Fakhrian v. Google, Inc. CA2/7 ( 2016 )

Filed 4/25/16 Fakhrian v. Google, Inc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BEATRICE FAKHRIAN, B260705
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC533527)
v.
GOOGLE INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Debre K. Weintraub, Judge. Affirmed.
Beatrice Fakhrian, in pro. per., for Plaintiff and Appellant.
Jassy Vick Carolan, Jean-Paul Jassy and Kevin L. Vick for Defendant and
Respondent.
____________________________________
INTRODUCTION
Beatrice Fakhrian sued Google Inc. for defamation based on a negative consumer
review of her talent agency business written in 2008 by a third party identified as “Hg.”
The review was posted on a consumer advocacy website known as the Ripoff Report.
Fakhrian claimed that Google distributed the review to millions of people through its
search engine, which destroyed her agency. Google demurred to the complaint, arguing
that Fakhrian’s defamation claim was barred by the one-year statute of limitations and by
the Communications Decency Act (CDA), which protects interactive computer service
providers from liability based on content posted by third parties. After allowing Fakhrian
to amend her complaint twice, the trial court sustained Google’s third demurrer without
leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 29, 2008 someone identified as “Hg” from “N Hollywood,
California” posted a review of Fakhrian and her business, Mega Artist Talent Agency, on
a consumer review and advocacy website known as the Ripoff Report
(www.ripoffreport.com). The Internet posting stated, “Mega Artist Talent Agency – New
World Management – Beatrice Fakhrian Not a real agency, a Fake management firm,
Steals money and lies. criminal. Beverly Hills California.”
Fakhrian filed this action on January 17, 2014 alleging a cause of action for
defamation “covering 12/29/2008 and everyday thereafter.” Fakhrian alleged,
“Defendant publishing this false information about me which Is a bunch of lies.
Defendant has destroyed agency client list. I have many times Contacted the defendant
and told him these were all lies. Plus, I have repeatedly written letters and made dozens
of telephone Calls to the defendant regarding these lies spreading around the World about
me and my business. Defendant refuses. . . . Many times I have requested that the
defendant cease and desist. He has refused.” Although she specified Google in the
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caption of her complaint, her allegations were uncertain regarding the identity of the
defendant. Fakhrian also did not specifically allege when she first became aware of the
posting, but states on appeal that she “became aware of these lies . . . a year and a half
later.”
Google demurred to the complaint, arguing the one-year statute of limitations and
the CDA barred Fakhrian’s defamation claim. The trial court sustained the demurrer with
leave to amend.
Fakhrian filed a first amended complaint alleging, “I do not have a claim about
(CDA) 1996, This law clearly gives a blanket immunity to Internet Service Providers.
My claim is based on the fact that Google Inc is in violation of it’s own terms and
conditions by posting. This posting has caused me damages, which entitles me to relief,
namely declaratory relief, which is the removal of the posting and any other monetary
damages created as a result of the violation of their own terms and conditions by the
posting.” Fakhrian attached a copy of the “Google Terms of Service,” shown as “[l]ast
modified April 14, 2014,” but she did not specify which provisions of the terms of
service she was claiming Google violated. Google demurred again, on the same grounds.
The trial court sustained the demurrer, giving Fakhrian “one final opportunity to amend.”
Fakhrian filed a third amended complaint (apparently never filing a second
amended complaint) alleging, “Google states in its policy that it contacts individuals to
verify information. I was never contacted by anyone at Google to verify the information
posted about me.” Fakhrian also described how her agency had been destroyed, her
“[p]ersonal saving ha[d] dwindled to zero,” “all of [her] personal relationships and
investments in the Entertainment Industry ha[d] been destroyed [and] Google ha[d] to
share some degree of fault for [its] reckless disregard [of her r]eputation.” Google
demurred again on the same two grounds.
The trial court sustained Google’s demurrer to Fakhrian’s third amended
complaint, this time without leave to amend. Fakhrian filed a notice of appeal on
December 12, 2014. The court entered a judgment of dismissal on January 5, 2015.
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DISCUSSION
A. Appealability
An order sustaining a demurrer without leave to amend is not appealable (Code
Civ. Proc., § 904.1), and a party may appeal only after entry of a dismissal or judgment
after such an order. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527, fn. 1.)
Nevertheless, a “reviewing court may treat a notice of appeal filed after the superior court
has announced its intended ruling, but before it has rendered judgment, as filed
immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2); see In re
Marriage of Campi (2013) 212 Cal.App.4th 1565, 1571, fn. 4; In re Social Services
Payment Cases (2008) 166 Cal.App.4th 1249, 1261, fn. 4 [“[a]lthough the appeal was
taken from the nonappealable order sustaining the demurrer, we treat the notice of appeal
as a premature but valid notice of appeal from the subsequently entered judgment”].)
We treat Fakhrian’s notice of appeal as filed immediately after entry of judgment on
January 5, 2015.
B. Standard of Review
On appeal from a judgment dismissing a complaint after the sustaining of a
demurrer without leave to amend, we independently review the pleading to determine
whether the facts alleged state a cause of action under any possible legal theory. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; see Zhang v. Superior Court
(2013) 57 Cal.4th 364, 370; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 370.)
“‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should
be exercised in permitting a plaintiff to amend [her] complaint.”’” (Aubry, at p. 970; see
Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1436.) Nevertheless, “‘[l]eave to
amend should not be granted where amendment would be futile.’” (Schermer v. Tatum
(2016) 245 Cal.App.4th 912, ____, 200 Cal.Rptr.3d 144, 153; see Caliber Bodyworks,
Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 374.)
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C. Fakhrian’s Defamation Claim Is Barred by the One-Year Statute of
Limitations
The statute of limitations for a defamation cause of action is one year. (Code Civ.
Proc., § 340, subd. (c); see Hebrew Academy of San Francisco v. Goldman (2007) 42
Cal.4th 883, 895.) A cause of action for defamation accrues and the statute of limitations
begins to run when the defendant allegedly publishes the purportedly defamatory
statement to a party other than the plaintiff. (Shively v. Bozanich (2003) 31 Cal.4th 1230,
1245-1247; Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1526.) “In
California the accrual of causes of action growing out of the publication of defamatory
. . . statements is governed by the single-publication rule.” (Traditional Cat Assn., Inc. v.
Gilbreath (2004) 118 Cal.App.4th 392, 395.) “Under the single-publication rule, with
respect to the statute of limitations, publication generally is said to occur on the ‘first
general distribution of the publication to the public’ [and] [u]nder this rule, the cause of
action accrues and the period of limitations commences, regardless of when the plaintiff
secured a copy or became aware of the publication.” (Shively, at p. 1245.) In particular,
“the single-publication rule applies to statements published on Internet Web sites.”
(Traditional Cat Assn., Inc., at p. 395; see Cole v. Patricia A. Meyer & Associates, APC
(2012) 206 Cal.App.4th 1095, 1121, fn. 8 [“[t]he single publication rule applies to
Internet publication regardless of how many people actually see it,” so that “publication
occurs when the allegedly defamatory statement is first made available to the public”];
Canatella v. Van De Kamp (9th Cir. 2007) 486 F.3d 1128, 1135 [“a website . . . is the
touchstone for the single publication rule analysis because of the very interests the single
publication rule is designed to promote”]; Sundance Image Tech., Inc. v. Cone Editions
Press, Ltd. (S.D.Cal. 2007) 2007 WL 935703 at p. 7 [any argument that the single
publication rule does not apply to statements made on the Internet “is foreclosed by
Traditional Cat”].)
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Fakhrian alleged in her original complaint that the derogatory comments about her
business first appeared on the Internet on December 29, 2008, and continued “every day
thereafter.” Her third amended complaint attached as an exhibit the allegedly defamatory
post by Hg on the Ripoff Report website, which was dated December 29, 2008. Because
the single-publication rule applies to statements published on Internet websites, and the
statements in this case were posted more than one year before Fakhrian filed her
complaint on January 17, 2014, her defamation cause of action is barred by the one-year
statute of limitations. (See Traditional Cat Assn., Inc. v. Gilbreath, supra, 118
Cal.App.4th at p. 395; Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 872.)
Fakhrian attempts to avoid the statute of limitations bar by asserting, although
without citing any authority, that a “special circumstance [applies] to [the statute of
limitations] when the defendant cannot be identified,” and that in such a situation “[t]he
plaintiff can have more time to file a claim.” At the time of the initial publication on
December 29, 2008, however, Google was known and could be identified. Moreover,
Fakhrian concedes that she became aware of the Ripoff Report statement “a year and a
half” after Hg posted it in December 2008. Thus, even if her defamation cause of action
did not accrue upon the first general distribution of the publication on the Internet (which
it did), Fakhrian’s concession that she became aware of the comments “a year and a half”
later (i.e., in mid-2010) means that the statute of limitations period expired no later than
mid-2011, more than two years before she filed this action in January 2014.
D. Fakhrian’s Defamation Claim Is Barred by Section 230 of the CDA
The Communications Decency Act (CDA) of 1996, 47 United States Code,
section 230(b) (section 230), states: “It is the policy of the United States – (1) to promote
the continued development of the Internet and other interactive computer services and
other interactive media; [and] (2) to preserve the vibrant and competitive free market that
presently exists for the Internet . . . , unfettered by Federal or State regulation.” The CDA
provides 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
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provider” (47 U.S.C. § 230(c)(1)), and “[n]o 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)).
Section 230 bars all state law claims that seek to hold an interactive service
provider liable for content posted by another information content provider or for not
removing that content. (Carafano v. Metrosplash.com., Inc. (9th Cir. 2003) 339 F.3d
1119, 1124.) “The intent of [section 230] is to ‘“preclude[ ] courts from entertaining
claims that would place a computer service provider in a publisher’s role.”’ [Citations.]
Through § 230, ‘Congress granted most Internet services immunity from liability for
publishing false or defamatory material so long as the information was provided by
another party. As a result, Internet publishers are treated differently from corresponding
publishers in print, television and radio.’” (Parker v. Google, Inc. (E.D.Pa. 2006) 422
F.Supp.2d 492, 501; see Perfect 10, Inc. v. CCBill LLC (9th Cir. 2007) 488 F.3d 1102,
1118.)
The CDA confers broad immunity on providers of interactive computer services.
(Barrett v. Rosenthal (2006) 40 Cal.4th 33, 39.) “[Section 230] immunity requires (1) the
defendant be a provider or user of an interactive computer service; (2) the cause of action
treat the defendant as a publisher or speaker of information; and (3) the information at
issue be provided by another information content provider. (47 U.S.C. § 230(c)(1).)”
(Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830; see Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 804; Barnes v. Yahoo!, Inc. (9th Cir.
2009) 570 F.3d 1096, 1100-1101.) The provisions of the CDA “have been widely and
consistently interpreted to confer broad immunity against defamation liability for those
who use the Internet to publish information that originated from another source.”
(Barrett v. Rosenthal, supra, 40 Cal.4th at p. 39; see Demetriades v. Yelp, Inc. (2014) 228
Cal.App.4th 294, 313 [“courts uniformly hold that claims based on a Web site’s editorial
decisions (publication, or failure to publish, certain third party conduct) are barred by
section 230”].)
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Fakhrian’s defamation claim against Google satisfies all three conditions for
immunity. First, Google is a provider of interactive computer services. Section 230 of
the CDA (47 U.S.C., § 230) defines “interactive computer service” as “any information
service, system, or access software provider that provides or enables computer access by
multiple users to a computer server.” Courts have repeatedly held that Google meets the
definition of a protected interactive computer service. (See Jurin v. Google, Inc.
(E.D.Cal. 2010) 695 F.Supp.2d 1117, 1123 [Google “meets the definition of a protected
interactive computer service and is therefore immunized from liability”]; Goddard v.
Google, Inc. (N.D.Cal. 2008) 2008 WL 5245490, p. 2, fn. 2 [“a number of courts already
have determined that Google is an interactive computer service provider”]; Parker v.
Google, Inc., supra, 422 F.Supp.2d at p. 501 [“there is no doubt that Google qualifies as
an ‘interactive computer service’”]; Novak v. Overture Services, Inc. (E.D.N.Y. 2004)
309 F.Supp.2d 446, 452 [Google is a “provider or user of an interactive computer
service”].)
Second, Fakhrian seeks to treat Google as a speaker or publisher of information.
Her defamation claim seeks to hold Google liable for content posted by Hg. By claiming
Google is liable for the damage caused by Hg’s statements, Fakhrian seeks to treat
Google as the speaker or publisher of those statements. (See Delfino v. Agilent
Technologies, Inc., supra, 145 Cal.App.4th at p. 806; Gentry v. eBay, Inc., supra, 99
Cal.App.4th at p. 831 [“hold[ing] eBay responsible for content originating from other
parties . . . would be treating it as the publisher, viz., the original communicator”].)
Third, the information was provided by another information content provider.
Section 230 of the CDA defines “information content provider” as “any person or entity
that is responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service.” (47 U.S.C.
§ 230(f)(3); Carafano v. Metrosplash.com., Inc., supra, 339 F.3d at p. 1123, fn. 2.)
Fakhrian’s defamation claim is based on content posted by Hg, a third party, on the
website of another third party, the Ripoff Report, and on the allegations that Google
“published lies and harmful information” and “spread lies” about her because, when
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individuals “Google [her] name,” the results include links to Hg’s post on the Ripoff
Report.1 Thus, Fakhrian’s claim is based on information provided by another
“information content provider.” Fakhrian did not allege that Google created or developed
the information posted on the Internet or that Google had anything to do with preparing
the comments by Hg that appeared on the Ripoff Report.
Fakhrian argues in her opening brief that Google was notified of the information
posted by Hg on the Ripoff Report, “began distributing a defamatory/libel lies” about her,
and failed to remove the posting from its website. Even if Fakhrian had leave to make
these allegations in a further amended complaint, however, they would not state a claim.
Such “‘[n]otice-based liability for interactive computer service providers would provide
third parties with a no-cost means to create the basis for future lawsuits. Whenever one
was displeased with the speech of another party conducted over an interactive computer
service, the offended party could simply “notify” the relevant service provider, claiming
the information to be legally defamatory. . . . Because the probable effects of distributor
liability on the vigor of Internet speech and on service provider self-regulation are
directly contrary to § 230’s statutory purposes, we will not assume that Congress
intended to leave liability upon notice intact.’” (Barrett v. Rosenthal, supra, 40 Cal.4th at
p. 46, quoting Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 333; see
Baldino’s Lock & Key Service, Inc. v. Google, Inc. (E.D.Va. 2015) 88 F.Supp.3d 543,
547 [“[a] publishing website is immune under the CDA even when given notice that it
has published false information”].) As the Zeran court explained, in another passage
cited by the California Supreme Court in Barrett: “If computer service providers were
subject to distributor liability, they would face potential liability each time they receive
notice of a potentially defamatory statement – from any party, concerning any message.
Each notification would require a careful yet rapid investigation of the circumstances
1 The court may consider allegations in Fakhrian’s original complaint and first
amended complaint in connection with Google’s demurrer to the third amended
complaint. (See Croucier v. Chavos (2012) 207 Cal.App.4th 1138, 1142; Berg & Berg
Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)
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surrounding the posted information, a legal judgment concerning the information’s
defamatory character, and an on-the-spot editorial decision whether to risk liability by
allowing the continued publication of that information. Although this might be feasible
for the traditional print publisher, the sheer number of postings on interactive computer
services would create an impossible burden in the Internet context.” (Zeran, at p. 333;
see Barrett, at p. 45.) In addition, “the burdens involved in evaluating the defamatory
character of a great number of protested messages[ ] would provide a natural incentive to
simply remove messages upon notification, chilling the freedom of Internet speech.”
(Barrett, at pp. 54-55.) Thus, the CDA bars any claim by Fakhrian for failure to remove
the Internet posting on the Ripoff Report website.2
DISPOSITION
The judgment is affirmed. Each party is to bear its costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J. BLUMENFELD, J.*
2 Fakhrian also argues that Google breached its terms and conditions because
“Google’s Privacy & Terms of service states that it verif[ies] information.” As Google
points out, however, its “Terms of Service echo the principles of the CDA, which
. . . immunizes Google from decisions whether to publish, delete, or edit such content.”
Google’s Terms of Service actually state: “We don’t make any commitments about the
content within the services . . . . We provide the services ‘as is.’” (See Green v. America
Online (AOL) (3d Cir. 2003) 318 F.3d 465, 471 [rejecting argument “that AOL waived its
immunity under section 230 by the terms of its membership contract” where the AOL
“Member Agreement between the parties tracks the provisions of section 230”]; Goddard
v. Google, Inc. (N.D.Cal. 2009) 640 F.Supp.2d 1193, 1201 [dismissing breach of contract
and negligent undertaking claims under the CDA because such claims “would treat
Google as the publisher or speaker of third-party content”].)
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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