Anthony v. Yahoo! Inc.
| Citation | 421 F.Supp.2d 1257 |
| Decision Date | 17 March 2006 |
| Docket Number | No. C-05-04175 RMW.,C-05-04175 RMW. |
| Parties | Robert ANTHONY, individually and on behalf of others similarly situated, Plaintiff, v. YAHOO! INC., a Delaware corporation, Defendant. |
| Court | U.S. District Court — Northern District of California |
Brett Lee Rosenthal, Bel Air, CA, Manuel Dobrinsky, Miami, FL, Peter J. McNulty, Bel Air, CA, Philip Freidin, Miami, FL, Randy Rosenblum, Fort Lauderdale, FL, T. Omar Malone, Miami, FL, for Plaintiffs.
Michele D. Floyd, Kerry Hopkins, San Francisco, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFEDANT'S MOTION TO DISMISS
Robert Anthony ("Anthony") has sued Yahoo! Inc. ("Yahoo!") for (1) breach of contract, (2) fraud, (3) negligent misrepresentation, (4) and deceptive and unfair practices under Florida Stat. § 501.204 et seq. ("FDUTPA"), (5) unjust enrichment, and (6) restitution.1 Yahoo! moves to dismiss all of Anthony's claims. Anthony opposes the motion. The court has read the moving and responding papers and considered counsels' arguments. For the reasons set forth below, the court grants in part and denies in part Yahoo!'s motion.
Anthony alleges that Yahoo! offers two on-line dating services: Yahoo! Personals and Yahoo! Premier. First Amended Complaint ("FAC") ¶ 13. The former is "for dates and fun," while the latter caters to people looking for "loving, lasting relationships." Id. at ¶¶ 14-16. Yahoo! represents that both services "will help the subscriber find better first dates and more second dates." Id. at ¶ 17. Yahoo! advises users to be truthful and reserves the right to remove deceptive profiles, thus "giv[ing] all subscribers and potential subscribers a sense of confidence in the authenticity of the images displayed on [its] webstite[.]" Id. at ¶ 18. However, Anthony claims, Yahoo! "deliberately and intentionally[ ] originates, creates, and perpetuates false and/or non-existent profiles on its site" to trick people like Anthony into joining the service and renewing their memberships. Id. at ¶¶ 19-20. In addition, Anthony asserts, when a subscription nears its end date, Yahoo! sends the subscriber a fake profile, heralding it as a "potential `new match.'" Id. at ¶ 24. Anthony provides twenty-three examples of these "false and/or non-existent profiles," which include (1) "[u]sing recurrent phrases for multiple images with such unique dictation and vernacular that such a random occurrence would not be possible" and (2) "[i]dentical images [with] multiple `identities.'" Id. at ¶ 28. Finally, Anthony alleges that Yahoo! continues to circulate profiles of "actual, legitimate former subscribers whose subscriptions had expired," thus giving the misleading impression that these individuals are still available for dates. Id. at ¶ 33. Anthony claims to represent two nationwide subclasses: (1) current members of Yahoo!'s dating services and (2) former members who subscribed after January 1, 2001. Id. at ¶ 9.
Dismissal under Rule 12(b)(6) is proper only when a complaint exhibits either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). The court must accept the facts alleged in the complaint as true. Id. "A complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Anthony alleges that subscribers must agree to Yahoo!'s Terms of Service, Personals Additional Terms of Service, and Personals Guidelines. FAC ¶ 35. He asserts that (1) "Yahoo! entered into a valid, fully integrated contract . . . representing its online dating services as genuine," (2) parties to the contract understood the nature of the contract was intended to provide each paying subscriber with access to a legitimate and genuine online dating service," and (3) Yahoo! "breached the aforementioned contract by ... creating and forwarding false and/or nonexistent profiles[.]" Id. at ¶¶ 36-37. "[T]he elements of [a breach of contract] cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages." First Comm. Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745, 108 Cal.Rptr.2d 23 (2001). Courts may dismiss breach of contract claims when the agreement is not reasonably susceptible to any meaning that could support the plaintiff's legal theories. See Martinez v. Socoma Companies, Inc., 11 Cal.3d 394, 397, 113 Cal.Rptr. 585, 521 P.2d 841 (1974).
Anthony cannot identify any contractual term that requires Yahoo! not to create or forward false profiles. First, he asserts that Yahoo! breached its Personals Guidelines, which provide that Opp. Mot. Dism. at 8:12-15 ).2 He argues that Yahoo! violated this clause by creating and forwarding profiles "that do not represent other people who may share their interests and goals and are not part of a `real community.'" Id. at 8:16-18. However, the language upon which Anthony relies merely describes Yahoo!'s dating service and does not commit Yahoo! to performing or not performing any particular action. See, e.g., Rest. (2d) Contracts § 2 (). Anthony cannot predicate a breach of contract claim upon it.3
Second, Anthony asserts that Yahoo! breached its Terms of Service by allegedly sending expired profiles to existing subscribers. He alleges that many individuals whose expired profiles Yahoo! forwarded had "specifically directed" Yahoo! to remove their profiles. FAC ¶ 33. According to Anthony, Yahoo!'s conduct violates a provision of the Personals Terms of Service that grants Yahoo! a broad license:
[W]ith respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Yahoo! the following world-wide, royalty free and non-exclusive license(s), as applicable:
• With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service.... This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.
• With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible area[s] of the Service other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service .... This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Yahoo! removes such Content from the Service.
Opp. Mot. Dism. at 8: 23-9:14 (quoting Yahoo! Personals Terms of Service, FAC Ex. A, at ¶ 8) (emphasis supplied by Anthony). Anthony argues that "[u]pon being directed by a subscriber to remove a profile, YAHOO is contractually bound to do such that its failure not to do so constitutes a breach of its contractual obligations[.]" Id. at 9:14-18. However, the license provision does not specifically require Yahoo! to remove profiles.
Third, Anthony notes that Yahoo!'s Community Guidelines state that "[y]ou'll be happy to know that we do not allow spam, information gathering, or escort services." Hopkins Decl. Supp. Mot. Dism. ("Hopkins Decl.") Ex. D. He argues that Yahoo!'s forwarding of false profiles contravenes its "contractual obligation not to allow spam." Opp. Mot. Dism. at 10:6-7. Yet this sentence appears in a section entitled "Guidelines for Posting Your Profile." Hopkins Decl. Ex. D. Viewed in context, it restricts what subscribers—not Yahoo!— can do on the site. In any event, the Terms of Service permit Yahoo! to contact subscribers by e-mail. See Yahoo! Personals Terms of Service, FAC Ex. A, at ¶ 22 ().4
Finally, Anthony asserts that "if the Court determines that no express provision of the contract was violated by [Yahoo!'s] conduct, [Anthony] may still nonetheless maintain an action ... for breach of the [implied] covenant of good faith and fair dealing." Opp. Mot. Dism. at 11:16-18. He then requests leave to amend such a theory. The court permits him to do so.
Anthony's second and third causes of action are for fraud and negligent misrepresentation. See FAC ¶¶ 42-58. "The elements of fraud ... are: a representation, usually of fact, which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the misrepresentation, and damage resulting from that justifiable reliance." Stansfield v. Starkey, 220 Cal.App.3d 59, 72-73, 269 Cal. Rptr. 337 (1990). "[N]egligent misrepresentation [is] very similar [but] ... lacks the element of intent to deceive." Intrieri v. Sup. Court, 117 Cal.App.4th 72, 85-86, 12 Cal.Rptr.3d 97 (2004).
Yahoo! argues that the Communications Decency Act ("CDA") bars Anthony's fraud and negligent misrepresentation claims. The CDA...
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