MOTION – LEAVE TO ISSUE AND SERVE DEPOSITION SUBPOENA FOR BUSINESS RECORDS AND TESTIMONY
Plaintiff GT Living Foods, Inc.’s (“Plaintiff”) motion for leave to issue and serve a subpoena (see Mayer Dec., Ex. 1) on Glassdoor LLC (“Glassdoor”) is GRANTED. The Court takes no position on the enforceability of the subpoena or on any of Glassdoor’s objections at this time.
I. BACKGROUND
This is a defamation lawsuit based on statements posted anonymously on Glassdoor.com, “a website that allows members to post anonymous reviews of their employment experience with a current or past employer.” (Complaint, ¶ 14.) Plaintiff describes itself as a prominent seller of “living foods,” i.e., kombucha and similar fermented foods. (Id. at ¶¶ 10-11.)
Plaintiff alleges that in mid-April 2025, Defendant John Doe 1 posted a review of Plaintiff on Glassdoor.com. (Complaint, ¶ 16.) The review was entitled “Great products, good people, insincere Founder.” John Doe 1 identified himself as a former area sales manager located in Sacramento. He stated that Plaintiff’s “kombucha line was probably not organic for a long time[,]” but Plaintiff only disclosed this “after more stringent organic certification audit processes” were put in place. John Doe 1 further stated that for two consecutive years, Plaintiff laid off 40% of its sales staff two weeks before bonuses were due to be paid.
He reported that one of these instances occurred during the COVID-19 pandemic, at a time when Plaintiff’s expectation that its sales staff would be physically present in stores placed them at risk. According to John Doe 1, “[e]veryone complied” with this directive, “revenue and marketshare [sic] increased YOY [year over year] and still the company did not have the grace to pay out bonuses to people that earned it.” (Ibid.)
Plaintiff alleges an additional defamatory Glassdoor.com post in April 2025, this one by Defendant John Doe 2, who identified himself as a former sales associate who worked for Plaintiff in Los Angeles. (Complaint, ¶¶ 18-19.) This review was entitled “Horrible Experience
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– Pathalogical [sic] liar.” John Doe 2 stated that a person identified only as “GT” “is a pathological liar to Consumers, Retailers and horrible to his employees.” The Court infers from the complaint that Plaintiff understands “GT” to refer to its CEO, George Thomas Dave. (Id. at ¶ 11.) John Doe 2 stated that over 19 senior executives had left Plaintiff’s employment over the three years preceding the review, and the “common denominator” in these departures was “GT[,]” who John Doe 2 deemed “impossible to work for.” He also stated that “GT” had brought in a new CEO “with the intent of stepping back[,]” but that he (John Doe 2) did not believe “GT” would actually “let this industry expert do what they do best.” (Id. at ¶ 19.)
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Plaintiff alleges that John Doe Nos. 1 and 2’s statements are false, and that these defendants knew they were false. (Complaint, ¶¶ 17, 20.) It brings a single claim for defamation as to both defendants.
Plaintiff has yet to identify John Doe Nos. 1 and 2 and so has not yet served the complaint. Before the Court is Plaintiff’s motion for leave to issue and serve upon Glassdoor, which operates Glassdoor.com (North Dec., ¶¶ 1-2), a subpoena designed to unmask these defendants. Glassdoor opposes the motion.
II. LEGAL STANDARD
A plaintiff “may serve a deposition notice without leave of court” provided the plaintiff does so at least 20 days after any defendant has been served with the summons in the case or has made an appearance in the case. (Code Civ. Proc., § 2025.210, subd. (b) (“Section 2025.210(b)”).) Prior to that date, however, a plaintiff needs leave of court to serve a deposition notice. (Ibid.) The court may grant such leave “for good cause shown[.]” (Ibid.) Although Section 2025.210(b) speaks of “deposition notice[s][,]” the First District has treated its predecessor (the equivalent statute in force prior to the nonsubstantive reorganization of the Discovery Act in the early 2000s) as applying to deposition subpoenas. (California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4th 16, 25.)
III. DISCUSSION
The parties’ arguments treat this motion as if it is a motion to compel compliance with the subpoena, or to quash it, instead of a motion for leave to issue and serve the subpoena in the first instance. Both parties treat the subpoena’s enforceability as relevant to whether there is “good cause” to serve it (Code Civ. Proc., § 2025.210, subd. (b)), presumably on the theory that there is no good cause to serve a subpoena that will inevitably be deemed unenforceable.
The Court is not persuaded. Section 2025.210(b) is not intended to permit a court to pre-approve the substance of a deposition notice, but instead to enable it to police a plaintiff’s ability to serve any deposition notice too early in a case. This provision is concerned with timing, not the substance of the subpoena. (See California Shellfish, supra, 56 Cal.App.4th 16, 23-24 [statute is designed to ensure that “at least one defendant is on notice [of the discovery effort], and has the opportunity to place some adversarial limits upon the plaintiff’s pursuit of discovery”].) The question before the Court is not whether this particular subpoena has merit, but whether there is good cause for Plaintiff to take any discovery from Glassdoor by way of a deposition notice or a
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deposition subpoena given that no defendant has yet been served with process or made an appearance in this case.
The Court is following in its predecessor judge’s example. This is the second time Plaintiff has sought leave to serve a subpoena on Glassdoor in this action. On August 13, 2025, Plaintiff filed a functionally identical motion for leave to serve a business records subpoena on Glassdoor. As compared to the subpoena that is the subject of this motion, the subpoena at issue in the August 2025 motion sought a substantially identical collection of documents, but did not request an appearance to testify at a deposition. (See Aug. 13, 2025 Motion for Leave to Issue and Serve Subpoena, Ex. 1.)
Glassdoor did not oppose the motion and Honorable Judge Andrew Sweet, the first judge assigned to this case, granted it. In doing so, the Court stated, “The court takes no position as to any legal issues that may be raised regarding this subpoena.” (See Civil Motion Minutes [Nov. 7, 2025].) Problems with evidentiary issues are better explored through the discovery motion process.
Good cause exists to give Plaintiff leave of court to issue and serve this subpoena. It is up to an entity or party to oppose or compel the discovery request.
In California Shellfish, supra, 56 Cal.App.4th 16, the plaintiff similarly argued that unless it was freed from Section 2025.210(b)’s predecessor statute’s time constraints, the litigation would be doomed, because the plaintiff needed to obtain the discovery described in the subpoena to serve the defendant. (56 Cal.App.4th 16, 24.) On appeal, the court believed the plaintiff was bringing the difficulty upon itself by using the wrong legal strategy. (Id. at pp. 24-25.) In the instant case, Plaintiff alleges a wrong. Plaintiff sues these defendants on the presumptively a proper legal theory. Unlike in California Shellfish, Plaintiff may be deprived of a remedy if it is not permitted to take discovery until at least one defendant is served or enters an appearance.
The motion is GRANTED. Plaintiff or an entity may choose to move to compel compliance with the subpoena or quash it. The arguments raised in those possible motions will be considered at that time.
If a motion to compel is filed, Plaintiff will have to make a prima facie showing of the elements of its defamation claim against the John Does. (See ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 613 [discussing Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154]; Krinsky, supra, 159 Cal.App.4th 1154, 1172.) Plaintiff itself invited the Court to determine that Plaintiff had satisfied its obligations under Krinsky in connection with this motion. (See Memorandum, p. 6.) Krinsky requires the moving party to present the Court with evidence in support of its defamation claim, and particularly of falsity – until its reply brief. (Krinsky, supra, 159 Cal.App.4th 1154, 1172, fn. 14 [making clear that the Krinsky court was requiring ‘[p]rima facie evidence . . . which will support a ruling in favor of its proponent if no controverting evidence is presented’ ”] [quoting Evans v.
Paye (1995) 32 Cal.App.4th 265, 280, fn. 13] [emphasis added]; see also ZL Technologies, supra, 13 Cal.App.5th 603, 633 [to compel disclosure of an anonymous speaker’s identity in a defamation case, plaintiff must make a prima facie evidentiary showing specifically including evidence of falsity, even if the burden of proving truth versus falsity will ultimately be on the defendant if the case proceeds].)
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“The salutory [sic] rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. [“[N]ew evidence is not permitted with reply papers.”].) “[A] court has discretion to accept arguments or evidence made for the first time in reply” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1009). Given Krinsky’s plain language and Plaintiff’s own suggestion that the Court rule, on this motion, that Plaintiff met its burden under Krinsky, there is no reasonable justification for Plaintiff’s decision to offer evidence in support of its defamation claim only with its reply brief.
Finally, “to balance properly a plaintiff’s reputational interests with the First Amendment rights of anonymous defendants, a court must ensure reasonable efforts are made to notify the defendants, permitting them an opportunity to respond, before disclosure of their identities may be compelled.” (ZL Technologies, supra, 13 Cal.App.5th 603, 615.) There is nothing presently before the Court to indicate that John Doe Nos. 1 and 2 have been made aware that Plaintiff is suing them and attempting to force Glassdoor to identify them. Clarification on the status of notice should be included in any future discovery motion practice on this issue, if any.
Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.
IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.
FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).