JAN LEWIS, Plaintiff and Appellant, v. YOUTUBE, LLC, Defendant and Respondent.
No. H041127
Sixth Dist.
Dec. 28, 2015
COUNSEL
Wilson Sonsini Goodrich & Rosati, David H. Kramer, Jacob T. Veltman and Sara E. Rowe for Defendant and Respondent.
OPINION
MIHARA, J.—Plaintiff Jan Lewis used the video-sharing service operated by defendant YouTube, LLC (YouTube). After YouTube suspended her account, Lewis filed a complaint for breach of contract. The trial court sustained YouTube‘s demurrer to her complaint without leave to amend. We conclude that Lewis failed to establish that she was entitled to either damages or specific performance and affirm the judgment of dismissal.
I. Statement of the Case
In November 2013, Lewis filed her complaint for breach of contract and sought either damages or specific performance. A month later, YouTube filed a demurrer. It also filed a request for judicial notice of the YouTube community guidelines and several e-mails between Lewis and YouTube. Lewis opposed both the demurrer and the request for judicial notice. YouTube filed a reply in support of its demurrer to the complaint. Following a hearing, the trial court granted the request for judicial notice, sustained the demurrer without leave to amend, and entered a judgment of dismissal.1 Lewis filed a timely notice of appeal.
II. Standard of Review
“‘A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a question of law. [Citations.]’ [Citation.] Thus, the standard of review on appeal is de novo. [Citation.] ‘In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” [Citation.] Further, we give the complaint a reasonable interpreta-tion, reading it as a whole and its parts in their context. [Citation.] When a
III. The Complaint
Lewis alleged the following facts. YouTube‘s Web site provides users with a way to share their videos. Users create an account, select a video from their computer, and upload it to YouTube‘s computer servers. YouTube does not charge users to upload videos or visitors to view them. YouTube‘s annual revenue of several billion dollars is generated through the sale of advertisements.
YouTube posts its “Terms of Service” on its Web site. A copy of the Terms of Service was attached as an exhibit to the complaint.
Lewis created the former YouTube channel, “bulbheadmyass” in 2006. She accepted the Terms of Service and was bound by them. In January 2007, she posted her first video featuring her musical group “Remington Riders.” Between January 2007 and November 2012, Lewis posted 24 videos, which gathered nearly 500,000 views, garnered many favorable comments, and were linked to by other musicians. Lewis spent “hundreds of hours and thousands of dollars” producing these videos. There was no commercial component to the production of the videos: she did not sell the videos or audio versions of the music; and the Remington Riders did not perform in public. Her sole reward was “the acclaim that she received from the YouTube community and the opportunity to make new friends.” Lewis responded to comments and shared her videos with other users who she thought might like them. She only engaged with the YouTube community by means of conventional Web browser software.
On November 19, 2012, Lewis discovered that YouTube had deleted her channel. She received no notice that the channel was going to be deleted. On November 25, 2012, Lewis sent an e-mail to YouTube and asked for help in restoring the channel. She received the following reply: “Thank you for your email. [] This account was found in Violation of TOU #4 Section H: [[] http://www.youtube.com/t/terms [] You agree not to use or launch any automated system, including without limitation, ‘robots,’ ‘spiders,’ or ‘offline readers,’ that accesses the Service in a manner that sends more request
YouTube did not notify Lewis which of the different acts set forth in its response resulted in the deletion of her channel. Lewis sent a letter to YouTube several days later and denied a violation of section 4.H of the Terms of Service. YouTube responded by sending an e-mail identical to its previous e-mail. In February 2013, Lewis filed an appeal with YouTube. She received an e-mail identical to the previous e-mails.
After Lewis made additional efforts to determine why her channel had been deleted, YouTube took the “unfounded position that [she] had been soliciting other users for commercial purposes.”
Lewis‘s first cause of action for breach of contract incorporates by reference the previous allegations. It also alleges that “the Terms of Service incorporates an implied covenant of good faith and fair dealing such that neither party will do anything to destroy or injure the right of the other party to receive the benefits of the contract.” When Lewis uploaded her videos on the YouTube Web site and actively engaged with the YouTube community, she helped generate the traffic that allowed YouTube to sell advertising to those who wanted to target the YouTube community. Though Lewis performed all conditions required under the Terms of Service, YouTube breached the covenant of good faith and fair dealing.
YouTube deprived Lewis of her reasonable expectations under the Terms of Service, which included the expectation that if she complied with the Terms of Service that her channel would be maintained, that the channel would continue to include her videos, and that her channel would continue to reflect the same number of views and comments by fellow YouTube users. Lewis has no adequate remedy at law because “the acclaim that her channel received from fellow YouTube users represents a unique article having a special value to Lewis, for which Lewis cannot obtain a duplicate on the open
Alternatively, the second cause of action for breach of contract seeks damages, which “would include, but not be limited to, her out-of-pocket costs associated with producing the videos and the reasonable value of her time spent generating her original content and participating as a member of the YouTube community.”2
IV. Discussion
A. Motion to Supplement the Record
Lewis has brought a motion to supplement the record on appeal to include her declaration. This motion was filed after YouTube filed its respondent‘s brief.
“Augmentation does not function to supplement the record with materials not before the trial court. [Citations.] . . . Rather, normally ‘when reviewing the correctness of a trial court‘s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’ [Citation.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [58 Cal.Rptr.2d 899, 926 P.2d 1085].) However, pursuant to
Here, Lewis sought damages for breach of contract and was entitled to a jury trial, the information in her declaration was known to her when she filed her complaint, and she is seeking to introduce evidence to reverse the
California Rules of Court, rule 8.155 also does not assist Lewis. It provides in relevant part: “(a) Augmentation [][] (1) At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [[] (A) Any document filed or lodged in the case in superior court; or [[] (B) A certified transcript—or agreed or settled statement—of oral proceedings not designated under rule 8.130. [[] . . . [[] (b) Omissions [[] (1) If a clerk or reporter omits a required or designated portion of the record, a party may serve and file a notice in superior court specifying the omitted portion and requesting that it be prepared, certified, and sent to the reviewing court. The party must serve a copy of the notice on the reviewing court. [][] . . . [[] (c) Corrections [[] (1) On motion of a party, on stipulation, or on its own motion, the reviewing court may order the correction or certification of any part of the record. [][] (2) The reviewing court may order the superior court to settle disputes about omissions or errors in the record.” (Boldface omitted.) Since rule 8.155 authorizes the supplementation and correction of the appellate record to include only those documents that were part of the trial court‘s record, it does not support Lewis‘s position.
Accordingly, the motion is denied. Since the record on appeal does not include Lewis‘s declaration, she may not rely on it. (See Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 [87 Cal.Rptr.2d 90].)
B. Damages
Lewis contends that her complaint states a cause of action for breach of contract. Assuming that YouTube has breached the Terms of Service, we conclude that Lewis cannot establish damages.
“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff‘s performance or excuse for nonperfor-mance, (3) defendant‘s breach, and (4) the resulting damages to the plaintiff. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [124 Cal.Rptr.3d 256, 250 P.3d 1115].)
The Terms of Service contain a limitation of liability clause. It states: ”IN NO EVENT SHALL YOUTUBE, ITS OFFICERS, DIRECTORS, EMPLOY-EES OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAM-AGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MIS-TAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY
Limitation of liability clauses “‘have long been recognized as valid in California.’ [Citation.]” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1126 [147 Cal.Rptr.3d 634].) As in the present case, these clauses are appropriate when one party is offering a service for free to the public. (See Markborough California, Inc. v. Superior Court (1991) 227 Cal.App.3d 705, 714 [277 Cal.Rptr. 919] [“limitation of liability provisions are particularly important where the beneficiary of the clause is involved in a ‘high-risk, low-compensation service’ “].)
Lewis argues that the limitation of liability clause in the Terms of Service is inapplicable. She argues that she has not alleged that there were any errors or omissions in any content, but rather a deletion of her content without prior notice.
We interpret a contract “to give effect to the mutual intention of the parties as it existed at the time of contracting.” (
Here, the Terms of Service define “content” to include “the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combi-nations, interactive features and other materials you may view on, access
C. Specific Performance
Lewis next contends that the complaint adequately alleged a remedy for specific performance.
“Specific performance of a contract may be decreed whenever: (1) its terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiff‘s legal remedy is inadequate. (
Lewis argues that “the Terms of Service specifies that YouTube is granting a user . . . permission to access and use its ‘Service’ ” and that ” ‘Service’ is ‘all aspects of YouTube’ offered ‘via its website.’ ” Thus, she asserts that “[e]ach channel on the website includes the very features that [she] seeks to have restored, namely, the videos themselves, the view count, the comments and the URLs from other users who have linked to it.”
As previously noted, the parties agree that YouTube has restored Lewis‘s account, and thus Lewis is allowed to upload copies of the videos previously posted to her account. Lewis is now seeking to have the court order YouTube to “restor[e] her channel to its condition prior to YouTube‘s breach.” The Terms of Service require YouTube to grant users, such as Lewis, “permission to access and use the Service” under specified circumstances. However, there is no provision in the Terms of Service that requires YouTube to maintain
Lewis‘s reliance on DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697 [97 Cal.Rptr.3d 856] (DVD Copy) is misplaced. In DVD Copy, the defendant licensed the Content Scramble System (CSS), which is the “technology used to prevent unauthorized copying of movies and other copyrighted content stored on DVD‘s,” from the plaintiff. (Id. at p. 701.) After the defendant developed a system that allowed a DVD to be played back without the physical copy of the DVD disc to be inserted into the DVD player, the plaintiff brought a breach of contract action that alleged, among other things, that the defendant had not complied with the parties’ agreement. (Id. at pp. 701–702.) This court held that the “General Specifica-tions” were part of the parties’ agreement and considered whether the remedy of specific performance was available to the plaintiff. (Id. at pp. 718–720.) Section 1.5 of the “General Specifications” stated that the CSS was ‘in-tended to prevent casual users from the unauthorized copying of copyrighted materials recorded on [DVD‘s].’ ” (Id. at pp. 718–719.) DVD Copy reasoned that this language of intent “sets forth a standard by which [the defendant‘s] performance under the agreement can be measured” and the issue of what that standard required would be resolved when the trial court determined whether the defendant had breached this section. (Id. at p. 719.) Section 2.1.2 of the General Specifications set forth the DVD playback system for two types of playback devices. (Id. at pp. 719–720.) DVD Copy concluded that the section was “not so vague that the court cannot tell what it requires—it requires that playback of DVD content by a Drive plus Decryption device be performed utilizing the physical DVD.” (Id. at p. 720.) In contrast to DVD Copy, here, no provision in the Terms of Service can serve as the basis for the relief that Lewis seeks.
D. Leave to Amend
Lewis also contends that she should be allowed the opportunity to amend her complaint.
When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.) “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406].) ” ’ “[A] showing need not be made in the trial court so long as it is made to the reviewing court.” ’ ” (Dey v. Continental Central Credit (2008) 170 Cal.App.4th 721, 731 [88 Cal.Rptr.3d 241]; see
Lewis claims in her appellate brief that she can amend her complaint to add allegations providing “the specifics of her items of damage and the reasons why specific performance is an available remedy.” She states that “[t]he details of many of these items are set forth in the Lewis Declaration.” However, this declaration is not part of the record on appeal. More impor-tantly, since we have concluded that the limitation of liability clause of the Terms of Service applies to her claim for damages and none of the provisions of the Terms of Service can serve as the basis for specific performance, Lewis cannot amend her complaint to state a cause of action for breach of contract.
The judgment is affirmed.
V. Disposition
Bamattre-Manoukian, Acting P. J., and Márquez, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied April 13, 2016, S232266.