Judge: Deborah C. Servino, Case: 30-2022-01277697, Date: 2023-07-28 Tentative Ruling

DEMURRER

Defendant OfferUp, Inc.’s unopposed demurrer to Plaintiff Marianne Lai’s complaint is sustained with 15 days leave to amend. 

Defendant’s request for judicial notice is granted.  (Evid. Code, § 452, subd. (h); Gentry v. Ebay, Inc. (2002) 99 Cal.App.4th 816, 821 fn. 1.)

A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim.  (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)

On demurrer, the burden is on the defendant to establish the plaintiffs’ cause of action is necessarily timed-barred and not that it may be time-barred.  In Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, the court explained that: “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Citation omitted) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155 [281 Cal.Rptr. 827].)”

Lack of Opposition

Plaintiff has not opposed Defendant’s demurrer.  The demurrer can be, and is, sustained on this basis.  Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue.”].)  Plaintiff’s lack of opposition is particularly consequential here because in the absence of any opposing argument, Defendant’s arguments on demurrer are unrebutted.

Application

Based on Defendant’s demurrer, Plaintiff’s Complaint fails sufficiently to allege an actionable cause of action for negligence.

First, Plaintiff’s claim appears on its face to be time-barred.  Plaintiff alleges the meeting arranged through Defendant, at which “Alex” took her watched but did not pay, took place on March 4, 2019.  Plaintiff filed her complaint on August 29, 2022, more than two years later.  Defendant contends that under California law, negligence claims have a two-year statute of limitations pursuant to Code of Civil Procedure section 335.1.

Second, Plaintiff has not alleged facts showing that Defendant had a duty to Plaintiff. The basic elements of a negligence action are (1) The defendant had a legal duty to conform to a standard of conduct to protect the plaintiff, (2) the defendant failed to meet this standard of conduct, (3) the defendant's failure was the proximate or legal cause of the resulting injury, and (4) the plaintiff was damaged as a result of the breach. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI no. 400.) 

The existence of a duty of care “is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection.” (Camp v. State of California (2010) 184 Cal.App.4th 967, 975.) “What relationship must one person have with another and in what context before she must pay money to the other for her negligent action (or inaction). That is the basic question.” (Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1398.)  “The existence of a duty of care is a question of law to be determined by the court alone.” (Camp v. State of California, supra, 184 Cal.App.4th at p. 975.)

Generally, a private citizen has no duty to come to the aid of another. “The general rule is that one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.”  (Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1121.)  A duty arises when there is a special relationship.  (McHenry v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 484.)  The existence of a contractual relationship between parties does not inherently create a special relationship or give rise to a greater duty of care.  (Id. at pp. 485–486; Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 830.)  Here, Plaintiff has not alleged facts establishing that Defendant had a duty of care to protect her from the persons she found and met with by using its website.

Third, Defendant is immune from liability under Section 230 of the Communications Decency Act (47 U.S.C § 230).  "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  (47 U.S.C. § 230(c)(1).) "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."  (47 U.S.C. § 230(e)(3).)

We first examine appellants' main argument: that their complaint does not treat MySpace as a publisher, which would trigger section 230 immunity, but instead alleges “a breach of a legal duty to provide reasonable safety measures to ensure that sexual predators did not gain otherwise unavailable access to minors through the use of the MySpace.com website....” To circumvent section 230's immunity provisions, appellants narrowly construe section 230 to extend only to claims “stemming from harms caused by the defendant's republication of inherently offensive or harmful content.” That is, appellants contend that the words themselves have to be tortious, such as in the case of a defamatory statement.

. . .

Given the general consensus to interpret section 230 immunity broadly, extending from Zeran to the Fifth Circuit's opinion in Doe v. MySpace, Inc. addressing identical facts and legal issues, we also conclude that section 230 immunity shields MySpace in this case. That appellants characterize their complaint as one for failure to adopt reasonable safety measures does not avoid the immunity granted by section 230. It is undeniable that appellants seek to hold MySpace responsible for the communications between the Julie Does and their assailants. At its core, appellants want MySpace to regulate what appears on its Web site. Appellants argue they do not “allege liability on account of MySpace's exercise of a publisher's traditional editorial functions, such as editing, altering, or deciding whether or not to publish certain material, which is the test for whether a claim treats a website as a publisher under Barrett.” But that is precisely what they allege; that is, they want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity—to restrict or make available certain material—is expressly covered by section 230.

(Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 569, 572-573 [finding website immune from claims for damages suffered by minors when assaulted by person they met on website].)

For all these reasons, the demurrer is sustained with 15 days leave to amend.

PRO HAC VICE APPLICATION

Mohamed Awan’s application for pro hac vice admission to represent Defendant OfferUp Inc. in this action is granted.

Counsel Mohamed Awan has submitted a properly sworn declaration for his verified application and provided all of the information required.  Based on his application he qualifies for pro hac vice admission; and he has complied with the notice and payment requirements for the State Bar.  The application is therefore granted.

Defendant OfferUp Inc. shall give notice of the rulings.

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