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 second amended complaint (“SAC”) of plaintiff Sushant Gupta (“Plaintiff”).

Factual and Procedural Background

This is an action for fraud. In July 2017, Plaintiff filed his original complaint for fraud against Google and defendant Doordash, Inc. (“Doordash”) (collectively, “Defendants”) in Orange County Superior Court. Google demurred to the complaint and moved to transfer the action to Santa Clara County. The Orange County Superior Court sustained the demurrer with leave to amend and granted the motion to transfer venue.

Thereafter, Plaintiff filed a first amended complaint (“FAC”) against Defendants, alleging a single claim for fraud. In the FAC, Plaintiff alleged that he delivered food using a platform provided by Doordash. (FAC, p. 1:22-23.) Doordash allegedly recommended 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 alleged that there was 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 allegedly 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 further alleged that he reported the problem with Google Maps, but no action was taken. (Id., at p. 2:12-13.)

Google demurred to the FAC on the ground of failure to allege sufficient facts to constitute a cause of action.

On May 1, 2018, the Court issued its order, sustaining Google’s demurrer with leave to amend. As is relevant here, the order states:

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.”].)

(May 1, 2018 Order, p. 4:1-16.)

Plaintiff subsequently filed the operative SAC. In the SAC, Plaintiff alleges that Google defrauded him “by providing an option in their app of a Toll free trip” when “[he] did not encounter a trip without a toll.” (SAC, p. 1:26-27.) He alleges that “the trip was with a toll and [he] had to pay from [his] pocket … $102.40 and $101.96 … .” (Id. at p. 1:27-28.)

Plaintiff further alleges that “[n]o where [(sic)] in the App it mentions that even if you choose no tolls you might still end up paying for the tolls … .” (Sic.) (SAC, p. 2:10-11.) Specifically, Plaintiff pleads that: “Google did a misrepresentation (no where Google mentioned in the App that even after selecting no tolls [he would] still have to pay for the tolls” (sic); “[e]ven on youtube while promoting Google Maps, Google never informs the customers that they will end up getting tolls even after selecting no Tolls in the App)” (sic); “Google … knew that people who are following Google Maps might still have to pay for the tolls but Google did not tell the Customers of the Google intentionally” (sic); “Google did intend to defraud by ignoring [his] complain [(sic)] and not providing [him] the tolls costs … even after complaining” (sic); “[he] justifiably relied on Google Maps as it is a big company and advertises everywhere, and they do promote themselves heavily, they ask people in every advertisement to believe in their products” (sic); and he suffered damages in the form of the toll charges, high blood pressure, mental frustration, and court costs. (Id. at pp. 2:23-3:6.)

Plaintiff goes on to plead that the “[a]lleged misrepresentation was made to [him] in all the advertisement [(sic)] of Google Maps on all forms of media including youtube and TV Commercials.” (SAC, p. 3:10-11.) He states that the “[f]raud is predicated on [m]isrepresentation when [he] wasn’t told before making the trip that [he] will still end up paying for the tolls instead of selecting ‘No tolls’.” (Sic.) (Id. at p. 3:12-13.) Plaintiff alleges that “Google knew at the time of misrepresentation that it [was] false as it never stated that [he would] still end up getting tolls even after selecting no tolls … .” (Id. at p. 3:16-18.) He further alleges that Google’s “intent was to do fraud … .” (Id. at p. 3:19-20.)

On June 12, 2018, Google filed the instant demurrer to the SAC. Plaintiff filed papers in opposition to the demurrer on July 23, 2018. On October 18, 2018, Google filed a reply.

Discussion

Google demurs to the SAC 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

As an initial matter, Google asks the Court to take judicial notice of: the Google Maps/Google Earth Additional Terms of Service and the Google Terms of Service (collectively, “Google Terms”) as they existed on September 26, 2017; the FAC; and Plaintiff’s opposition to its demurrer to the FAC.

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364.) Matters subject to judicial notice are listed in Evidence Code sections 451 and 452. (Id. at p. 364.)

Here, the FAC and Plaintiff’s opposition to Google’s demurrer to the FAC are proper subjects of judicial notice as they are court records, which are generally relevant to issues raised in the pending demurrer. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People v. Woodell (1998) 17 Cal.4th 969B, 455 [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’ ”].)

Next, the Google Terms may be judicially noticed as they are published to the public on Google’s web site and Plaintiff does not argue, or otherwise show, that the terms are subject to reasonable dispute. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760–761 [taking judicial notice of a P & A Agreement published on the official FDIC web site]; see also Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 821–837 [taking judicial notice of the manner in which eBay described its operations from its web site].)

Accordingly, Google’s request for judicial notice is GRANTED as to the existence of the FAC, Plaintiff’s opposition to Google’s demurrer to the FAC, and the Google Terms.

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.

“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 and the SAC continues to suffer from defects identified in the court order on Google’s demurrer to the FAC.

First, although it can be inferred from Plaintiff’s allegations that Google misrepresented to Plaintiff that the route or routes displayed on Google Maps were toll-free, 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 (West) [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]). Similarly, to the extent the claim for fraud is based on Google’s alleged nondisclosure of facts, Plaintiff fails to allege sufficient facts showing when the misleading or false misrepresentations giving rise to the duty to disclose were made. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 [if the alleged duty to disclose arises from the making of representations that were misleading or false, then those allegations should be pleaded with particularity] citing Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.)

Additionally, Plaintiff does not sufficiently plead facts showing that he actually relied on the alleged misrepresentation or nondisclosure. In the SAC, Plaintiff alleges that Google provided “an option in their app of a Toll free trip”; Google did not advise him that toll charges might still be incurred even if the “no tolls” option was selected; “[he] did not encounter a trip without a toll”; and he incurred toll charges for the trip or trips that he took. (SAC, pp. 1:26-28, 2:10-11, 2:23-3:6, 3:12-18.) Plaintiff also alleges, in conclusory manner, that he relied on Google’s alleged misrepresentation or nondisclosure. However, these allegations do not establish actual reliance. Plaintiff does not allege that he followed the “no tolls” route identified in Google Maps. Furthermore, he does not allege that he followed the “no tolls” route identified in Google Maps in reliance on Google’s alleged misrepresentation or disclosure. There are no allegations in the SAC that Plaintiff would have taken a different, toll-free route absent Google’s alleged misrepresentation or nondisclosure. Additionally, Plaintiff does not allege that he incurred the subject tolls while following the “no tolls” route identified in Google Maps. Consequently, Plaintiff has not adequately pleaded actual reliance.

Next, Plaintiff still fails to allege facts demonstrating that that Google knew the misrepresentation or nondisclosure was false at the time it was made. (West, supra, 214 Cal.App.4th at p. 792 [one of the elements of fraud that a plaintiff must plead is that the defendant knew the representation was false at the time it was made].) With respect to Google’s knowledge of falsity, Plaintiff alleges generally that “Google … knew that people who are following Google Maps might still have to pay for the tolls … .” (SAC, p. 2:26-27.) This allegation is insufficient because Plaintiff does not state that Google possessed this knowledge at the time the alleged misrepresentation or nondisclosure was made. Plaintiff further alleges that “Google knew at the time of misrepresentation that it [was] false as it never stated that [he would] still end up getting the tolls even after selecting no tolls … .” (Sic.) (Id. at p. 3:16-18.) However, the alleged fact that Google did not disclose to Plaintiff that he would “still end up getting tolls even after selecting no tolls,” in and of itself, does not demonstrate that Google’s alleged representation that the route was toll-free was knowingly false that the time it was made.

Notably, Plaintiff previously had opportunities to correct the aforementioned defects, but failed to do so. Although Plaintiff’s opposition suggests that Plaintiff might be able to allege facts regarding when the alleged misrepresentation or misleading statement was made, Plaintiff does not demonstrate that the remaining defects can be cured by amendment. Thus, leave to amend is not warranted. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 544 [“the plaintiff must demonstrate a reasonable possibility that the complaint’s defects can be cured by amendment”]; see also Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1097 [appellate court determined that trial court did not abuse its discretion in sustaining a demurrer without leave to amend after plaintiff had previous opportunities to amend the complaint].)

For these reasons, Google’s demurrer to the SAC is SUSTAINED, without leave to amend.