Golzarifar v. Google LLC CA2/1

Filed 11/18/20 Golzarifar v. Google LLC CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

FRED H. GOLZARIFAR, B301134

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 19STCV11588)

v.

GOOGLE LLC,

Defendant and Respondent.

APPEAL from an order of the Superior Court of

Los Angeles County, Dennis J. Landin, Judge. Dismissed.

Fred H. Golzarifar, in pro per., for Plaintiff and Appellant.

Wilson Sonsini Goodrich & Rosati, David H. Kramer and

Kelly M. Knoll for Defendant and Respondent.

____________________________

In his operative pleading, appellant Fred H. Golzarifar,

who is in propria persona, sued Google LLC (Google) seeking a

minimum of $50 million in damages for unspecified privacy

violations by defendant Google. We dismiss the appeal because

Golzarifar has not appealed from an appealable order or

judgment.

BACKGROUND

1. Golzarifar’s First Amended Complaint

Golzarifar’s operative pleading—his first amended

complaint—claims emotional distress and invasion of privacy.1

That complaint is on a Judicial Council form for personal injury

claims. Besides citing to state and federal statutes and the

United States Constitution, the only allegations in his complaint

are:

“1. Emotional Distress; include [sic] (but not limited to)

pain, suffering, inconvenience, mental stress or suffering,

emotional distress, loss of society and companionship, loss of

consortium, injury to reputation and humiliation.”

“2. Invasion of Privacy[.]” The first amended complaint

has no allegations referencing Google or any Google service.

1 His original complaint contained claims for emotional

distress and “privacy infractions (Invasion of Privacy)” in which

he alleged these causes of action were “caused by tracking

surveillance, transparency and visual practices by Google

services . . . .” Google filed a demurrer arguing inter alia the

complaint was so uncertain that Google could not discern of what

misconduct it was being accused. Golzarifar opposed the

demurrer and then filed his first amended complaint.

2

Golzarifar requests damages of at least $50 million, and

attached a statement of damages seeking $2 million for each of

pain and suffering and emotional distress; $1 million for

“Invasion of Privacy/Privacy Violation”; and $4 million in

punitive damages. He also checked the “Other” box but did not

designate any dollar amount for that category of claimed

damages.

Two days before Google’s timely demurrer, Golzarifar filed

an “affidavit for entry of default” requesting a default judgment

in his favor.2 (Capitalization omitted.)

2. Google Demurred to the First Amended Complaint

and Golzarifar Opposed the Demurrer

Google demurred to the first amended complaint

contending, among other things, that the first amended

complaint does not state facts sufficient to constitute a cause of

action and that it is uncertain. Golzarifar did not include

Google’s memorandum of points and authorities in support of the

demurrer in the appellate record. Golzarifar opposed the

demurrer, which is in the record. In his opposition, Golzarifar

stated he suffered stress and anxiety and provided Internet links

to various Google “consumer services.” Golzarifar also cited to

several statutes, but failed to tether any of them to the

allegations in the first amended complaint. In his opposition to

Google’s demurrer, Golzarifar requested that the trial court enter

a default judgment in his favor.

2 The record shows that Google’s demurrer was filed

within 30 days of service of the amended complaint. It was thus

timely under Code of Civil Procedure section 471.5,

subdivision (a).

3

3. The Trial Court Sustained the Demurrer

The trial court sustained Google’s demurrer to the first

amended complaint without leave to amend. There are two

orders sustaining the demurrer. In an unsigned minute order,

the trial court sustained the demurrer without leave to amend

and ordered the lawsuit dismissed without prejudice.

In the signed order, the trial court explained: The first

amended complaint “is utterly devoid of any legal theories or

factual basis for his claims. Plaintiff fails to identify or describe

any factual allegations to show why Defendant is liable to

Plaintiff for ‘emotional distress and invasion of privacy.’

[Citation.] Plaintiff’s FAC is simply uncertain, ambiguous, and

unintelligible.” In its conclusion, the court stated, “Defendant’s

demurrer to Plaintiff’s FAC is SUSTAINED WITHOUT LEAVE

TO AMEND.” The signed order did not dismiss the case. The

trial court then vacated the hearing on Golzarifar’s request to

enter a default judgment.

4. The Trial Court Denies Golzarifar’s Motion for

Reconsideration

Golzarifar then filed a motion for reconsideration, stylized

as “motion for reconsideration/and request to vacate dismissal,

judgment/order.” (Boldface & capitalization omitted.) Golzarifar

stated that he “files this MOTION TO RECONSIDER/MOTION

TO VACATE JUDGMENT, ORDER or DISMISSAL . . . based

upon new and different facts, circumstances, or law . . . .”

Golzarifar, however, identified no new or different facts,

circumstances, or laws. Instead, Golzarifar provided various

links to Google’s products and services and identified other

lawsuits against Google.

4

The following is the entirety of Golzarifar’s declaration in

support of his motion for reconsideration: “On April 3, 2019,

Plaintiff Fred H. Golzarifar filed a complaint and summons

against Defendant ‘Google Inc.’ The defendant has been served

with copy of documents on April 9, 2019. A response to Summons

and Complaint was due on May 9, 2019.

“On May 9, 2019, Defendant ‘Google LLC’ filed a demurrer

to Plaintiff’s original complaint along with Notice of Motion on

date June 12, 2019,

“On May 20, 2019, Plaintiff filed his First Amended

Complaint. Defendant has filed a demurrer to First Amended

Complaint on June 19, 2019. On June 28, 2019 Plaintiff filed an

opposition to Defendant’s Demurrer to Plaintiff’s First Amended

Complaint. On July 23, 2019 at the hearing of Defendant’s

Demurrer, Judge Dennis J. Landin Susitained [sic] Defendant’s

Demurer without leave to amend and therefore dismissed the

case.

“Plaintiff hereby Requests that the court to reconsider and

to vacate the judgment/order for and vacate dismissal upon new

facts and causes of actions stated, along with this Declaration

and Notice of Motion.”

After taking it under submission, the trial court denied

Golzarifar’s motion for reconsideration. The court stated

“Plaintiff fail[ed] to present any ‘new or different facts,

circumstances, or law’ that could provide a basis for reaching a

determination different from the one this Court reached . . . .”

“It remains unchanged that Plaintiff’s three-sentence Complaint

is utterly devoid of any legal theories or factual basis for his

claims. Disagreement with a ruling is not a new fact that will

support the granting of a motion for reconsideration.” Finally,

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regarding Golzarifar’s request for leave to file a second amended

complaint, the trial court wrote that a motion for reconsideration

was not a “proper vehicle” for that request, and stated it had

already sustained Google’s demurrer without leave to amend

“because there was no showing of reasonable possibility of cure

by amendment.”

5. Golzarifar’s Appeal

Golzarifar filed a notice of appeal on September 16, 2019.

In his notice of appeal, Golzarifar states that he is appealing from

an order entered on September 5, 2019. The September 5, 2019

order memorializes the trial court’s denial of Golzarifar’s motion

for reconsideration. Golzarifar further stated that he was

appealing from the “Motion for Reconsideration, Motion to Vacate

Dismissal, Judgment/Order,” which was the title of his motion for

reconsideration. (Boldface omitted.)

Thus, the only order referenced in the notice of appeal is

the denial of Golzarifar’s motion for reconsideration. Golzarifar

did not check the box indicating that he was appealing from a

“[j]udgment of dismissal after an order sustaining a demurrer.”

In his brief on appeal, Golzarifar states: “This appeal is from the

judgment of the Los Angeles County Superior Court and is

authorized by the Code of Civil Procedure, section 904.1,

subdivision (a)(1).” 3 The notice of appeal nowhere references a

judgment other than in the title of Golzarifar’s motion for

reconsideration.

3 Code of Civil Procedure section 904.1, subdivision (a)(1)

provides in pertinent part: “(a) An appeal . . . may be taken from

any of the following: [¶] (1) From a judgment . . . .”

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DISCUSSION

A. Golzarifar Identifies No Appealable Order or

Judgment

Our direct appellate jurisdiction is limited to appealable

judgments and orders. (Griset v. Fair Political Practices Com.

(2001) 25 Cal.4th 688, 696.) Absent a request for judicial notice,

which plaintiff has not made here, we cannot consider a fact

not supported by the record. (Lona v. Citibank, N.A. (2011)

202 Cal.App.4th 89, 102.) The only order referenced in

Golzarifar’s notice of appeal is the order dated September 5, 2019

denying his motion for reconsideration. An order denying a

motion for reconsideration is not a separately appealable order.

(Code Civ. Proc., § 1008, subd. (g).)4 As explained below,

Golzarifar’s notice of appeal designates only a nonappealable

order. (Uber Technologies, Inc. v. Google LLC (2018)

27 Cal.App.5th 953, 959 [“ ‘[I]f the order or judgment is not

appealable, the appeal must be dismissed.’ ”].)

In his opening brief, Golzarifar abandons any purported

appeal from the order denying his motion for reconsideration.

Golzarifar states: “This appeal is from the judgment of the

Los Angeles County Superior Court and is authorized by the

Code of Civil Procedure, section 904.1, subdivision (a)(1).)”

4 Code of Civil Procedure section 1008, subdivision (g)

provides: “An order denying a motion for reconsideration made

pursuant to subdivision (a) is not separately appealable.

However, if the order that was the subject of a motion for

reconsideration is appealable, the denial of the motion for

reconsideration is reviewable as part of an appeal from that

order.” There is no such other order in the record.

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Golzarifar’s new-found assertion that he is appealing

from a judgment does not rescue his appeal. First, the notice

of appeal defines the scope of the appeal. (Morton v. Wagner

(2007) 156 Cal.App.4th 963, 967; see Cal. Rules of Court,

rule 8.100(a)(2).) Even construing Golzarifar’s notice of appeal

liberally, it did not encompass a “[j]udgment of dismissal after an

order sustaining a demurrer” because Golzarifar neither checked

the box with that description or otherwise identified a judgment.

Golzarifar referenced only his motion for reconsideration,

identifying it by the title he gave it in the trial court.

Second, Golzarifar cites to no judgment, and the record on

appeal does not contain or reference one. Although the record

contains a signed order sustaining a demurrer, that order

does not dismiss the lawsuit as Code of Civil Procedure

section 581d requires for that order to constitute a judgment.

(Code Civ. Proc., § 581d [“All dismissals ordered by the court

shall be in the form of a written order signed by the court and

filed in the action and those orders when so filed shall constitute

judgments and be effective for all purposes, and the clerk shall

note those judgments in the register of actions in the case, ”

italics added; see also Powell v. County of Orange (2011)

197 Cal.App.4th 1573, 1578–1579 [an unsigned order of

dismissal is not effective as a judgment].) Therefore, there is

no judgment for our review, and we dismiss Golzarifar’s appeal.

(Uber Technologies, Inc. v. Google LLC, supra, 27 Cal.App.5th

at p. 959.)

Finally, Golzarifar does not purport to appeal from the

order sustaining the demurrer. Even if he did, such an order

would not be appealable. (Singhania v. Uttarwar (2006)

136 Cal.App.4th 416, 425.)

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B. Golzarifar Does Not State A Cause of Action in His

First Amended Complaint

We recognize that Golzarifar can return to the trial court to

request a judgment, and that we might then be presented with a

judgment. Such an appeal, however, would be futile given the

utter absence of factual allegations in the first amended

complaint and Golzarifar’s demonstrated inability to amend his

pleading to state a viable cause of action. In the interests of

judicial economy, we thus turn briefly to the merits of the

demurrer.

“ ‘In reviewing an order sustaining a demurrer, we examine

the operative complaint de novo to determine whether it alleges

facts sufficient to state a cause of action under any legal theory.

[Citation.] Where the demurrer was sustained without leave to

amend, we consider whether the plaintiff could cure the defect by

an amendment.’ [Citations.] When evaluating the complaint,

‘we assume the truth of the allegations.’ [Citations.] . . . [¶] A

trial court abuses its discretion by sustaining a demurrer without

leave to amend where ‘ “there is a reasonable possibility that the

defect can be cured by amendment.” ’ ” (Heshejin v. Rostami

(2020) 54 Cal.App.5th 984, 992.) “ ‘ “The plaintiff has the burden

of proving that [an] amendment would cure the legal defect, and

may [even] meet this burden [for the first time] on appeal.” ’ ”

(Ibid.)

Importantly, “plaintiff must set forth factual allegations

that sufficiently state all required elements of that cause of

action.” (Rakestraw v. California Physicians’ Service (2000)

81 Cal.App.4th 39, 43; Code Civ. Proc., § 425.10, subd. (a)(1).)

Even assuming arguendo his claim for emotional distress

damages could be construed as a tort claim for infliction of

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emotional distress, Golzarifar fails to allege facts that would

support the elements of that cause of action. Golzarifar,

moreover, fails to identify what wrongdoing Google did that

caused his purported emotional distress. As such, his claim of

“emotional distress” fails to state a cause of action and is fatally

uncertain.

As for his second cause of action, the only allegation

Golzarifar makes is naming his second cause of action “invasion

of privacy.” Golzarifar alleges no facts in support of that cause of

action. He thus fails to provide the required “statement of the

facts constituting the cause of action, in ordinary and concise

language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)

Golzarifar has not shown a “reasonable possibility” that he

can cure these defects in the first amended complaint. (Smyth v.

Berman (2019) 31 Cal.App.5th 183, 191.) Golzarifar has had two

chances to file a viable complaint and has been on notice of the

deficiencies in his original complaint when defendant first

demurred to that pleading. Still, his second complaint—the one

before us—is arguably even more uncertain than his original

complaint. Golzarifar states that a “new amendment complaint

shall also state new causes of actions and other facts” but proffers

no facts to rescue his causes of action from the depths of

uncertainty. “Where the appellant offers no allegations to

support the possibility of amendment and no legal authority

showing the viability of new causes of action, there is no basis for

finding the trial court abused its discretion when it sustained the

demurrer without leave to amend.”5 (Rakestraw v. California

5 We also observe that the statutes Golzarifar alleges in

the first amended complaint appear random with no apparent

connection to his causes of action or to any conduct by Google

10

Physicians’ Service, supra, 81 Cal.App.4th at p. 44.) The trial

court did not err in sustaining Google’s demurrer without leave to

amend.

Finally, in his opening brief, Golzarifar references his

requests for a default judgment. It appears that Golzarifar is

attempting to argue that the trial court should have entered a

default judgment in his favor before ever ruling on Google’s

demurrer. This argument does not rescue his appeal either. As

respondent points out, “a default judgment cannot properly be

based on a complaint which fails to state a cause of action . . . .”

(Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) In sum,

Golzarifar has failed to state a cause of action and to show that

the trial court erred in denying his motion for reconsideration.

On appeal, he also fails to show that he could amend the first

amended complaint to allege facts supporting a viable cause of

action.

given the absence of any reference to Google in the factual

allegations. For example, he cites to Penal Code section 637.5,

prohibiting certain acts by owners of cable and satellite television

corporations and Penal Code section 647, regarding disorderly

conduct, including soliciting prostitution, loitering in a public

toilet, and using a concealed camera to record under a person’s

clothing or a person who is partially or completely undressed.

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DISPOSITION

The appeal is dismissed. Costs are awarded to Google LLC.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court,

assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

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