244 Cal. App. 4th 118
Cal. Ct. App.2016Background
- Jan Lewis created a YouTube channel in 2006 and uploaded 24 noncommercial videos (2007–2012) that received ~500,000 views; she claims she spent substantial time and money producing them and valued the community acclaim.
- In November 2012 YouTube deleted/suspended Lewis’s channel without prior notice; Lewis repeatedly appealed and received automated e-mails citing a Terms of Use provision (TOU §4.H) forbidding automated access and commercial solicitation, but YouTube did not specify the exact conduct it relied on.
- Lewis sued for breach of contract seeking either damages (out-of-pocket costs and value of time) or specific performance (restoration of her channel including videos, historical view counts, comments, and links).
- YouTube demurred to the complaint and sought judicial notice of its Community Guidelines and e-mails; the trial court sustained the demurrer without leave to amend and entered judgment of dismissal. Lewis appealed.
- The Court of Appeal reviewed de novo, denied Lewis’s motion to augment the record, and affirmed dismissal: limitation-of-liability in the Terms of Service barred damages; no contractual provision supported specific performance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are damages recoverable for YouTube’s deletion of Lewis’s channel? | Lewis: deletion deprived her of unique, unmarketable community acclaim and out-of-pocket/time costs; damages are available. | YouTube: Terms of Service contains a broad limitation-of-liability clause covering loss/omission of content, barring damages. | Held: Limitation-of-liability applies to deletion/omission of content; damages barred. |
| Is specific performance available to restore the channel (videos, view counts, comments, links)? | Lewis: Terms grant users permission to access/use the Service; channels include the features she seeks, so specific performance to restore them is available. | YouTube: No term requires maintenance or restoration of particular content, view counts, comments, or URLs; no contractual standard to enforce. | Held: No provision sufficiently definite to support specific performance; remedy unavailable. |
| Should appellate court consider Lewis’s post-judgment declaration not in trial record? | Lewis: declaration supplies specifics of damages and facts supporting specific performance; should be considered. | YouTube: appellate augmentation limited to items already in trial record; declaration cannot be added. | Held: Denied—augmentation not allowed because jury trial was available, evidence known earlier, and appellate rules limit supplementation. |
| Was denial of leave to amend an abuse of discretion? | Lewis: could amend to add specifics of damages and factual detail (per her declaration). | YouTube: even with amendment, limitation clause and lack of enforceable contractual terms cannot be cured. | Held: No abuse—plaintiff failed to show a reasonable possibility amendment could state a viable breach claim. |
Key Cases Cited
- Berg & Berg Enterprises, LLC v. Boyle, 178 Cal.App.4th 1020 (discusses de novo review of demurrer and pleading rules)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (elements of breach of contract include resulting damages)
- Blank v. Kirwan, 39 Cal.3d 311 (standard for whether a demurrer sustained without leave to amend was proper)
- DVD Copy Control Assn. v. Kaleidescape, Inc., 176 Cal.App.4th 697 (specific performance requires sufficiently definite contractual standards)
- Food Safety Net Servs. v. Eco Safe Sys. USA, Inc., 209 Cal.App.4th 1118 (validity of limitation-of-liability clauses)
- Markborough Cal., Inc. v. Superior Court, 227 Cal.App.3d 705 (limitations of liability appropriate for free public services)