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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIAGARY BLACK and HOLLI BEAM-BLACK,Plaintiffs,v.GOOGLE INC.,Defendant./No. 10-02381 CWORDER GRANTINGDEFENDANT’SMOTION TO DISMISSAND DENYING ASMOOT PLAINTIFFS’MOTION FORJUDGMENT ON THEPLEADINGS(Docket Nos. 10and 15)Plaintiffs Gary Black and Holli Beam-Black, who are proceedingpro se, plead several claims against Defendant Google Inc. relatedto an anonymous “online comment” on Defendant’s website. Defendantmoves to dismiss their claims. Plaintiffs oppose Defendant’smotion and move for judgment on the pleadings. The motions weretaken under submission on the papers. Having considered the paperssubmitted by the parties, the Court GRANTS Defendant’s motion todismiss and DENIES as moot Plaintiffs’ motion for judgment on thepleadings.BACKGROUNDPlaintiffs, who are husband and wife, allege that they aresole proprietors of Cal Bay Construction and Castle Roofing. Bothbusinesses appear to provide roofing services.They allege that, on or about October 20, 2009, an anonymous
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2defamatory comment was posted on Defendant’s website about Cal BayConstruction. They aver that the comment misrepresents their workand has devastated their businesses.According to Plaintiffs, Defendant enables any “member of thegeneral public or the Defendant, Google, Inc., . . . to post abusinesses name, address, and phone number upon the Defendant’swebsite then defame anonymously in review of that business.”Compl. ¶ 18. Plaintiffs plead that they undertook several effortsto have Defendant remove the comment.Plaintiffs claim that they have been “emotionally disturbed”by Defendant’s conduct and that their businesses “were sufferingfinancially on a daily basis from the on line defamation.” Compl.¶ 28. They plead six causes of action: (1) a “Breach of Authority”claim for violations of 15 U.S.C. §§ 45(a) and 53(a)-(b);(2) breach of contract; (3) unfair business practices and falseadvertising in violation of 15 U.S.C. §§ 45(a)(1)-(2) and 53(a)-(b); (4) negligence; (5) misrepresentation; and (6) intentionalinfliction of emotional distress.LEGAL STANDARDA complaint must contain a “short and plain statement of theclaim showing that the pleader is entitled to relief.” Fed. R.Civ. P. 8(a). Dismissal under Rule 12(b)(6) for failure to state aclaim is appropriate only when the complaint does not give thedefendant fair notice of a legally cognizable claim and the groundson which it rests. Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 555(2007). In considering whether the complaint is sufficient tostate a claim, the court will take all material allegations as true
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3and construe them in the light most favorable to the plaintiff. NLIndus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).However, this principle is inapplicable to legal conclusions.“Threadbare recitals of the elements of a cause of action,supported by mere conclusory statements,” are not taken as true.Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009)(citing Twombly, 550 U.S. at 555).When granting a motion to dismiss, the court is generallyrequired to grant the plaintiff leave to amend, even if no requestto amend the pleading was made, unless amendment would be futile.Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendmentwould be futile, the court examines whether the complaint could beamended to cure the defect requiring dismissal “withoutcontradicting any of the allegations of [the] original complaint.”Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).Leave to amend should be liberally granted, but an amendedcomplaint cannot allege facts inconsistent with the challengedpleading. Id. at 296-97.DISCUSSIONDefendant asserts that, under the Communications Decency Actof 1996 (CDA), it is immune from Plaintiffs’ action and that, inthe alternative, Plaintiffs fail to state claims upon which reliefcan be granted.“Section 230 of the CDA immunizes providers of interactivecomputer services against liability arising from content created bythird parties: ‘No provider . . . of an interactive computer
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