Smith v. Yelp CA1/3

Filed 8/19/22 Smith v. Yelp CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MARK SMITH, A162749 Plaintiff and Appellant, v. (Alameda County YELP INC., Super. Ct. No. RG20051877) Defendant and Respondent.

Mark Smith, a self-represented litigant, filed a lawsuit against Yelp Inc. (Yelp). The trial court granted Yelp’s special motion to strike, and it later awarded Yelp attorney fees and costs. (Code Civ. Proc., § 425.16; statutory references are to this code.) Smith — again representing himself — appeals. We decline to reach the merits of Smith’s challenge to the order granting the motion to strike. We affirm the attorney fee order. BACKGROUND Smith owns a business that claims to, among other things, help clients submit fictitious business name statements. He has a business owner account with Yelp, a website that publishes user-submitted business reviews. In 2020, Smith filed a complaint alleging Yelp was negligent for failing to remove a “false review” of his business. According to the complaint, Yelp

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“kept the review posted” after Smith notified Yelp the review contained “false information.” Smith sought $1 million in damages. Yelp filed a special motion to strike. On January 12, 2021, the trial court granted the motion and dismissed the complaint. It concluded Smith’s negligence claim arose from protected activity — the posting of a consumer review, in connection with an issue of public interest, on a public forum. The court also determined Smith could not demonstrate a probability of prevailing for several reasons, including that Yelp’s terms of service state it owes account holders no duty to remove third-party reviews and that it cannot be held liable for declining to do so. The clerk served a file-endorsed copy of the order the following day.1 Thereafter, Yelp sought $3,190 in attorney fees and $973.15 in costs, supported by a declaration from counsel listing his hourly rate, describing the work he performed, and seeking fees for 5.8 hours of work. (§ 425.16, subd. (c).) Smith did not timely oppose the motion. On March 23, 2021, the trial court granted the motion. It found that Yelp’s hourly rate and hours worked were reasonable, particularly because Yelp excluded from its fee request the bulk of the time counsel spent preparing the special motion to strike and the attorney fee motion. In May 2021, Smith appealed. The notice of appeal states Smith is appealing the order on the “motion to strike” issued on March 23 pursuant to section 425.16, subdivision (c). The notice attaches the attorney fee order.