ZL Techs., Inc. v. Doe

Glassdoor objected to the subpoena, among other things contending that: compulsory disclosure of defendants' identities would violate their free

The court concluded that "[c]orporate and individual targets of these online aspersions may seek redress by filing suit against their unknown detractors." ( Krinsky , supra , 159 Cal.App.4th at p. 1164, 72 Cal.Rptr.3d 231 .) To serve their complaint,

c. Final balancing test

The final Dendrite requirement, "assuming the court concludes that the plaintiff has presented a prima facie cause of action," is a balancing test, weighing "the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.... The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue." ( Dendrite , supra , 775 A.2d at pp. 760-761.)

Amici curiae contend the test is comparable to that applied in deciding a petition for preliminary injunction, which is appropriate, they contend, because an order compelling disclosure amounts to an injunction. (See, e.g., People v. Brewer (2015) 235 Cal.App.4th 122 , 135, 185 Cal.Rptr.3d 104 [a mandatory injunction "may compel the performance of an affirmative act"]; Drakes Bay Oyster Company v. California Coastal Commission (2016) 4 Cal.App.5th 1165 , 1171-1172, 208 Cal.Rptr.3d 876 [a court deciding an application for a preliminary injunction "evaluates ... the likelihood plaintiff will prevail on the merits at trial" and the relative interim harm to the parties of granting or denying the application].) Applying a balancing test, amici contend, would allow defendants to show disclosure of their identities "may expose them to significant danger of extra-judicial retaliation," for example, in the form of negative economic consequences within their industry on being identified as employees who publicly criticized their employer. (See, e.g., Cahill , supra , 884 A.2d at p. 457 ["there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics," " 'the primary goal being to silence John Doe and others like him' "].) Against these considerations, amici submit, a trial court

The "Terms of Use Agreement for Glassdoor Services" provides that users agree they will not post any "false or misleading" content, and users "represent ... any information [they] provide in a ... Company Review ... is correct." Glassdoor also advises it does not control "[c]ontent from other Users, advertisers, and other third parties" and "make[s] no guarantees about the accuracy ... or quality of the information in such [c]ontent."

management as if

6. The sixth review (sixth review), entitled " Stay as far away from this place as possible ," allegedly posted on March 20, 2012 by a Doe defendant identified as " Former Employee ," provided in full as follows: " Pros- Every last employee is incredibly sharp. Lots of professional mentorship and personal support from peers and superiors (besides upper management). [¶] Cons- Turnover rate is nearly 50% annually, and the only reason it's not higher is that 50% of employees work on the engineering side and aren't required to interact with the CEO. Those that do leave within one year, if not months. Why? There is absolutely no respect for employees. Before you commit to working at ZL, please strongly consider the following: [¶] Are you willing to be treated as though you are extremely replaceable? To work at ZL, you must be willing to accept the lack of respect to employees that come in the form of tangible benefits (401k not matched, lack of holiday bonuses, bizarre vacation policy, no team-strengthening initiatives or celebrations of successes to build a culture, nickel-and-dimed [sic] to the point where the CEO himself gets involved.) [¶] Are you willing to put up with utterly controlling behavior? To work at ZL, you must be willing to give up all desire to take initiative. Here, having 'the ability to learn' translates to 'the ability to do only what management tells you to do.' Only one person's idea is [the] right idea, and that is the CEO's. Furthermore, even seasoned sales and marketing veterans (who were brought in to amp up their respective departments) left ZL because upper management prohibited them from

b. Relevant Legal Principles

Civil Code section 45 defines libel as "a false and unprivileged publication by writing ..., which exposes any person to hatred, contempt, ridicule, or obloquy, ... or which has a tendency to injure him in his occupation." "A libel which is defamatory of the plaintiff without the necessity of explanatory matter ... is said to be a libel on its face" ( Civ. Code, § 45a ), or "libelous per se" (see, e.g., McGarry v. University of San Diego (2007) 154 Cal.App.4th 97 , 112, 64 Cal.Rptr.3d 467 ). "A corporation can be libeled by statements which injure its business reputation" ( Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377 , 381, 226 Cal.Rptr. 354 ), and "[a] corporation's reputation as an employer is ... an important aspect of its business reputation" ( Di Giorgio Fruit Corp.v.AFL-CIO (1963) 215 Cal.App.2d 560 , 571, 30 Cal.Rptr. 350 ).

As noted, courts must also consider the context of the allegedly defamatory statements, " 'examin[ing] the nature and full content of the particular

We are unpersuaded by Glassdoor's suggestion that the statements included on its website explaining it did not compose reviews, control their content, or guarantee their accuracy, signaled to all readers the reviews should be understood exclusively as opinion, and not relied upon as conveying facts. The suggestion is at odds with the website's noted emphasis on providing "information." That some of this information would be factual in nature is further underscored by the "Terms of Use Agreement for Glassdoor Services," which affirmed users had agreed not to "post any .... false or misleading" content and represented that any information they provided was "correct."

The Glassdoor-provided structure and content of company reviews also assist in creating the impression that users will provide balanced reviews, combining fact and opinion. Reviewers are asked to list the " 'pros' " and " 'cons' " of employment with a specific company, content that one might reasonably expect would include factual statements. Then, reviewers are asked to rate the company in several categories and provide " 'advice to senior management,' " endeavors that necessarily will convey opinions.

The language of defendants' reviews supports the conclusion that some statements were intended as factual assertions. While informal in some respects, including use of contractions and simply stated opinions (for example, "Best product in the market," " Don't Work Here ," "bizarre vacation policy," "senior leadership is not great"), the language generally adhered to grammatical rules. Each review listed positive points about ZL in the "pros" section ("rewards initiative and creativity," "[t]he product was excellent," "[l]ots of professional mentorship and personal support," "[t]here are some great people at ZL", "[s]olid team", "[f]irst class talent pool"), suggesting an intent to present a balanced and unbiased perspective. Although the reviews contained criticism and also some hyperbole and exaggeration (e.g., referring to work at ZL as a "bloodsport" or a "[n]ightmare"), the language was neither vituperative nor crude and included no

In addition to opinion statements, however, with the exception of the first review, discussed further below, each of the remaining six review (the six reviews) included one or more specific factual assertions that could be damaging to a business's reputation, for example, that the company purposefully hired inexperienced personnel, paid below industry standards, publicly disparaged staff, and had high staff turnover rates. Without attempting an exhaustive list, we note the following factual assertions: from the second review , that ZL had a "practice" of "hir[ing] people who are fresh out of school with no expertise," "no organizational chart, job title, or job description exist[ed] in the company," and employee pay was "30-50% lower than industry standards in Silicon Valley"; from the third review , that ZL management was "composed of purely family and school-specific friends," there were "[n]o experienced managers to grow the company," and management "belittle [d] [employees] in public ... cast[ing] aspersions upon them"; and from the fourth review , that "most new hires ma[de] the decision to leave [ZL] within 3-6 months," implying departures in that time frame.

Additionally, in the fifth review , a Doe defendant asserted ZL "hire[d] college kids to do the work of senior level employees" and "[m]ost employees quit in less than a year," suggesting a practice of hiring inexperienced staff, and assigning them tasks beyond their skill level, causing or contributing to high employee turnover. In the sixth review , a Doe defendant made a direct factual assertion about the company's rate of employee turnover-"nearly 50% annually"-and implied a causal factor, namely, dislike for ZL's CEO-stating, "the only reason [the turnover rate was] not higher [was] that 50% of employees work[ed] on the engineering side and [were not] required to interact with the CEO." The same review also asserted the CEO publicly disparaged employees ("Are you willing to put up with public disparagement and humiliation?" "To work at ZL, you must be willing to endure personal

Glassdoor maintains that defendants' use of informal and exaggerated language signaled their reviews were not to be understood as conveying facts. As examples, it notes, among other things, (1) the March 15, 2012 review's

ZL, Glassdoor, and amici curiae disagree about whether defendants' reviews of ZL involved a matter of public concern. Although the trial court's order denying ZL's motion to compel did not decide whether the reviews involved a matter of public concern, or that evidence of falsity was required, it did state a finding ZL "failed to make a sufficient showing ... [of] wrongful conduct causing [it] harm." The court then stated its legal conclusion that defendants' reviews were " primarily opinion" and denied ZL's motion. (Italics added.) By using the word "primarily," amici curiae contend, the trial court implied an additional basis for its ruling, i.e., that ZL was obligated, but failed, to present evidence of falsity. ZL argues it was not so obligated because the speech did not involve a matter of public concern and therefore the burden will be on the defendant to prove falsity.

As we have discussed above, ZL is theoretically correct. Generally, the burden of proving falsity is not on the plaintiff if the alleged defamation does not involve a public figure or a matter of public concern. But the procedural posture of this case requires a different analysis, regardless of whether a matter of public concern is involved. The issue before us is not who has the burden of proof for purposes of liability, but whether there is reason to believe the lawsuit has sufficient merit to require the unmasking of the Doe defendants in the face of First Amendment and privacy rights.

As we have already discussed, an author's decision to remain anonymous is an aspect of freedom of speech that is protected by the Constitution. (See, Krinsky, supra, 159 Cal.App.4th at pp. 1163-1164, 72 Cal.Rptr.3d 231 .) We must also give weight to an anonymous speaker's right to protect his or her privacy interest, which is safeguarded by our state constitution. ( Cal. Const., art. I, § 1.) "This express right is broader than the implied federal right to privacy. [Citation.] The California privacy right 'protects the speech and privacy rights of individuals who wish to promulgate their information and ideas in a public forum while keeping their identities secret,' and 'limits what courts can compel through civil discovery.' [Citation.]" ( Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216 , 228, 171 Cal.Rptr.3d 799 ( Digital Music News LLC ).) So, for example, in a civil action, " 'the party seeking discovery [of matters protected by privacy interests] must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests

T

he judgment is reversed. The trial court is ordered to vacate its ruling denying the motion to compel, and the case is remanded for further proceedings consistent with this decision.

We concur:

Reardon, J.

Streeter, J.

A

ccording to its complaint, ZL is a California corporation that provides email archiving, eDiscovery, and compliance software and support to businesses throughout the country. Glassdoor operates a website for job seekers on which people may anonymously post information and express opinions regarding current or past employers. Between September 2010 and June 2012, individuals representing themselves as current or former ZL employees posted seven anonymous reviews on Glassdoor's website criticizing ZL's management and work environment. On August 29, 2012, ZL

A. The Standard of Review on Appeal

On appeal, ZL challenges the trial court's order and judgment dismissing its complaint for failure to prosecute, and the court's underlying order denying its motion to compel Glassdoor to comply with the subpoena.

The trial court has discretion to dismiss an action for delay in prosecution if "[s]ervice is not made within two years after the action is commenced against the defendant." ( Code Civ. Proc., § 583.420, subd. (a)(1) ; see also Cal. Rules of Court, rule 3.1340 [requiring a noticed hearing on the issue].) When reviewing a discretionary dismissal, we must presume the decision of the trial court is correct, unless the party challenging the decision shows the trial court abused its discretion. ( Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424 , 443, 41 Cal.Rptr.2d 362 , 895 P.2d 469 .) An appeal from a discovery order also "normally is reviewed under the deferential abuse of discretion standard. [Citations.]" ( Krinsky , supra , 159 Cal.App.4th at p. 1161, 72 Cal.Rptr.3d 231 [" 'the trial court has wide discretion in managing discovery issues' "].)

The trial court's discretion is limited, however, by the applicable legal principles. ( People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 , 1144, 86 Cal.Rptr.2d 816 , 980 P.2d 371 .) "Thus, where there are no material disputed factual issues, the appellate court reviews the trial court's determination as a question of law. [Citation.]" ( Ibid . ) Here, the trial court grounded its ruling denying ZL's motion to compel on legal conclusions, i.e., that ZL did not make a sufficient showing defendants engaged in wrongful conduct causing ZL harm, and that defendants' Glassdoor reviews of ZL were "primarily opinion" that an average person would not consider reliable. In reaching these conclusions, the trial court referenced the constitutional principle that an "author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment." ( McIntyre v. Ohio Elections Com'n (1995) 514 U.S. 334 , 342, 115 S.Ct. 1511 , 131 L.Ed.2d 426 .)

"Thus, in this case, we need not defer to a trial court's resolution of disputed facts and inferences. Instead, we are concerned with the legal

In Krinsky , the Court of Appeal commenced its analysis by acknowledging that "the constitutional right to publish anonymously" has long been recognized as " 'an aspect of the freedom of speech protected by the First Amendment.' [Citations.]" ( Krinsky , supra , 159 Cal.App.4th at pp. 1163-1164, 72 Cal.Rptr.3d 231 .) " 'Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices ... either anonymously or not at all.' [Citation.] 'The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.' [Citations.]" ( Id . at p. 1163, 72 Cal.Rptr.3d 231 .) The court went on to observe that "the relative anonymity afforded by the Internet" ( id. at p. 1162, 72 Cal.Rptr.3d 231 ), combined with the frequent use of pseudonyms in that forum, presented valuable opportunities for an unhindered exchange of views, but also created some risks. ( Id. at pp. 1162-1164, 72 Cal.Rptr.3d 231 .)

On the one hand, the court stated, "[t]he use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing speakers' identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more

The court went on to define the prima facie standard as requiring evidence " 'that ... will support a ruling in favor of [the plaintiff] if no controverting evidence is presented. [Citations.] It may be slight evidence which creates a reasonable inference of [the] fact sought to be established but need not eliminate all contrary inferences. [Citation.]' [Citations.]" ( Krinsky , supra , 159 Cal.App.4th at p. 1172, fn. 14, 72 Cal.Rptr.3d 231 .) To meet this standard in seeking compulsory disclosure of an anonymous Internet speaker's identity, the court added, "[a] plaintiff need produce evidence of only those material facts that are accessible to [it]," for example, evidence of the allegedly libelous statement, its falsity, and its effect on the plaintiff. ( Id. at p. 1172, 72 Cal.Rptr.3d 231 .) Requiring a prima facie showing, Krinsky reasoned, "ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism." ( Id . at p. 1171, 72 Cal.Rptr.3d 231 .)

Without directly discussing it, Krinsky also adopted the second factor of Dendrite 's prima facie showing requirement, namely, the existence of a legally valid claim. ( Dendrite , supra , 775 A.2d at p. 760 [To make a prima facie showing, a plaintiff must "establish[ ] that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted ... [and] produce sufficient evidence supporting each element of its cause

As noted, although ZL opposes adoption of the entire Dendrite test, it does not challenge Krinsky 's requirement that it make a prima facie showing. ( Krinsky , 159 Cal.App.4th at pp. 1172-1179, 72 Cal.Rptr.3d 231 .) We agree with Krinsky 's approach and adopt the same prima facie showing requirements, i.e., a plaintiff seeking compulsory disclosure of an allegedly libelous speaker's identity must state a legally sufficient cause of action against the defendant, and must make a prima facie showing of the elements of that cause of action.

2. Additional factors to be considered

Amici curiae urge us to go beyond Krinsky , by requiring application of the complete Dendrite test in deciding requests for compulsory disclosure of an Internet speaker's identity in a libel case. As recounted in Krinsky , in Dendrite "a corporation alleged defamation by multiple Doe defendants on [an Internet] message board and then sought expedited discovery in order to learn their identities. The New Jersey appellate court set forth a four-part test to ensure that plaintiffs do not use discovery to 'harass, intimidate or silence critics in the public forum opportunities presented by the Internet.' [Citation.] First, the plaintiff must make an effort to notify the anonymous poster that he or she is the subject of a subpoena or application for a disclosure order, giving a reasonable time for the poster to file opposition. The plaintiff must also set forth the specific statements that are alleged to be actionable. Third, the plaintiff must produce sufficient evidence to state a prima facie cause of action. If this showing is made, then the final step should be undertaken: to balance the strength of that prima facie case against the defendant's First Amendment right to speak anonymously. [Citation.] In Dendrite , the appellate court affirmed the trial court's denial of the discovery application, as the corporate plaintiff had failed to produce evidence" of one of the elements of libel and, thus, failed to make the requisite prima facie showing. ( Krinsky , supra , 159 Cal.App.4th at p. 1167, 72 Cal.Rptr.3d 231 .)

Amici curiae also cite Doe v. Cahill (Del. 2005) 884 A.2d 451 ( Cahill ), another seminal case in which the Delaware Supreme Court adopted portions of the Dendrite test. Krinsky considered Cahill as well, noting the court there adopted a standard applicable to a plaintiff opposing summary judgment. (

The second Dendrite requirement is that the plaintiff "identify and set forth the exact statements ... that [it] alleges constitute [ ] actionable speech." ( Dendrite , supra , 775 A.2d at p. 760.) As Krinsky noted, the Cahill court considered this requirement unnecessary "because, under the law of that jurisdiction, the offending statements in a libel case 'must be quoted in the plaintiff's complaint.' [Citations.]" ( Glassdoor , supra , 9 Cal.App.5th at p. 635, 215 Cal.Rptr.3d 395 , citing Krinsky , supra , 159 Cal.App.4th at p. 1169, 72 Cal.Rptr.3d 231 .) "In defamation cases California follows a similar pleading rule, under which 'the words constituting an alleged

ZL responds that application of the Dendrite balancing test is "wholly unjust" because it would allow denial of discovery, effectively precluding a plaintiff from proceeding with its case, even after it successfully shows a prima facie case of injury. This court should follow Krinsky , ZL contends, by ruling that, "[w]hen there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment." ( Krinsky , supra , 159 Cal.App.4th at p. 1172, 72 Cal.Rptr.3d 231 ; accord, Solers , supra , 977 A.2d at p. 956 ["a separate balancing test at the end of the analysis is not necessary"]; Cahill , supra , 884 A.2d at pp. 460-461 [separate balancing test unnecessary because requiring a plaintiff to support a defamation cause of action "with facts sufficient to

Having decided the proper analytic framework for deciding a motion to compel compliance with a subpoena in this context, we independently review the record to determine whether the trial court erred as a matter of law in denying ZL's motion.

1. Legally Valid Cause of Action

The trial court denied ZL's motion to compel compliance with the subpoena because it concluded defendants' critical reviews on Glassdoor qualified as protected opinion and, therefore, legally could not provide the basis for a defamation cause of action. ZL contends the trial court erred as a matter of law because the reviews contained statements that either directly asserted or clearly implied provably false factual assertions. Glassdoor disagrees, maintaining all of the statements were nonactionable opinions. Amici curiae concur that many of the alleged statements were protected opinions, although, as will be discussed, they concede a few statements did include factual assertions providing a basis for a legally valid defamation cause of action.

a. Background

i. Glassdoor's website

According to the declaration of Glassdoor's General Counsel and Senior Vice President, Allyson Willoughby, the website glassdoor.com is intended to "help job seekers make informed decisions about the companies at which they are considering working." The website explains it "is a free jobs and career community that offers the world an inside look at jobs and companies. What sets us apart is our 'employee generated content'-anonymous salaries, company reviews, interview questions, and more-all posted by employees, job seekers,

ii. The Doe defendants' Glassdoor reviews of ZL

ZL bases its action on the following seven reviews that Doe defendants posted about it on Glassdoor's website:

1. The first review (first review), titled " Great Product, Very Poor Management ," allegedly posted on September 21, 2010 by a Doe defendant identified as a " Current Employee in San Jose, CA ," provided in full as follows: " Pros- Best product in the market. [¶] Broad responsibilities, rewards initiative and creativity, great exposure to the market, collegiate [sic] atmosphere, competent technical staff with good product experience. [¶] Cons- This is a lifestyle business for senior management. No transparency or accountability for their decisions. This company is great for hands-on experience, very poor for mentoring or professional development. Despite a great product, management lacks the experience [or] focus to drive growth. [¶] Advice to Senior Management- Bring in experienced middle management so the executive team can focus on strategy."

2. The second review (second review), titled " Internecine strife, nepotism, and mismanagement = very unhappy employees ," allegedly posted on April 13, 2011 by a Doe defendant identified as " Former N/A ," provided in full as follows: " Pros- Great product, industry leader, moving ahead despite internal issues. Technical, marketing, and engineering staff do put a concerted effort into doing their best for the product and the customer. [¶] Cons- The company hires graduates from UPenn almost exclusively, and the practice is to hire people who are fresh out of school with no experience or degree in a related field (so as to allow justification for lower pay). Because of the 'young blood' employees, standards are set egregiously low for professionalism, communication, attire, adherence to organizational standards. No organizational chart, job title, or job descriptions exist in this company. It's every man/woman for themselves. If you like to engage with your job like it's a bloodsport in a Roman Coliseum, you'll love your job. Also, pay is 30-50% lower than industry standards in Silicon Valley. Benefits are deplorable. Absolutely no perks or incentives for employees other than fear of castigation or being fired. As a result, there is a high turnover rate, widespread low morale, and minimal room for mentorship or growth. No one who is any good (and not dependent on immigration law work visas) stays. [¶] Advice to Senior Management- People talk about middle

it is a bad thing; at ZL, you see what happens when there is no middle management whatsoever. The CEO, CTO, and the CEO's wife (head of HR, imagine that) manage by implementing a culture of fear, disrespect, and mistrust. There is no management in this company of approx. 60 people other than the CEO & CTO. Hire some competent, efficient managers that are not blood related or academically affiliated to other staff. Support them in doing their job so you can do yours. Focus on the broad vision and hire new trustworthy folks to take over your more cumbersome roles-people with a minimum of 10-20 years experience to help set a more professional tone. Your company WILL NOT grow if you keep a vice [sic] grip on it; customer dissatisfaction will increase and employee turnover will continue to skyrocket as things are now."

3. The third review (third review), entitled " An effective guide for the mismanagement of any organization ," allegedly posted on April 26, 2011 by a Doe defendant identified as " Former Employee ," provided in full as follows: " Pros- Working at ZL will enable you to take on projects and experience you otherwise would not have as a first-year employee elsewhere due to the high turnover and lack of senior employees. [¶] Collegiate/young atmosphere means that everyone under management generally gets a long [sic] well. [¶] First class talent pool despite poor management. [¶] Cons- Nontransparent-Management runs the company without transparency despite the extremely small size of the company. [¶] Nepotism-Management is composed of purely family and school-specific friends. [¶] No Professional Growth-Mentorship and professional development are non-existent. Advancement is not based on any measurable output or metrics. Feedback on performance never happens. Everything is completely subject to CEO's opinion. [¶] No Viable Strategy-Management constantly changes corporate strategy based on the smallest shred of evidence. [¶] Not scalable-No experienced managers to grow the company. Micromanagement means unreasonable demands with little to no support. Resources are scarce to close deals or increase pipeline. [¶] Disrespect-Management does not respect their employees. They belittle them in public, foster a negative atmosphere, and cast aspersions upon them. [¶] Average time for an experienced hire at ZL is 6 months. For new hires out of college, about a year-but only because that is their first job. No one stays if they can help it. [¶] Advice to Senior Management- Although management views that the problem is that they are not involved enough, it is actually the opposite. Management should learn how to trust others and hire experienced managers to develop, maintain, and motivate talent. Specifically on the business side, they need to get out of their own way. [¶] It would be understandable if this type of management had actually led to success, but it has not. Without change, the company will continue to stagnate."

5. The fifth review (fifth review), entitled, " Don't Work Here ," allegedly posted on March 15, 2012 by a Doe defendant identified as " Former Employee in San Jose, CA ," provided in full as follows: " Pros- The other employees were great-supportive and like a small community. The product was excellent. [¶] Cons- The CEO, Kon Leong, cannot effectively manage the organization and lacks the self awareness to realize it. No respect for other employees. Pitted other employees against one another and frequently attempted to foster a hostile and competitive environment among employees. CEO does not know how to get along with other employees and make them a functional part of the organization. Complete lack of mid-management; hires college kids to do the work of senior level employees. Most employees quit in less than a year. Kon Leong has no respect for anyone else and only thinks of sales as his bottom line. Marketing and other business initiatives are irrelevant and lacks [sic] direction. [¶] Advice to Senior Management- Give up and sell the business. The CEO doesn't know what he is doing and is making other

7. Finally, the seventh review (seventh review), entitled " Tragic ," allegedly posted "around June 2012" by a Doe defendant identified as " Former Employee in San Jose, CA ," provided in full as follows: " Pros- There are some great people at ZL. Working with many of the energetic and lively people there was a pleasure. This company is very flat, everyone reports either to the CEO or the CTO, or the office manager who is the CEO's wife. The CTO is a competent engineering leader. [¶] Cons- Other than the CTO the senior leadership is not great. Pennywise and pound foolish is the perfect description of the culture and style that pervades here. In its entire history this company has never managed to keep any non-founding member of the executive team for more than 18 months, not a VP Marketing, not a VP Sales, not a General Counsel. Those execs are not all wrong. The 90% turnover, year over year in sales and marketing is also an indication of trouble emanating from the top. [¶] Advice to Senior Management- Start by being willing to take advice, especially from the people you

"[I]t is a question of law for the court whether a challenged statement is reasonably susceptible of [a defamatory] interpretation." ( Bently Reserve , supra , 218 Cal.App.4th at p. 428, 160 Cal.Rptr.3d 423 .) In deciding the question, "courts use a totality of the circumstances test. [Citation.] '[A] court must put itself in the place of an average reader and determine the natural and probable effect of the statement....' [Citation.] Thus, a court considers both the language of the statement and the context in which it is made. [Citations.]" ( Id. at p. 427, 160 Cal.Rptr.3d 423 .)

Use of "hyperbolic, informal" ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 , 1013, 113 Cal.Rptr.2d 625 ( ComputerXpress )), " 'crude, [or] ungrammatical' language, satirical tone, [or] vituperative, 'juvenile name-calling' " provide support for the conclusion that offensive comments were nonactionable opinion. ( Bently Reserve , supra , 218 Cal.App.4th at pp. 429-430, 160 Cal.Rptr.3d 423 .) Similarly, overly vague statements ( ComputerXpress , supra , at p. 1013, 113 Cal.Rptr.2d 625 ), and " 'generalized' comments ... 'lack[ing] any specificity as to the time or place of' alleged conduct may be a 'further signal to the reader there is no factual basis for the accusations.' " ( Bently Reserve , supra , at p. 431, 160 Cal.Rptr.3d 423 , citing Chaker v. Mateo (2012) 209 Cal.App.4th 1138 , 1149-1150, 147 Cal.Rptr.3d 496 ( Chaker ) [claims the plaintiff "pick[ed] up streetwalkers and homeless drug addicts and [was] a deadbeat dad" were nonactionable].) On the other hand, if a statement is "factually specific," "earnest" ( Bently Reserve , supra , at p. 433, 160 Cal.Rptr.3d 423 ), or "serious" in tone (

" '[N]ot every word of an allegedly defamatory publication has to be false and defamatory to sustain a libel action.... "[T]he test of libel is not quantitative; a single sentence may be the basis for an action in libel even though buried in a much longer text...." ' [Citation.]" ( Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325 , 1338, 93 Cal.Rptr.3d 782 .)

c. Analysis

Looking at the totality of the circumstances in this case, with one exception discussed below, a reasonable fact finder could conclude all of defendants' Glassdoor reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action. ( Bently Reserve , supra , 218 Cal.App.4th at p. 427, 160 Cal.Rptr.3d 423 .) Both the language and the context of the reviews support this conclusion.

We begin with the shared context of the Glassdoor website. Although, as noted, the fact that statements were published on the Internet using a pseudonym may suggest an average reader should "view them with a certain amount of skepticism" ( Summit Bank , supra , 206 Cal.App.4th at p. 696, 142 Cal.Rptr.3d 40 ), the name and professed purpose of the Glassdoor website, and the formatting of reviews posted there, created a setting in which the audience reasonably might anticipate receiving a mix of content, including factual statements and opinion. Unlike the Craigslist website " 'Rants and Raves,' " where offensive speech was posted in Summit Bank , supra , 206 Cal.App.4th at p. 677, 142 Cal.Rptr.3d 40 , for example, the website name "Glassdoor" does not immediately suggest a culture in which users will post content that is "fast and loose with facts" ( id . at p. 696, 142 Cal.Rptr.3d 40 ), or reflect an "anything goes" mindset (

We are unconvinced. While the six reviews may include exaggerated or angry statements, these facts alone do not compel the conclusion they conveyed no factual assertions. Nor do the cases cited by Glassdoor support such a conclusion here. In Krinsky , for example, in concluding the defendant's Internet remarks about the plaintiff-for example, that she " '[had] fat thighs, a fake medical degree, ... and poor feminine hygiene' "-could not "be interpreted as asserting or implying objective facts," the court considered the entire context of the defendant's multiple, lengthy online "diatribes," observing they "convey[ed] scorn and contempt," were "sarcastic" and "derisive" in tone, engaged in "juvenile name-calling," used language that was "crude, ungrammatical," "vulgar and insulting," and could only be considered an "irrational, vituperative expression of contempt." ( Krinsky , supra , 159 Cal.App.4th at pp. 1175-1177, 72 Cal.Rptr.3d 231 .) Defendants' Glassdoor reviews of ZL do not match this description or even approach it in terms of vitriol. They were grammatical, contained no crude or vulgar statements, were relatively succinct, and focused entirely on ZL's work environment. Neither their context nor their language compels the conclusion they should be discounted as fact-free diatribes.

Similarly, in Summit Bank , supra , the defendant posted multiple "free-flowing diatribes" on a Craigslist website entitled "Rants and Raves." ( Summit Bank , supra , 206 Cal.App.4th at p. 699, 142 Cal.Rptr.3d 40 .) The posts contained spelling errors,

Two other cases that Glassdoor cites are distinguishable because, unlike in the six reviews discussed above, the speech in the cited cases conveyed "insults [that] are generalized" and "lack[ing] any specificity" ( Chaker , supra , 209 Cal.App.4th at p. 1149, 147 Cal.Rptr.3d 496 ); see also ComputerXpress , supra , 93 Cal.App.4th at p. 1013, 113 Cal.Rptr.2d 625 [vague assertions that the plaintiff "only cared about selling stock and not about generating a genuine business"] ), and either "were replete with explicit statements of opinion" ( ComputerXpress , supra , 93 Cal.App.4th at p. 1013, 113 Cal.Rptr.2d 625 [for example, " 'IMO [in my opinion],' 'what I think is a fraud,' 'I firmly believe' "] ), or had an "overall thrust"-"[the plaintiff was] a dishonest and scary person"-that was "on its face nothing more than a negative, but nonactionable opinion" ( Chaker , supra , 209 Cal.App.4th at p. 1149, 147 Cal.Rptr.3d 496 ). In contrast, the six reviews about ZL included, for example, specific factual assertions that the company had inexperienced, underpaid staff, and a high rate of employee turnover, with the latter allegedly caused or exacerbated by the CEO's practice of publicly disparaging staff.

Finally, Glassdoor contends the fact its website contained numerous reviews of ZL, both positive and negative, would indicate to a reasonable reader that ZL's review page was simply a forum for former employees to share conflicting opinions about the company. Again, we disagree. While Glassdoor did invite former employees to share "content" that naturally would include opinions, for example, by rating companies on various topics, it also touted itself as a source of "all the information," "detailed information," users might need to make career decisions. A reader would reasonably anticipate this "information" would include facts. Nor did the volume or content of Glassdoor's ZL review page suggest "an ongoing, free-wheeling and highly animated exchange" among reviewers, as apparently was true in the cases Glassdoor cites. (See, e.g., Global Telemedia Intern., Inc. v. Doe 1 (C.D.Cal. 2001) 132 F.Supp.2d 1261 , 1267 [1,000 messages a week posted on the Internet chatroom in which the defendants were repeat posters, randomly exchanging views with other individual investors]; see also Krinsky , supra , 159 Cal.App.4th at p. 1175, 72 Cal.Rptr.3d 231 ["many messages" were posted to electronic bulletin board in two months generating a "[h]eated discussion" about the plaintiff's "credentials and 'credibility' "].) The ZL review page received only 11 reviews over an approximate 30-

This weighing process is usually invoked when a party is seeking the identity of third parties (see, e.g., Johnson v. Superior Court (2000) 80 Cal.App.4th 1050 , 1071, 95 Cal.Rptr.2d 864 [identity of sperm donor] ), or private information about a plaintiff (see, e.g., Lantz v. Superior Court (1994) 28 Cal.App.4th 1839 , 1853-1857, 34 Cal.Rptr.2d 358 [plaintiff's medical records] ), and we have not found any case in which this analysis was conducted when seeking the identity of a defendant. Indeed, the need to know the identity of