Golzarifar v. Google LLC CA2/1 ( 2020 )

Filed 11/18/20 Golzarifar v. Google LLC CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
FRED H. GOLZARIFAR, B301134
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV11588)
v.
GOOGLE LLC,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Dennis J. Landin, Judge. Dismissed.
Fred H. Golzarifar, in pro per., for Plaintiff and Appellant.
Wilson Sonsini Goodrich & Rosati, David H. Kramer and
Kelly M. Knoll for Defendant and Respondent.
____________________________
In his operative pleading, appellant Fred H. Golzarifar,
who is in propria persona, sued Google LLC (Google) seeking a
minimum of $50 million in damages for unspecified privacy
violations by defendant Google. We dismiss the appeal because
Golzarifar has not appealed from an appealable order or
judgment.
BACKGROUND
1. Golzarifar’s First Amended Complaint
Golzarifar’s operative pleading—his first amended
complaint—claims emotional distress and invasion of privacy.1
That complaint is on a Judicial Council form for personal injury
claims. Besides citing to state and federal statutes and the
United States Constitution, the only allegations in his complaint
are:
“1. Emotional Distress; include [sic] (but not limited to)
pain, suffering, inconvenience, mental stress or suffering,
emotional distress, loss of society and companionship, loss of
consortium, injury to reputation and humiliation.”
“2. Invasion of Privacy[.]” The first amended complaint
has no allegations referencing Google or any Google service.
1 His original complaint contained claims for emotional
distress and “privacy infractions (Invasion of Privacy)” in which
he alleged these causes of action were “caused by tracking
surveillance, transparency and visual practices by Google
services . . . .” Google filed a demurrer arguing inter alia the
complaint was so uncertain that Google could not discern of what
misconduct it was being accused. Golzarifar opposed the
demurrer and then filed his first amended complaint.
2
Golzarifar requests damages of at least $50 million, and
attached a statement of damages seeking $2 million for each of
pain and suffering and emotional distress; $1 million for
“Invasion of Privacy/Privacy Violation”; and $4 million in
punitive damages. He also checked the “Other” box but did not
designate any dollar amount for that category of claimed
damages.
Two days before Google’s timely demurrer, Golzarifar filed
an “affidavit for entry of default” requesting a default judgment
in his favor.2 (Capitalization omitted.)
2. Google Demurred to the First Amended Complaint
and Golzarifar Opposed the Demurrer
Google demurred to the first amended complaint
contending, among other things, that the first amended
complaint does not state facts sufficient to constitute a cause of
action and that it is uncertain. Golzarifar did not include
Google’s memorandum of points and authorities in support of the
demurrer in the appellate record. Golzarifar opposed the
demurrer, which is in the record. In his opposition, Golzarifar
stated he suffered stress and anxiety and provided Internet links
to various Google “consumer services.” Golzarifar also cited to
several statutes, but failed to tether any of them to the
allegations in the first amended complaint. In his opposition to
Google’s demurrer, Golzarifar requested that the trial court enter
a default judgment in his favor.
2 The record shows that Google’s demurrer was filed
within 30 days of service of the amended complaint. It was thus
timely under Code of Civil Procedure section 471.5,
subdivision (a).
3
3. The Trial Court Sustained the Demurrer
The trial court sustained Google’s demurrer to the first
amended complaint without leave to amend. There are two
orders sustaining the demurrer. In an unsigned minute order,
the trial court sustained the demurrer without leave to amend
and ordered the lawsuit dismissed without prejudice.
In the signed order, the trial court explained: The first
amended complaint “is utterly devoid of any legal theories or
factual basis for his claims. Plaintiff fails to identify or describe
any factual allegations to show why Defendant is liable to
Plaintiff for ‘emotional distress and invasion of privacy.’
[Citation.] Plaintiff’s FAC is simply uncertain, ambiguous, and
unintelligible.” In its conclusion, the court stated, “Defendant’s
demurrer to Plaintiff’s FAC is SUSTAINED WITHOUT LEAVE
TO AMEND.” The signed order did not dismiss the case. The
trial court then vacated the hearing on Golzarifar’s request to
enter a default judgment.
4. The Trial Court Denies Golzarifar’s Motion for
Reconsideration
Golzarifar then filed a motion for reconsideration, stylized
as “motion for reconsideration/and request to vacate dismissal,
judgment/order.” (Boldface & capitalization omitted.) Golzarifar
stated that he “files this MOTION TO RECONSIDER/MOTION
TO VACATE JUDGMENT, ORDER or DISMISSAL . . . based
upon new and different facts, circumstances, or law . . . .”
Golzarifar, however, identified no new or different facts,
circumstances, or laws. Instead, Golzarifar provided various
links to Google’s products and services and identified other
lawsuits against Google.
4
The following is the entirety of Golzarifar’s declaration in
support of his motion for reconsideration: “On April 3, 2019,
Plaintiff Fred H. Golzarifar filed a complaint and summons
against Defendant ‘Google Inc.’ The defendant has been served
with copy of documents on April 9, 2019. A response to Summons
and Complaint was due on May 9, 2019.
“On May 9, 2019, Defendant ‘Google LLC’ filed a demurrer
to Plaintiff’s original complaint along with Notice of Motion on
date June 12, 2019,
“On May 20, 2019, Plaintiff filed his First Amended
Complaint. Defendant has filed a demurrer to First Amended
Complaint on June 19, 2019. On June 28, 2019 Plaintiff filed an
opposition to Defendant’s Demurrer to Plaintiff’s First Amended
Complaint. On July 23, 2019 at the hearing of Defendant’s
Demurrer, Judge Dennis J. Landin Susitained [sic] Defendant’s
Demurer without leave to amend and therefore dismissed the
case.
“Plaintiff hereby Requests that the court to reconsider and
to vacate the judgment/order for and vacate dismissal upon new
facts and causes of actions stated, along with this Declaration
and Notice of Motion.”
After taking it under submission, the trial court denied
Golzarifar’s motion for reconsideration. The court stated
“Plaintiff fail[ed] to present any ‘new or different facts,
circumstances, or law’ that could provide a basis for reaching a
determination different from the one this Court reached . . . .”
“It remains unchanged that Plaintiff’s three-sentence Complaint
is utterly devoid of any legal theories or factual basis for his
claims. Disagreement with a ruling is not a new fact that will
support the granting of a motion for reconsideration.” Finally,
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regarding Golzarifar’s request for leave to file a second amended
complaint, the trial court wrote that a motion for reconsideration
was not a “proper vehicle” for that request, and stated it had
already sustained Google’s demurrer without leave to amend
“because there was no showing of reasonable possibility of cure
by amendment.”
5. Golzarifar’s Appeal
Golzarifar filed a notice of appeal on September 16, 2019.
In his notice of appeal, Golzarifar states that he is appealing from
an order entered on September 5, 2019. The September 5, 2019
order memorializes the trial court’s denial of Golzarifar’s motion
for reconsideration. Golzarifar further stated that he was
appealing from the “Motion for Reconsideration, Motion to Vacate
Dismissal, Judgment/Order,” which was the title of his motion for
reconsideration. (Boldface omitted.)
Thus, the only order referenced in the notice of appeal is
the denial of Golzarifar’s motion for reconsideration. Golzarifar
did not check the box indicating that he was appealing from a
“[j]udgment of dismissal after an order sustaining a demurrer.”
In his brief on appeal, Golzarifar states: “This appeal is from the
judgment of the Los Angeles County Superior Court and is
authorized by the Code of Civil Procedure, section 904.1,
subdivision (a)(1).” 3 The notice of appeal nowhere references a
judgment other than in the title of Golzarifar’s motion for
reconsideration.
3 Code of Civil Procedure section 904.1, subdivision (a)(1)
provides in pertinent part: “(a) An appeal . . . may be taken from
any of the following: [¶] (1) From a judgment . . . .”
6
DISCUSSION
A. Golzarifar Identifies No Appealable Order or
Judgment
Our direct appellate jurisdiction is limited to appealable
judgments and orders. (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 696.) Absent a request for judicial notice,
which plaintiff has not made here, we cannot consider a fact
not supported by the record. (Lona v. Citibank, N.A. (2011)
202 Cal.App.4th 89, 102.) The only order referenced in
Golzarifar’s notice of appeal is the order dated September 5, 2019
denying his motion for reconsideration. An order denying a
motion for reconsideration is not a separately appealable order.
(Code Civ. Proc., § 1008, subd. (g).)4 As explained below,
Golzarifar’s notice of appeal designates only a nonappealable
order. (Uber Technologies, Inc. v. Google LLC (2018)
27 Cal.App.5th 953, 959 [“ ‘[I]f the order or judgment is not
appealable, the appeal must be dismissed.’ ”].)
In his opening brief, Golzarifar abandons any purported
appeal from the order denying his motion for reconsideration.
Golzarifar states: “This appeal is from the judgment of the
Los Angeles County Superior Court and is authorized by the
Code of Civil Procedure, section 904.1, subdivision (a)(1).)”
4 Code of Civil Procedure section 1008, subdivision (g)
provides: “An order denying a motion for reconsideration made
pursuant to subdivision (a) is not separately appealable.
However, if the order that was the subject of a motion for
reconsideration is appealable, the denial of the motion for
reconsideration is reviewable as part of an appeal from that
order.” There is no such other order in the record.
7
Golzarifar’s new-found assertion that he is appealing
from a judgment does not rescue his appeal. First, the notice
of appeal defines the scope of the appeal. (Morton v. Wagner
(2007) 156 Cal.App.4th 963, 967; see Cal. Rules of Court,
rule 8.100(a)(2).) Even construing Golzarifar’s notice of appeal
liberally, it did not encompass a “[j]udgment of dismissal after an
order sustaining a demurrer” because Golzarifar neither checked
the box with that description or otherwise identified a judgment.
Golzarifar referenced only his motion for reconsideration,
identifying it by the title he gave it in the trial court.
Second, Golzarifar cites to no judgment, and the record on
appeal does not contain or reference one. Although the record
contains a signed order sustaining a demurrer, that order
does not dismiss the lawsuit as Code of Civil Procedure
section 581d requires for that order to constitute a judgment.
(Code Civ. Proc., § 581d [“All dismissals ordered by the court
shall be in the form of a written order signed by the court and
filed in the action and those orders when so filed shall constitute
judgments and be effective for all purposes, and the clerk shall
note those judgments in the register of actions in the case, ”
italics added; see also Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1578–1579 [an unsigned order of
dismissal is not effective as a judgment].) Therefore, there is
no judgment for our review, and we dismiss Golzarifar’s appeal.
(Uber Technologies, Inc. v. Google LLC, supra, 27 Cal.App.5th
at p. 959.)
Finally, Golzarifar does not purport to appeal from the
order sustaining the demurrer. Even if he did, such an order
would not be appealable. (Singhania v. Uttarwar (2006)
136 Cal.App.4th 416, 425.)
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B. Golzarifar Does Not State A Cause of Action in His
First Amended Complaint
We recognize that Golzarifar can return to the trial court to
request a judgment, and that we might then be presented with a
judgment. Such an appeal, however, would be futile given the
utter absence of factual allegations in the first amended
complaint and Golzarifar’s demonstrated inability to amend his
pleading to state a viable cause of action. In the interests of
judicial economy, we thus turn briefly to the merits of the
demurrer.
“ ‘In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.
[Citation.] Where the demurrer was sustained without leave to
amend, we consider whether the plaintiff could cure the defect by
an amendment.’ [Citations.] When evaluating the complaint,
‘we assume the truth of the allegations.’ [Citations.] . . . [¶] A
trial court abuses its discretion by sustaining a demurrer without
leave to amend where ‘ “there is a reasonable possibility that the
defect can be cured by amendment.” ’ ” (Heshejin v. Rostami
(2020) 54 Cal.App.5th 984, 992.) “ ‘ “The plaintiff has the burden
of proving that [an] amendment would cure the legal defect, and
may [even] meet this burden [for the first time] on appeal.” ’ ”
(Ibid.)
Importantly, “plaintiff must set forth factual allegations
that sufficiently state all required elements of that cause of
action.” (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43; Code Civ. Proc., § 425.10, subd. (a)(1).)
Even assuming arguendo his claim for emotional distress
damages could be construed as a tort claim for infliction of
9
emotional distress, Golzarifar fails to allege facts that would
support the elements of that cause of action. Golzarifar,
moreover, fails to identify what wrongdoing Google did that
caused his purported emotional distress. As such, his claim of
“emotional distress” fails to state a cause of action and is fatally
uncertain.
As for his second cause of action, the only allegation
Golzarifar makes is naming his second cause of action “invasion
of privacy.” Golzarifar alleges no facts in support of that cause of
action. He thus fails to provide the required “statement of the
facts constituting the cause of action, in ordinary and concise
language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)
Golzarifar has not shown a “reasonable possibility” that he
can cure these defects in the first amended complaint. (Smyth v.
Berman (2019) 31 Cal.App.5th 183, 191.) Golzarifar has had two
chances to file a viable complaint and has been on notice of the
deficiencies in his original complaint when defendant first
demurred to that pleading. Still, his second complaint—the one
before us—is arguably even more uncertain than his original
complaint. Golzarifar states that a “new amendment complaint
shall also state new causes of actions and other facts” but proffers
no facts to rescue his causes of action from the depths of
uncertainty. “Where the appellant offers no allegations to
support the possibility of amendment and no legal authority
showing the viability of new causes of action, there is no basis for
finding the trial court abused its discretion when it sustained the
demurrer without leave to amend.”5 (Rakestraw v. California
5 We also observe that the statutes Golzarifar alleges in
the first amended complaint appear random with no apparent
connection to his causes of action or to any conduct by Google
10
Physicians’ Service, supra, 81 Cal.App.4th at p. 44.) The trial
court did not err in sustaining Google’s demurrer without leave to
amend.
Finally, in his opening brief, Golzarifar references his
requests for a default judgment. It appears that Golzarifar is
attempting to argue that the trial court should have entered a
default judgment in his favor before ever ruling on Google’s
demurrer. This argument does not rescue his appeal either. As
respondent points out, “a default judgment cannot properly be
based on a complaint which fails to state a cause of action . . . .”
(Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) In sum,
Golzarifar has failed to state a cause of action and to show that
the trial court erred in denying his motion for reconsideration.
On appeal, he also fails to show that he could amend the first
amended complaint to allege facts supporting a viable cause of
action.
given the absence of any reference to Google in the factual
allegations. For example, he cites to Penal Code section 637.5,
prohibiting certain acts by owners of cable and satellite television
corporations and Penal Code section 647, regarding disorderly
conduct, including soliciting prostitution, loitering in a public
toilet, and using a concealed camera to record under a person’s
clothing or a person who is partially or completely undressed.
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DISPOSITION
The appeal is dismissed. Costs are awarded to Google LLC.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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