
hacking of DarrasLaws Twitter accounts. Id. at 6-7. Plaintiffs acknowledge the
Complaint alleges Nolan and McDavid not Doe Defendants committed the
hacking. Id. at 7. Nevertheless, Plaintiffs argue they must conduct early discovery to
determine whether Doe Defendants assisted in or were solely responsible for the
hacks. Id.
II.
LEGAL STANDARD
As a general rule, discovery proceedings take place only after the defendant has
been served; however, in rare cases, courts have made exceptions, permitting limited
discovery to ensue after filing of the complaint to permit the plaintiff to learn the
identifying facts necessary to permit service on the defendant. Columbia Ins. Co. v.
Seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (citations omitted) (cited in In re
Anonymous Online Speakers, 661 F.3d 1168, 1175-76 (9th Cir. 2011)). If the identity
of any defendant is unknown, the plaintiff should be given an opportunity through
discovery to identify the unknown defendants, unless it is clear that discovery would not
uncover the identities, or that the complaint would be dismissed on other grounds.

The Court notes the Complaint does not actually identify a single Doe Defendant.
The Complaint does not assign a specific Doe Defendant to any of the acts alleged.
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 5 of 10 Page ID #:245

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Date

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

January 27, 2015

Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (citation and internal quotation
marks omitted).
In cases involving anonymous internet speech, courts must be mindful that
[p]eople who have committed no wrong should be able to participate online without
fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit
and thereby gain the power of the courts order to discover their identity. Columbia
Ins., 185 F.R.D. at 578; see also In re Anonymous Online Speakers, 661 F.3d at 1173
([T]he ability to speak anonymously on the Internet . . . allows individuals to express
themselves freely without fear of economic or official retaliation.) (citation and internal
quotation marks omitted).
For leave to conduct discovery to identify a Doe defendant, the moving party
must: (1) identify the defendant with enough specificity to allow the Court to determine
whether the defendant is a real person or entity who could be sued in federal court; (2)
recount the steps taken to locate the defendant; (3) show that its action could survive a
motion to dismiss; and (4) file a request for discovery with the Court identifying the
persons or entities on whom discovery process might be served and for which there is a
reasonable likelihood that the discovery process will lead to identifying information.
SBO Pictures, Inc. v. Does 1-3036, 2011 WL 6002620, at *2 (N.D. Cal. 2011)
(summarizing the four-part test articulated in Columbia Ins., 185 F.R.D. at 578-80).
III.
DISCUSSION
A.

Early Discovery Relating to Hacking

Plaintiffs request leave to conduct early discovery relating to their hacking

claims. ECF No. 13 at 6-7. Assuming arguendo Plaintiffs have stated viable hacking
claims under the CDAFA and CFAA, Plaintiffs have not shown the identity of any
defendant relating to those claims is unknown. Crowley, 734 F.3d at 978. On the
contrary, the Complaint alleges, on information and belief, Nolan and McDavid hacked
DarrasLaws Twitter accounts. ECF No. 1 at 10, 11. This allegation about the identity
of the perpetrators is obvious, given Nolan and McDavid had sole possession of the
login information for the hacked Twitter accounts. The Complaint does not allege,
much less credibly allege, a Doe Defendant was responsible for the hacking. Thus,
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 6 of 10 Page ID #:246

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

Plaintiffs may not subpoena Twitter to discover whether a Doe Defendant was
responsible.
B.

Early Discovery Relating to Defamatory Postings

Plaintiffs request leave to conduct early discovery relating to each of the

defamatory postings identified in the Complaint. ECF No. 13 at 9. Assuming arguendo
Plaintiffs have satisfied the first, second, and fourth parts of the Columbia Ins. test for
leave to conduct early discovery, the Court finds Plaintiffs defamation claims, as
currently pleaded, could not survive a motion to dismiss. SBO Pictures, 2011 WL
6002620, at *2. Thus, the Court denies leave to conduct early discovery relating to the
allegedly defamatory postings.
1.

Relevant Law
a.

Motion to Dismiss Standard

Federal pleading requirements apply to state law claims. See Jacobson v.

Schwarzenegger, 357 F. Supp. 2d 1198, 1216 (C.D. Cal. 2004). A complaint may be
dismissed for failure to state a claim where there is no cognizable legal theory or an
absence of sufficient facts alleged to support a cognizable legal theory. Zamani v.
Carnes, 491 F.3d 990, 996 (9th Cir. 2007) (citation and internal quotation marks
omitted). In considering whether a complaint states a claim, a court must accept as true
all allegations of material fact and must construe those facts in the light most favorable
to the plaintiff. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011) (citation and
internal quotation marks omitted). However, a court need not accept as true allegations
that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.
In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation and internal
quotation marks omitted). [T]o be entitled to the presumption of truth, allegations in a
complaint or counterclaim may not simply recite the elements of a cause of action, but
must contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011).
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. Lacey v.
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 7 of 10 Page ID #:247

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (citations and internal quotation
marks omitted). [F]actual allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued litigation. Starr, 652 F.3d at 1216.
A claim is facially plausible when it allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. Cook v. Brewer, 637 F.3d 1002,
1004 (9th Cir. 2011) (citation and internal quotation marks omitted).
b.

Defamation

Under California law, the elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure
or causes special damage. Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1369 (2010)
(citation omitted). To constitute defamation, a statement must contain a provable
falsehood. Summit Bank v. Rogers, 206 Cal. App. 4th 669, 695 (2012); see also
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 730 (9th Cir. 1999)
([C]alifornia defamation law requires that the offending statement expressly or
impliedly assert a fact that is susceptible to being proved false, and must be able
reasonably to be interpreted as stating actual facts.) (citation and internal quotation
marks omitted).
Under California law, the allegedly defamatory statement must be specifically
identified, and the plaintiff must plead the substance of the statement. Jacobson, 357 F.
Supp. 2d at 1216 (citations omitted). See also E & E Co. v. Kam Hing Enterprises, Inc.,
2008 WL 4962991, at *4 (N.D. Cal. 2008) ([U]nder federal pleading standards, a
plaintiff must identify at least one specific defamatory statement alleged to have been
made by the defendant.) (citations omitted); Synapsis, LLC v. Evergreen Data Systems,
Inc., 2007 WL 760591, at *11 n.13 (N.D. Cal. 2007) (stating plaintiff failed to raise a
defamation claim because it failed to identify a provably false statement)
[W]here an expression of opinion implies a false assertion of fact, the opinion can
constitute actionable defamation. Summit Bank, 206 Cal. App. 4th at 696 (citation
omitted). The crucial question of whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court. Id. (citation and internal
quotation marks omitted). The question is whether a reasonable fact finder could
conclude the published statement declares or implies a provably false assertion of fact.
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

Id. (citation and internal quotation marks omitted). [W]here the question of truth or
falsity is a close one, a court should err on the side of nonactionability. Steam Press
Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Local 996, 302 F.3d 998,
1008 (9th Cir. 2002) (citation and internal quotation marks omitted).
To decide whether a statement is fact or opinion, a court must put itself in the
place of an average reader and determine the natural and probable effect of the statement,
considering both the language and the context. Summit Bank, 206 Cal. App. 4th at
698-99 (citation and internal quotation marks omitted). [W]here potentially defamatory
statements are published in a . . . setting in which the audience may anticipate efforts by
the parties to persuade others to their positions by use of epithets, fiery rhetoric or
hyperbole, language which generally might be considered as statements of fact may well
assume the character of statements of opinion. Id. at 696-97 (noting readers of internet
posts, particularly anonymous posts, are aware of their unreliable nature) (citations and
internal quotation marks omitted). See also Obsidian Fin. Grp., LLC v. Cox, 740 F.3d
1284, 1293-94 (9th Cir.), cert. denied, 134 S. Ct. 2680 (2014) (stating bloggers
consistent use of extreme language negate[d] the impression that [her] blog posts
assert[ed] objective facts, rendering her claims that a corporation committed tax
crimes and hired a hit man to kill her nonactionable); Steam Press, 302 F.3d at 1006
(noting in a heated and volatile setting like a labor dispute, even seemingly factual
statements take on an appearance more closely resembling opinion than objective fact)
(citations omitted).
2.

Discussion

As the Complaint currently stands, it does not specifically identif[y] a single

provable falsehood in the allegedly defamatory postings. Jacobson, 357 F. Supp. 2d
at 1216; Summit Bank, 206 Cal. App. 4th at 695; ECF No. 13 at 9. Thus, the Complaint
fails to plead sufficient facts to support a claim of defamation. Zamani, 491 F.3d at
996.
The only statements in the internet postings specifically identified as false in the
Complaint are the statements that Frank and Natasha Darras are con artists who
ripped off the anonymous author of the statements. ECF No. 1 at 5-6. The Complaint
does not explain how these statements are false, but simply makes a conclusory
allegation that they are. However, phrases such as con artist and rip off are vague,
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Case 5:15-cv-00083-VAP-KK Document 21 Filed 01/27/15 Page 9 of 10 Page ID #:249

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

Date

January 27, 2015

and do not possess a singular, concrete, and therefore readily verifiable meaning.
Steam Press, 302 F.3d at 1009. Thus, those terms do not constitute provable
falsehood[s] but instead harsh name-calling, for which the law provides no redress.
Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir. 2002); see also Paterson v. Little,
Brown & Co., 502 F. Supp. 2d 1124, 1135 (W.D. Wash. 2007) (The lack of precision in
the meaning of the word scam makes the assertion X is a scam incapable of being
proven true or false.) (quoting McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987))
(internal quotation marks omitted).
A quick consultation of online references shows just how imprecise and
incapable of being proven false the allegedly defamatory statements in this case are.
Con artist can refer to a person who is adept at lying, cajolery, or glib self-serving
talk. Dictionary.com, Con Artist,
http://www.dictionary.reference.com/browse/con+artist (emphasis added). Similarly, a
common understanding of the term rip off is rob, which can mean either taking
property illegally or simply keeping someone from getting something expected or
wanted. Merriam-Webster, Rip-off, http://www.merriam-webster.com/dictionary/ripoff; Merriam-Webster, Rob, http://www.merriam-webster.com/dictionary/rob. Thus,
both of the statements the Complaint identifies as false are too vague to be considered
provable falsehoods. See Steam Press, 302 F.3d at 1008-09 (The fatal flaw in
[plaintiffs] argument is that it assumes the meaning of the terms upon which it relies. . . .
One seeking to prove the truth or falsity of [defendants] statements would need to
clarify the meaning of the statements in order to become capable of determining whether
they have an empirical foundation.); cf. Summit Bank, 206 Cal. App. 4th at 699-700
(discussing cases in which internet posts calling corporate officers crooks, scam
artists, and people who screw[] investors out of money were found non-defamatory).
The Complaints allegations of defamation are conclusory and insufficiently
specific. Because the Complaint does not identify a single provable falsehood in the
allegedly defamatory postings, Plaintiffs defamation claims could not survive a motion
to dismiss. As a result, Plaintiffs are not entitled to early discovery relating to those
claims. See SBO Pictures, 2011 WL 6002620, at *2.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 15-83-VAP (KKx)

Date

Title

THE DARRAS FIRM, INC., et al., v. ROBIN NOLAN, et al.

January 27, 2015

IV.
CONCLUSION
IT IS THEREFORE ORDERED Plaintiffs Motion is DENIED without prejudice.

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