Riggs v. MySpace, Inc., 072511 FED9, 09-56633

Docket Nº:09-56633
Party Name:JULIE C. RIGGS, Plaintiff - Appellant, v. MYSPACE, INC.; et al., Defendants-Appellees.
Judge Panel:Before: SCHROEDER, ALARC
Case Date:July 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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JULIE C. RIGGS, Plaintiff - Appellant,

v.

MYSPACE, INC.; et al., Defendants-Appellees.

No. 09-56633

United States Court of Appeals, Ninth Circuit

July 25, 2011

NOT FOR PUBLICATION

Submitted July 12, 2011.[**]

Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding D.C. No. 2:09-cv-03073-GHK-CT.

Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

MEMORANDUM[*]

Julie C. Riggs appeals pro se from the district court's judgment dismissing with prejudice her diversity action alleging state law claims of negligence, gross negligence, "promissory fraud breach of contract, " and breach of implied-in-fact contract. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm in part, reverse in part, and remand.

The district court properly dismissed Riggs's negligence and gross negligence claims, arising from MySpace's decisions to delete Riggs's user profiles on its social networking website yet not delete other profiles Riggs alleged were created by celebrity imposters, because these claims were precluded by section 230(c)(1) of the Communications Decency Act. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) (en banc) ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.").

The district court properly dismissed Riggs's "promissory fraud breach of contract claim, " arising from MySpace's alleged breach of an arbitration clause in its Terms of Use, because Riggs failed to allege any legally cognizable damages. See Erlich v. Menezes, 981 P.2d 978, 987 (Cal. 1999) ("[D]amages for mental suffering and emotional distress are generally not recoverable in an action for breach of an ordinary commercial contract in California."); Navellier v. Sletten, 131 Cal.Rptr.2d 201, 212 (Ct. App. 2003) (attorney's fees and costs are not recoverable unless an agreement or a statute specifically provides for them); Nagy v. Nagy, 258 Cal.Rptr. 787, 790 (Ct. App. 1989) ("[D]amages for emotional distress alone are not recoverable [for a fraud claim].").

However, the district court improperly dismissed Riggs's implied-in-fact contract claim, arising from her ideas for a...

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