Strachan v. Facebook CA1/1 ( 2023 )

Filed 12/12/23 Strachan v. Facebook CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
NEIL G. STRACHAN, A165910
Plaintiff and Respondent,
v. (San Mateo County Super. Ct.
FACEBOOK, INC., et al., No. 20CIV03457)
Defendants and Respondents.
Neil G. Strachan sued Facebook, Inc. (Facebook or the company) for
breach of contract and breach of the implied covenant of good faith and fair
dealing (breach of the implied covenant) after Facebook cancelled his
advertising account and removed his advertising content from the platform.
The trial court sustained the company’s demurrer to Strachan’s second
amended complaint (complaint) without leave to amend and dismissed the
matter with prejudice.1
1 Facebook is now known as Meta Platforms, Inc. We recite only those
facts necessary to resolve the dispositive issues, omitting references to causes
of action that are not at issue. We disregard factual representations in
Strachan’s briefs that are not supported by record citations. Our factual
summary is drawn from the complaint. (See Liapes v. Facebook, Inc. (2023)
95 Cal.App.5th 910, 916, fn. 2.)
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Representing himself, Strachan appeals. He argues the complaint
states claims for breach of contract and breach of the implied covenant. We
disagree and affirm.
BACKGROUND
In September 2014, Strachan created a personal Facebook page. He
also opened an advertising account with the company and created several
“business” pages—including those entitled “Rank Your Women” and “Man
With Woman”—where he advertised products and services. Strachan agreed
to the company’s Terms of Use, Advertising Policies, and Platform Terms
(collectively, agreement).
Section 4(2) of the relevant version of Facebook’s Terms of Use provided
that the company may “suspend or permanently disable access” to a user’s
account if it determined the user “clearly, seriously or repeatedly breached”
the company’s terms, policies, or community standards, or where the
company was “required to do so for legal reasons.” Another provision of the
Terms of Use authorized the company to “remove or restrict access” to a
user’s “content, services or information” if the company determined that
doing so was “reasonably necessary to avoid or mitigate adverse legal . . .
impacts” to the company.
Section 12(2) of the relevant version of Facebook’s Advertising Policies
held advertisers “responsible for understanding and complying with all
applicable laws and regulations.” It warned advertisers that “[f]ailure to
comply may result in a variety of consequences, including the cancellation of
ads[.]” Section 4(7) forbade ads promoting “the sale or use of adult products
or services.” Section 7(e) of the relevant version of the Platform Terms
authorized the company to “take enforcement action against” the user if the
company believed—in its “sole discretion”—that the user violated the Terms
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of Use. This provision also allowed the company to “take enforcement action
at any time, . . . with or without notice” to the user.
In April 2020, Facebook cancelled Strachan’s advertising account and
removed his advertising content from the platform. According to Strachan,
this occurred after the company determined he was selling “Adult Services
and/or Products,” i.e., “sex products.” Strachan sued Facebook. His
complaint alleged claims for breach of contract and breach of the implied
covenant. According to the complaint, Strachan opened an advertising
account with Facebook “in accordance with” the agreement, and he
“performed all conditions, covenants, and promises required” by the
agreement. The company, however, breached both the agreement and the
implied covenant by cancelling his advertising “account when [he] had done
nothing to merit such cancellation.” The complaint further alleged Strachan
shared a “special relationship” with Facebook because he entrusted the
company with personal information. The complaint attached the agreement.
Facebook demurred. The company argued the complaint failed to
allege facts sufficient to state claims for breach of contract and breach of the
implied covenant because—contrary to the complaint’s allegations—nothing
in the agreement required it to maintain Strachan’s advertising content on
the platform. Over Strachan’s opposition, the trial court sustained the
demurrer without leave to amend. It concluded the cause of action for breach
of contract failed as a matter of law for three reasons: (1) the Terms of Use
neither restricted Facebook’s ability to remove content from the platform nor
required the company to maintain a user’s account; (2) the Advertising
Policies restricted the user’s behavior, not the company’s; and (3) the
Platform Terms limited the user’s conduct without restricting the company’s
activity. The court also determined the claim for breach of the implied
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covenant—which was premised on the same allegations as the breach of
contract cause of action—also failed. The court later dismissed the matter
with prejudice.
DISCUSSION
Before addressing Strachan’s appellate contentions, we recite the
pertinent principles of appellate procedure and the standard of review. A
trial court’s order is presumed correct; the party challenging the order has
the burden to demonstrate reversible error. (Jameson v. Desta (2018)
5 Cal.5th 594, 608–609.) We affirm if the judgment is “correct on any legal
basis.” (65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC
(2023) 91 Cal.App.5th 162, 169.) We disregard arguments unsupported by
legal authority, and we hold self-represented litigants to the same standards
as attorneys. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.)
“When reviewing a ruling on a demurrer, we examine de novo whether
the complaint alleges facts sufficient to state a cause of action. [Citation.]
‘We assume the truth of the properly pleaded factual allegations, [and] facts
that reasonably can be inferred from those expressly pleaded.’ [Citation.]
But we do not assume the truth of ‘contentions, deductions, or conclusions of
law.’ [Citation.] We liberally construe the complaint ‘with a view to
substantial justice between the parties,’ drawing ‘all reasonable inferences in
favor of the asserted claims.’ [Citations.] The plaintiff . . . ‘must show the
complaint alleges facts sufficient to establish every element of each cause of
action.’ ” (Liapes v. Facebook, Inc., supra, 95 Cal.App.5th at p. 919.)
Next, we turn to Strachan’s contention that the complaint states a
claim for breach of contract. The complaint alleged Facebook breached the
agreement by terminating Strachan’s advertising account without cause. But
the complaint pointed to no “cause” provision of the agreement either
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requiring Facebook to maintain a user’s account or restricting the company’s
ability to remove content from the platform. As summarized ante, the Terms
of Use authorized the company to unilaterally “suspend or permanently
disable access” to a user’s account if it determined the user “clearly, seriously,
or repeatedly breached” the company’s terms, policies, or community
standards. And the Advertising Policies prohibited advertisers from
promoting “the sale or use of adult products or services” and enabled the
company to “take enforcement action against” the user if the company
believed—in its “sole discretion”—that the user violated the Terms of Use.
(Italics added.) Courts have held these terms impose no “ ‘ “affirmative
obligations” ’ ” on the company. (See, e.g., Cross v. Facebook, Inc. (2017)
14 Cal.App.5th 190, 201; Ebeid v. Facebook, Inc. (N.D. Cal., May 9, 2019,
No. 18-CV-07030-PJH) 2019 WL 2059662, at * 7 [advertising terms reserved
“Facebook’s right to ‘reject or remove any ad for any reason’ ”].)
Our decision in Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12 is
instructive. There, the plaintiff sued an Internet communications platform
for breach of contract after it locked her out of her account removed her
tweets from the platform despite her claim that “she never violated any of the
Terms of Service, Rules or incorporated policies.” (Id. at pp. 20, 22.) We
affirmed the order sustaining the defendant’s demurrer without leave to
amend. In doing so, we observed that the “clear terms” of the defendant’s
“user agreement preclude[d] a claim for breach of contract.” (Id. at p. 35.)
The user agreement, we observed, gave the defendant “editorial discretion to
remove content” from its platform (id. at p. 30) and authorized the defendant
to “ ‘suspend or terminate’ [users’] accounts . . . for any or no reason’ without
liability.” (Id. at p. 35, brackets in original.)
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The same is true here. Like the contractual provisions at issue in
Murphy, the agreement gave Facebook discretion to disable a user’s account
and to remove content—including advertising content—that violated the
company’s Terms of Use. As in Murphy, the clear terms of the agreement
preclude a claim for breach of contract based on the complaint’s allegations.
(Murphy v. Twitter, Inc., supra, 60 Cal.App.5th at p. 35; see also Melican v.
Regents of University of California (2007) 151 Cal.App.4th 168, 174 [plaintiff
must allege “with certainty the facts constituting a breach of contract”].)
Because Strachan’s breach of contract claim fails, so too does his derivative
claim for breach of the implied covenant. (See Bionghi v. Metropolitan Water
Dist. (1999) 70 Cal.App.4th 1358, 1370.)
Strachan’s arguments to the contrary are not persuasive. For example,
he contends the agreement is ambiguous and that the trial court “ignored”
various provisions of the Civil Code governing contractual interpretation. We
decline to consider these arguments because they are made for the first time
on appeal. (See Bhatt v. State Dept. of Health Services (2005)
133 Cal.App.4th 923, 933.) Neither Strachan’s assertion that he has a special
relationship with Facebook, nor his reliance on the minority opinion in
Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 104—which
concerns tort liability for bad faith denial of the existence of a contract—
establishes he has a viable claim for breach of the implied covenant.
We conclude the complaint fails to state causes of action for breach of
contract and breach of the implied covenant. Having reached this conclusion,
we need not determine whether the Communications Decency Act of 1996
(47 U.S.C. § 230) bars the claims. Finally, we do not consider whether
Strachan could amend the complaint to allege cognizable claims for breach of
contract and breach of the implied covenant because he has not requested
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leave or otherwise shown an ability to do so. (Lagrisola v. North American
Financial Corporation (2023) 96 Cal.App.5th 1178, 1186, fn.3; Estate of Jones
(2022) 82 Cal.App.5th 948, 955, fn. 1.)
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties are ordered
to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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GETTY, J.
We concur.
HUMES, P.J.
MARGUILES, J.
(A165910N)
* Judge of the Superior Court of California, County of Solano, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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