Judge: Robert B. Broadbelt, Case: 18STCV08570, Date: 2023-01-19 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 18STCV08570    Hearing Date: January 19, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants Facebook, Inc., and Instagram, LLC

RESPONDING PARTIES:     Plaintiffs Anthony Aiello and Anthony’s Worldwide Promotions, LLC

Demurrer to Complaint

            The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiffs Anthony Aiello and Anthony’s Worldwide Promotions, LLC (“Plaintiffs”) filed this action on December 12, 2018, against defendants Sommer Ray Beaty (“Beaty”), Eli Zoe, Instagram, LLC, and Facebook, Inc.  Plaintiffs allege 17 causes of action, including claims for breach of contract, breach of fiduciary duty, negligence, and various misrepresentation causes of action.

On June 10, 2020, defendants Facebook, Inc. and Instagram, LLC (“Defendants”) filed the pending demurrer to Plaintiffs’ Complaint.   

On September 29, 2021, the court (1) granted Beaty’s motion for stay of proceedings pending the California Labor Commissioner’s determination of petition to determine controversy under the Talent Agencies Act, and (2) exercised its discretion to continue the hearing on Defendants’ demurrer “until the California Labor Commissioner rules on defendant Beaty’s petition to determine controversy under the TAA.”  (September 29, 2021 Order, p. 8:25-27.)

On January 10, 2023, defendant Beaty filed a “Supplemental Report re: Status of Labor Commission Hearing,” stating that the Labor Commissioner has issued a ruling in the labor commission action.  The Labor Commissioner’s ruling includes the following orders: (1) the Labor Commissioner takes no position regarding ownership of the main account and/or the backup account at issue in the instant matter; (2) Contract A between defendant and petitioner Beaty and Plaintiffs and respondents is void ab initio under the Talent Agencies Act; (3) Beaty’s request for disgorgement and repayment is denied as barred by the statute of limitations; and (4) Beaty’s request for attorney’s fees is denied.  (Jan. 10, 2023 Status Report, Ex. B, Determination of Controversy, p. 15:1-10.)

The court orders that the stay of this action pursuant to the court’s September 29, 2021 order is lifted and rules on Defendants’ demurrer as follows.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendants’ request for judicial notice.  (Evid. Code, § 452, subd. (h); Michaels v. Turk (2015) 239 Cal.App.4th 1411, 1414, fn. 2 [taking judicial notice of website terms of service].)  However, the court does not take judicial notice “of the truth of the matters stated therein.”  (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

DISCUSSION

The court sustains Defendants’ demurrer to Plaintiffs’ third cause of action for negligence because it fails to state facts sufficient to constitute a cause of action since (1) Plaintiffs fail to allege the element of duty, and (2) the allegations establish that Plaintiffs’ claim is barred by section 230 of the Communications Decency Act.  (Code Civ. Proc., § 430.10, subd. (e); Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages”].)  

First, the court finds that Plaintiffs have not pleaded facts establishing the element of duty.  “A duty of care may arise through statute, contract, the general character of the activity, or the relationship between the parties.”  (Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 604.)  Plaintiffs allege that Defendants were negligent because they “failed to construct, enforce, put in place, manage, control, maintain, and/or supervise its users Instagram accounts in a manner that would not allow unauthorized users to access Plaintiff’s Instagram accounts.”  (Compl., ¶ 28.)  However, Plaintiffs have not alleged a statute, contract, or relationship between Defendants and Plaintiff that would impose a duty on Defendants to maintain their users’ Instagram accounts in such a manner to prevent unauthorized users to access Plaintiffs’ account.  The court finds that Plaintiffs’ allegations are insufficient to establish that Defendants owed Plaintiffs a duty to prevent Beaty from accessing Plaintiffs’ accounts.

Second, the court finds that Plaintiffs’ claim for negligence is barred by the Communications Decency Act (the “CDA”).  Section 230 of the CDA was enacted “‘for two basic policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material.’”  (Hassell v. Bird (2018) 5 Cal.5th 22, 534.)  Pursuant to these goals, the CDA provides, in relevant part, that “[n]o 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[,]” and that no claim may be brought under any state law that is inconsistent with section 230.  (47 U.S.C.S. § 230, subds. (c)(1), (e)(3).)  “Read together these two provisions ‘protect from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.’”  (Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 24.)

The court finds, and the parties agree, that Defendants are providers of an interactive computer service.  (Opp., p. 16:5-6 [Plaintiffs concede that Facebook is an interactive service provider].)

The court finds that the allegations establish that Plaintiffs seek to treat Defendants, under a state law claim for negligence, as a publisher of information provided by another information content provider (i.e., Beaty).

“In evaluating whether a claim treats a provider as a publisher or speaker of user-generated content, ‘what matters is not the name of the cause of action’; instead, ‘what matters is whether the cause of action inherently requires the court to treat the defendant as the “publisher or speaker” of content provided by another.’”  (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207.)  “Put slightly differently, ‘courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a “publisher or speaker.”  If it does, section 230(c)(1) precludes liability.’”  (Ibid.)  “[P]ublication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.”  (Barnes v. Yahoo!, Inc. (9th. Cir. 2009) 570 F.3d 1096, 1102.)

Here, Plaintiffs allege that Defendants acted negligently by failing to prevent Beaty from accessing Plaintiffs’ accounts and for allowing Beaty to access the subject accounts.  (Compl., ¶ 28; Compl., p. 5:16-17.)  Plaintiffs further allege that they were deprived of the use of their property, and that the value of the accounts diminished.  (Compl., ¶¶ 30, 29.)  Defendants argue that Plaintiffs principally complain that the content posted by Beaty harmed Plaintiffs, and that Defendants had a duty to prevent her from posting, such that Plaintiffs are attempting to hold Defendants liable as a publisher of content for Beaty.  (Demurrer, p. 14:8-13.)  In opposition, Plaintiffs contend that Defendants are negligent not for permitting the publication of content, but for “cho[osing] sides” and for permitting the use of Plaintiffs’ accounts “by the wrong person.”  (Opp., pp. 16:14-15, 16:20-21.) 

The court reads the Complaint as alleging the negligent conduct to be Defendants’ decision to permit Beaty to retain access to and control over Plaintiffs’ Instagram accounts, including the decision to allow Beaty to post on Plaintiffs’ Instagram accounts.  As set forth above, Plaintiffs have alleged that the wrongful conduct at issue in their Complaint concerns (1) Beaty’s alleged acts in taking possession of Plaintiffs’ Instagram accounts, (2) Defendants’ alleged failure to prevent Beaty from accessing and using Plaintiffs’ accounts, and (3) the resulting diminution in value to the accounts as a result of their actions.  (Compl., ¶¶ 26, 28-29.)  The court agrees that these allegations, read together, seek to hold Defendants liable for their decision to prevent Beaty—another information content provider—from accessing and posting content on Plaintiffs’ Instagram accounts.  This decision by Defendants is analogous to a publisher’s failure to remove content posted by third parties, which is barred by the CDA.  (Cross, supra, 14 Cal.App.5th at p. 190 [“numerous courts have held the CDA bars claims based on a failure to remove content posted by others”]; Barnes, supra, 570 F.3d at p. 1102 [stating that publication involves deciding whether to withdraw content from publication]; 47 U.S.C.S. § 230, subd. (f)(3) [defining information content providers to mean any person that is responsible for the creation of information through an interactive computer service].)

Based on the facts and allegations set forth above, the court finds that (1) Plaintiffs failed to allege the element of duty, and (2) Plaintiffs’ claim for negligence against Defendants is barred by section 230 of the CDA because it seeks to treat Defendants, as providers of an interactive computer service, as the publisher of information provided by Beaty, another information content provider.  (47 U.S.C.S. § 230, subd. (c)(1); Murphy, supra, 60 Cal.App.5th at p. 24.) 

The court therefore sustains Defendants’ demurrer to Plaintiffs’ third cause of action for negligence.  (Code Civ. Proc., § 430.10, subd. (e).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 48 Cal.App.4th 268, 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Plaintiffs request leave to amend their Complaint, contending that they can provide additional facts “as to how their actions take the case out of the realm of Section 230, and how a duty of care is owed to” plaintiff Aiello.  (Opp., pp. 17:26-18:3.) However, Plaintiffs have not described what facts can be alleged to establish the element of duty and to avoid the application of section 230.  The court therefore sustains Defendants’ demurrer without leave to amend.

ORDER

The court sustains defendants Facebook, Inc. and Instagram, LLC’s demurrer to plaintiffs Anthony Aiello and Anthony’s Worldwide Promotions, LLC’s third cause of action for negligence without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).) 

The court orders defendants Facebook, Inc. and Instagram, LLC to lodge and serve a proposed judgment of dismissal within 10 days of the date of this order. (Code Civ. Proc., § 581, subd. (f)(1).)

The court orders defendants Facebook, Inc. and Instagram, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 19, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court