Case Name: Sushant Gupta v. Google, Inc., et al.
Case No.: 17-CV-320549

Currently before the Court is the demurrer by defendant Google, Inc. (“Google”) to the first amended complaint (“FAC”) of plaintiff Sushant Gupta (“Plaintiff”).

Factual and Procedural Background

This is an action for fraud. Plaintiff delivers food using a platform provided by defendant Doordash, Inc. (“Doordash”). (FAC, p. 1:22-23.) Doordash allegedly recommends using Google Maps, a product of Google. (Ibid.) Although Plaintiff selected “No Tolls” in his Google Maps settings, he “still ended up getting up on Toll roads” on two separate occasions. (Id., at pp. 1:23-24 and 2:7-8.) Plaintiff alleges that there is a glitch in the Google Maps application “which makes the person who is following [Google Maps] take the toll road despite of choosing no tolls in the Settings.” (Sic.) (Id., at p. 2:4-5.) Due to the glitch, Plaintiff was charged toll fees in the amounts of $102.40 and $101.96, and suffered anxiety and increased blood pressure. (Id., at pp. 1:23-24 and 2:8-9.) Plaintiff allegedly reported the problem with Google Maps, but no action was taken. (Id., at p. 2:12-13.)

Based on the foregoing, Plaintiff filed the operative FAC against Doordash and Google, alleging a single claim for fraud.

On December 26, 2017, Google filed the instant demurrer to the FAC. Plaintiff filed papers in opposition to the demurrer on March 22, 2018.

Discussion

Google demurs to the FAC on the ground of failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

I. Request for Judicial Notice

In footnote three of its moving papers, Google states that “[t]his Court may judicially notice the Google Terms, which are Exhibit 1 to the [declaration of Kelly M. Knoll] in support of [its] present demurrer, both because they have already been enforced in this case, and because they constitute ‘[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.’ [Citations.]” (Mem. Ps. & As., p. 4, fn. 3.)

However, Google does not ask the Court take judicial notice of the Google Terms. Even if the Court were to construe footnote three as a request for judicial notice, the request is procedurally improper because the request is not made in a separate document. (Cal. Rules of Ct., rule 3.1113(l) [a request for judicial notice must be made in a separate document listing the specific items for which notice is requested].)

Accordingly, to the extent Google requests that the Court take judicial notice of the Google Terms, the request is DENIED.

II. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

III. Claim for Fraud

Google argues that Plaintiff fails to allege sufficient facts to state a claim for fraud because Plaintiff does not plead with sufficient particularity that it made a representation; Plaintiff does not plead with sufficient particularity that he relied on any misrepresentation; Plaintiff does not plead facts showing justifiable reliance; Plaintiff does not plead facts showing damages attributable to his reliance on any misrepresentation; and Plaintiff does not plead that it had the requisite scienter. (Mem. Ps. & As., pp. 5:4-10:12.)

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) “Each element must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211; Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [“Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.”].)

Google’s arguments are generally well-taken. Although it can be inferred from Plaintiff’s allegations that Google misrepresented to Plaintiff that the route displayed on Google Maps was toll-free (see FAC, p. 1:22-24 [Plaintiff selected “No Tolls” in his Google Maps settings]), Plaintiff does not plead sufficient facts demonstrating when the alleged misrepresentation was made to him (see West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 [when the fraud is predicated on a misrepresentation, the plaintiff must allege facts showing how, when, where, to whom, and by what means the representation was made]). Additionally, Plaintiff does not sufficiently plead facts showing that he relied on the alleged misrepresentation as he merely states that he “still ended up getting up on Toll roads ….” (FAC, p. 1:22-24.) Furthermore, Plaintiff does not allege facts demonstrating that that Google knew the misrepresentation was false at the time it was made or that Google intended to induce reliance on the alleged misrepresentation. (See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 482 [“Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.”].)

For these reasons, Google’s demurrer to the FAC is SUSTAINED, with 10 days’ leave to amend.