Code of Civil Procedure section 425.16 Motions to Strike provide ample opportunity for complex legal issues.  In Tender v. www.jewishsurvivors.blogspot.com (July 7, 2008) ___ Cal.Rptr.3d ___ , the Court of Appeal (Sixth Appellate District) considered whether a request for the issuance of subpoenas, without the filing of a complaint or other action, nevertheless fell within the provisions of section 425.16.

The facts are relatively simple.  Mordecai Tendler obtained a pre-filing discovery order in Ohio as part of his effort to uncover the identities of anonymous individuals who had posted statements about him on the Internet that he considered defamatory. (Slip op., at p. 1.) After Google refused to respond to Ohio subpoenas, Tendler sought issuance of subpoenas in Santa Clara, based upon the Ohio Order. Importantly to the Court of Appeal's analysis, "filed a 'request[]' in Santa Clara County Superior Court asking the court 'to issue a case number and endorse' the four subpoenas. The court filed a 'civil case cover sheet' on May 24, 2006 and assigned a case number." (Slip op., at 2.)

The Court of Appeal first established its obligation to interpret section 425.16 in a manner consistent with the plain language of the statute and reflective of the Legislature's intent.  The Court then construed the language of section 425.16, concluding that the statute did not encompass requests for the issuance of subpoenas, absent the filing of an actual complaint or similar pleading:

“Even the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena. A request for a subpoena is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding.

(Slip op., at p. 5.)

The Court concluded by noting (1) that if the Legislature intended to include activities, such as requests for subpoenas, in section 425.16, it will need to explicitly say so, and (2) a simple motion to quash a subpoena provides sufficient protection to the Doe individuals whose identities were sought by Tendler.