Opinion
B224828
08-24-2011
VY TRUONG, Plaintiff and Appellant, v. EBAY, INC. et al., Defendants and Respondents.
Tristram Buckley for Plaintiff and Appellant. Holland & Knight and Shelley Hurwitz for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Allan J. Goodman, Judge. Affirmed in part, reversed in part and remanded with directions.
Tristram Buckley for Plaintiff and Appellant.
Holland & Knight and Shelley Hurwitz for Defendant and Respondent.
This is a pleading case, presented to us following the sustaining of a demurrer without leave to amend. The parties are the plaintiff and appellant, Vy Troung, and defendants eBay, Inc., a corporation doing business and incorporated in California, two employees of eBay and Marcel Harstein. Only eBay is a respondent on this appeal.
The notice of appeal purports to be from orders sustaining a demurrer without leave to amend. Of course, an order sustaining a demurrer is not appealable; the appeal lies from the order of dismissal issued as a result of the sustaining order. (Lavine v. Jessup (1957) 48 Cal.2d 611, 613; Jeffers v. Screen Extras Guild, Inc. (1951) 107 Cal.App.2d 253, 254.) Respondent raises no question whether the appeal in this case is from an appealable order. In keeping with the maxim that a notice of appeal shall be liberally construed in favor of its sufficiency, we shall presume that an order of dismissal was issued and the appeal is from that order. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20 and cases cited; Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202.)
In its ruling on the demurrer the trial court noted that neither Harstein nor the two eBay employees had been served with the summons and complaint, and set an order to show cause why they should not be dismissed from the action. The record before us does not indicate any further ruling with respect to these parties.
We shall conclude that the court properly sustained the demurrer and that it was proper to do so without leave to amend, except as to one theory which appellant has demonstrated that she could adequately plead, and that she should have been given an opportunity to plead that one theory. Consequently, we shall affirm in part and reverse in part, with directions.
PROCEDURAL SUMMARY
It is a cardinal rule that in reviewing a general demurrer to a complaint, or a trial court ruling on the demurrer, the demurrer admits all properly pleaded material facts, and the complaint is to be given a reasonable interpretation, reading it as a whole and in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 319.) Further, when a demurrer is sustained, a reviewing court determines whether the complaint states facts sufficient to constitute a cause of action and, if it is sustained without leave to amend, whether there is a reasonable possibility that the defect can be cured by amendment. If it can, it is an abuse of discretion not to allow the amendment; otherwise the ruling is affirmed. (Ibid.)
The charging pleading in this case is the first amended complaint. Generally, it describes the attempted sale of an automobile, a Porsche, through the auspices of defendant eBay. eBay is alleged to represent itself as providing "an online marketplace for the sale of goods and services," one which "has elements similar to an auction but with bids placed by prospective purchasers via the internet" and the bids are deemed to be offers to purchase the product or service listed for sale on eBay. In order to participate in the eBay marketplace, a user must agree to the terms of eBay's User Policy. That policy applies the common law of contracts, under which a seller offers to sell a product by listing it for sale on eBay and the party who makes the highest bid has the right and obligation to pay for the item in the amount of the bid. In effect, the listing is the offer to sell to the party making the highest offer, and that party is bound to buy the product at the price offered. The complaint alleges that plaintiff advertised the car for sale on eBay's electronic marketplace, that in July 2008, defendant Marcel Harstein offered to buy the vehicle for $21,300, and that this gave rise to an offer and acceptance and a binding contract between plaintiff and Harstein. Other classic elements of a contract action, such as that plaintiff was ready, willing and able to sell the vehicle by conveying it and legal title to Harstein, also were pleaded.
The complaint, in four causes of action, alleges first that, although confirming his offer to buy the vehicle, Harstein reneged, thereby breaching his contract. This breach is pleaded as the basis for plaintiff's first cause of action against Harstein. The second cause of action, also against Harstein, alleges promissory fraud: that Harstein never intended to buy the car and made his offer to deceive and defraud plaintiff. The remaining two causes of action are against eBay. The first of these (the third cause of action in the complaint) is for tortious interference by inducing a breach of contract. It alleges that, at some time before the vehicle was listed on eBay. Troung had contacted eBay asking that it remove from its website certain statements which, she claimed, defamed her, and that eBay declined to do so and took action against her by suspending her from participating in the eBay marketplace. It was alleged that plaintiff "made use of the internet marketplace, i.e., [eB]ay, as a means by which to support herself" and that this suspension "directly caused the Plaintiff severe financial hardship" and "directly interfered with her ability to earn a living."
The complaint against eBay went on to allege that eBay was aware of plaintiff's contract with Harstein for sale of the vehicle, having sent her an email congratulating her on the sale, but that it induced Harstein to breach his contract with plaintiff. Harstein "represented to the Plaintiff that [eBay] sent him a defamatory email directing him not to fulfill his contractual obligations and to breach the contract with the Plaintiff."
The second cause of action against eBay (the fourth cause of action in the complaint) is for violation of the Consumer Legal Remedies Act, Civil Code section 1170. As we shall explain, the trial court correctly ruled that it was barred.
DISCUSSION
I
The principal problem with the tortious interference with contract action against eBay, read with the exhibits included with the complaint, is that plaintiff Troung is the plaintiff yet the exhibits show the seller of the vehicle was not she, but someone else: Tristram Buckley. Plaintiff's opposition to the demurrer makes it plain that Buckley is plaintiff's attorney (at trial and on appeal). eBay's congratulatory email, stating that the vehicle was sold, was addressed to him. In other words, the pleading alleges a contract between Troung and Harstein (even using the feminine pronoun), but the documentation appended to the complaint shows a contract between Buckley and Harstein. (See Banis Restaurant Design, Inc. v. Serrano. (2005) 134 Cal.App.4th 1035, 1044-1045 [facts appearing in exhibits to complaint take precedence over allegations in complaint].) In his opposition to the demurrer Buckley explains that he listed the vehicle on eBay, using his account number, after eBay had suspended Troung from using its marketplace, and that she was an "undisclosed principal" in the transaction, with Buckley acting as her "undisclosed agent."
But an agent stands in the shoes of the principal and cannot act if the principal is disqualified from acting. A principal "may not employ an agent to do that which the principal cannot do personally." (Channel Lumber Co. v. Porter Simon (2000) 78 Cal.App.4th 1222, 1228; Civ. Code, § 2304.) Having been suspended from using eBay, Troung was not eligible to list property for sale on eBay, and it was no more permissible for Buckley to do so than it was for her to do so. We see no way in which
this defect could be cured by an amendment to the pleading.
There is another defect in the pleading, although the one just discussed is sufficient by itself to support the order sustaining the demurrer. The complaint alleges that Troung was using eBay to support herself, which at least implied that she was in the business of selling personal property to earn a living, and hence was not a "consumer" for purposes of the eBay marketplace user rules. Appellant's counsel points out that the charging pleading is unverified, and says that this is a misstatement in drafting for which he, not plaintiff, is responsible and that it can be cured on amendment. We need not and do not reach respondent's claim that the pleading also is insufficient for the interference tort because it does not claim that the alleged tortfeasor knew about a contract between Troung and Harstein, since the supporting papers show Buckley as the seller. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Finally, we note that eBay raised the immunity provision of the federal Communications Decency Act (47 U.S.C. § 230). As appellant pointed out to the trial court, and as that court ruled, the pertinent provision of that statute makes the law applicable to an action taken by an internet service provider to restrict access to or availability of material that is obscene, harassing, "or otherwise objectionable." The conduct alleged against eBay was not editing or policing content of items posted on its marketplace, but interfering with a contract. (See 47 U.S.C. § 230(c)(2)(A).) eBay does not urge this ground in its respondent's brief.
Thus, we conclude the trial court was correct in sustaining the demurrer to the third cause of action, for intentional interference with contractual relations. We reserve our review of whether appellant should have been given leave to amend the complaint to the final part of our discussion.
II
Appellant's second cause of action against respondent (the fourth cause of action in the charging pleading) is for violation of the Consumers Legal Remedies Act. The purpose of this law is "to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection."
(Civ. Code, § 1760.) The statute provides for injunctive relief and other remedies for violations, and it is to be liberally construed to achieve its objectives. (§§ 1752, 1760; see generally, 4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 296, p. 264.) The statute lists 24 kinds of conduct, many with subdivisions, which violate its provisions. (§ 1770, subd. (a).) Of these, the complaint counts on three: subdivisions (a)(5) (representing goods or services as having characteristics they do not have); (a)(7) (representing goods or services to be of a particular standard, quality, grade, style or model if they are not); and (a)(9) (advertising goods or services with intent not to sell them as advertised).
Further code citations in this part of the opinion are to the Civil Code.
Pertinent here is the requirement of a preliminary notice before an action for damages may be filed. Section 1782, subdivision (a) provides that 30 days or more before an action for damages under the statute may be commenced, the consumer must notify the person alleged to have violated its provisions of the particular provisions alleged to have been violated. The notice must be in writing and sent by registered or certified mail, return receipt requested, to the place where the transaction occurred or to the alleged violator's principal place of business in California. (§ 1782, subds. (a)(1), (2).)
This requirement—that the preliminary notice be sent at least 30 days before an action under the statute is commenced—is waivable, but it is strict; "substantial compliance" is not enough. (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 40 (Outboard Marine) [clear intent of statute is to provide and facilitate precomplaint settlements of consumer actions wherever possible, and this "clear purpose may only be accomplished by a literal application of the notice provisions"]; see also Von Grabe v. Sprint PCS (S.D. Cal. 2003) 312 F.Supp.2d 1285, 1305; Laster v. T-Mobile USA, Inc. (S.D. Cal. 2005) 407 F.Supp.2d, 1181, 1194, 1196; and Cattie v. Wal-Mart Stores, Inc. (S.D. Cal. 2007) 504 F.Supp.2d 939, 950 [all similar, following Outboard Marine].)
There is no allegation in the charging pleading that notice was given as required in the statute. Appellant tried to show that notification had been given, doing so in her opposition to the demurrer. Among the appended documents is a purported letter addressed to respondent threatening suit for violation of the statute. It was said to have been "sent" to respondent, but there is no verification that it was sent at all, and no claim that it was sent at least 30 days before the first amended complaint was filed, or sent by registered or certified mail, return receipt requested, as required by the statute.
The purported letter bears the date June 15, 2009, which is more than 30 days before the first amended complaint was filed. A copy of the original complaint is not in the file. Obviously, if it included a cause of action under the Consumers Legal Remedies Act and was filed less than 30 days after the letter was sent, it too would be untimely.
Under these circumstances the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.
III
Appellant argues she is entitled to monetary sanctions on appeal because she prevailed on a discovery motion. The argument is based on appellant's success with respect to a protective order sought by eBay. The trial court expressly rejected the sanctions claim, ruling that if eBay's motion had remained on calendar sanctions would not have been awarded to either side. The discovery statute gives trial courts considerable discretion on sanctions issues. While the statute provides that the prevailing side on a discovery motion "shall" receive monetary sanctions, this statement is repeatedly qualified by an admonition that sanctions shall be imposed "unless [the court] finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (See, e.g., Code Civ. Proc., § 2023.030, subd. (a).) The standard of review is deferential to the trial court's ruling (see New Albertsons, Inc. v. Superior Court (2008) 168 CalApp.4th 1403, 1422) and we find no abuse of discretion in this case.
IV
This takes us to the final issue presented on appeal: whether the trial court abused its discretion in not allowing an amendment to the cause of action for tortuous interference. That depends on whether there was a reasonable possibility that the defect in the charging pleading can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d 311, 319.) It appears that there is that possibility as to the tortious interference cause of action. In her opposition to the demurrer plaintiff asked for leave to amend to add an additional defendant and further allegations against eBay which would allege that appellant originally listed the Porsche for sale on eBay using her own name and eBay user number, and received a notification from eBay congratulating her because the car was sold, to Hilda J. Wilson for $20,000. It also was alleged that, following that notification, eBay interfered with the contract between Troung and Wilson by contacting Ms. Wilson directly and advising her not to complete the transaction. The trial court struck the supporting documentation for this claim. We agree that the trial court was right to strike it insofar as it bore on the adequacy of the pleading under review. But the showing was made, at least in part, to support a request for leave to amend, and the documents do bear on that issue.
We believe this was a sufficient showing to entitle appellant to amend her complaint solely to state a cause of action for interference with respect to the Troung-Wilson purported contract, and that appellant should have an opportunity to present that theory.
DISPOSITION
The order of dismissal is reversed with directions to allow appellant to amend her complaint to allege a cause of action against eBay on the theory of tortious interference with an alleged contract between her and Wilson. In all other respects the judgment is affirmed. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.